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Last update: 17-08-2004
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Jurisdiction of the courts - International law

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The Community rules on jurisdiction are also applicable between Member States and some States outside the European Union

If you are in involved in a dispute with a company, a professional person, your employer or somebody else from outside the European Union you have to find out which State's courts have jurisdiction. The answer to this question might have significant consequences. If you have to litigate abroad you may have to face additional inconveniences and costs, for example because of the necessity to translate your statements, to hire a lawyer in the State where proceedings take place or to travel to court hearings.

The Lugano Convention

In 1988, the Member States of the European Union and some other States concluded the Lugano Convention on jurisdiction and the enforcement of judgments in civil and commercial matters. At present, apart from the EU Member States, Switzerland, Norway, Iceland and Poland are contracting parties to that convention. The Lugano Convention extended the rules determining jurisdiction between Member States that used to be laid down in the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters beyond the boundaries of the European Union. In March 2002 the 1968 Brussels Convention was replaced by Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The Regulation modified some of the jurisdictional provisions. That is why the Lugano Convention will soon be changed to bring it fully in line with the rules that apply within the European Union.

What are the main principles of the Lugano Convention as regards jurisdiction?

In general the factor determining jurisdiction is the domicile of the defendant. Persons domiciled in a Contracting State shall, whatever their nationality, be sued in the courts of that State. Nevertheless, the Convention contains a number of provisions that depart from this principle and allow court proceedings to be brought in another Contracting State other than where the defendant is domiciled. The most important examples of these special rules are:

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in matters relating to a contractual obligation a person can be sued in the courts for the place of performance of that obligation. For example, the French vendor of a lorry can be sued in Norway if that is where the vehicle was to be delivered.
in an action for damages the courts of the place where the harmful event occurred are competent. Thus, in the case of a traffic accident that happened in Switzerland between a tourist domiciled in the U.K. and a Swiss local, the Swiss plaintiff can use the Swiss courts. Sometimes the place of the event giving rise to liability in tort (e.g. the emission of toxic substances into a river in Poland) and the place where that event results in damage (e.g. harm to plants irrigated with the water of the polluted river in Germany) are not located in the same Contracting State. In that case the plaintiff is free to choose the courts of either of those Contracting States.
in matters relating to maintenance the maintenance creditor can turn to the courts of the Contracting State in which he himself is domiciled.
in some contractual relationships that are characterized by a marked imbalance of power between the parties such as matters relating to consumer contracts and to insurance the weaker party is deemed to be in need of special protection. As a general rule, the weaker parties (the consumer, the insured) can only be sued in the Contracting State where they are domiciled. The stronger parties (the dealer, the insurer), on the other hand, can also be sued, sometimes subject to certain conditions, in the Contracting State where the weaker party is domiciled.
The rules on special jurisdiction listed above constitute an additional option for the plaintiff who can also choose to sue the defendant in the courts of the Contracting State in which that person is domiciled. There are, however, also some cases of so-called exclusive jurisdiction that do not supplement but replace the jurisdiction based on the defendant's domicile. For example,
in matters relating to the ownership or tenancy of immovable property only the courts of the Contracting State where the property is situated have jurisdiction.
in matters relating to rights that have to be registered such as patents or trademarks the courts of the Contracting State in which the registration has taken place are exclusively competent.
subject to some conditions the parties also have the possibility of freely choosing the Contracting State whose courts are to have jurisdiction. Such a choice of court agreement usually leads to the exclusive competence of the courts of the chosen Contracting State unless the parties stipulate otherwise.

Subject to certain exceptions, the mere fact that the defendant enters an appearance in court leads to the jurisdiction of the courts of that Contracting State even if they are not ordinarily competent.

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Please note that the above description of the rules on jurisdiction in the Convention is neither exhaustive nor sufficiently thorough to allow a reliable assessment of the issue of jurisdiction in a specific case.

What happens if proceedings concerning the same dispute are brought in two Contracting States?

It may happen that both parties to a dispute initiate court proceedings on the same matter in different Contracting States. For example, after a traffic accident between two persons living in Iceland and Finland, respectively, it could be that they both sue one another for damages in the Contracting State of the other party's domicile. In that situation the Regulation basically establishes a “first come first served” rule. The second court used has to stay its proceedings and wait for the other court to decide on its jurisdiction. If the first court considers itself competent the other court has to dismiss the case. Only if the first court comes to the conclusion that it does not have jurisdiction can the other court continue its proceedings.

How is international jurisdiction determined if a Member State of the European Union and a non-Member State that is not a signatory of the Lugano Convention are involved?

If the defendant is domiciled in a Member State of the European Union but the plaintiff is not domiciled in another Member State or in a Contracting State of the Lugano Convention the courts of the Member States assess their international jurisdiction based on the provisions of the Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

Where the defendant is domiciled outside the sphere of application of this Regulation and of the Lugano Convention, the national procedural law of each Member State determines under which conditions its courts are competent. To find out about the national procedural law on international jurisdiction of a Member State, please click on the flag of that Member State.

Under the aegis of the Hague Conference on Private International Law, an international organization, attempts are currently being made to negotiate a world-wide convention on international jurisdiction and foreign judgments in civil and commercial matters.

Reference documents

  • Lugano Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters
  • 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters
  • Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters

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Last update: 17-08-2004

 
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