Civil & Commercial Jurisdiction (L2-5)

Question 1

What is jurisdiction in IPL?

Answer 1

The right/competence of a court to hear a case and determine an issue.

Question 2

What is the issue of classifying between procedure and substance?

Answer 2

Matters of procedure (evidence/remedy) are governed by the lex fori i.e the forum’s own law.
Matters of substance (rights/obligations) are governed by the lex causae, the law of the cause.
Not necessarily governed by the forum’s own law.

Classification is a task for the forum.

Question 3

When does Brussels I Recast apply?

Answer 3

Applies (in the UK ONLY UP TO 31st Dec 2020, but still in all EU Member states) where:

The matter is within the scope of the Regulation (art 1, i.e. a civil and commercial matter);
AND EITHER
The defendant is domiciled in an EU Member State (art 4).
OR
Jurisdiction is available by reason of:
- Events occurring in an EU MS;
- Territorial significance … e.g, title to land in an EU MS; or
- Party autonomy … the parties agreed to confer jurisdiction on an EU MS.

Question 4

Which piece of legislation governs the national rules on civil and commercial jurisdiction post-Brexit?

Answer 4

Civil Jurisdiction and Judgments Act 1982, Schedule 8.

Question 5

What is the rule of general jurisdiction in Scotland?

Answer 5

CJJA 1982, Sch 8.
Rule 1: “persons shall be sued in the courts of the place where they are domiciled”.

Question 6

What is the rule of general jurisdiction under Brussels I Recast?

Answer 6

Art 4: “…persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State”.

Recital 14 and art 6 = non-EU defendants: “a defendant not domiciled in a Member State should in general be subject to the national rules of jurisdiction applicable in the territory of the Member State of the court seised”.

Question 7

What is the rule of general jurisdiction under Lugano?

Answer 7

The SAME as Brussels.

Question 8

What does ‘domicile’ mean for jurisdiction purposes under CJJA for NATURAL persons?

Answer 8

s41(3).
Residence + substantial connection.

“The fact of substantial connection will be presumed from residence there for the preceding 3 months or more” (s41(6)).

Question 9

What do the cases of Daniel v Foster and Cherney v Deripaska tell us about the CJJA rules of domicile?

Answer 9

Daniel v Foster 1989 SLT 90.
- Real and substantial connection to Scotland meant a dual domicile.

Cherney v Deripaska [2007] EWHC 965 (Comm) (QBD).
- No domicile there but have a house there? Yes.
Unlike Daniel and Foster, no substantial connection or pattern to visits.

Question 10

What does ‘domicile’ mean for jurisdiction purposes under Brussels I Recast for NATURAL persons?

Answer 10

If determining if domiciled in its own state, court applies its domestic law.
If determining if domicile in another Member State, use the law of that state.

cf. Art 59 of Lugano.

Question 11

What does ‘domicile’ mean for jurisdiction purposes under CJJA for LEGAL persons?

Answer 11

S42(1).
The seat of the association.
Only a seat in the UK if also:
- Has a registered office in that part of the UK; or
- Central management exercised in that part; or
- Place of business in that part.

Question 12

What does ‘domicile’ mean for jurisdiction purposes under Brussels I Recast for LEGAL persons?

Answer 12

Art 63.
The place where it has its
(a) statutory seat (i.e. its registered office or place of incorporation: art 63.2); or
(b) central administration; or
(c) principal place of business.

Question 13

At what point is domicile to be determined (i.e what is the tempus inspiciendum)?

Answer 13

Petrotrade Inc v Smith [1999] 1 WLR 457 —- initiation of proceedings.

Canada Trust Co v Stolzenberg (No 2) [2002] 1 AC 1 —– Lord Hope says the date at which the initial writ is stamped (Scots law).

Question 14

What is the CJJA rule on related jurisdiction?

Answer 14

Sch 8, rule 2: A person may also be sued “… where he is one of a number of defenders, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings”.

Question 15

What is the Brussels I Recast (and Lugano) rule on related jurisdiction?

Answer 15

Art 8: “A person domiciled in a member state may also be sued:
Where he is one of a number of defendants, in the courts for the place where any one of them is domiciled…
so closely connected.. avoid risk of irreconcilable judgments….

Question 16

Which cases are relevant to related jurisdiction?

Answer 16

Kinnear v Falconfilms NV [1994] 3 All ER 42.
Gascoine v Pyrah [1994] I.L.Pr. 82.
— Using related actions procedure, the UK court did have jurisdiction.

Question 17

What is special jurisdiction?

Answer 17

‘Event-based’.
Close link between events and the forum.

Question 18

What is the rule of special jurisdiction in MATTERS RELATING TO CONTRACT under CJJA?

Answer 18

Rule 2(B).
Subject to particular protective rules (rules 3, 4, 5 and 6), a person may be sued —
(b) In matters relating to a contract, in the courts for the place of performance of the obligation in question.

Question 19

How can the Scottish courts identify the place of performance of a contract?

Answer 19

(a) Identify, using Scottish rules of choice of law in contract, the law that governs the contract, and then
(b) Using that governing law, identify the place of the performance.

Question 20

What is meant by ‘the obligation in question’?

Answer 20

Most contracts have a primary obligation. Then the counterpart financial obligation. Primary is usually the relevant one to determining this relevant obligation. Forms the basis of the transaction.

De Bloos v Bouyer SA (1976).

Question 21

What is the rule for special jurisdiction IN A MATTER RELATING TO CONTRACT under Brussels I Recast?

Answer 21

Art 7.1.a: “A person domiciled in a member state may, in another member state, be sued… in the courts for the place the performance of the obligation in question….”

Question 22

Which cases define what a ‘matter relating to contract’ is under Brussels?

Answer 22

Jakob Handte & Co GmbH v Traitements Mecano-Chimiques des Surfaces (1992).

Boss Group Ltd v Boss France SA (1996).

Question 23

What is the significance of ‘place of performance’ for Brussels?

Answer 23

Besix (2004).

To justify special jurisdiction, you must be able to point to a single place of performance.

Question 24

What do indent 1 and 2 of Brussels tell us about place of performance of contract?

Answer 24

Indent 1: contracts for the sale of goods.
Place of actual or intended delivery (in a member state).

Indent 2: contracts for the provision of services.
Place of actual or intended provision (in a member state).

Question 25

Which cases show the problems of classification between sale of goods and provision of services?

Answer 25

Car Trim v Key Safety Systems (2009).

Peter Rehder v Air Baltic Corporations (2009).

Question 26

Which cases show the doubt surrounding ‘place of delivery’/’place of performance of services’?

Answer 26

Color Drack v LEXX (2007).

Scottish and Newcastle International Ltd v Othon Ghalanos (2009).

Wood Floor Solutions v Silva Trade (2010).

Corman-Collins SA v La Maison du Whisky (2014).

Question 27

What is the rule for special jurisdiction IN DELICT/TORT under CJJA?

Answer 27

Sch 8, rule 2(c).
Subject to particular protective rules (rules 3, 4, 5 and 6), a person may also be sued—
(c) in matters relating to delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur …

Question 28

What is meant by ‘in matters relating to delict or quasi-delict’?

Answer 28

Kalfelis v Shroder [1988].
“All actions which seek to establish the liability of a defendant and which are not related to a contract”.

Question 29

What is the rule for special jurisdiction IN DELICT/TORT under Brussels I Recast?

Answer 29

Art 7.2.
“A person domiciled in a Member State may, in another Member State, be sued … in the courts for the place where the harmful event occurred or may occur …”

Covers actual and threatened wrongs.

Question 30

What is the UBIQUITY PRINCIPLE put forward in Bier BV v Mines de Potasse D’Alsace SA (1978)?

Answer 30

Multi-locational occurrence. Does it apply to the place of the cause of damage, or the result of damage?

Court takes a broad approach, pro-claimant. Held that the claimant can choose which place of the harmful event occurring they wish.

Question 31

What is the MOSAIC PRINCIPLE put forward in Shevill v Presse Alliance 1995?

Answer 31

If the claimant sues in France (the primary place of the event), she could sue for universal damages, for all the harm caused everywhere, all the defamatory wrong.
Alternatively, she could sue in an English court, for the localised damage only caused in England.

Question 32

What does the Defamation and Malicious Publications (Scotland) Act 2021provide?

Answer 32

S19 rule of jurisdiction, for actions against a person not domiciled in the UK.
Rule applies (s19(1)) to defamation proceedings brought in Scotland against a person who is not domiciled in the UK.
By s19(2), a Scottish court does not have jurisdiction to hear and proceedings unless the court is satisfied that, of all the places where the statement complained of has been published, Scotland is clearly the most appropriate place to bring proceedings in respect of the statement.

Sch 8, rule 2(c).

Question 33

What are the limitations to the Brussels rules on special jurisdiction in delict?

Answer 33

Interpretation of place where the damage occurred (place of the RESULT).
Henderson v Jaouen [2002].
- Condition deteriorated so wished to claim further in England, but the incident had not occurred there.

Difficult instances re. ‘place where the harmful event occurred or may occur’.
e-Date Advertising GmbH v X (C-509/09) [2012] 3 WLR 227.

Question 34

What is exclusive jurisdiction?

Answer 34

It is based on a matter of a ‘territorial connection’: a close link between the subject matter of the claim/dispute and the forum.

A mandatory basis of jurisdiction; it may not be departed from.

Trumps other bases of jurisdiction.

Question 35

What is the Scottish rule of jurisdiction for RIGHTS IN REM IN IMMOVABLES?

Answer 35

CJJA 1982, Sch 8, rule 5.1.a.

Exclusive jurisdiction for:
in proceedings which have as their objects rights in rem in, or tenancies of, immovable property, the courts for the place where the property is situated.

Question 36

What is the Scottish rule of exclusive jurisdiction for SHORT-TERM TENANCIES?

Answer 36

CJJA 1982, rule 5.3.
(3) In proceedings which have as their object tenancies of immovable property concluded for temporary private use for a maximum period of six consecutive months, the courts for the place in which the defender is domiciled shall also have jurisdiction, provided that the tenant is a natural person and that the landlord and tenant are domiciled in Scotland.

Question 37

What is rule 8 of Schedule 8, CJJA?

Answer 37

8. Where a [Scottish] court is seised of a claim which is principally concerned with a matter over which another court has exclusive jurisdiction by virtue of rule 5 [or where it is precluded from exercising jurisdiction by rule 5(2),] it shall declare of its own motion that it has no jurisdiction.

Question 38

What is rule 9 of Schedule 8, CJJA?

Answer 38

9. Where in any case a [Scottish] court has no jurisdiction which is compatible with this Schedule, and the defender does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction.

Question 39

How does rule 2(h) of Schedule 8 provide for an additional ground of jurisdiction?

Answer 39

(h) [subject to the usual rules of protective jurisdiction, a person may also be sued] where he is not domiciled in the UK, in the courts for any place where—
(i) any movable property belonging to him has been arrested; or
(ii) any immovable property in which he has any beneficial interest is situated;

‘Exorbitant’ jurisdiction.
NO equivalent to rule 2(h) in the Brussels or Lugano regimes.

Question 40

Which article of the Brussels I Recast sets out the rules for exclusive jurisdiction?

Answer 40

Article 24.

Question 41

What does Article 24 Brussels I Recast set out for different situations?

Answer 41

Immoveable property (24.1).
Companies (24.2).
Entries in public registers (24.3).
Patents, trade marks, designs etc (24.4).
Enforcement of judgments (24.5).

Question 42

What does Art 24.1 of Brussels I Recast say about immovable property?

Answer 42

The following courts shall have exclusive jurisdiction, regardless of domicile:

In proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated …

Question 43

What does Art 24.1 of Brussels I Recast say about short-term tenancies?

Answer 43

In proceedings which have as their object … short-term tenancies (< 6 months) (i.e. holiday lets) … the courts of the MS in which the defendant is ‘domiciled’ shall also have jurisdiction, provided that the tenant is a natural person and that the landlord and tenant are domiciled in the same MS.

Question 44

What did the case of Webb v Webb [1994] QB 696 tell us about immovable property under Art 24.1?

Answer 44

Father suing son over ownership of a property in France.
Father claimed son was holding the property in trust for him.
Question was whether there was an effective trust.

English court said this didn’t concern real rights in property. Didn’t fall within exclusive jurisdiction of French court, so was in English jurisdiction.

Question 45

What did the case of Barratt International Resorts v Martin 1994 SLT 434 tell us about immovable property under Art 24.1?

Answer 45

Action brought in Scotland. To fire the manager of a timeshare manager in Spain.
If employment terminated, manager to be evicted from property in Spain.

Scottish courts said dispute related to personal rights, not real rights in property.

Question 46

What is the prorogation of jurisdiction?

Answer 46

Prorogation (exercise of ‘party autonomy’).
- Choice of court agreement/clause.
- Submission to the jurisdiction of a court.

Question 47

How does the 2005 Hague Convention relate to prorogation?

Answer 47

Art 1 applies in international cases to exclusive choice of court agreements concluded in civil or commercial matters.

Question 48

How does Art 3 of the 2005 Hague Convention define an exclusive choice of court agreement?

Answer 48

Art 3(a) definition:
“An agreement concluded by two or more parties that meets the requirements of paragraph c) and designates, for the purpose of deciding disputes which have arisen or may arise in connection with a particular legal relationship, the courts of one Contracting State or one or more specific courts of one Contracting State to the exclusion of the jurisdiction of any other courts”

Question 49

What does Hague Art 3(b) set out?

Answer 49

There is a presumption of exclusivity unless the parties have expressly agreed otherwise.

Question 50

What does Hague Art 3(c) require of the form of the choice of court agreement?

Answer 50

An exclusive choice of court agreement must be concluded or documented –
i) in writing; or
ii) by any other means of communication which renders information accessible so as to be usable for subsequent reference.

Question 51

What do Hague Articles 5 and 6 tell us about exclusive choice of court agreements?

Answer 51

Art 5 – Jurisdiction of the chosen court.
Art 6 – Obligations of a court not chosen.

The chosen court must hear the case and any court not chosen must decline to hear the case.

Question 52

What is the Scottish rule on prorogation?

Answer 52

CJJA 1982, Sch 8, rule 6.
(1)If the parties have agreed that a court is to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court shall have jurisdiction.
(2) Such an agreement conferring jurisdiction shall be either—
(a)in writing or evidenced in writing; or
(b)in a form which accords with practices which the parties have established between themselves; or(c)in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.
(3) Any communication by electronic means which provides a durable record of the agreement shall be equivalent to “writing”.

Question 53

What do rule 6(2) and (3) CJJA Sch 8 set out for to the rules on prorogation?

Answer 53

The formal requirements.

Question 54

How do the Scottish prorogation rules differ from the Hague ones?

Answer 54

NO presumption of exclusivity.

Effect of agreement is to be determined by the applicable law of the contract.

Question 55

What are the Brussels rules on prorogation?

Answer 55

Requirements in relation to art 25 agreement:
The parties must have agreed that a court(s) of an EU MS is to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship; and
The agreement must satisfy certain requirements as to form:
- In writing or evidenced in writing; or
- In a form which accords with practices which the parties have established between themselves; or
- In international trade or commerce, in a commonly observed form which accords with a usage of which the parties are or should have been aware.

Presumption of exclusivity: ousts the jurisdiction of other EU Member States… unless the parties have agreed otherwise.

Question 56

What are the Scottish rules on submission to the jurisdiction?

Answer 56

CJJA 1982, Sch 8, rule 7.
- Sch 8, rule 7 incorporates a rule of submission, providing that:
(1) Apart from jurisdiction derived from other provisions of this Schedule, a court before whom a defender enters an appearance shall have jurisdiction.
(2) This rule shall not apply where appearance was entered to contest jurisdiction, or where another court has exclusive jurisdiction by virtue of rule 5.

Question 57

What are the Brussels rules on submission to the jurisdiction?

Answer 57

2 limitations on the operation of art 26:
- It does not apply where the defendant enters appearance only to contest jurisdiction.
- Submission does not apply where another EU MS court has exclusive jurisdiction by virtue of art 24.

Question 58

What is the rule of lis pendens (Brussels I Recast arts 29-34) for conflicting concurrent proceedings?

Answer 58

Where proceedings involving the same cause of action and between the same parties are brought in the courts of different MSs, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.

Question 59

When does the lis pendens rule work?

Answer 59

They’re based on the same cause of action: i.e. the ‘facts and rule of law relied on as the basis of the action’ are the same.

The Tatry; see also Gubisch v Palumbo; Meckler Media Corp v DC Congress GmbH.

Question 60

What does the case of the Tatry tell us about the lis pendens rule?

Answer 60

Court took quite a broad interpretation to phrase ‘same cause of action’.
ECJ held that an action trying to hold the defendant liable and to pay damages was the same cause of action for the parallel proceedings for a negative declaration that the defendant is not liable.

Question 61

How did the case of Meckler Media Corp v DC Congress GmbH differ from the Tatry?

Answer 61

Proceedings not mirror image. First on infringement of trademark, intellectual property rights, statutory. Second on common law delict of passing off.
One on statute, one on common law. Lis pendens doesn’t apply.

Question 62

What does Article 32 (B I Recast) tell us about WHEN a court is seised?

Answer 62

1. … a court shall be deemed to be seised:
   (a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the claimant has not subsequently failed to take the steps he was required to take to have service effected on the defendant; or
   (b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the claimant has not subsequently failed to take the steps he was required to take to have the document lodged with the court.

Question 63

What is the hierarchy of Brussels I Recast provisions?

Answer 63

Exclusive jurisdiction (art 24) trumps choice of court (art 25).

Exclusive jurisdiction (art 24) trumps submission (art 26).

Submission (art 26) trumps choice of court (art 25) ((because a later ‘choice’ trumps an earlier ‘choice’)
- (Elefanten Schuh GmbH v Jacqmain [1981]).

Question 64

What is the relationship between the choice of an EU Member State court (art 25) and lis pendens (art 29)?

Answer 64

The controversial decision in Erich Gasser v Misat Srl [2005] – Lis pendens held to be more important…

HOWEVER:
Art 31.2 introduced to state that choice of court TRUMPS lis pendens.
“Where the ‘art-25 court’ has established jurisdiction in accordance with the agreement, any court of another EU MS shall decline jurisdiction in favour of that court.”
(Note: no equivalent of a31.2 in Lugano).

Question 65

What does Brussels I Recast art 30 provide?

Answer 65

Art 30.1: Where related actions are pending in the courts of different EU MSs, any court other than the court first seised may stay its proceedings.

Question 66

What does ‘related actions’ mean for the purpose of A30?

Answer 66

Actions so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments (art 30.3);

Where there are allegations common to both sets of proceedings (Sarrio SA v Kuwait Investment Authority [1999]).

Question 67

What is the ‘priority of process’ rule for A30?

Answer 67

Discretionary in application (contra Art 29, mandatory in application):
Any court other than the court first seised may (rather than must) stay its proceedings.

Question 68

What is the Scots law solution to conflicting jurisdiction?

Answer 68

The plea of forum non conveniens.
Civil Jurisdiction and Judgments Act 1982, s49.

Question 69

What did Lord Goff tell us about forum non conveniens in the case of Spiliada Maritime Corpn v Cansulex Ltd [1987] (UKHL)?

Answer 69

“A stay [‘sist’] will only be granted …where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice” (per Lord Goff at 476).

“If … there is some other available forum which prima facie is clearly more appropriate, [the court] will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless not be granted” (per Lord Goff at 478).

Question 70

What is the 2-stage inquiry for forum non conveniens set out in Spiliada?

Answer 70

Stage 1: another available forum which is clearly more appropriate.
Plea is entered by the defender.
Defendant must show there is another available forum.
Defendant bears onus of proof.

Stage 2: the requirements of justice.
Onus shifts to claimant.
Claimant must show that justice requires that a sist/stay should not be granted.

Question 71

How does the case of Campbell v James Finlay (Kenya) Ltd 2023 SLT 856 demonstrate the requirements of natural justice under forum non conveniens?

Answer 71

Defender challenged jurisdiction. Contract of employment had clause in favour of Kenyan jurisdiction, dismissed.
Argued Kenya is a more appropriate forum, even if Scotland is competent.
Lord Weir, Lord Ordinary: yes, Kenya is more appropriate.
Claimant must say why justice demands they don’t grant a sist. Risk if Scottish courts sist the action, Kenyan tea harvesters won’t get justice in Kenya. Pursuer succeeded.