Commercial Practice - Jurisdiction & Governing Law Flashcards
What is jurisdiction? (1)
The official power of a court to make legal decisions and judgements.
What is governing law? (1)
The law that will be applied by the court which hears a claim made under a contract.
What is exclusive jurisdiction? (1)
A court has exclusive jurisdiction if it the only court competent to hear disputes relating to a matter.
What is non-exclusive jurisdiction? (1)
A court has non-exclusive jurisdiction over a matter if it may hear disputes relating to that matter, but another court may also be competent to do so.
Should you settle the issue of governing law or jurisdiction first? (1)
Jurisdiction.
What stage of the contract should jurisdiction and governing law be considered? (2)
At the negotiation stage and provided for when the contract is drafted, to prevent uncertainty and further problems in the event that any contractual dispute should arise.
What is a jurisdiction clause? (3)
Also known as choice of court clauses and they avoid long and costly disputes over where any dispute should be heard, parties to a commercial contract should include a jurisdiction clause.
What is an international agreement? (1)
Sale of goods between at least one English party and at least one party located within the EU.
What is an exclusive jurisdiction clause? (2)
A clause which designates the courts of one particular jurisdiction, to the exclusion of all others, to hear any disputes under the contract.
What is a non-exclusive jurisdiction clause? (2)
A clause which may designate two or more jurisdictions that can be chosen to hear any dispute under the contract, or according to the type of dispute between the parties or depending on which party is bringing the claim
What happens if there is no jurisdiction clause? (1)
Contract is said to be silent as to jurisdiction.
What does the Hague Convention apply to? (4)
- In international cases
- Where there is an exclusive choice of court clause (exclusive jurisdiction clause)
- Contained in a written agreement involving at least one party from a Contracting State
- Which designates the courts of a Contracting State
What happens if the Hague Convention applies? (4)
The court designated in the exclusive choice of court must accept jurisdiction to decide a dispute to which the agreement applies - Article 5. If proceedings are brought in a court other than that designated in the clause, then that court must suspend or dismiss the proceedings - Article 6.
What should we ask ourselves regarding the Hague Convention? (5)
- Does the scenario relate to an international sale of goods contract?
- Does the contract contain an exclusive choice of court clause?
- Is the clause in writing?
- Does the clause give exclusive jurisdiction to the courts in the UK or an EU member state?
If no consider common law.
When will common law apply to the contract? (3)
If the contract contains a non-exclusive jurisdiction clause, in which case the English courts are likely to give effect to the parties’ choice, it is impossible to predict if the English courts will accept or reject jurisdiction.
What are the three ways the English courts will accept jurisdiction in the absence of an agreement between the parties? (3)
- When the defendant is present within the jurisdiction of England and Wales when proceedings are issued.
- When the defendant submits to the jurisdiction of England and Wales when proceedings are issues.
- With the court’s permission.
What is forum conveniens? (2)
Convenient forum / appropriate forum, courts will take into account all the factors of a case to decide if an English Court is the most appropriate to hear the dispute.
Who determines the issue of governing law? (1)
The law of whichever country has jurisdiction.
What is used in England and Wales to decide governing law? (1)
Rome I Regulation.
How do we determine if the Rome I Regulation applies? (2)
Consider Article 1 which provides that it will apply where there is a ‘conflict of law’ relating to ‘contractual obligations’ in ‘civil and commercial matters.’
What does Article 3 state? (1)
If the Rome I Regulation applies, the contract shall be governed by the law chosen by the parties.
When does Article 4 apply? (1)
In the absence of an express choice of governing law.
What does Article 4(1)(a) state? (1)
The law applicable to a contract for the sale of goods is the law of the country where the seller has its habitual residence.
Where can the definition for habitual residence be found? (1)
Rome I Regulation Article 19.
