APPENDIX 2

The Brussels model

The Brussels model applies to in personam claims [51] in civil and commercial matters. [52] It regulates the jurisdiction of courts of first instance by setting out the circumstances in which a court can assume jurisdiction over a proceeding, based on the defendant's domicile. There are also special jurisdictional rules for certain types of proceedings. These apply even if the defendant is domiciled in another jurisdiction. Some of these rules give non-exclusive jurisdiction to a court and others confer exclusive jurisdiction. Whether a court can assume jurisdiction under a special rule involves deciding whether the proceeding is of a particular kind. Then any connecting factors specified in the rule must be applied. If, as is quite possible, courts in more than one State have jurisdiction, the model regulates priority between them on the basis that the court where proceedings first began has jurisdiction.

The model has very simple procedures for recognising judgments within its scope. Since the original assumption of jurisdiction is regulated, the resulting judgment can be enforced throughout the EU without further requirements. There are limited exceptions, for example a judgment does not have to be recognised where it is contrary to public policy in the State of recognition.

The following rules determine when a court can exercise jurisdiction:

  • The primary basis of jurisdiction is the domicile of the defendant. 'Domicile' is not defined but left to national law to determine. In the UK implementing legislation, [53] 'domicile' means residence in, and a substantial connection with, the UK. A substantial connection is presumed after three months' residence but this can be rebutted.
  • There are special jurisdictional rules for certain types of proceedings. For example, courts in the place where contractual obligations are performed have jurisdiction over contractual disputes.
  • There are areas of exclusive jurisdiction that displace the domicile rule. For example, the court of the place where immovable property (principally land) is situated has exclusive jurisdiction over proceedings concerning rights in rem in, or tenancies of, that property.
  • The assumption of jurisdiction is mandatory and a court which has jurisdiction under the rules must accept jurisdiction. As a consequence, leave to serve outside the jurisdiction is not appropriate. There is also no scope to apply forum non conveniens rules [54] between Contracting States.
  • A defendant who disputes jurisdiction can apply for an order that the court has no jurisdiction.
  • In those cases where there is more than one court with exclusive jurisdiction or proceedings are commenced in courts in different States, the court where proceedings were first begun deals with the matter first. The other court(s) must stay proceedings until the jurisdiction of the first court is established. Once that jurisdiction is established, the second court must decline jurisdiction.

A judgment given by a court of a Contracting State has the same force and effect, when it is registered in the appropriate court where it is to be enforced, as a judgment of the enforcing court. The same enforcement proceedings can be taken as for a judgment of the enforcing court.


Footnotes

51 An in personam claim is one brought against a person to do a particular thing (such as pay a debt) or not do something.

52 This does not extend to revenue, customs or administrative matters. It also does not apply to the status or legal capacity of natural persons, wills or succession, bankruptcy, winding up of insolvent companies or legal persons, social security or arbitration.

53 Civil Jurisdiction and Judgments Act 1982.

54 Forum non conveniens rules are the give-way rules that courts apply where another court could also hear a proceeding.