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Title: Civil jurisdiction and enforcement of judgments in Scotland
Author: Mennie, Alastair
Awarding Body: University of Edinburgh
Current Institution: University of Edinburgh
Date of Award: 1991
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The subtitle of this thesis is 'An analysis of provisions of the 1968 Brussels and 1988 Lugano Jurisdiction and Judgments Conventions and the Civil Jurisdiction and Judgments Act 1982, with particular reference to the effects of the provisions in Scotland'. The thesis is divided into two parts. Part I is concerned with the Conventions and third states, intra-EC/EFTA bloc and intra-UK actions and the courts' discretionary powers. After a general introduction to the subject, it examines the effects of the Conventions in civil proceedings which are linked in one way or another to a state outside the EC/EFTA bloc. It considers here firstly the effects of the rules of jurisdiction of the Conventions, secondly the circumstances in which a court may decline to exercise the jurisdiction which it has in terms of the Conventions and thirdly the implications of the Conventions' provisions concerning the recognition and enforcement of judgments. Consideration is then given to certain problems relating to (a) actions involving more than one state in the EC/EFTA bloc and (b) actions purely internal to one state in the bloc; attention focuses on the effects of the Conventions on the doctrine of forum non conveniens in the United Kingdom. At the end of Part I the rules concerning the remitting and transferring of actions between one Scottish court and another are considered in the light of the Conventions and Act. Part II concerns the duties of a court in the EC/EFTA bloc to verify both its jurisdiction and the giving of adequate notice of the proceedings to the defender. The duties imposed principally by art 20 of the Conventions are considered from the point of view of the rules of court which should exist in Scotland - in both the Court of Session and the sheriff courts - to facilitate the fulfilling of their duties by the courts. Consideration is given to the need for a court to be informed of the factors relating to jurisdiction (a) when an action is brought and/or (b) if decree in absence is subsequently sought. The extent of the court's duty to examine its jurisdiction ex proprio motu is examined. Attention is focused in turn on what may be different elements inherent in jurisdiction in terms of the Conventions: the lack of a prorogation agreement in favour of another court, the lack of identical proceedings in another court, the domicile of the defender, the factor which links the defender with the court in which the action has been brought. The writer sets out model rules of court for the Court of Session and the sheriff courts concerning (a) averments of jurisdiction in summonses and initial writs and (b) matters to be considered if decree in absence is sought.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available