This book covers jurisdiction in civil matters, recognition and enforcement of judgments and certain related issues both under the traditional rules of English law and under the European instruments—the Brussels I Regulation and the Lugano Convention. The Hague Convention on Choice of Court Agreements is not covered, though it is mentioned in passing.
Like many successful textbooks, Civil Jurisdiction and Judgments has developed significantly over the years, from its origins in 1993 as Norton Rose on Civil Jurisdiction and Judgments, a work of some 349 pages by Adrian Briggs and edited by Peter Rees, to its current 897 pages, now by Briggs alone.
There is no doubt that Briggs is the leading work on the subject in English today. Briggs's style is unmistakable: vigorous, fluent and focused, it is imbued with Briggs's own highly personal approach to law. The book is frequently cited by English courts and has been responsible for several developments in England, most notably the idea that damages can be claimed as a remedy for breach of a choice-of-court agreement. In this, as in other matters, Briggs has been influential. No responsible barrister or solicitor would give an opinion on the matters it addresses without consulting it.
In a book of this length, however, it would be surprising if there was nothing for a reviewer to question. On page 91 (and again on pages 443 and 451), Briggs says that the Hague Convention on Choice of Court Agreements will take effect under Article 67 of the Brussels I Regulation 2012. This is misleading, since it derives its legal effect from Article 216(2) of the Treaty on the Functioning of the European Union. Even if Brussels 2012, Article 67 did not exist, the Hague Convention would still be valid law. The same is true of the Lugano Convention.
Since an international agreement concluded by the EU is superior in the EU hierarchy of legal norms, it overrides an EU regulation in the event of a conflict, except to the extent that the agreement itself provides otherwise. If one wants to know when Brussels 2012 or Lugano 2007 applies, and when the Hague Convention applies, one must look to the text of the Hague Convention itself, which contains detailed provisions on the matter in Article 26. The purpose of Brussels 2012, Article 67 is not to deal with international agreements concluded by the Union, but to resolve conflicts with other EU regulations and with national legislation adopted to give effect to EU directives.
General EU law again becomes relevant with regard to the much debated question of the effect, in the courts of an EU Member State, of a choice-of-court agreement designating the courts of a State that is neither a Member State of the EU or a Party to the Lugano or Hague Conventions. If the courts of the EU State have jurisdiction under the Brussels Regulation—for example, because the defendant is domiciled there—are they permitted to decline jurisdiction in favour of the designated court? This question is discussed by Professor Briggs at pages 354–60.
Initially, it was thought that the courts of the EU State would be entitled to decline jurisdiction. This view was supported by the Schlosser Report and, subsequently, by the decision of the Court of Justice of the European Union (CJEU) in Coreck Maritime v Handelsveem. Both Schlosser and Coreck say that, in doing so, the court will apply its own rules of private international law.
This did not fit easily with the text of the Brussels Convention (subsequently the Brussels Regulation). The text said (and says) that if the defendant is domiciled in the Member State of the forum, the court ‘shall’ have jurisdiction. There is an exception with regard to choice-of-court agreements, but this applies only if the designated court is in a Member State. To solve this problem, some writers proposed the theory of ‘reflexive effect’, according to which the provisions of the Convention (Regulation) applicable to choice-of-court agreements designating the courts of other Member States should, despite their express words, be applied by analogy to choice-of-court agreements designating the courts of non-member States. Briggs rejects this theory: he stands by the proposition that the forum applies its own national rules of private international law (354–5). However, he subsequently accepts (358) that Member-State law can come into play only if the choice-of-court agreement complies with the rules of formal validity laid down in the Regulation.
The position changed in 2006 when the CJEU decided the Lugano case. This was a judgment of the Full Court consisting of no fewer than 21 judges. Coreck, by contrast, was a mere Chamber of only three. The Lugano case came to the CJEU under what was then Article 300(6) EC (now Article 218(11) TFEU). This provision was originally intended to prevent the Union from entering into agreements which were incompatible with the EU Treaties; however, it subsequently came to be used to prevent the Member States from concluding agreements which ought to have been concluded by the Union. This was the purpose for which it was invoked in the Lugano case.
The original Lugano Convention had been concluded (on the EU side) by the Member States alone: the EU was not a Party. The question before the CJEU was whether the Member States should continue to be Parties (this time together with the Union) or whether the Union alone would be a Party on the EU side (together with Denmark, which is in a special position by virtue of its ‘opt out’ Protocol).
Under EU law, now codified by Article 3(2) TFEU, the competence of the Union to conclude a proposed agreement is excusive if the agreement would affect an existing EU measure or alter its scope. The measure which it was claimed would be affected was the jurisdictional instrument in force at the time, Brussels 2000.
The CJEU held that this measure would be affected and that, as a result, the competence of the Union to conclude the new Lugano Convention was exclusive. Paragraph 153 of the judgment concerns the position where there is a choice-of-court agreement, concluded by parties one of whom is domiciled in an EU State, which designates the courts of a State which is a Party to Lugano but is not an EU Member State. It is assumed that the party domiciled in the EU is sued in the Member State of his domicile. In this situation, says the CJEU, the proposed convention would affect Brussels 2000 because without it the Member-State court would have jurisdiction but with it the designated court would have jurisdiction. This conclusion is clearly based on the premise that, in the absence of a convention such as Lugano, a choice-of-court agreement designating the courts of a non-member State has no effect.
Professor Briggs does not accept this. He says that since EU law cannot require the courts of a non-member State to accept jurisdiction under a choice-of-court agreement, it cannot reasonably require the courts of Member States to decline jurisdiction because of such an agreement (an argument against the ‘reflexive effect’ theory). Therefore, he says, Member-State law must decide whether, and in what circumstances, to give effect to such agreements (he assumes that effect must somehow be given to them). He then says (356) that if it is intended that EU law should direct a court of a non-member State to exercise jurisdiction, and also direct the Member-State court before which proceedings are brought to decline jurisdiction, there must be a direct jurisdictional rule, made in relation to the Lugano States, which would be mandatory for both courts. This explains why the Lugano Convention is a good thing. It does not, however, explain why the Convention falls within the exclusive competence of the Union. It does not explain why the old Lugano Convention could be concluded by the Member States but the new one had to be concluded by the Union.
These arguments would apply equally to the Hague Convention. Briggs's argument would explain why Hague is a good thing. It would not explain why the Union should have exclusive competence to conclude it. Originally it was assumed that Hague would be concluded by the Member States. After the Lugano case, however, it was agreed that the Union alone would conclude it. The reason was exactly the same: that the Hague Convention would affect the Brussels Regulation. This is expressly stated in Recital 4 of the EU Decision authorizing ratification of the Hague Convention.
This controversy shows why conflict of laws is such fun. Without people like Adrian Briggs to think up ingenious arguments for one point of view, it would not be possible for others to pick holes in them. This particular controversy may, however, be resolved fairly soon. The Supreme Court of Romania has now made a reference to the CJEU (Taser International) which will permit the latter, if it so wishes, to resolve it.
It will be apparent from what has been said that I have enjoyed reviewing this book. Briggs is always interesting, even when one does not agree with him.
