DR 14 - Jurisdiction and Conflict of Laws Flashcards
When does the Hague Convention apply to jurisdiction?
It applies to cases where:
* The choice of court agreement was made on or after October 1, 2015.
* The dispute is civil or commercial (not public/criminal law).
* The contract contains an exclusive jurisdiction clause.
What are the key criteria for the Hague Convention to apply?
The criteria are:
* The agreement is in writing.
* It exclusively chooses a Contracting State (e.g., UK, EU countries, Mexico, Singapore, Montenegro).
* It does NOT involve excluded matters (e.g., consumer or employment disputes).
What happens if the Hague Convention applies?
The outcomes are:
* The chosen court must accept jurisdiction (Article 5).
* Other courts must refuse jurisdiction (Article 6), unless exceptions apply.
When does English common law govern jurisdiction?
If the Hague Convention does not apply (e.g., non-exclusive jurisdiction clauses).
What are the three ways a court can establish jurisdiction under common law?
The ways are:
* Defendant is present in England/Wales (can be served there).
* Contract gives jurisdiction to English courts.
* Court grants permission to serve outside the jurisdiction.
What are examples of valid jurisdictional gateways?
Examples include:
* Contract made in England or governed by English law.
* Tort committed in England (or damage suffered there).
* Defendant domiciled in England.
What must be proven for a court to allow service abroad?
Proven elements are:
* A valid jurisdictional gateway exists.
* The claim has a reasonable prospect of success.
* England/Wales is the proper place for the case.
Can a claimant serve abroad without court permission?
Yes, if:
* The Hague Convention applies.
* There is a contractual jurisdiction clause giving England/Wales jurisdiction.
How long does a claimant have to serve a claim form outside the jurisdiction?
Six months (longer than the four-month limit for domestic cases).
What are the key steps for service abroad?
Key steps include:
* If no permission is needed, file Form N510 stating jurisdiction basis.
* If permission is needed, apply using Form N244.
* Serve via treaties, foreign governments, or local service agents.
When can alternative service be used?
When standard service methods are impossible or ineffective.
What are examples of alternative service?
Examples include:
* Serving the defendant’s solicitor.
* Newspaper advertisements.
* Email or social media (if permitted).
When can the court dispense with service?
Only if the defendant already knows about the claim (e.g., they agree to an amendment).
How can a defendant dispute jurisdiction?
A defendant can dispute jurisdiction by:
* Claimant misapplied the Hague Convention.
* No valid jurisdictional gateway exists.
* Another jurisdiction is more appropriate (‘forum non conveniens’).
How does a defendant formally challenge jurisdiction?
To challenge jurisdiction, a defendant must:
* File an acknowledgment of service (indicating the intent to dispute).
* Apply within 14 days (with supporting evidence).
What happens if a defendant engages in the case?
If they file a defence (or take other steps), they submit to jurisdiction and cannot challenge it later.
How does Rome I determine the governing law of a contract?
Rome I determines law by:
* Party choice – The contract states which country’s law applies.
* Contract type rules (e.g., sale of goods uses seller’s location).
* Characteristic performance – Law of the party performing the contract applies.
* Manifestly closer connection – A different law may apply if the contract is strongly linked to another country.
What is the applicable law if an English marketing company contracts with a Spanish business, and the contract is silent on governing law?
English law applies (service provider’s location). However, if the contract is strongly connected to Spain, Spanish law may apply.
How does Rome II determine which law applies to tort claims?
Rome II determines law by:
* Party choice (if both parties are commercial entities).
* Same residence rule – If both parties live in the same country, that country’s law applies.
* Country of damage – The law of the country where the damage occurs applies.
* Manifestly closer connection – A different law may apply in exceptional cases.
What is the applicable law if a French company transports vegetables from Belgium to the Netherlands for an English business, and the goods spoil in the Netherlands?
Dutch law applies (place where damage occurred). No manifestly closer connection to another country.
What law determines jurisdiction between England, Scotland, and Northern Ireland?
The Civil Jurisdiction and Judgments Act 1982.
Where is a case normally heard?
A case is normally heard where:
* The defendant is domiciled.
* The contract was performed (for contract cases).
* The harmful event occurred (for tort cases).
When do UK courts have exclusive jurisdiction?
UK courts have exclusive jurisdiction in:
* Land disputes – Heard in the country where the land is located.
* Jurisdiction agreements – Parties agree where disputes must be heard.
* Submission – A defendant participating in proceedings confirms jurisdiction.
In the scenario where a Scottish supplier sells goods to an English business, where can the case be heard?
The case can be heard in:
* Scotland (supplier’s domicile).
* England (contract performed in London).
