(1 )Natural person
Article 2 of the Regulation provides that “persons domiciled in a Member State shall, what ever their nationality is, be sued in the courts of that Member State.” This means that the principle adopted in which the defendant can be sued is his domicile state if it is a Contracting State. For example, if the defendant, at the date of determination of domicile which is of the institution of proceedings, is domiciled in the UK according to the law of the UK, he may be sued in the UK. For this reason, it is crucial to identify the defendant’s domicile at the moment of the issue of proceeding, and reference must be made to the Article 59 and Article 60 of the Regulation which are not considered to be a comprehensive definition of domicile. Furthermore, in cases where the defendant is domiciled in the UK, it is for the court to look at the Modified Regulation in order to ascertain the competent one among the courts of England, Scotland and Northern Ireland.
Article 59 of the Regulation provides some instructions dealing with the question of which Member State’s definition of domicile is to be used. The First paragraph states that the courts of the Member State seized of the matter shall apply their own definition of domicile to determine whether a party is domiciles in that Member State. In order to determine whether a party is domiciles in another Member State, the second paragraph requires a court applying the law of that State. Such a provision is considered to be not satisfactory within the context of the Judgment Regulation. Domicile represents a factual connection of sufficient importance to justify the exercise of jurisdiction by the courts of the Member State and a person may certainly have such a connection with two or more Member States at the same time (Civil Jurisdiction and Judgment, Para 2.112). Moreover, for an English court what common law usually means by domicile is far removed from that the means of civil law, and such discrepancy brings difficulties for the English judges to fully understand foreign unfamiliar legal concepts and principles. In the UK, Paragraph 9 of Schedule 1 to the 2001 Order specifies the rules which determine whether an individual has a domicile in the UK according to the Regulation definitions. For an individual regarded as being domiciled in the UK, first he must reside there then the nature and circumstances of his residence must indicate he has a substantial connection with the UK. In other words, for the most understanding of the term domicile, it is equated with the state where a person is resident and the nature and circumstances of his residence indicate that he has a substantial connection with it. Furthermore, it is for the claimant to show a good arguable case that the defendant is domiciled in a particular State.
References are also given to Article 60 of the Regulation in determining where a company’s place of domicile is. Different from the approach that Article 59 adopted, Article 60 is designed “to make the common rules more transparent and to avoid conflicts of jurisdiction”. For such a reason, this article gives an autonomous definition to the concept of the domicile of a company, rather than leave it to be determined by Member States applying their rules of private international law. Paragraph (1) then provides that: accompany or other legal person or association of natural of legal persons is domiciled at the place where it has its statutory seat, or central administration, or principal place of business. According to the wording, there are two problems need to be noticed. Firstly, in principle, there is a risk that a company can be ascertained to have domiciled in more than one country under the Regulation since there are alternatives provided by the provision. Secondly, the concepts of the “statutory seat”, “central administration” and “principal place of business” of a company are not clearly given further autonomous meanings in the text. Some of them are well known in civil law systems, but not regularly referred to by English or Irish courts, which tend to refer to the place of incorporation of a company. Article 60 (2) caters for this difference by stating that: “For the purpose of the United Kingdom and Ireland “statutory seat” means the registered office or, where there is no such office anywhere, the place of incorporation or, where there is no such place anywhere, the place under the law of which the formation took place.” It is also a good way to look at the case law dealt under the corresponding Article 48 terms (of the EC treaty) when ascertaining the meaning of the terms used in Article 60.
2.1.3 Lis pendens
If according to the fact that the defendant domiciled in a non-Member State, and if none of the primary provisions has operated to allocate jurisdiction to the courts of a Member State, Article 4 of the Regulation permits and requires a court to exercise the jurisdiction which its own national or common law permits it to use in relation to such a defendant. In such a case the jurisdiction, being authorized by the Regulation, must be exercised subject to such further conditions, such as to lis pendens in other Member States, and as to the discretionary refusal to exercise jurisdiction as the Regulation may impose. With such significance, the Lis pendens rule needed to be mention below.
Titled with “Lis pendens - related actions” Article 27 of the Regulation states that,
“1. Where proceedings involving the same causes of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall stay its proceedings of its own motion until such time that the jurisdiction of the court first seised is established.
2. Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.”
Such a rule is operating as if a privilege in the European jurisdiction system and other exclusive jurisdiction conferred under Article 22 on a court of a Member State. It overrides all other types of jurisdiction prescribed in the Regulation in the circumstance where there is another court of a Member State seised the claim first. Article 27 obliges a court to stay its proceedings until the court seised first has decided whether it has jurisdiction, and then to dismiss its proceedings if the court first seised confirm its jurisdiction. The only possible exception foreseen by the Court was if the court seised second has exclusive jurisdiction, “in particular” that derived from what is now in Article 22.
In cases not concerning exclusive jurisdiction under Article 22 conferred upon a court, according to the decision of the ECJ in Overseas Union Insurance Ltd v New Hampshire Insurance Co, the court seised second may not take jurisdiction upon the basis of the view that the court seised first should not have done so. This understanding seems less feasible in cases in relation to Article 23 where the first seised court is not the one agreed by the parties in their jurisdiction agreement. This is because it was for some time unclear whether a court could properly act in a similar fashion if it considered itself to have, and the court seised first not to have, jurisdiction based upon a choice of court agreement validated by Article 23. However, the exception spelled out in Overseas Union Insurance should still apply only to jurisdiction founded upon Article 22, and it would not be open to the court seised second to act upon the view that is has jurisdiction under Article 23. The reason is given by the ECJ which observed that the court seised first was capable, or better than the court seised second to determine which court had jurisdiction: the court seised second is not to be supposed to be better placed to decide whether there is an agreement upon choice of court which complies with Article 23, as Article 23 is part of the law of all the Member States.
With a similar function of declining jurisdiction, however, the British doctrine of forum non conveniens then has no part to play within the framework of rules putting in place by the Regulation. While in practice, it is still more preferable for the English court to take the view that it should still exercise jurisdiction on the basis that the other court was wrong to have taken jurisdiction. In Continental Bank NA v Aeakos Compania Naviera SA , the English court takes the view that it has jurisdiction by reason of Article 23 and it may proceed to hear the case without regard to proceedings having been commenced in another Member State. This decision is considered to be rational as it has indeed some pragmatic reasons. If two commercial parties have agreed to give the courts of a Member State exclusive jurisdiction, it surely ought not be open to one of them to harass the other by commencing proceedings in a different Member State: that other party will have to contest the jurisdiction in the court in which proceedings have been wrongly instituted; appeals may allow the day to be put off when the merits of the dispute are litigated. But the ECJ in Erich Gasser GmbH v MISAT srl repudiated all such arguments and ruled that a court seised second, even if it would be right in believing that it had jurisdiction under Article 23 and that the court seised first did not, had no right to proceed to hear the claim. This represents the standpoint taken by the ECJ that there is absolutely no basis for a departure from the mechanical rule of proceedings being permitted to continue only in the court first seised the claim.