Disputes (Jurisdiction) Flashcards

1
Q

What should you consider when a dispute has an international dimension?

A
  • Whether the courts of England & Wales have jurisdiction to determine the claim
  • Which country’s laws will apply to determine the dispute;
  • whether enforcement of the judgment abroad will be necessary, including how it will be done.
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2
Q

What is jurisdiction concerned with?

A

Jurisdiction concerns determining which court should hear the dispute, regardless of whether English or Welsh law applies. In simple terms, it addresses which court hears the case.

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3
Q

What is conflicts of law about?

A

Conflicts of law pertains to deciding which country’s law applies to the dispute, regardless of the court handling the case.

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4
Q

What is the Hague Convention?

A

The Hague Convention provides certainty to commercial parties wishing to select a specific country’s court for dispute resolution, regardless of where the dispute arose or where the parties are based.

It applies only to agreements concluded on or after October 1, 2015.

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5
Q

What types of cases are excluded from the Hague Convention?

A

Exclusions include family law matters, wills and succession, defamation, privacy, intellectual property, and anti-trust (competition) matters.

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6
Q

When does the Hague Convention apply?

A

It applies if the jurisdiction clause exclusively selects a contracting state’s court, and if the agreement is in writing or documented in writing.

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7
Q

What is an asymmetric jurisdiction clause?

A

An asymmetric jurisdiction clause allows one party exclusive jurisdiction while permitting the other to bring proceedings in multiple countries. Its application under the Hague Convention is debated and varies by country.

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8
Q

What are the consequences of a jurisdiction clause falling under the Hague Convention?

A
  • The court indicates as having jurisdiction will have jurisdiction
  • The court with jurisdiction cannot decline it on the basis that the dispute should be decided elsewhere
  • Any other court must refuse to hear proceedings
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9
Q

What are the three main grounds for jurisdiction in English & Welsh courts?

A
  1. Serving the defendant within the jurisdiction
  2. Permission to serve outside jurisdiction
  3. Contractual jurisdiction clauses.
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10
Q

What is required to serve proceedings on a defendant outside the jurisdiction?

A
  1. Establish one of the 6B PD 3.1 grounds
  2. Show the claim has a reasonable prospect of success
  3. Demonstrate that England & Wales is the proper place for the claim.
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11
Q

What are the Permission Grounds Permission to serve the proceedings on the defendant outside of the jurisdiction?

A

One of the following must be satisifed…

  • A claim is made for a remedy against a person domiciled within the jurisdiction
  • A claim is made in respect of a contract where the contract was made within the jurisdiction; or governed by English law; or contains a term to the effect that the court shall have jurisdiction to determine any claim in respect of contract.
  • A claim is made in respect of a **breach of contract committed within the jurisdiction **
  • A claim is made in tort where (i) damage was sustained, or will be sustained, within the jurisdiction; or (ii) damage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction.
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12
Q

What is a reasonable prospect of success limb to serve the proceedings on the defendant outside of the jurisdiction?

A

A low threshold indicating a likelihood of success comparable to resisting summary judgment.

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13
Q

What is meant by the ‘proper place’ when serving the proceedings on the defendant outside of the jurisdiction?

A

England & Wales may be the ‘proper place’ if it’s natural to bring proceedings there

For example, because…
* witnesses are based there
* English law applies
* D is normally resident there

If England or Wales is not the natural place, the Courts of England and Wales can still be the proper place in which to bring the claim if justice nonetheless requires that the claim be tried in England. For example, there is a risk of improper government interference in a different jurisdiction

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14
Q

What is required for a jurisdiction clause to allow service outside England & Wales without permission?

A

A contract containing a clause that assigns jurisdiction to England & Wales courts allows claim form service outside the jurisdiction without court permission.

CPR 6.33 provides an alternative to the Hague Convention should it not apply (e.g. not exclusive, or prior to October 205)

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15
Q

When is permission needed to serve a claim outside of the UK?

A

Permission is needed unless the Hague Convention applies or there’s a clause granting jurisdiction to England & Wales courts.

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16
Q

What Is the period for service outside the jurisdiction?

A

6 months (Rather than the usual 4 months)

17
Q

If serving outside jurisdiction, without court permission (e.g. Hague convention gives E&W Courts jurisdiction; or (b) the jurisdictional clause applies) what form should be used?

A

Form N510

18
Q

If serving outside jursidcition with court permission, what form?

A

Form N244 (Usual) form an Interim Application

19
Q

What is alternative service?

A

If standard service is ineffective, the court may approve an alternative method, such as service on an unauthorised solicitor or public notice.

Alternative service cannot be used retrospectively and it cannot be used to remedy irregular service.

20
Q

When might service be dispensed with?

A

Service may be dispensed with if the defendant is already aware of the document or for minor amendments.

21
Q

When might a party dispute jurisdiction?

A

If they believe the court lacks jurisdiction or another court should hear the case.

22
Q

What is the process to dispute jurisdiction?

A

The defendant must file an acknowledgment of service and apply to contest jurisdiction within 14 days, with supporting evidence.

23
Q

What happens if a party submits to jurisdiction?

A

Submission prevents later jurisdictional disputes; filing a defense, for example, signifies submission.

24
Q

What is the first step in determining applicable law for a contract?

Conflicts

A

Determine if the parties chose applicable law through a choice of law clause, which would be binding.

25
Q

What if there’s no choice of law clause in a contract?

A

If no law is chosen, apply the law based on the contract type,

  • Sale of Good - Law of the Sellers habitual residence
  • Provision of Service - Service Providers habitual residence
  • Contract relating to land - Where the land is situated
  • Distribution contract - Distributors habitual residence

article 4(1) categories

26
Q

If the contract is relating to land, where is the applicable law?

A

Where the land is situated

27
Q

If the contract is for the sale of goods or services, where is the applicable law?

A

Law of the Sellers/Service Peroviders habitual residence

28
Q

When determining applicable law for contract, if there is no choice provision and the contract doesn’t fall within one of the article 4(1) categories, what is the next step?

A

The applicable law is the law of the country where the party required to effect characteristic performance of the contract has its habitual residence.

29
Q

What is the characteristic performance rule?

A

In the absence of a specified law, apply the law of the characteristic performer’s habitual residence.

e.g. in a contract where A is paying B for something, it is the party doing ‘something’ which gives character, not the party making payment

30
Q

When would a court apply a law more closely connected to a contract?

A

If the contract is manifestly more closely connected with another country, that country’s law may apply.

31
Q

When does an agreement’s choice of law apply in tort cases?

A

If agreed after the event or freely negotiated in a commercial context before the event.

32
Q

If there is no choice of law clause, or it doesn’t apply (e.g. not freely negotiated) for a tort case, what is the next stage?

A

Does the claimant and defendant habitually reside in the same country?

If so, the law of that country applies if both parties reside there.

33
Q

What law applies if there is no valid choice provision and the parties do not reside in the same country for a tortious issue?

A

The applicable law is the law of the country in which the damage occurs- not where the event giving rise to the damage occurs

34
Q

What happens if a tort is closely connected with another country?

A

Even if the applicable law has been determined, the court will apply a different country’s law if the tort is manifestly more closely connected with that country.

35
Q

What if an English or Welsh Court is faced with questions of whether Scottish or Northern Irish law might apply?

A

Standard conflict of law rules apply, similar to determining the law of a foreign jurisdiction.

36
Q

When is exclusive jurisdiction in **one part **of the UK permitted?

A

A clause specifying exclusive jurisdiction in Scotland, for example, makes Scottish courts the sole jurisdiction.

37
Q

What if there is no jurisdiction clause and D is domiciled in part of the UK?

A
  1. Starting Point: A person domiciled in part of the UK should be sued in the courts of that part (e.g. Scotland) - that is broadly if they are resident there. For companies, if the registered office is in that location. However, Disputes about land must be heard where the land is
  2. However, a person can be sued in other parts of the UK in which they are not domiciled if…
  • In matters relating to a contract, in the courts for the place of performance of the obligation in question;
  • In matters relating to tort, in the courts for the place where the harmful event occurred or may occur;
  • Where he is one of a number of defendants, 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;
38
Q

If there is a jursidiction clause complying with Hague Convention or CPR 33, can proceedings be served outside the jurisdiction without court permission?

A

Yes

No permission to serve outside jurisdiction is needed if jurisdiction clause makes England & Wales the place to bring the claim

39
Q

For a clause to be ‘exclusive’ for the Hague Convention, must the contract explicitly state that the jurisdiction is ‘exclusive’?

A

No

The clause does not need to explicitly state “exclusive” because the Hague Convention assumes exclusivity in the absence of an indication to the contrary