Birr Jurisdiction And Arts.29 30 - Conflict of Laws

Jurisdiction = right of a court to adjudicate a dispute

A few theories

1. Territoriality: starting point, but insufficient

2. Sufficient connection: It is acceptable to take jurisdiction so long as there is a sufficient connection; this could take account of people and events outside territorial boundary. E.g.:

   1. Connections between C and the court, e.g. language (wanting to litigate in own language); access (easier to hire local lawyers, and knows local context). Litigatns often want to litigate in their home courts; this is understandable and not necessarily unfair.

   2. Usually connections of D, e.g. if D’s assets & residence is in State X, then she cannot complain about being sued there. This is usually a justification for general jurisdiction against D; usually it is held sufficient to establish jurisdiction.

   3. Subject-matter connection.

   4. Consent: usually a good justification.

   5. Collateral jurisdiction: where there are a lot of claimants or parties, then might want to hear all in one court despite poor connection between each individual & the jurisdiction.

3. Interest of the state: i.e. concerns about procedural & substantive justice.

History of the BIRR

1. 3 EU instruments culminated in the BIRR on jurisdiction & enforcement of judgments in civil and commercial matters which applies to proceedings commencing after 10 January 2015. It replaces the BIR 2001 and the Brussles Convention 1978.

2. The purpose of the Regulation is to promote & facilitate harmonized adjudication of civil & commercial claims throughout the EU and thereby promote the internal market (Arts.67(4) and 81 TFEU). More specifically, the Regulation (i) regulates civil jurisdiction within the EU, in particular harmonizing jurisdictional rules nad regulating conflicts of jurisdiction, and (ii) permits judgments of one MS to be recognised and enforced in other Member States (if one can enforce a German judgment, one is more likely to do business there). The CJEU has expanded the purpose & effect of the Brussels I Regime by interpreting it with greater emphasis on the wider policy of integration. Identifying the purpose is important as it aids our interpretation of its scope. Accordingly, the BIRR should be interpreted teleologically not literally.

3. ‘Mutual trust and confidence’ is at the heart of the EU endeavour; we treat each of the MSs’ judgments with complete confidence and do not scrutinise the content of those judgments.

4. Matters of interpretation of BIRR can be referred to the CJEU by any court (Art.267 TFEU) but must be made by the Supreme Court if the interpretation is not acte clair (i.e. absolutely clear). Aids to interpretation include the preliminary reports to the Brussels Convention (and the later Accession Conventions) and previous CJEU case law on the Brussels Convention and the BIR. However, these reports may be outdated, and there is no doctrine of binding precedent in EU law; the words of the Regulations have also changed.

   1. But the provisions of BIRR which are equivalent to previous Regulation are to be interpreted in the same way where the words are the same: Pula Parking v Tederahn.

   2. The CJEU commonly adopts an autonomous meaning of the Regulation, i.e. it interprets a term or concept in the Regulation without necessarily linking it to the legal system of a given EU Member State, e.g. the notion of ‘contract’ under the Regulation is interpreted autonomously and may not coincide with the understanding under the national legal systems of MSs. This is said to be a uniform meaning independent of the rules of the domestic legal systems.

   3. Courts, tribunals and judgments are given a wider definition than one might expect (Arts.2 & 3 BIRR).

5. Brexit: After the UK has left the EU, the BIRR rules will not apply as they depend on reciprocity to operate fairly between UK and EU parties to litigation.