Lloyd's Maritime and Commercial Law Quarterly
Fitting English maritime jurisdiction into Europe—or vice versa?
David Jackson 1
The critical issues are whether in the light of developments over the last 30 years: (i) the English principle of the dependence of jurisdiction on the fleeting and largely irrelevant connection of service of a claim form is defensible or desirable where a case has a foreign element
—there are almost no connections in statute or rule between service and jurisdiction and the process suffers from inherent uncertainty, first, because of the “appropriate forum” principle and, secondly, amendments to the Civil Procedure Rules relating to service; and (ii) the co-existence of that approach and that of the diametrically opposed approach of the Brussels Convention is defensible or desirable in which neither the appropriate forum nor service of a claim form has jurisdictional significance of any importance. The contention is that the principles of the Brussels regime show the way forward, both because of the approach and their likely expansion.
THE ISSUES
There is and has been almost no discussion of the traditional foundation stone of the jurisdiction of English courts as regards cases with a foreign element, i.e., service of a claim form. Outside the Brussels or Lugano Conventions it remains the foundation today but qualified as regards the exercise of jurisdiction by judicial discretion. Within the Conventions neither service nor discretion has much, if any, jurisdictional significance. So we enjoy (or endure) two diametrically opposed jurisdiction regimes.
The issues for discussion are:
- (i) is service of a claim form desirable or even defensible today as a jurisdictional ground?
- (ii) is the existence of two diametrically opposed regimes (inside and outside the Convention) desirable or defensible?
- (iii) Can the more recently accepted (and almost identical) Brussels and Lugano regimes2 teach us anything about the justifiability of retaining the traditional approach, particularly as to the predictability of jurisdiction?
1. Emeritus Professor of Law, University of Southampton. The article is based on the 18th Donald O’May Lecture of the Institute of Maritime Law, University of Southampton, given at the Baltic Exchange on 23 November 2000.
2. Implemented through the Civil Jurisdiction and Judgments Acts 1982, 1991 as amended, with the current text of the Brussels Convention being set out in SI 1990/2591 (as from 1 January 2001 in SI 2000/1824) and that of the Lugano Convention in Sched. 3C of the 1982 Act (inserted by the 1991 Act) as amended by SI 2000/1824.
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