In December 2010 the European Commission published its long-awaited proposals for the reform of the Brussels I Regulation on civil jurisdiction and the enforcement of judgments. These concern matters of considerable practical importance. But they also expose fundamental questions about the Regulation’s proper scope, and its role in complex commercial disputes, which will persist long after the terms of the amended Regulation are settled.

The Brussels and Lugano Conventions together create a common European regime for regulating jurisdiction and the enforcement of judgments in civil and commercial matters. This was never intended to replace entirely the equivalent rules of national law, and local rules conferring jurisdiction generally govern if the defendant is not domiciled in a Contracting State. But it remains unclear when, if at all, national rules for declining jurisdiction may be employed if a court’s competence derives from the European regime.

Which law governs a contract where none has been chosen by the parties? The solution lies in Articles 3 and 4 of the 1980 Rome Convention on the Law Applicable to Contractual Obligations. Article 3 allows a court to infer the parties’ intentions from the circumstances. But such intentions must be “real”, not presumed, and in the absence of genuine consent, Article 4 provides that the applicable law is that most closely connected with the contract. Under Article 4(2) this is (in effect) the law in force where the supplier of goods or services is located, or (if relevant) has a branch—for the supplier’s performance is invariably “characteristic” of a contract, in the sense intended by the Convention. But any clarity thereby won is immediately lost because the presumption is rebuttable under Article 4(5) whenever a contract is better connected with another law, exposing Article 4(2) to the risk of constant challenge. The presumption is especially vulnerable because it will so seldom be appropriate to apply the supplier’s law, the law of the place of performance frequently having a stronger claim to govern. Perplexingly, it is a presumption more apt to be rebutted than applied.

May an English court, having jurisdiction under the Brussels or Lugano Convention, decline to entertain proceedings on the basis that a court in a non-Contracting State is the forum conveniens? Many would doubt it-can national law oust jurisdiction conferred by the Conventions? But the Court of Appeal famously decided otherwise in Re Harrods (Buenos Aires) Ltd. [1992] Ch. 72. The Conventions, it concluded, are designed to harmonise the jurisdictional rules of Contracting States only to the extent necessary to facilitate the enforcement of judgments between such States, their primary concern. That objective is unaffected if a case is eventually tried in a non-Contracting State, so stays in such cases are permitted. The House of Lords in Harrods referred the point to the European Court of Justice, but the case was settled, creating uncertainty about the correct solution, yet leaving all courts but the House of Lords bound by the Court of Appeal’s decision.

The law concerning antisuit injunctions continues to develop, albeit in a conceptually unsatisfying, piecemeal fashion. English courts are increasingly concerned about the problem of extraterritoriality—witness Lord Goff's strictures about comity in Airbus Industrie GIE v. Patel [1998] 1 W.L.R. 686 (H.L.). But their cautious language conceals a readiness to grant relief in novel situations. A recent example is Turner v. Grovit [1999] 3 All E.R. 616, where, in the course of proceedings for constructive dismissal brought by Mr. Turner before an English employment tribunal, his employers sued him in Spain for repudiating his contract of employment. The Court of Appeal unhesitatingly restrained the Spanish proceedings. They were an abuse of process, intended solely to vex Mr. Grovit in the pursuit of his claim before the employment tribunal.

When can English defendants be sued in England for the infringement of a foreign copyright? They were once immune, for two distinct reasons. English law formerly governed liability even for foreign torts, the effect of the rule in Phillips v. Eyre (1870) L.R. 6 Q.B. 1. Such claims were therefore pointless because English copyright protection extends only to English infringements; English law, although in principle applicable, could not be applied. Less convincingly, foreign intellectual property rights, like rights in foreign land, were generally regarded as non-justiciable under the rule in British South Africa Co. v. Cia. de Moçambique [1893] A.C. 602.

A fundamental tension underlies English law's approach to antisuit injunctions. Justice may warrant protecting a defendant from oppressive proceedings in a foreign forum by ordering the plaintiff to desist. But such relief challenges a foreign court's right to police its own process. How can the demands of justice and of comity be reconciled? When should concern for the one give way to respect for the other? Perhaps because antisuit relief reflects wider equitable principles, the prevention of injustice has long been the overriding imperative in such cases. But English courts are increasingly sensitive to the charge of chauvinism and respect for comity has become a real consideration in shaping their approach.