19. Jurisdiction

Question 1

What effect does the Hague Convention have on the court’s jurisdiction?

Answer 1

contracting parties can expressly grant jurisdiction to any contracting state (post-October 1st 2015)
- clause must grant exclusive juridisction to relevant state, but if the contract is silent, this is inferred.
- agreement cannot be asymmetric - giving one party non-exclusive jurisdiction cf. other party.

Question 2

What are the contracting states under the Hague Convention?

Answer 2

EU, Singapore, Mexico, UK, Montenegro.
- if not a member, then consider the common law rules.

Question 3

What are three ways jurisdiction can be established at common law?

Answer 3

1) Relevance of service - defendant can be served in E&W.

2) Express jurisdiction clause in agreement (ie. Pre-Hague)

3) Apply to court for permission to serve defendant outside jursdiction.

Question 4

What is the common law test to establish jurisdiction where the court’s permission is required?

Answer 4

1) Need to establish either that:
* claim for remedy is against person domiciled within the jurisdiction.
* governed by English law
* contains a term giving courts in E&W jurisdiction
* contract - breach was committed within jurisdiction.
* tort - damage either (i) sustained or likely to be sustained in jurisdiction; or (ii) results from act committed or likely to be within jurisdiction.

2) Claim must have reasonable prospect of success (relatively low threshold);

3) E&W must be the proper place to bring claim.
* open-ended, consider whether Ws are based, where D normally resides.

Question 5

How long does a claimant have for service of proceedings outside the jurisdiction?

Answer 5

6 months

Question 6

How is the governing law for contract claims determined under Rome I?

Answer 6

1) parties choice clause, if any.
Otherwise
2) prescribed rules for different type of contracts.
* sale of goods/services/distributor - seller/distributor /service provider’s habitual residence
* land contract - where land is located.
* place of characteristic performance (not paying party but party providing service/goods).

Then
apply law of country that contract is manifestly connected to (may be diff. country).

Question 7

How is the governing law for tort claims determined under Rome II?

Answer 7

1) parties choice clause, if any.
* only effective if agreed on AFTER the event.
* unless parties were pursuing commercial activity/freely negotiated.

2) law of country where damage occurs
* except if C/D live in same country.

Then
apply law of country that contract is manifestly connected to
* Not lightly invoked for tort claims.

Question 8

What procedure should a defendant objecting to the court’s jurisdiction follow?

Answer 8

• File an Acknowledgment of service stating it objects to jurisdiction.
• Make a separate application to court within 14 days