Research on the British Civil and Commercial Jurisdiction System

Author: Ou Fuyong
Publisher:
Publish Date: 2005-04-01
Features: Most international private law scholars in common law jurisdictions believe that jurisdiction is the primary issue in international private law. The United Kingdom is the origin of common law international private law and civil and commercial litigation systems, and its relevant systems are highly developed. The civil and commercial jurisdiction system of the United Kingdom has a very important impact on the construction and development of the civil and commercial jurisdiction mechanism in the common law system, and it also has significant reference significance for the development and improvement of China's civil and commercial jurisdiction system. This book conducts a systematic and in-depth study of the civil and commercial jurisdiction system of the United Kingdom by analyzing relevant writings, judgments, and regulations on British civil and commercial jurisdiction, and applying historical, comparative, and empirical analytical methods. The book is divided into nine chapters. Chapter is an overview of British civil and commercial jurisdiction. This chapter elaborates on the classification of British civil and commercial jurisdiction and the allocation of civil and commercial jurisdiction of British courts. According to the legal basis for obtaining jurisdiction of British courts, the jurisdiction of British courts can be divided into jurisdiction determined by the Brussels Convention, the Lugano Convention, and Council of the European Union rules, and jurisdiction determined by British common law. To lay the groundwork for the following research, this section also elaborates on the civil court system and judges of the United Kingdom, as well as the British hierarchy jurisdiction, territorial jurisdiction, specialized case jurisdiction, and transfer jurisdiction system. Chapter 2 is jurisdictional immunity. This chapter elaborates on the British state immunity, diplomatic immunity, and international organization immunity systems. According to the 1978 State Immunity Act, foreign states can obtain jurisdictional immunity from courts in the United Kingdom, but the Act stipulates extensive exceptions. Under certain conditions, British courts have no jurisdiction to accept lawsuits or other proceedings against any person who enjoys immunity under the 1964 Diplomatic Privileges Act or the 1968 Consular Relations Act, as well as lawsuits or other proceedings against international organizations and their officials specially protected by regulations. Chapter 3 is jurisdiction determined by Council of the European Union Regulation (No. 44/2001). This chapter analyzes the basic structure, scope of application, and concept of domicile under the United Kingdom's law domicile of Regulation (No. 44/2001), and successively elaborates on the jurisdictional rules of the Regulation: exclusive jurisdiction without regard to domicile, service jurisdiction, jurisdiction over insurance contracts, consumer contracts, and employment contracts, agreement jurisdiction, general jurisdiction over defendants domiciled in the United Kingdom, special jurisdiction over defendants domiciled in another member state, residual jurisdiction over defendants not domiciled in a member state, application for interim or protective measures, and resolution of jurisdictional conflicts. In addition, this chapter explores the problems the United Kingdom faces in implementing Regulation (No. 44/2001): procedural modifications to the jurisdictional rules of the Regulation and the international jurisdiction of British courts. Chapter 4 is jurisdiction determined by common law. British courts have no jurisdiction over cases involving foreign land ownership, foreign intellectual property, foreign criminal law, tax law, and similar public law, as well as cases involving state conduct. Common law jurisdiction rules can be briefly summarized as follows: jurisdiction depends on the service of process, and the service of process can be based on the appearance of the defendant within the jurisdiction. If the defendant is outside the jurisdiction, permission from the court must be obtained before service of process. In cases where Regulation (No. 44/2001) does not affect the jurisdiction of British courts, if the defendant has been properly served within the jurisdiction, the court has jurisdiction over the defendant for that case. Unless the service of process is rescinded, any objection to the court not exercising jurisdiction must be raised through an application to stay proceedings under Chapter 11 of the Civil Procedure Rules. British courts have the general discretion to stay proceedings. Chapter 5 is an overview of maritime jurisdiction. This chapter analyzes the distinction between person actions and thing actions, elaborates on the service of process rules in thing actions, and the content of the main international maritime conventions the United Kingdom has participated in, and explores the impact of Regulation (No. 44/2001), the Brussels Convention, the Lugano Convention, and the 1982 Civil Jurisdiction and Judgments Act on maritime thing actions. Chapter 6 is jurisdiction over marriage and family cases and inheritance cases, elaborating on jurisdiction over marriage litigation cases (including jurisdiction over divorce, judicial separation, or nullity of marriage litigation, jurisdiction over presumption of death and dissolution of marriage, jurisdiction over declarations of identity, jurisdiction over financial support and alimony, and issues of polygamy), jurisdiction over family cases (including jurisdiction over guardianship and protection, jurisdiction over adoption, jurisdiction over declarations of legitimacy, jurisdiction over legitimation, and jurisdiction over persons with mental disorders), and jurisdiction over inheritance cases (including jurisdiction over approving estate administration and jurisdiction over inheritance). Chapter 7 is jurisdiction over bankruptcy and dissolution. If the case falls within the scope of application of Council of the European Union Regulation (No. 1346/2000) on Bankruptcy Proceedings, jurisdiction of British courts is determined according to that regulation. Otherwise, jurisdiction of British courts is determined according to British bankruptcy law. Chapter 8 is service of process, objection to jurisdiction, and selection of courts. The Civil Procedure Rules have rewritten the service of process rules in the United Kingdom, amending many of the relevant laws. If the statement of claim has been served, and the defendant objects to the propriety of service of process or the existence of jurisdiction, jurisdictional objections can be raised under Chapter 11 of the Civil Procedure Rules. The main jurisdictional strategy parties can consider is: obtaining declaratory relief from British courts regarding liability sought to be established by another court against the opposing party. Chapter 9 is interim relief and protective measures, primarily elaborating on the types of interim relief that can be obtained from British courts and the general procedures, as well as the jurisdiction of British courts to grant interim relief. The final section is "Conclusion," which elaborates on the main characteristics of the civil and commercial jurisdiction system of the United Kingdom and its implications for China. Keywords: British civil and commercial jurisdiction Council of the European Union rules Brussels Convention Lugano Convention