11 - Jurisdiction & Conflict of Laws

Question 1

What are the three key aspects to consider in an international dispute?

Answer 1

1. Jurisdiction: Do the courts of England and Wales have jurisdiction to determine the claim?
2. Applicable Law: Which country’s laws will apply to determine the dispute?
3. Enforcement: Will it be necessary to enforce the judgment abroad, and how will this be done?

Question 2

What is the difference between the two questions of jurisdiction and applicable law in an international dispute?

Answer 2

• Jurisdiction: Determines whether the English and Welsh courts can hear the dispute.
• Applicable Law: Determines which country’s laws the court will apply to resolve the dispute, even if the court has jurisdiction.

For example, an English court might have jurisdiction but apply French law to decide the dispute. Expert evidence may be needed on the foreign law.

Question 3

Why is it important to understand which court has jurisdiction and which law applies in an international dispute?

Answer 3

1. Jurisdiction: If you commence proceedings in a court without jurisdiction, the court may refuse to decide the case, wasting time and money.
2. Multiple Jurisdictions: More than one court might have jurisdiction, and choosing the preferable one could be advantageous.
3. Applicable Law: Without knowing which law applies, meaningful case analysis cannot be carried out, impacting your strategy and outcome.

Question 4

What determines the jurisdiction of the Courts of England and Wales in an international dispute, and how does the Hague Convention affect this?

Answer 4

• As a general rule, the Courts of England and Wales will determine disputes concerning matters occurring within England and Wales.
• For disputes outside England and Wales or involving foreign nationals, additional criteria must be considered.

The Hague Convention on Choice of Court Agreements applies to commercial parties that wish to choose a particular court, regardless of where the dispute occurs or where the parties are based.
- Where proceedings are commenced on or after 1 January 2021, the question must be answered by reference to the Hague Convention.
- The Hague Convention only applies to choice of court agreements made on or after 1 October 2015.

Question 5

What is the purpose of the Hague Convention on Choice of Court Agreements, and when does it apply?

Answer 5

• The Hague Convention provides certainty for commercial parties who wish to designate a particular country’s court for dispute resolution, irrespective of where the dispute takes place or the parties’ locations.
• It applies to choice of court agreements made between the parties, typically made in contracts.
• The Hague Convention only applies to agreements concluded on or after 1 October 2015, and the parties do not need to be based in a Contracting State to use it.

Question 6

What are the key considerations to determine if the courts of England and Wales have jurisdiction under the Hague Convention on Choice of Court Agreements?

Answer 6

1. Is the matter civil or commercial?
2. Is it an excluded matter?
3. Does the clause give jurisdiction to a Contracting State?
4. Is jurisdiction given exclusively?
5. Is the agreement concluded in writing?
6. Is the agreement asymmetric?

Question 7

Following step 1 and 2, how do you assess whether the Hague Convention applies regarding civil/commercial matters and exclusions?

Answer 7

Step 1: The Hague Convention applies only to civil or commercial matters, covering most commercial contracts but excluding public law and criminal disputes (Article 1(1)).

Step 2: Certain excluded matters, such as consumer and employment disputes, are not covered by the Convention (Article 2).

Question 8

Under the Hague Convention, when does it apply regarding jurisdiction to a Contracting State?

Answer 8

The Hague Convention only applies when the parties have chosen a Contracting State to have jurisdiction (Article 3(a)):
- Contracting States include the UK, EU member states, Mexico, Singapore, and Montenegro.
- For example, if the clause specifies the Courts of France, the Convention applies, but if it specifies a US state court, the Convention does not apply.
- In non-Contracting State scenarios, common law rules must be applied to assess effectiveness.

Question 9

How does the concept of exclusive jurisdiction apply under the Hague Convention?

Answer 9

The Hague Convention applies only to clauses that give exclusive jurisdiction to a particular country (Article 1, Article 3(a) and (b)).

Examples:
1. “The Courts of England and Wales will have exclusive jurisdiction” – the Convention applies.
2. “The Courts of England and Wales will have jurisdiction” – assumed to be exclusive, and the Convention applies.
3. “The Courts of England and Wales will have non-exclusive jurisdiction” – the Convention does not apply.

Question 10

Under the Hague Convention, how must a jurisdiction agreement be documented for it to apply?

Answer 10

The jurisdiction agreement must be in writing, or evidenced/documented in writing (Article 3(c)).

This ensures the agreement is clear and enforceable under the Convention.

Question 11

How does the Hague Convention treat asymmetric agreements and what are the key principles for jurisdiction?

Answer 11

An asymmetric agreement gives one party exclusive jurisdiction in a specific country, while the other party has the option to sue in that country or any other jurisdiction.

The Convention’s wording makes it unclear whether such clauses fall within its scope.

Key Principles:
1. The court with jurisdiction as per the agreement cannot refuse jurisdiction (Article 5(1) and (2)).
2. Other courts must refuse to hear the case (Article 6), with limited exceptions.

Question 12

Provide a summary in relation to jurisdiction: Hauge Convention.

Answer 12

The Hague Convention aims to provide certainty in this area for commercial parties that wish to choose a particular country’s courts to determine their disputes.

It applies if:
1. Is the matter civil or commercial?
2. Is it an excluded matter?
3. Does the clause give jurisdiction to a Contracting State?
4. Is jurisdiction given exclusively?
5. Is the agreement concluded in writing?
4. Is the agreement asymmetric?

Question 13

How is the jurisdiction of the courts of England and Wales linked to the service of proceedings?

Answer 13

The court has jurisdiction if:
1. Service is possible within the jurisdiction (i.e., the defendant is ‘present’ in England and Wales).
2. The court grants permission to serve a defendant outside of the jurisdiction.
3. The contract includes a jurisdiction clause giving the courts of England and Wales jurisdiction.

Question 14

When can a defendant be subject to the jurisdiction of the courts of England and Wales?

Answer 14

A defendant can be subject to jurisdiction if proceedings are served while they are within England and Wales:
- This applies even if the defendant is foreign or the subject matter occurred outside the jurisdiction.
- Methods of service include personal service (CPR 6.5), service at a place of business for companies (CPR 6.9(2)), or service via a solicitor appointed in England and Wales.

Example: An English paper supplier contracted with a Delaware-based printing company with an office in England. After delivering the paper, the printing company failed to pay.
The courts of England and Wales would have jurisdiction to hear the claim because the supplier can serve proceedings on the printing company’s London branch, establishing jurisdiction.

Question 15

What are the conditions that must be met for a party to apply for permission to serve proceedings outside of the jurisdiction?

Answer 15

If a party cannot, or does not want to, serve proceedings within jurisdiction, it can apply to serve proceedings on D outside of jurisdiction, giving (in principle) the courts of E&W to determine the jurisdiction of the claim if they grant permission.

The conditions are:
1. Establish one of the grounds in CPR 6B PD 3.1.
2. Demonstrate that the claim has reasonable prospects of success.
3. Show that England and Wales is the ‘proper place’ for the claim.

Question 16

What are the key grounds under CPR 6B PD 3.1 for applying for permission to serve proceedings outside of the jurisdiction?

Answer 16

1. A claim for a remedy against a person domiciled in England and Wales.
2. A contract claim where the contract was made within the jurisdiction, is governed by English law, or contains a jurisdiction clause.
3. A breach of contract committed within the jurisdiction.
4. A tort claim where damage was sustained or will be sustained within the jurisdiction, or where damage results from an act committed or likely to be committed within the jurisdiction.

These grounds are known as ‘jurisdictional gateways’.

Question 17

How can a claimant show reasonable prospects of success to obtain permission to serve proceedings outside of jurisdiction?

Answer 17

The second matter that must be established is a reasonable prospect of success.

This is a relatively low threshold and has been equated to the prospect of success needed to resist an application for summary judgment: De Molestina v Ponton [2002] 1 Lloyd’s Rep 271.

Question 18

What factors determine whether England or Wales is the ‘proper place’ (forum conveniens) to bring a claim?

Answer 18

England or Wales may be the proper place if:
- It is the natural place to bring proceedings (e.g., witnesses are based there, English law applies, or the defendant is resident there).
- Even if another jurisdiction seems more natural, it can still be the proper place if justice requires it, such as due to risks of unfair trials in another jurisdiction.

Question 19

How can a claimant serve a claim form on a defendant outside the jurisdiction without court permission?

Answer 19

A claimant can serve the claim form on a defendant outside the jurisdiction without permission if the contract contains a jurisdiction clause stating that the courts of England and Wales shall have jurisdiction (CPR 6.33(2B)).

This provides an alternative to the Hague Convention, which only applies to exclusive jurisdiction agreements concluded after 1 October 2015.

Question 20

Provide a summary of jurisdiction: Common Law.

Answer 20

Under the common law, the Courts of England and Wales will have jurisdiction if
a. it is possible to serve the proceedings on the defendant in the jurisdiction;
b. the court gives permission to serve the proceedings on the defendant outside of the jurisdiction; or
c. the Courts of England and Wales are given jurisdiction by a clause in a contract.

In order to obtain permission (the second of the three options above), three matters must be established:
a. the claimant needs to establish one of the grounds / ‘jurisdictional gateways’ (6B PD 3.1);
b. the claim must have a reasonable prospect of success;
c. England and Wales must be the ‘proper place’ in which to bring the claim.

Question 21

How long is a claim form valid for service outside the jurisdiction compared to within the jurisdiction?

Answer 21

• A claim form for service outside the jurisdiction is valid for six months (CPR 7.5(2)).
• A claim form for service within the jurisdiction is normally valid for four months (CPR 7.5(1)).

Question 22

When is court permission not required to serve a claim form outside the jurisdiction?

Answer 22

Court permission is not required if:
- The Hague Convention on Choice of Court Agreements gives the court jurisdiction; or
- A contract includes a term stating that the courts of England and Wales shall have jurisdiction (CPR 6.33(2B)).

In all other circumstances, permission is required.

Question 23

What is the procedure for serving an English claim form abroad?

Answer 23

Without permission: File Form N510 when issuing the claim form to confirm the court’s jurisdiction over the foreign-domiciled defendant (CPR 6.34).

With permission: Submit an interim application using Form N244 pursuant to CPR 23, requesting the court’s approval to serve the claim form abroad.

Question 24

What are the possible methods for serving a claim form outside the UK?

Answer 24

Methods for serving a claim form outside the UK (CPR 6.40) include:
- Service under an agreed regulation, convention, or treaty between the UK and the destination country.
- Service through the government of the destination country, if that government agrees.
- Service by any method permitted by the law of the destination country, often facilitated by local advice or a local agent.

Question 25

How do response times differ when a claim form is served outside the UK?

Answer 25

Extended periods for filing an acknowledgment of service or defence apply when the claim form or particulars of claim are served outside the UK. The additional time varies depending on the destination country.

Question 26

What are the links between the basis of jurisdiction, the need for permission, and the rules for service?

Answer 26

• Presence in the jurisdiction: No permission needed; service follows usual domestic rules.
• Hague Convention on Choice of Court Agreements: No permission needed; comply with service rules for the target country.
• Contractual provision giving jurisdiction: No permission needed; comply with service rules for the target country.
• Common law: Permission is required; comply with service rules for the target country.

Question 27

Provide a summary of serving a claim form outside the jurisdiction.

Answer 27

• When serving out of the jurisdiction you need to consider i) whether permission from the court to do so is needed and ii) which methods of service are possible.
• Permission will not be needed to serve where jurisdiction is established under the Hague Convention on Choice of Court Agreements pursuant to a contractual term.
• Permission will be needed to serve out in most other circumstances.
• Service outside of the UK can be effected using any method permitted by the law of the destination country or through an applicable regulation, convention or treaty, or through the government of the country concerned.
• The validity of the claim form and response times for the defendant are extended where service is to be effected out of the jurisdiction.

Question 28

What are the two orders a court may grant in cases of difficulty with service?

Answer 28

The court may grant:
1. An order for alternative service (CPR 6.15), where traditional methods are ineffective or impossible.
2. An order dispensing with service (CPR 6.16), typically when the other party is already aware of the document.

Question 29

When might the court allow alternative service, and what are examples of alternative methods?

Answer 29

The court may allow alternative service if there is good reason to do so, if traditional methods are ineffective or impossible.

In the application to the court, the claimant must set out why service according to CPR methods are not possible, or why attempts to service according to these methods has been unsuccessful, stating the alternative method proposed.

Examples include:
- Serving the document on a party’s solicitor without prior authorisation.
- Publishing an advert in a newspaper to notify the defendant.

The court may order that the steps alerady taken constitute good service.

Note: Alternative service cannot be used retrospectively or to correct irregular service.

Question 30

When may the court dispense with service of a document, and how common is this in practice?

Answer 30

The court may dispense with service, however this discretion is only usually excercised if the defendant is already aware of the document.

Example: Dispensing with thr requirement to apply to the court for the amendment of particulars of claim if the defendant agrees to the amendment.

Dispensing with service of a claim form is very rare when the other party is unaware of the proceedings, but may happen if the other party is aware.

Question 31

Provide a summary of difficulties with service.

Answer 31

• The court may be prepared to make an order allowing alternative service where it is impossible to serve effectively (either within or out of the jurisdiction) through the usual methods.
• The court may dispense with service where it is clear the other side is already aware of the documents.

Question 32

What are the reasons a defendant might dispute the court’s jurisdiction in England and Wales?

Answer 32

A defendant may dispute jurisdiction because:

1. The claimant’s reliance on conventions like the Hague Convention is contested.
2. The claimant obtained permission to serve proceedings outside the jurisdiction, but the defendant believes no jurisdictional gateway (6B PD 3.1) is satisfied or England and Wales is not the proper forum.
3. Proceedings were served within the jurisdiction, but another forum is more appropriate.

Question 33

What objections might a defendant raise to dispute the court’s jurisdiction?

Answer 33

The substance depends on the grounds that the claimant is relying on to establish jurisdiction.

The defendant could argue that:
- The claim does not fall within a convention, like the Hague Convention, or its interpretation is incorrect.
- The common law rules or jurisdictional gateways (6B PD 3.1) do not apply.
- England and Wales is not the proper forum.

Even if permission was granted to serve proceedings, the defendant can still challenge the jurisdiction once proceedings are received.

Question 34

What is the procedure for disputing the court’s jurisdiction?

Answer 34

To dispute jurisdiction:
1. The defendant must file an acknowledgement of service indicating their intent to contest jurisdiction (CPR 11(2)).
2. Within 14 days of filing the acknowledgement of service, the defendant must apply to court to dispute jurisdiction, supported by evidence.

Question 35

How does a defendant avoid submitting to the court’s jurisdiction?

Answer 35

This is the opposite of disputing the courts’ jurisdiction.

To avoid submitting to jurisdiction:
- The defendant must only file an acknowledgement of service and then apply to dispute jurisdiction.
- The defendant who objects can indicate this on their acknowledgment of service.
- They must not engage with proceedings, such as filing a defence.

If a party submits to jurisdiction, either intentionally or by taking steps beyond these, the court’s jurisdiction is established.

Question 36

Provide a summary of disputing or submitting to the court’s jurisdiction.

Answer 36

• A party can argue that the court does not have jurisdiction at all, or that the court should decline to exercise its jurisdiction.
• To argue this, the party will need to attack the basis on which the claimant asserts that the court does have jurisdiction and/or argue that the Courts of England and Wales are not the proper forum for the claim.
• Procedurally, a party wishing to do this should file an acknowledgement of service indicating an intention to dispute jurisdiction, and then make the necessary application to court within 14 days after filing that acknowledgement.
• Submitting to the court’s jurisdiction is the opposite of disputing it. If a party submits to the court’s jurisdiction, it cannot later argue that the court does not have jurisdiction.
• To avoid submitting to the court’s jurisdiction, a defendant served with proceedings must not take any steps to engage with the proceedings beyond filing an acknowledgement of service and then applying to court to challenge its jurisdiction, as set out earlier in this element. The party must not, for example, file a defence.

Question 37

What is the significance of the Rome I Regulation in the applicable law governing contractual disputes post-Brexit?

Answer 37

Rome I (Regulation 593/2008) governed most contractual disputes before Brexit.

After the Brexit transition period ended on 31 December 2020, Rome I was incorporated into English law with minor amendments through:
- The Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019.

The Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020.
The amended Rome I applies to contractual disputes in England and Wales.

Question 38

What are the key exclusions and special provisions under the Rome I Regulation?

Answer 38

Exclusions: Rome I does not apply to certain areas of law (Article 1).
Temporal Scope: It excludes contracts entered into before 17 December 2009.
Special Provisions: It includes specific rules for contracts of carriage, consumer contracts, employment contracts, and insurance contracts.

Question 39

What is the general overview of determining applicable law under the Rome I Regulation?

Answer 39

The process for determining applicable law under the Rome I Regulation involves three steps:

1. Parties’ choice of law: If the parties have chosen the applicable law, that country’s law will apply.
2. Specified cases under Articles 4(1)(a) to (h): If no choice is made, the law is determined by the type of contract, using these articles.
3. Characteristic performer: If Articles 4(1)(a) to (h) do not apply, the applicable law is that of the country where the “characteristic performer” has their habitual residence, unless the contract is “manifestly more closely connected” to another country.

Question 40

What laws apply under Articles 4(1)(a) to (h) of the Rome I Regulation for different types of contracts (following step 2)?

Answer 40

In the absence of a choice of law, Articles 4(1)(a) to (h) apply the following laws to specific contract types:

• Sale of goods: Law of the seller’s habitual residence.
• Provision of services: Law of the service provider’s habitual residence.
• Contracts relating to land: Law of the country where the land is situated.
• Distribution contracts: Law of the distributor’s habitual residence.

(Habitual residence: For companies, it is the ‘central administration’; for natural persons, it is their principal place of business.)

Question 41

What happens if a contract does not fall under Articles 4(1)(a) to (h) of the Rome I Regulation?

Answer 41

If no law is chosen and the contract does not fall under Articles 4(1)(a) to (h):
- The applicable law is that of the country where the party responsible for characteristic performance has its habitual residence.
- Characteristic performance typically refers to the performance that defines the contract’s nature (e.g., the service or goods provided, not payment).

Question 42

How does Article 4(3) of the Rome I Regulation handle contracts manifestly more closely connected to another country?

Answer 42

Under Article 4(3):
- Even if the applicable law is determined under Articles 4(1) or 4(2), a court can apply the law of another country if the contract is manifestly more closely connected to that country.
- This provision is used sparingly to avoid creating uncertainty in the operation of the Rome I Regulation.

Question 43

An English marketing company enters into a contract with a Spanish pharmaceutical company to design a marketing campaign for the Spanish market. The contract has no choice of law clause.

The marketing company is based in England, but payments are made to a Spanish bank account, and the work involves subcontractors governed by Spanish law. Which country’s laws is the English court most likely to apply to this contract?

Answer 43

• The contract involves the provision of services, so under Article 4(1)(b), the applicable law is that of the service provider’s habitual residence.
• The marketing company is the service provider, and its habitual residence is in England; therefore, English law would typically apply.
• However, under Article 4(3), the court might consider applying Spanish law if the contract is manifestly more closely connected with Spain, given factors such as payments in Spain and subcontractors governed by Spanish law.

Question 44

Provide a summary of conflict of laws: contract.

Answer 44

• Rome I applies to contracts entered into on or after 17 December 2009.
• There are special provisions in Rome I for contracts of carriage, consumer contracts, employment contracts and insurance contracts – not covered.
• Parties are free to choose which country’s laws apply to their dispute.
• In the absence of choice, there are specific provisions in Article 4 which stipulate which country’s laws apply to various types of contract, including:
  a. Sale of goods – law of country where seller habitually resides
  b. Provision of services – law of country where service provider habitually resides
• If the contract is not one of the types of contract listed in Article 4, the applicable law is that of the country where the “characteristic performer” (usually the party getting paid) has its habitual residence.
• Conclusions reached via these routes (not by the ‘choice’ provisions) can be displaced if the contract is ‘manifestly more closely connected’ with another country.

Question 45

What is the Rome II Regulation and how is it applied to determining applicable law in tortious disputes post-Brexit?

Answer 45

The Rome II Regulation (Regulation 864/2007) governed tortious disputes before Brexit.

Post-Brexit, it was adopted into English law (with minor amendments) through the Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc) (EU Exit) Regulations 2019 and the Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020.

Rome II, as amended, continues to apply to tortious disputes under English law, with article references now pointing to this retained version.

Question 46

What are some key exclusions and provisions under Rome II?

Answer 46

Rome II excludes some areas of law under Article 1.
It applies only to events causing damage that occurred on or after 10 January 2009.

Special provisions exist for specific areas, including:
- Product liability
- Unfair competition
- Environmental damage
- Intellectual property infringement
- Industrial action

Question 47

How is the applicable law determined under Rome II in tortious disputes?

Answer 47

1. Parties’ Valid Choice: If the parties have validly chosen which law applies, that law governs.
2. Habitual Residence: If no choice is made, and the claimant and defendant habitually reside in the same country, that country’s laws apply.
3. Place of Damage: If the parties do not reside in the same country, the law of the country where the damage occurs applies.
4. Closer Connection: Regardless of these rules, the law of another country may apply if the tort is manifestly more closely connected with that country.

Question 48

How does a parties’ choice of applicable law affect tortious disputes under Rome II?

Answer 48

Freedom of Choice: Parties may choose which law applies under Article 14.

Timing and Effectiveness of any Agreement:
- After the Event: The choice is always effective.
- Before the Event: Effective only if both parties are engaged in and pursuing commercial activity and freely negotiated the choice.

Form of Choice:
- It can be express, such as a term in a contract.
- It can also be implied, demonstrated by the circumstances of the case.

Question 49

How does Rome II determine the applicable law when the claimant and defendant reside in the same country?

Answer 49

Habitual Residence:
- For companies: Where the central administration is located.
- For natural persons in business: Where their principal place of business is.

Rule: If both parties reside in the same country, that country’s laws apply, even if the damage occurred elsewhere (Article 4(2)).

Question 50

Under Rome II, which law applies when the parties do not reside in the same country?

Answer 50

Applicable Law: The law of the country where the damage occurs.
Clarification: This is not where the event causing the damage happened, nor where indirect consequences occur (Article 4(1)).

Example: For personal injury or property damage, the applicable law is usually where the injury occurred or the property was damaged.

Question 51

What exception does Article 4(3) provide to the general rules of Rome II?

Answer 51

Exception: Even if the law is determined under Articles 4(1) or 4(2), a court may apply the law of a different country if the tort is manifestly more closely connected to that country.

Caution: This provision is used sparingly to avoid creating uncertainty in Rome II’s application.

Question 52

IFL, based in England, grows vegetables in Belgium and sells them to a Dutch supermarket. It hires French company Haulage to deliver the goods. The goods are damaged in the Netherlands after a refrigeration failure. IFL sues Transportation, a French subcontractor. There is no choice of law clause.

Which country’s laws will the English court apply?

Answer 52

• The law of the country where the damage occurs applies.
• The damage occurred in the Netherlands, so Dutch law will apply, even though the event occurred in Belgium.
• The tort is not more closely connected to any other country, so Dutch law governs.

Question 53

Provide a summary of conflict of laws: tort.

Answer 53

• Rome II applies to events giving rise to damage which occur on or after 10 January 2009.
• There are special provisions in Rome II for product liability, unfair competition, environmental damage, infringement of intellectual property and industrial action – not covered.
• After the tortious event, parties are free to choose which country’s laws apply to their dispute.
• Before the tortious event, parties are free to choose which country’s laws apply to their dispute only if both pursuing a commercial activity and the choice is freely negotiated.
• In the absence of choice, if both parties habitually reside in the same country, that country’s laws apply.
• Otherwise, the law of the country in which damage occurs applies.
• Conclusions reached via these routes (not by the ‘choice’ provisions) can be displaced if the tort is ‘manifestly more closely connected’ with another country.

Question 54

How do English/Welsh courts determine the applicable law when faced with a conflict of laws involving Scottish or Northern Irish law?

Answer 54

• The conflict of laws situation is straightforward.
• The approach is the same whether determining if Scottish or Northern Irish law applies, or if a foreign law, such as French law, applies.
• The courts will apply the same principles for resolving conflicts of laws in contractual and tortious disputes.

This is:
1. Parties’ Valid Choice: If the parties have validly chosen which law applies, that law governs.
2. Habitual Residence: If no choice is made, and the claimant and defendant habitually reside in the same country, that country’s laws apply.
3. Place of Damage: If the parties do not reside in the same country, the law of the country where the damage occurs applies.
4. Closer Connection: Regardless of these rules, the law of another country may apply if the tort is manifestly more closely connected with that country.

Question 55

How is jurisdiction determined for cases involving parties in Scotland or Northern Ireland when the proceedings are commenced after 1 January 2021?

Answer 55

Jurisdiction is more complicated in such cases.
- If the defendant is based in Scotland or Northern Ireland, jurisdiction is governed by the Civil Jurisdiction and Judgments Act 1982 (s.16 and schedule 4).
- This Act applies alongside the Hague Convention on Choice of Court Agreements, where applicable, and common law rules for cases commenced after 1 January 2021.
- The Act includes specific provisions for consumer contracts and employment contracts.

Question 56

What are the rules regarding exclusive jurisdiction, jurisdiction agreements, and submission under the Civil Jurisdiction and Judgments Act 1982 for cases with parties in Scotland and NI?

Answer 56

Exclusive Jurisdiction: Certain disputes, such as those concerning real property or tenancies, are subject to exclusive jurisdiction rules.
E.g., The jurisdiction will be in the part of the UK where the property is located, with exceptions for short-term tenancies (under 6 months).

Jurisdiction Agreements: If the parties agree on a specific part of the UK having jurisdiction, that agreed jurisdiction will apply (schedule 4, rule 12).

Submission: If a party submits to the jurisdiction of a UK court (e.g., by filing a defence), that court will have jurisdiction, unless overridden by exclusive jurisdiction rules (schedule 4, rule 13).

Question 57

What is the basic rule for determining where a defendant should be sued under the Civil Jurisdiction and Judgments Act 1982?

Answer 57

The basic rule is that a defendant should be sued in the courts of the part of the UK where they are domiciled (schedule 4, rule 2).
- A person is domiciled in a part of the UK if they are resident there and have a substantial connection with that part (s.41).
- A company is domiciled where its ‘seat’ is, typically where its registered office is or where it was incorporated (s.42 and s.42A).

Question 58

What are the additional jurisdiction rules for suing a defendant in a part of the UK where they are not domiciled?

Answer 58

A person can be sued in a part of the UK where they are not domiciled in the following circumstances (schedule 4, rules 3 and 5):
- In matters relating to a contract, in the courts for the place of performance.
- In matters relating to tort, in the courts where the harmful event occurred.
- In disputes related to the operations of a branch or agency, in the courts where the branch or agency is situated.
- In multi-defendant cases, in the court where any one of the defendants is domiciled, if claims are closely connected.
- On a counter-claim, in the court where the original claim is pending.

Question 59

A claimant domiciled in England wishes to sue a defendant domiciled in Northern Ireland for a breach of contract. The contract stipulates that the goods are to be delivered in England. Does the English court have jurisdiction?

Answer 59

The starting point is that the defendant is domiciled in Northern Ireland, so the basic rule is that the defendant should be sued in Northern Ireland (schedule 4, rule 2).

However, the claimant can also sue in England, where the contract is to be performed (place of delivery), under the additional jurisdiction rule for contract disputes (schedule 4, rule 3).

Therefore, the claimant has the choice of suing in either Northern Ireland or England.

Question 60

Provide a summary of jurisdiction and conflict of laws.

Answer 60

Questions of jurisdiction and conflict of laws can arise as between parts of the UK – so between England/Wales, Scotland and Northern Ireland.

The question of which country’s laws apply is decided just the same way as for any other jurisdiction (explained in other elements).

In relation to jurisdiction:
- Generally, disputes about land must be heard in the part of the UK where the land is.
- If the parties have agreed which part of the UK has jurisdiction, that agreement will be upheld.
- If a party submits to the jurisdiction of a particular part of the UK, it will have jurisdiction.
- If none of the above apply, very generally a defendant must be sued in either a) the part of the UK where they are domiciled, or b) the part of the UK where the goods were to be delivered / services provided / harmful tortious event occurred.