Introduction. English Judgement
In Canada Trust Co and Others v Stolzenberg and Others (No 2), it was alleged by the plaintiffs that defendant had involved in a plot to cheat. It was alleged that he was domiciled in England at the time of cause of action but later shifted to Germany. Stolzenberg refuted that the UK court had no jurisdiction on the case. However, in accordance with Swarb.co.uk (2010):
It was held by the court of appeal that jurisdiction was concluded at the issuance of the writ. Aggrieved over the decision, the defendant appealed. It was stated that only one of the defendants was the resident of the UK, now of issuing the writ. Hence, it was allowed to issue the jurisdiction writs against other personalities, who are not residents in England, even if the resident place was later lost or abandoned.The date in the issue did not coincide with the date on which the writ was served, especially upon other defendants.
The general rule and the fundamental principle concerning jurisdiction is that individuals who have an opportunity to dwell in the country of their residence should be litigated in the court of the country of residence. In Canada Trust Co v. Stolzenberg (No.2), it was held by the House of Lords that the domicile is a place of living which was occupied by the defendant at the time when claim form is issued even if he or she had shifted his domicile by the moment of issuing the claim in accordance with the Article 6 (1). The nationality or the domicile of the claimant is not relevant as the ECJ (European Court of Justice) held in “Group Josi Reinsurance Co SA v. Universal General Insurance Co”.
As it is stated by Ryngaert (2008) some provision of the Convention (Rome Convention) will be applied in accordance with certain scenarios and confer jurisdictions by the courts of a specific nation, regardless of the defendant’s place of residence. The jurisdiction of the courts of the defendant’s domicile is wide-ranging and wraps all issues within the ambit of the Convention. However, the convention rule is subjected to two exclusions. If some other court had exclusive jurisdiction, the defendant would not be litigated in the courts of his home country or if the defendant is a party to a contractual agreement. For instance, if English courts had jurisdiction to tourists from the USA visiting UK and can assume jurisdiction in accordance with the CPR Rule 6 (20).
In fact, the conflicts of English judgement principles with the legislation conflicts are resolved in accordance with the globally accepted set of Conflict rules. The selections of the legislation system are generally made on ad hoc basis, and the choice of the rules is performed considering the national private law, basing on the aspects of lex fori legislative regulation. As it is stated by Hartley (2009: 321):
In states with a mature legislative system, the set of Conflict rules stands apart from the local private civil law and adopts a more international point of view in its terminology and concepts. Considering the fact that these rules are closely associated with the aspects of sovereignty and the extraterritorial application of laws in the courts of the signatory states, they take on a flavour of public rather than private law.
In fact, this is explained by the statement that each state is aiming at compromising the usual anticipations of the citizens and residents who have the access to local courts.
In the case of co-defendants, Article 6 (1) will apply, and it provides that if an individual residing in a Contracting nation may be charged, where he is one of a many number of respondents, in the courts of state where any one of them is having residence. Thus, due to Stolzenberg (No 2) and Pertrotrade case, the time for deciding the personality’s domicile which was defined by the jurisdiction under Art 6, can not be regarded as the date when the writ was served.
As per Art 6(1), an individual residing in an associate nation may be charged where he is one among a number of respondents, in the courts where any one of them is having residence, provided the demands are so strictly linked that it is prudent to heed the case and to decide them jointly to forecast the danger of conflicting verdicts. Thus, the specific date for ascertaining whether one of the defendants is domiciled in UK so as to facilitate the joinder of the co-defendant domiciled in a different member nation, is that of the claim from commencing proceedings against the English defendant and not that of subsequent joinder of the foreign defendant or that of service on him.
Public Policy
Analyzing the legislation conflicts from the perspective of public policy, it should be emphasized that the states with underdeveloped set of conflict rules resort to the English experience of resolving legislation conflicts. Deciding a case that contains the elements of foreign law generally involves three main elements:
- The jurisdiction of an English Court from the perspective of its competence to listen and to determine the case itself.
- The selection of the appropriate system of justification which should be applied for solving the case.
- Recognition and enforcement of judgements which were issued by foreign courts on similar cases, and by the foreign arbitrators.
In fact, if the case does not contain any foreign element, the conflict is considered as irrelevant. In accordance with the public policy provisions, the foreign legislative elements can not be applied if two British citizens, residents of the UK are involved in it. Hence, if British man and women, who were married on the territory of GB, and were domiciled in Great Britain, wish to divorce, there will be no foreign elements involved. Hence, as Sloss (2009: 218) stated:
No problem of jurisdiction arises and any questions about the validity of the marriage or the grounds upon which a divorce can be granted, as well as any procedural or evidential matters, are all governed by English law alone. The same is true if two Englishmen in England contract here for the sale and purchase of goods to be delivered from Oxford to Cambridge with payment in sterling in London, and the seller later sues the buyer and serves him with a writ in England.
In the light of this statement, It should be noted that the chief law concerning jurisdiction is the “Civil Jurisdiction and Judgement Act 1982” which is a law to make additional provision about jurisdiction of tribunals and courts in the UK and some other provinces and about the acknowledgement and implementation of judgements awarded in UK or elsewhere. It is to be noted that the Act was implemented mainly to bring into “the Brussels Convention on Jurisdiction and the enforcement of judgement in the civil and commercial matters” and other norms of English Law.
Remedy to a public policy clause can be applied only with the assistance of enforcement or recognition of the verdict given in another Contracting State. Hence, such a case would be regarded as inconsistent for assessing the objectionable magnitude with the legal order of the State law, where the basic legislative principles of public defence policies are violated. The violation would have to amount to an apparent infringement of a rule of law considered as indispensable in the legal order of the State in which ruling is sought or of a right acknowledged as being basic within that legal order (Krombach, paragraph 37).
Another question is whether the enforcement or recognition of a default verdict may be denied under Article 34(2) of Regulation No 44/2001 on the grounds of the fact that the defendant was not supplied with the text commencement the proceedings or with an alike document in adequate time and in such a style as to facilitate him to organize for his defense, where he was able to initiate proceedings to dispute that verdict before the courts of the Member State of origin.
However, it is to be observed that despite proceedings do not fall within the ambit of Regulation No 44/2001, they may, nonetheless, have outcomes which weaken its efficiency, namely precluding the accomplishment of the aims of unification of the rules of conflict of jurisdiction in commercial and civil issues and the free movement of verdicts in those issues. This is so, among other things, where such transactions thwart a court of another Member State from exercising the jurisdiction bestowed on it by Regulation No 44/2001.
In Stolzenberg case, Waller LJ analysed the exercise of evaluation these competing interests and held that a good debatable case test mirrors in that background that one side has a good argument on the basis of the availability of material. This has famously known as “Canada Trust Gloss” Accordingly, when feasible, a court without the advantage of full detection and or cross – examination should conclude on factual issues. Thus, the key points in the Stolzenberg case are aimed at fulfilling one of the territorial gateways framed in CPR 6.20 for service outside the jurisdiction, the plaintiff must corroborate ‘ a good debatable and arguable case.’ A good debatable case connotes with better debate on the available material that is known as Canada Trust Gloss. However, Court of Appeal verdicts are available which states that so as to prevent from being pulled into a trial of merits, the Canada Trust gloss should not be exercised in cases where the case is at the jurisdictional phase should delve into substantive issues in the legal proceedings. It is to be recalled that Clark J held in Cheney’s case that the Canada Trust Gloss should be exercised in all jurisdictional cases.
Lessons
The lessons which should be derived from the conflicted cases are closely associated with the principles of law harmonization and the aspects of applying the principles of international law for the norms of domestic system. Hence, in order to apply the national legal system, there is strong necessity to consider whether the national or foreign legal norm will be more suitable for every particular case. The interests of any conflicting party may be protected by applying the law, associated with the legislative realities. However, considering the existence of numerous approaches of national legislative systems, The Hague Conference on Private International Law was created in order to oversee the conventions and norms for creating the uniform legislation system. In the light of this statement, it should be emphasized that the deliberations of the mentioned conference and the set of treaties is regarded as a matter of controversy for the cross-border jurisdiction, especially in the spheres of commerce and defamation aspects. In fact, the necessity of applying the norms of international law for resolving the conflict situations is defined by the norms of international treaties. Hence, some nations have ratified the Vienna Convention which regulates the sphere of international sales.
Rome Convention regulates the sphere of Law Applicable to Contractual Obligations. In fact, this conventions offers less uniformity, however, there is a link to UNIDROIT Principles of International Commercial Contracts which controls the sphere of commerce and public policy.
Conclusion
The conflicting norms of law that national legislative systems face may be resolved using the central and uniformed approaches of legislation. Hence, these conflicts may be resolved from the perspective of national norms, either, using the principles of International Law. Nevertheless, there are numerous treaties and conventions which regulate the aspects of legislation conflicts. Hence, the principles of harmonization have not been unified, and these are the subject of various treaties. The Stolzenberg litigation case have revealed this necessity, as up to 9 countries are involved in this case. Hence, coordination of legislative systems are required if the parties from different countries are involved.
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