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CHAPTER 21 Common law principles of jurisdiction

Civil Jurisdiction and Judgments

Page 389


Common law principles of jurisdiction

21.01 Introduction

In this Part of the book we examine what are sometimes called the traditional,1 or common law,2or non-Lugano, rules of jurisdiction.3 Whatever they are called – and the nomenclature seeks to make no point at all – they apply in two discrete areas which must be dealt with separately. They apply in cases which fall wholly outside the domain of the Lugano Convention,4 because they always did. We tend to refer to them in this context as ‘common law rules’, even though they are in fact an amalgam of common law, statute, procedural rule and inherent judicial power. They also did apply, do apply, or may apply (as the case may be) where this is provided for by Article 4 of the Lugano Convention. In this context they may be called ‘residual rules’ of Lugano jurisdiction. In the former case, the Convention makes no claim at all to regulate the jurisdiction of courts, and the jurisdictional rules set out in this chapter apply without modification unless some other statutory provision displaces them, such as the particular rules which may apply in insolvency proceedings, family law matters, and so on. In the latter case, the result of taking up and incorporating jurisdictional rules from national law into the Convention is that the rules undergo certain modifications, and their character is slightly changed: for example, they become subject to the provisions of the Convention on lis alibi pendens.5 But as they are, in the main, the rules which applied before the United Kingdom joined the European Union, this Chapter calls them the ‘traditional rules’. As said, though, the nomenclature does not aim to make a point.

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