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Lloyd's Maritime and Commercial Law Quarterly

THE HIDDEN DEPTHS OF THE LAW OF JURISDICTION

Adrian Briggs*

It is well known that the definitional terms used in the Brussels I Regulation have autonomous meanings. Less well understood, perhaps, is the degree to which the two jurisdictional regimes which operate in the English courts have autonomous functions which follow from their distinct conceptions of how jurisdiction is defined and controlled. This paper seeks to explain some of the hidden differences in the laws of common law and European jurisdiction.

1. Introduction

That the definitional terms of the Brussels I Regulation1 have autonomous meanings, independent of national law, is well understood, and this is true not only in the law of jurisdiction, but also in Regulations now increasingly providing the rules for identifying the applicable law. However, autonomy is not confined to the meaning of terms, but extends to the operation and application of the whole: it is the entire system, rather than the individual terms used within it, which should be understood to be autonomous and independent of the rules of national law which formerly applied in the territory which is now under new management.
What is true for European-made law, when it operates in an English court, is equally true of the “common law”—used in this context as convenient shorthand for common law plus Parliamentary legislation—when it applies in an English court, which it still does, albeit in an increasingly residuary way. The common law is just as autonomous, and independent of European law, as European law is of it—not just in the meaning of terms, but in operation and application; indeed, as the courts deal more and more with law of European origin, it is the autonomy of the common law which needs to be observed and protected, rather than the other way round. This separateness, of each system from the other, needs to be taken to heart. It is not that the two systems of private international law were designed to be separate; rather, they were designed to be self-contained and self-sufficient, and separateness is the necessary result: one courtroom, two systems, as one might say.2 In terms of jurisdiction, each scheme determines for itself whether a court has or does not have judicial power to adjudicate, or to decline to adjudicate, a matter brought


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