Jurisdiction Under the Lugano Convention

The Lugano Convention 2007 is a separate instrument concluded between the EU Member States and the Lugano States. It has been fully in force amongst all the Brussels Regime States since 2011 and was preceded by the 1988 Lugano Convention.

As the Brussels I Recast also applies before the EU Member State courts to determine matters of jurisdiction as between the EU Member States themselves, the scope of the application of the Lugano Convention 2007 before the EU Member State courts is modified to preserve the application of that instrument. In short, before those courts, the Lugano Convention 2007, in matters of jurisdiction, finds application only where a defendant is domiciled in a Lugano State, the case involves exclusive jurisdiction of a Lugano State or the case involves a jurisdiction agreement in favour of a Lugano State. It also regulates matters of lis pendens before an EU Member State court where proceedings have been instituted in a Lugano State and the enforcement and recognition of a judgment from a Lugano State in an EU Member State.

Subject to that caveat, under the Lugano Convention 2007 and before the Brussels Regime States:

A court in a Brussels Regime State is, generally speaking, permitted to apply its own jurisdictional rules to decide whether or not to hear a case against a party domiciled in a non-Brussels Regime State (see When will a court take jurisdiction?).

But where a defendant domiciled in a Brussels Regime State is involved, the Lugano Convention 2007 establishes common jurisdictional rules in those states. In addition, certain rules of jurisdiction in the Lugano Convention 2007 are less contingent upon the defendant's domicile and so will also govern matters in cases to which their terms apply. In particular, these are the rules governing jurisdiction clauses in favour of a Brussels Regime State and cases of exclusive jurisdiction in favour of such a court (within the meaning of the third bullet point below).

  • The basic rule is that a defendant domiciled in a Brussels Regime State must be sued in the courts of that State. "Domicile" is governed by national law in the case of individuals whilst, in the case of companies, the Lugano Convention 2007 prescribes that this means its place of statutory seat, central administration or principal place of business.
  • there are additional places where such a defendant can be sued: in particular, in tort cases, the country where the harmful event (the act or the damage) occurred or may occur and, in contract cases, the country where the obligation in question was due to be performed;
  • in certain cases, a defendant may only be sued in a particular Brussels Regime State (and any jurisdiction clause to the contrary is ineffective) which is treated by the Lugano Convention 2007 as having “exclusive” jurisdiction over the dispute. The main examples are:

in a dispute concerning rights over, or tenancies of, land, the country where the land is situated, with certain exceptions for short-term tenancies);

in a dispute concerning the validity of intellectual property rights, the country of registration, and

in a dispute concerning a company's status or the validity of decisions of its organs, the country where the company has its seat.

  • a jurisdiction clause in favour of a Brussels Regime State court both confers jurisdiction on the court named and, if exclusive, takes away jurisdiction from any other Brussels Regime State. Under the Lugano Convention 2007, unless the parties have agreed a clause that provides for non-exclusive jurisdiction, jurisdiction will be treated as exclusive.

In respect of choices in favour of the English court, please click here to read our analysis of the potential impact of Brexit on the effect to be given to such a clause in both England and EU Member States/Lugano States and (in cases falling within the scope of the Hague Convention) non-EU Hague States.