International Conventions on Jurisdiction

International Conventions on Jurisdiction

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  Title II (arts. 2 to 24) determines the international jurisdiction (not matters of procedure which are local law) of courts in EU countries in “civil and commercial matters” (private law) subject to various exceptions.
  
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  General basis for jurisdiction is that the defendant’s domicile is in a contracting state (art. 2) – each state may define domicile and must respect other states’ definitions.
  
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  Defendant may be sued in the place of performance of the obligation (contract-related matters), the place where the harmful event occurred (tort-related matters), the place where the cargo or freight were arrested (cargo and freight claims)
  
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  Insurers may be sued in a Contracting State where they are domiciled, where the policy-holder is domiciled, or where the lead underwriter is sued (art. 8). Assureds, policy-holders and beneficiaries may only be sued in the Contracting State in which they are domiciled (art. 11) unless there is an agreement to the contrary (art. 12) or unless the policy covers marine or air transport risks (art. 12A). The rule does not apply to reinsurance.
  
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  Certain courts have exclusive jurisdiction over certain types of disputes (landlord/tenant, patent/trademark) (art. 16)
  
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  Choice of jurisdiction clauses are valid – must be in writing, or in a form which accords with generally accepted trade usage. Chosen Contracting State court has exclusive jurisdiction if one or more parties is domiciled in a Contracting State. Where neither party domiciled in a Contracting State, selected Contracting State court must first accept jurisdiction under its traditional jurisdictional rules (art. 17).
  
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  Defendant may submit to jurisdiction by entering an appearance, other than an appearance merely to contest jurisdiction or a substantive defense just in case (art. 18).
  
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  Contracting State court seized of the same cause of action between the same parties must decline jurisdiction where another Contracting State court has accepted jurisdiction (art. 21) and may stay proceedings or decline jurisdiction when another Contracting State court is first seized (art. 22). A Contracting State court retains jurisdiction, even if another Contracting State court also has jurisdiction (art. 23).
  
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  Contracting State lacking jurisdiction may grant interim relief (e.g., saisie conservatoire) if such a measure relates to matters within Convention (art. 24).
  
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  Other special jurisdictional rules on:
  

Consumer contracts (art. 13-15)

Maintenance claims (art. 5(2))

Restitution (art. 5(4)

Branch/agency relationships (art. 5(5))

Trusts (art. 5(6))

Individual employment contracts (arts. 5(1) and 17)
Lugano Convention 1988

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  Determines international jurisdiction of EU and European Free Trade Association (EFTA) courts in civil and commercial matters where defendant domiciled in a Contracting State or where a Contracting State has exclusive jurisdiction (art. 16) or jurisdiction under a choice of jurisdiction clause (art. 17)
  
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  In force for Finland, France, Italy, Ireland, Luxembourg, Netherlands, Norway, Portugal, Sweden, Switzerland, UK and open for accession by others.
  
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  Where defendant domiciled in EFTA Contracting State or where that State’s courts have jurisdiction under arts. 16 or 17, or where lis pendens or related actions taken in an EU and an EFTA state, Lugano Convention applies.
  
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  Where defendant domiciled in an EU Contracting State, Brussels Convention applies (art. 54(B)) European Court of Justice has no power to interpret the Lugano Convention by reference as it does under the Brussels Convention (although Preamble refers to desire to ensure uniform interpretation of Convention and EFTA members have agreed by declaration that reference to decisions of national courts and ECJ Brussels Convention decisions is appropriate when interpreting Lugano Convention.
  

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  “Anti-suit injunction” – an extraordinary procedure where a court issues an order to the effect that proceedings in a second jurisdiction should not proceed. The injunction is usually 1) based on the principle of forum non conveniens; and requires 2) that the first court is more convenient to the parties; 3) a motion of forum non conveniens has been made in the second jurisdiction and has failed; and 4) that the complainant will not be unduly disadvantaged by proceeding in the first jurisdiction.
  
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  Examples of the injunction are cases where real (immoveable) property in the first jurisdiction is involved or where there is a jurisdiction or arbitration clause calling for proceedings in the first jurisdiction or where a law of the first jurisdiction specifically forbids suit on a certain subject, e.g. claims for damages caused by asbestos produced in the first jurisdiction.
  

Suit in Texas by persons of many jurisdictions against B.C. company for asbestos damages caused in B.C. Forum non conveniens refused in Texas.

Relied on forum non conveniens.

Must have clearly more appropriate forum, i.e. forum conveniens.

The loss of a single advantage to claimants by suing in the second jurisdiction.

B.C. was not clearly the more appropriate forum in this case.

Anti-suit injunction refused in this case. 

Construction project in Quebec between Quebec and Minnesota Cos.

Joint venture contract between plaintiff and defendant, with Quebec arbitration clause.

Breach of contract and Minnesota company sues in Minnesota.

Minnesota court denies Quebec company’s motion to dismiss based on forum non conveniens, forcing Quebec company seeks anti-suit injunction in Quebec Superior Court.

Held

Relies on doctrine of forum non conveniens.

There is no proof that Minnesota is the more appropriate forum (i.e. that Minnesota is forum conveniens).

There is no proof that the Minnesota company would lose an advantage if the case went to arbitration in Canada.

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