Jurisdiction
There are two issue raise in the question. First whether can UK court seise the
matter, if so, secondly whether can UK court stay for another member state / 3 rd party
state of Zambia. R is advising that there are two frameworks to find competence
court to seize the matter, which using Brussel Recast or English common law.
BR
To use Brussel Recast framework, D must be domiciled in a member state (Art.4(1)) and
subject matter of dispute must be civil and commercial (Art.1(1)).
1) Austria - Vienna 16) Latvia - Riga
2) Belgium - Brussel 17) Lithuania - Vilnius
3) Bulgaria -Sofia 18) Luxembourg - Luxembourg
4) Croatia - Zagreb 19) Malta - Valletta
5) Cyprus - Nicosia 20) Netherlands – Amsterdam (Dutch)
6) Czech - Prague 21) Poland – Warsaw
7) Denmark - Copenhagen 22) Portugal - Lisbon
8) Estonia - Tallinn 23) Romania - Bucharest
9) Finland - Helsinki 24) Slovakia - Bratislava
10) France – Paris 25) Slovenia - Ljubljana
11) Germany - Berlin 26) Spain - Madrid
12) Greece - Athens 27) Sweden - Stockholm
13) Hungary - Budapest 28) United Kingdom – London
14) Ireland - Dublin 29) Switzerland – Bern
15) Italy – Rome = Although Switzerland is non-
member state country but they
have signed European Free Trade
Association, thus subjecting to
Brussel Recast.
Individual (single domicile at a time) – D domicile in London, thus member state
defendant. ---- Guideline / Delegated Legislation from Schedule 1, Paragraph 9(2) &
9(6) of Civil Jurisdiction and Judgement Order 2001 (CJJO), provides D domicile
in UK with a minimum 3 months residence. In Bestolov v Povarenkin 2017, D was a
Russian, resided in Russia with a business there, he paid tax in Russia but visited his
wife and children in London. Despite lack of present in UK, D was deemed to have
English domiciliary.
Corporations (can have multiple domiciles at same point of time) – D as a
corporation, it is possible to have multiple domiciles at same point of time. It appears
that D has statutory seat at France and the fact D has small office in London, it
possible to argue as central administration or principle place of business (Art.63(1)),
however according to King v Crown Energy, central administration or principle
place of business is where heart of operations and chief or most important place of
doing business. Thus, small office in London unlike to satisfied this threshold. ---
Subsidiary in UK has gone insolvency so it’s irrelevant to decide on D’s domicile.
C’s domiciles - The fact C domicile in England is irrelevant to find jurisdiction (Josi v
UGCI).
Non-Ms D – D domicile in Saudi, thus he is non-member state, however Art.6(1)
provide exception for non-member state defendant to sue in member states court in
four limited situations - rights in rem, jurisdiction agreement, consumer contract and
employment contract.
2) SM of dispute must be civil and commercial
SM is CC – The subject matter of dispute on fact is tort, thus satisfied Art.1(1).
, Public Body (Individual) – However, D is governor/council of Saudi prison, thus
possible that D represent a country and if so, this action would be outside the realm
of Brussel Recast as matter relates to Public International Law (Netherlands v
Ruffer). Alternatively, if D exercising authority in their private capacity (ultra vires),
apply Sonntag v Waidmann matter within the scope of Brussel Recast.
Public Body (Company) - However, fumes emitted from power station, thus
possible that station belongs to government body, if so, this action would be outside
the realm of Brussel Recast as matter relates to Public International Law
(Netherlands v Ruffer). Alternatively, if public body exercising authority in their
private capacity (ultra vires), apply Sonntag v Waidmann matter within the scope of
Brussel Recast.
List of exclusion - non civil and commercial, BR inapplicable.
Art.1(2)a rights in property arising out of matrimonial relationships
o Cohabitation/GF/BF/Pre-marriage – Issue in relation to division of assets between
D and C does not fall within Art.1(2)(a) as First Da Cavel case, pre-marriage does not
fall within Art.1(2)a, thus matter is civil and commercial (Art.1(1)).
o Couples/During and Post Marriage - Issue in relation to division of assets between
D and C during their marriage or post marriage fall within Art.1(2)(a) (First Da Cavel),
thus matter is not civil and commercial.
o First Da Cavel case – scope of Art.1(2)(a) during a marriage & post marriage,
cohabitation not within Art.1(2)(a) thus Art.1(1) applies. Van Den Boogaard v
Laumen – division of assets within Art.1(2)(a), maintenances (pure money) not within
Art.1(2)(a) but within Art.1(2)(e).
Art.1(2)b bankruptcy proceedings –
o Issue in relation to bankruptcy proceeding is non civil and commercial matter
(Art.1(2)b) provided it directly and closely connect with bankruptcy (Gourdain v
Nadler). On the fact, C is suing D due to her husband’s bankruptcy to get order to
sell and evict D from the property, such matter does not fall within Art.1(2)b, it’s still
civil and commercial matter under Art.1(1) (Ashurt v Pollard). Further although there
is involvement of property and matrimonial relationship, but husband was not the one
bringing action against wife, thus right in property not arising out of matrimonial
relationship and Art.1(2)(a) also inapplicable.
o Ashurt v Pollard – H & W owned matrimonial property. Due to H’s bankruptcy.
Liquidator bring action against W to get order to sell the house and evict W from
house. Court held matter not within Art.1(2)(b). It was civil and commercial matter
under Art.1(1) as the matter not between H & W (H did not bring action against W)
despite involvement of property and matrimonial relationship.
Art.1(2)d arbitration
o Appoint Arbitrator - The appointment of an arbitrator is caught within Art.1(2)d, thus
it is not a civil and commercial matter (Marc Rich v Implanti).
o Validity of AA, Real Substance to Refund - On the fact, there is an arbitration
agreement to arbitrate in France, according to Art.1(2)d, arbitration matters are not a
civil and commercial matter. However, applying Allianz Spa v West Tankers,
although there is an arbitration agreement, the real substance of the claim is for the
refund of the deposit as a result of a void contract and as such Art.1(2)d is
inapplicable and matter governed by civil and commercial. Recital 12 to Art.1(2)d
provides that validity of arbitration agreement is still within scope of Brussel, thus if
agreement is valid then European court should stay in proceeding in favour of arbitral
tribunal (Ust-Kamenogorsk Hydropower Plant). However, if arbitration
agreement is void, European court can continue to decide on substance of case,
however, this will not prevent arbitral tribunal from hearing the matter as arbitral
tribunal can grant Anti-Suit Injunction on European Court (Gazprom). It is likely that
arbitration agreement is void as arbitration clause was found at back of contract
without any express reference to it (Salotti v RUWA). Since it is void, case can be
heard under Brussel.
There are two issue raise in the question. First whether can UK court seise the
matter, if so, secondly whether can UK court stay for another member state / 3 rd party
state of Zambia. R is advising that there are two frameworks to find competence
court to seize the matter, which using Brussel Recast or English common law.
BR
To use Brussel Recast framework, D must be domiciled in a member state (Art.4(1)) and
subject matter of dispute must be civil and commercial (Art.1(1)).
1) Austria - Vienna 16) Latvia - Riga
2) Belgium - Brussel 17) Lithuania - Vilnius
3) Bulgaria -Sofia 18) Luxembourg - Luxembourg
4) Croatia - Zagreb 19) Malta - Valletta
5) Cyprus - Nicosia 20) Netherlands – Amsterdam (Dutch)
6) Czech - Prague 21) Poland – Warsaw
7) Denmark - Copenhagen 22) Portugal - Lisbon
8) Estonia - Tallinn 23) Romania - Bucharest
9) Finland - Helsinki 24) Slovakia - Bratislava
10) France – Paris 25) Slovenia - Ljubljana
11) Germany - Berlin 26) Spain - Madrid
12) Greece - Athens 27) Sweden - Stockholm
13) Hungary - Budapest 28) United Kingdom – London
14) Ireland - Dublin 29) Switzerland – Bern
15) Italy – Rome = Although Switzerland is non-
member state country but they
have signed European Free Trade
Association, thus subjecting to
Brussel Recast.
Individual (single domicile at a time) – D domicile in London, thus member state
defendant. ---- Guideline / Delegated Legislation from Schedule 1, Paragraph 9(2) &
9(6) of Civil Jurisdiction and Judgement Order 2001 (CJJO), provides D domicile
in UK with a minimum 3 months residence. In Bestolov v Povarenkin 2017, D was a
Russian, resided in Russia with a business there, he paid tax in Russia but visited his
wife and children in London. Despite lack of present in UK, D was deemed to have
English domiciliary.
Corporations (can have multiple domiciles at same point of time) – D as a
corporation, it is possible to have multiple domiciles at same point of time. It appears
that D has statutory seat at France and the fact D has small office in London, it
possible to argue as central administration or principle place of business (Art.63(1)),
however according to King v Crown Energy, central administration or principle
place of business is where heart of operations and chief or most important place of
doing business. Thus, small office in London unlike to satisfied this threshold. ---
Subsidiary in UK has gone insolvency so it’s irrelevant to decide on D’s domicile.
C’s domiciles - The fact C domicile in England is irrelevant to find jurisdiction (Josi v
UGCI).
Non-Ms D – D domicile in Saudi, thus he is non-member state, however Art.6(1)
provide exception for non-member state defendant to sue in member states court in
four limited situations - rights in rem, jurisdiction agreement, consumer contract and
employment contract.
2) SM of dispute must be civil and commercial
SM is CC – The subject matter of dispute on fact is tort, thus satisfied Art.1(1).
, Public Body (Individual) – However, D is governor/council of Saudi prison, thus
possible that D represent a country and if so, this action would be outside the realm
of Brussel Recast as matter relates to Public International Law (Netherlands v
Ruffer). Alternatively, if D exercising authority in their private capacity (ultra vires),
apply Sonntag v Waidmann matter within the scope of Brussel Recast.
Public Body (Company) - However, fumes emitted from power station, thus
possible that station belongs to government body, if so, this action would be outside
the realm of Brussel Recast as matter relates to Public International Law
(Netherlands v Ruffer). Alternatively, if public body exercising authority in their
private capacity (ultra vires), apply Sonntag v Waidmann matter within the scope of
Brussel Recast.
List of exclusion - non civil and commercial, BR inapplicable.
Art.1(2)a rights in property arising out of matrimonial relationships
o Cohabitation/GF/BF/Pre-marriage – Issue in relation to division of assets between
D and C does not fall within Art.1(2)(a) as First Da Cavel case, pre-marriage does not
fall within Art.1(2)a, thus matter is civil and commercial (Art.1(1)).
o Couples/During and Post Marriage - Issue in relation to division of assets between
D and C during their marriage or post marriage fall within Art.1(2)(a) (First Da Cavel),
thus matter is not civil and commercial.
o First Da Cavel case – scope of Art.1(2)(a) during a marriage & post marriage,
cohabitation not within Art.1(2)(a) thus Art.1(1) applies. Van Den Boogaard v
Laumen – division of assets within Art.1(2)(a), maintenances (pure money) not within
Art.1(2)(a) but within Art.1(2)(e).
Art.1(2)b bankruptcy proceedings –
o Issue in relation to bankruptcy proceeding is non civil and commercial matter
(Art.1(2)b) provided it directly and closely connect with bankruptcy (Gourdain v
Nadler). On the fact, C is suing D due to her husband’s bankruptcy to get order to
sell and evict D from the property, such matter does not fall within Art.1(2)b, it’s still
civil and commercial matter under Art.1(1) (Ashurt v Pollard). Further although there
is involvement of property and matrimonial relationship, but husband was not the one
bringing action against wife, thus right in property not arising out of matrimonial
relationship and Art.1(2)(a) also inapplicable.
o Ashurt v Pollard – H & W owned matrimonial property. Due to H’s bankruptcy.
Liquidator bring action against W to get order to sell the house and evict W from
house. Court held matter not within Art.1(2)(b). It was civil and commercial matter
under Art.1(1) as the matter not between H & W (H did not bring action against W)
despite involvement of property and matrimonial relationship.
Art.1(2)d arbitration
o Appoint Arbitrator - The appointment of an arbitrator is caught within Art.1(2)d, thus
it is not a civil and commercial matter (Marc Rich v Implanti).
o Validity of AA, Real Substance to Refund - On the fact, there is an arbitration
agreement to arbitrate in France, according to Art.1(2)d, arbitration matters are not a
civil and commercial matter. However, applying Allianz Spa v West Tankers,
although there is an arbitration agreement, the real substance of the claim is for the
refund of the deposit as a result of a void contract and as such Art.1(2)d is
inapplicable and matter governed by civil and commercial. Recital 12 to Art.1(2)d
provides that validity of arbitration agreement is still within scope of Brussel, thus if
agreement is valid then European court should stay in proceeding in favour of arbitral
tribunal (Ust-Kamenogorsk Hydropower Plant). However, if arbitration
agreement is void, European court can continue to decide on substance of case,
however, this will not prevent arbitral tribunal from hearing the matter as arbitral
tribunal can grant Anti-Suit Injunction on European Court (Gazprom). It is likely that
arbitration agreement is void as arbitration clause was found at back of contract
without any express reference to it (Salotti v RUWA). Since it is void, case can be
heard under Brussel.
