The Distant Shore: Discretion and the Extent of Judicial Jurisdiction

Abstract

This essay addresses the role that judges play in shaping the grounds for the exercise of jurisdiction. It considers how courts, in particular in England and Wales and in Canada, have moulded the gateways for exercising jurisdiction in cross-border cases, with a particular focus on the approach in ‘holiday tort’ cases such as Brownlie v Four Seasons (UKSC) and Club Resorts v Van Breda (Can SC). It argues that most of the gateways should be treated as legal standards and exercised on a presumptive basis subject to the courts’ discretion to decline to do so in particular cases, but some gateways have the inherent potential to be exorbitant and so should be exercised only on a discretionary basis.