Disputes (Jurisdiction) Flashcards
What should you consider when a dispute has an international dimension?
- 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.
What is jurisdiction concerned with?
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.
What is conflicts of law about?
Conflicts of law pertains to deciding which country’s law applies to the dispute, regardless of the court handling the case.
What is the Hague Convention?
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.
What types of cases are excluded from the Hague Convention?
Exclusions include family law matters, wills and succession, defamation, privacy, intellectual property, and anti-trust (competition) matters.
When does the Hague Convention apply?
It applies if the jurisdiction clause exclusively selects a contracting state’s court, and if the agreement is in writing or documented in writing.
What is an asymmetric jurisdiction clause?
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.
What are the consequences of a jurisdiction clause falling under the Hague Convention?
- 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
What are the three main grounds for jurisdiction in English & Welsh courts?
- Serving the defendant within the jurisdiction
- Permission to serve outside jurisdiction
- Contractual jurisdiction clauses.
What is required to serve proceedings on a defendant outside the jurisdiction?
- Establish one of the 6B PD 3.1 grounds
- Show the claim has a reasonable prospect of success
- Demonstrate that England & Wales is the proper place for the claim.
What are the Permission Grounds Permission to serve the proceedings on the defendant outside of the jurisdiction?
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.
What is a reasonable prospect of success limb to serve the proceedings on the defendant outside of the jurisdiction?
A low threshold indicating a likelihood of success comparable to resisting summary judgment.
What is meant by the ‘proper place’ when serving the proceedings on the defendant outside of the jurisdiction?
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
What is required for a jurisdiction clause to allow service outside England & Wales without permission?
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)
When is permission needed to serve a claim outside of the UK?
Permission is needed unless the Hague Convention applies or there’s a clause granting jurisdiction to England & Wales courts.