When Will A Court Take Jurisdiction?

In general, the court in which a party wishes to sue will apply its own local rules to decide whether or not it has jurisdiction over a dispute. There is a basic split between:

• common law countries, in which the court:

◦ will take jurisdiction over a defendant if he can be served with the originating proceedings (in the country or, with permission of the court, outside the country), but

◦ retains a discretion to decline jurisdiction if it decides that the case should more appropriately be decided by some other court, and

• civil law countries, in which the court:

◦ will accept jurisdiction only in certain specified circumstances, but

◦ has no general discretionary power to decline jurisdiction.

A valid jurisdiction clause in favour of a civil law court is one of the circumstances which entitle that court to take jurisdiction. The same is true for a common law court. The difference is that if a claimant sues in a civil law court in reliance on a jurisdiction clause and no prescribed circumstances exist allowing it to decline jurisdiction, the civil law court will be bound to hear the case, whereas a common law court will retain the ability to decide that, in spite of the clause, the case should be heard elsewhere.

In the EU Member States, the taking of jurisdiction is generally regulated by the Brussels I Recast. As a result, unless that instrument prescribes otherwise (see Jurisdiction under the Regulation), a civil law approach to taking jurisdiction is followed across the EU. The same is true of matters before the Lugano States where the taking of jurisdiction is generally regulated by the Lugano Convention (which also regulates jurisdictional matters as between the EU Member States and Lugano States). Furthermore, in Hague Contracting States and in cases where the Hague Convention on Choice of Court Agreements otherwise applies, that instrument prescribes a civil law approach to the type of jurisdiction clause within its scope.

Note: If you are considering issuing proceedings in a forum open to you there can be significant tactical advantages in ensuring that you are quicker off the mark than your opponent. If it has already seised its favoured court by the time you act then, for example.

• As between the Brussels Regime States there are rules which may prevent you from commencing proceedings in another court. As amongst EU Member State Courts these have been mitigated in the case of exclusive jurisdiction clauses in favour of another EU Member State (see Proceedings brought in breach of an exclusive jurisdiction clause) but, otherwise, such rules may apply.
• In the case of an EU Member State which would have jurisdiction under the Brussels I Recast (see Jurisdiction under the Regulation), certain rules in that instrument mean that if it is faced with a case involving jurisdictional factors in favour of a non-Brussels Regime State, and where the Hague Convention on Choice of Court Agreements does not apply, it is more likely to be able to stay its proceedings in favour of the non-Brussels Regime state if proceedings have been commenced there first. See “New rules concerning non-EU lis pendens” in this publication for more on this.
• Elsewhere, the impact of proceedings commenced first in another court may influence the taking of jurisdiction under local laws. In common law courts, for example, it is a potential factor to be considered in the exercise of discretion as to whether to accept jurisdiction.