Implementation of Public Policy Legislation C. Sovereign or Similar Immunities, Public Services etc. Lis alibi extra territorium pendens G. Unilateral Coordination by States 1. Purely Unilateral Coordination 2. Recommendations for Unilateral Coordination from a European Perspective 1.
Recommendations for Promoting Bilateral Coordination E. Jurisdiction and Sovereignty In modern States, jurisdiction and sovereignty have become inseparable juridical categories. Accordingly, jurisdiction is manifested as an exercise of power and is necessarily based upon a legal system invested with sovereignty. This interdepend- ency explains why jurisdiction is defined and understood as a material and compul- sory realisation of the legal order in a given case. Unilateral Nature of the Limits of Jurisdiction Each sovereign legal order — independently of any superior power — is free to regulate the exercise of jurisdiction without taking into account the existence of any other sovereign order.
As a result, each State proceeds autonomously and uni- laterally in this regard, determining the cases in which its own judges are author- ised to exercise jurisdictional power. This may lead to the extension or the restriction of the scope of the field within which such power may be exercised, but in no case can the determination of that field affect the power of any other legal order to autonomously limit the exercise of its own jurisdiction.
Each order, when defining the field of its own jurisdictional power, finds itself, as against other orders, in a relationship of reciprocal autonomy and freedom.
Requirement of Reasonable Limitation of Jurisdictional Power In theory, nothing prevents a State from affirming its own jurisdictional power over any controversy, even in the absence of any link to the social environment of which it forms a part. One can in fact easily conclude that, although it is true that no order can impose limits upon another, it is 1 G. Apart from the possible effects of the right to a fair trial laid down in the ECHR,3 general rules of public international law provide no assistance.
The sole acceptable conclu- sion that can be drawn from the continuous efforts to formulate fundamental guiding principles of delimitation of jurisdiction is that some theoretical principles apt to delimiting state jurisdiction in a reasonable and non-arbitrary manner can be identified. As such, they thus relegate the need to implement an effective coordination with foreign jurisdictions. The well-known prototype of all the exorbitant criteria is that of the nationality or the residence of the plaintiff serving as the basis for jurisdiction.
It would be appropriate to make it clear that the concept of exorbitant juris- diction summarises considerations of legislative policy and cannot be used as a parameter of positive law to evaluate ex ante the legitimacy of any particular 2 R. MARI, Equo processo e competenza in materia contrattuale. Even apart from the vagueness of the concept, the auton- omy enjoyed by States renders baseless any pretention of being able to define a priori those criteria of jurisdiction that are legitimate i.
Inter- national practice instead takes a quite different approach: instead of opposing recourse to exorbitant criteria of jurisdiction, it refuses to allow them to serve as suitable criteria of international competence in the context of recognition of foreign judgments. This is also known as indirect international competence. When a criterion is designated as exorbitant, this accordingly expresses, depending on the case, either a theoretical judgment that the criterion lacks justifi- cation, or an evaluation ex post which above all takes account of the consequences potentially flowing from the use of that criterion in the course of deciding upon the recognition of a judgment which is based upon it.
This possible reaction to exces- sive autonomy, to which another legal order may be induced when exercising its own jurisdictional power, is an effective incentive for States to place limits on their own recourse to exorbitant criteria of jurisdiction. Unilateral Coordination with Foreign Jurisdiction The necessity for a legal order to coordinate itself with others in the practical im- plementation of rules of law — thus taking account of the jurisdictional power that appertains to other legal orders — is an objective fact, which does not need to be demonstrated.
Apart from having recourse to international instruments, there are various ways in which a legal order may unilaterally and autonomously attribute relevance to the jurisdictional powers of other legal systems. Limiting ourselves to the essential methods, the most obvious ones and the most important from a prac- tical point of view consist of attributing the force of a jurisdictional act to a foreign judgment; in this way, the product of foreign jurisdictional activity is per- mitted to operate in another legal order where it would otherwise be entirely deprived of the intrinsic force of a jurisdictional act.
Another method of recognis- ing the foreign jurisdictional power consists of granting effect to the commence- ment of foreign proceedings for the purpose of suspending and even preventing the prosecution of national proceedings that appear to duplicate foreign proceedings. Finally, foreign jurisdictional power may be considered jurisdictionally relevant in another legal order in that it excludes the exercise of jurisdiction: either because exclusive character is attributed to a foreign jurisdiction in a sense that will be explained infra , or because the parties to the proceedings had agreed to submit the controversy to a foreign judge, who has confirmed his own jurisdiction over the matter.
Consequences It is appropriate to note that none of these three forms of relevance of foreign juris- dictional power impairs the autonomy of the legal systems that recognise them. The foreign jurisdictional power remains foreign and independent of the legal order in which it has become relevant, just as the jurisdictional power of the latter remains fully independent of the former.
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In other words, each jurisdictional power remains subject to its own legal order and no connection is created between the jurisdictional organs of the two States, which always unilaterally and autono- mously determine the principles of their own jurisdiction. Exclusive Jurisdiction in the True Sense After these preliminary issues, we must now specify the meaning to be attributed to the concept of exclusive jurisdiction.
Used in a narrow sense, and linked to the logical consequences to be drawn from the notion of the term, the concept of exclusivity implies a distribution of jurisdictional power amongst judicial organs. It should be noted that the essence of exclusivity is characterised by this single specific consequence, i.
One understands, therefore, how the double effect of the exclusivity — legitimation of a particular judge to exercise jurisdictional power, on the one hand, and the absolute lack of power of any other judge, on the other — can only be achieved by means of a norm which imposes a distribution of jurisdictional power among judicial organs subject to one and the same juridical order.
So understood, the concept of exclusivity is regularly employed in the distribution of territorial competence among several judicial organs belonging to the same legal order and correlates to the concept of concurrent territorial competence. This gives rise to a right of the defendant, which the legal order may allow him to waive in case the forum designated by law as exclusive is not also be qualified as compulsory. It is nonetheless possible for an exclusive forum to be optional or compulsory depending upon the particular case, just as it is possible that a compulsory forum may not be characterised as exclusive.
Exclusivity of Jurisdiction in Relation to the Recognition of Foreign Judgments The concept of exclusivity, understood in the abovementioned narrow sense, cannot be used to qualify a corresponding relationship between judicial organs belonging to different States. In this case, since we are confronted with jurisdic- tional powers regulated by legal orders which place themselves in positions of reciprocal autonomy and independence, there is no possibility for any norm what- soever of one of the two legal orders to effect a distribution of jurisdiction with consequences for the powers of the judges of the other legal order.
Nevertheless, the concept of exclusive jurisdiction, as often employed in international civil procedural law, is not taken in its narrow sense described above. We now consider the position adopted by a particular legal order when confronted with a foreign judgment, the recognition of which is excluded, by virtue of the fact that the legal order has deemed this to violate its own exclusive juris- diction over the controversy decided by the foreign judge.
In this case, the foreign proceedings are deprived of the prerequisite of the recognition of the judgment which is referred to as international competence and which consists of the connection that the litigation should have with the foreign forum the State of Origin so that the resulting judgment might take effect in the State in which recognition is desired the Requested State. It is to be noted, however, that this concept does not express the simple absence of an appropriate criterion of international competence with respect to the controversy and the foreign forum.
That is to say a connection that corresponds to one of those that would establish jurisdiction in the Requested State. The concept of exclusive jurisdiction goes beyond this simple hypothesis because it contains, and at the same time creates, a link between two distinct evalu- ations: a the existence, within the controversy decided by the foreign judge, of a criterion which is recognised as attributing jurisdiction to the judicial organs of the Requested State, and b the exclusion of the possibility that a recognised criterion of international competence exists with respect to the foreign judgment which had settled that controversy, no matter from which foreign State the judgment originates.
This procedure accordingly gives rise to a complete correspondence between the limits of the jurisdiction of the Requested State and the sphere of the international competence of the foreign judge. It is, therefore, clear that this correspondence exists only from the point of view of the legal order of the Requested State and only for the purposes of this pursuit.
It is in fact quite possible for the foreign forum to be vested with jurisdiction according to the norms of its own legal order, but be considered as deprived of international competence according to the criteria applied in the Requested State for the purpose of recognition of foreign judgments. Subsequently, it is also necessary that this legal order provide for its own jurisdiction over the controversy. Thereafter, it is necessary that this legal order exclude the possibility of recognising any decision from a foreign State.
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This illustrates that the concept of exclusive jurisdiction is absolutely incompatible with any hypothesis of distribution of juridical power, because it expresses the point of view of a single legal order. To deepen our understanding of the implications of this concept, let us begin by noting that it may apply in two different situations. As previously dis- cussed, the first situation is present if the legal order which we are concerned to understand affirms its own jurisdiction over the controversy and at the same time excludes the possibility to recognise foreign judgments.
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We are then faced with exclusive national jurisdiction of the Requested State. The second situation occurs when the State which we are concerned to understand excludes its own jurisdiction regarding the controversy on the basis of general jurisdictional criteria, and permits recognition only of judgments originating from a particular foreign legal order.
In this hypothesis, we are faced with exclusive foreign jurisdiction, but it is irrelevant whether the State of Origin of the decision considers itself vested with or deprived of exclusive jurisdiction over the case. The only important factor is whether the Requested State considers that only this particular foreign State is vested with exclusive jurisdiction.
Foundations of Exclusivity Another important aspect to be considered concerns the grounds upon which the exclusivity of the jurisdiction is based. From this point of view, the exclusivity does not originate in the impossibility of recognising any foreign judgment i. As a result of this restriction, the parties to the controversy have no other option but to resolve it by resorting to the judge indi- cated by the norms that have created this restriction. The circumstances in which such a restriction applies, and from which the obligation to submit the dispute to the designated judge originates, are independent of both the rules of direct juris- dictional competence and of the rules of indirect international competence, since they have a different function.
Ultimately, these rules aim to prevent the recogni- tion of a foreign judgment. Therefore, these rules constitute the logical antecedent of the concept of exclusive jurisdiction and are derived from autonomous princi- ples that must be conceptually distinguished from the rules on jurisdiction. Those rules of jurisdiction correspond precisely to the concept of exclusive jurisdiction in the true sense, as described above. This imports the legitimation of a single judge to exercise the jurisdictional power and the corresponding absolute lack of power of all other judges.
The exclusive nature of this jurisdiction is affirmed by the same rules that institute it and has does not need to be justified. That competence is char- acterised, furthermore, as being compulsory. This result is made possible by two peculiar circumstances. Firstly, at the general level of the system, jurisdiction is attributed as a function of the relation- ship that has been put into place between numerous judges subject to the same set of procedural norms.
Accordingly, the Brussels regime not only effects a distribution of jurisdiction among the judges of the Member States, but also lays down, within and with respect to the whole territorial extent of the Union, the preconditions for the actual exercise of jurisdictional power. As a consequence of those characteristics of the system, the exclusive juris- diction thus established cannot be assimilated to the hypotheses of exclusive juris- diction unilaterally and autonomously foreseen by national legal orders. As has been indicated above,9 the concept of exclusive jurisdiction must be understood from the point of view of a single State which claims jurisdiction in respect of a particular dispute and simultaneously denies, due to the absence of international jurisdiction, any possibility to recognise any foreign judgment whatsoever that purports to settle it.
In contrast, in the Brussels regime the exclusivity is directly correlated to the distribution of jurisdiction amongst all the judges of the Member States, with the effect of preventing the recognition in all the Member States of any decision originating from a judge deprived of exclusive competence, not only in the State to the judges of which that competence is attributed. On the other hand, the Brussels system does not stipulate that European judges must decline jurisdic- tion when the connecting factor — the one used to grant exclusivity to European judges — points to a non-European forum.
Reflexive Effect The exclusive competence of the Brussels regime prevents recourse to the national jurisdiction criteria, which remain applicable according to Article 4, in respect of a defendant who is not domiciled in any Member State.
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The system makes no provi- sion, on the contrary, for the hypothesis under which the prerequisites determina- tive of the exclusive competence of a judge of the Member States are manifested 8 Supra, under point C. It is, therefore, uncertain if the criteria of distribution of juris- diction amongst the judges of the Member States should be applied in this case. In substance, the theory boils down to a negative rule of jurisdiction laid down by the regime, the operation of which is conditional upon the expectation of the lack of any jurisdiction pro- vided by national law.
A lack of jurisdiction on the basis of national law thus prevails over the jurisdiction derived from the Brussels regime. The prevalence that the theory attributes to national law is not compatible with the exclusive nature or with the unitary and complete structure of the Brussels regime.
The Brussels regime regulates imperatively not only the jurisdiction of the judges of the Member States when confronted with specific connections to their respective territories, but also foresees in the regulation of that jurisdiction in respect of controversies which involve connections to third States Article 4. This complete character of the system, derived from the incorporation within it of the national rules of jurisdiction, does not permit any negation of one connection to the territorial space of the Union in order to give effect to another connection with a third State.
Conclusions of Part I The legal order of the European Union has effected, by means of the Brussels regime, a distribution of jurisdictional power amongst the judges present in its territory. This internal distribution of jurisdictional power has hitherto not been complemented with a unitary regulation, belonging to the Union itself, which delimits the extent of that power in respect of disputes from outside the scope of the internal distribution.
MARI note 5 , at and The Brussels regime does not, however, only regulate situations exclusively connected to the legal orders of the Member States, but operates, in part, also with respect to situations connected to third States. Furthermore, for these situations, the uniform rules of the Brussels regime — by way of reminder: conceived and structured exclusively in respect of the relations between the Member States — only partially deal with the disputes that could require the activation of the judicial power of the Member States, while na- tional law operates for the remaining part.
On the whole, the various questions of jurisdiction direct international jurisdiction involving connections to the legal orders of third States are partly subjected to the Brussels system — such questions are, therefore, assimilated to questions of internal jurisdiction and treated in a manner identical to those which only relate to the relations between the Member States — and partly to national law, where they are regulated, naturally according to the unilateral point of view of each Member State, as pure questions of interna- tional competence.
This structural dichotomy of the Brussels regime — which leads it to operate, in respect of the Member States, as a true and rightful mechanism for the distribu- tion of territorial jurisdiction, and in respect of third States, as a jurisdictional regime that is based in part on the extension of the rules of territorial competence to the delimitation of the extent of jurisdiction and is integrated, for the remainder, into the national rules of each Member State — is not adapted to the need to regu- late, in a uniform and reasonable manner, the extent of the jurisdiction of the Union in relation to third States.
In the way in which it is currently structured, the Brussels regime permits the use of exorbitant criteria in relation to third States — national criteria which it prohibits on the internal plane — which correspond to a unilateral evaluation of the interests that the Member States deem to be worthy of protection.