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2.1.1 Background
2.1.1背景
In 2000, the EU adopted the Council Regulation (EC) No 44/2001 on jurisdiction, the recognition and enforcement of judgments in civil and commercial disputes, namely the Brussels I Regulation.[11] This, to some extent, has supplanted the earlier Brussels Regime, and became directly applicable to all the EU Member States.[12] In the improvement progress form Convention to the Brussels I Regulation, EU created a system of direct international jurisdiction extending from the general area to the special field of civil and commercial matters, taking a variety of link points as a basis for determining jurisdiction. For the objective to obtain “the proper functioning of the internal market” and to “unify jurisdiction rules in civil and commercial matters and simplify formalities with a view to rapid and simple recognition and enforcement of judgments given in Member States”[13], approaches has been provided by the new legislation and harmonization is emphasized. Therefore, the Brussels Regime is doubtlessly one of the most important parts of English rules on jurisdiction. The principle mode of jurisdiction allocation remains the “defendant domicile rule” known as “general jurisdiction”. Such a term is referring to the basis upon which a court can always assume jurisdiction with regard to a particular defendant, irrespective of the legal nature of the action”.[14]
2.1.2The defendant domicile rule
2.1.2被告所在地原则
(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.[15] 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,[16] 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.[17] 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,[18] 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[19] 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[20]. In other words, for the most understanding of the term domicile, it is equated with the state where a person is resident[21] and the nature and circumstances of his residence indicate that he has a substantial connection with it.[22] Furthermore, it is for the claimant to show a good arguable case that the defendant is domiciled in a particular State.[23]
(2) Company
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”.[24] 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,[25] 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.唯一网址：https://www.essayquality.com/[26]
