DR 14 - Jurisdiction & Conflict

Question 1

Jurisdiction - Hague Convention
From when does the Hague Convention on Choice of Court Agreements apply?

Answer 1

Must apply for proceedings started after 1 January 2021 and contracts entered into after 1 October 2015

Question 2

Jurisdiction - Hague Convention
What are the headline considerations when applying the Hague Convention?

Answer 2

1 Is the matter a civil or commercial matter?

2 It is an excluded matter?

3 Does the clause give jurisdiction to a Contracting State?

4 Is the agreement an ‘asymmetric’ (exclusive) one?

5 Is the agreement concluded / documented /evidenced in writing?

6 Is jurisdiction given exclusively?

Question 3

Jurisdiction - Hague Convention
Does the Hague Convention apply to criminal matters?

Answer 3

No, only Civil

Question 4

Jurisdiction - Hague Convention
What disputes are excluded from the Hague Convention

Answer 4

Main ones:

• consumers
• employment matters

Question 5

Jurisdiction - Hague Convention
Does the Hague Convention apply where the choice of contracting state is not a
Hague Convention country?

Answer 5

No.

Contracting Countries are EU, Mexico, Singapore

Question 6

Jurisdiction - Hague Convention
Does the Hague Convention apply where the clauses do not give exclusive jurisdiction to a state?

Answer 6

No the contract must give exclusive jurisdiction to a member state

Question 7

Jurisdiction - Hague Convention
What is a ‘asymetric’ clause?

Answer 7

Gives jurisdiction rights to one party rights but different jurisdiction rights to another party. Unclear as to whether The Hague convention applies.

Question 8

Jurisdiction - Hague Convention
Does the Hague Convention require that the agreement be in writing?

Answer 8

Yes

(Includes evidenced in writing)

Question 9

Jurisdiction - Common Law
When will the Court have jurisdiction under the common law?

Answer 9

The Hague convention doesn’t apply and:

a. the defendant is ‘present’ in the jurisdiction; or 👇

b. the court gives permission; 👍or

c.Courts of England given jurisdiction by a clause in a contract.👉📝

Question 10

Jurisdiction - Common Law
What is required for permission to be granted to serve proceedings outside of the jurisdiction under the common law:

Answer 10

• A connection to the UK - ‘The Gateways’ ⛔️
• A reasonable prospect of success
  ⚖️
• England & Wales is the ‘proper place’
  🏴󠁧󠁢󠁥󠁮󠁧󠁿🏴󠁧󠁢󠁷󠁬󠁳󠁿

(no permission is required if the contract says that England and Wales have jurisdiction - even if not exclusive)

Question 11

Jurisdiction - Common Law
What are the gateways?

Answer 11

• claim is against someone domiciled in the jurisdiction 👶
• contract made in jurisdiction
• contract governed by English law, or
• contract gives gives E&W Jurisdiction
• breach of contract occurred in E&W
• tort where damage occurred in E&W
• tort where damage caused in E&W

Question 12

Jurisdiction - Common Law
How long does the claimant have to serve the claim form outside of the jurisdiction?

Answer 12

6 months

Question 13

Jurisdiction - Common Law
When is permission not required to serve outside of the jurisdiction?

Answer 13

a. the Hague Convention on Choice of Court Agreements gives the court jurisdiction; or

b. contract gives Courts jurisdiction

a form needs to be filed with the court stating that the basis on which the court has jurisdiction.

Question 14

Jurisdiction - Common Law
How can service be made outside the jurisdiction?

Answer 14

• Service in accordance with an agreed regulation, convention or treaty.
• Service through the government of the destination country (if that government is willing to do this).
• Service by any method permitted by the law of the destination country.

Question 15

Jurisdiction - Common Law
What if it is not possible to use the normal methods of service?

Answer 15

make an application to the court for one of the following orders:

1 An order for alternative service; or

2 An order dispensing with service.

Question 16

Jurisdiction
What does ‘alternative service’ involve?

Answer 16

• Application made to court setting out why ‘normal’ CPR service methods is not possible / have been unsuccessful.
• Application should state the alternative method proposed.
• Court may permit service by an alternative method if there is good reason to do so.

Question 17

Jurisdiction
What does ‘dispensing with service’ involve?

Answer 17

The court may dispense with service of a document. This discretion is usually only exercised where the other side is already aware of the document.

Question 18

Jurisdiction
What is the process if the defendant wishes to dispute the court’s jurisdiction?

Answer 18

• first file an acknowledgement of service indicating that the defendant intends to contest jurisdiction.
• apply within 14 days after filing the acknowledgement of service, disputing the court’s jurisdiction.
• application must be supported by evidence.

Question 19

Jurisdiction
How can a defendant submit to the court’s jurisdiction?

Answer 19

Take steps to engage with the proceedings beyond filing an acknowledgement of service and then applying to court to challenge its jurisdiction. e.g. filing a defence

Question 20

Jurisdiction
What happens if a defendant submit to the court’s jurisdiction?

Answer 20

If a party submits to the jurisdiction of the Courts of England and Wales, then they cannot later dispute that jurisdiction, so effectively the court’s jurisdiction is established.

Question 21

Conflict of Laws
Rome 1 governs where contract disputes should be governed. Which contracts does Rome 1 not apply to:

Answer 21

Rome I does not apply to contracts entered into before 17 December 2009

Question 22

Conflict of Laws
Under Rome 1 for contracts
How do you decide which country’s law will apply for a contract dispute?

Answer 22

1 Have the parties chosen which law should apply?

• If yes: That country’s law will apply
• If no then…

2 Does the contract relate to one of the cases specified in Articles 4(1)(a) to (h)?

• If yes: If so, those articles apply
• If no: The applicable law is that of the country where the “characteristic performer” has its habitual residence…

[Whether Articles 4(1)(a) or 4(1)(h) apply or the applicable law is that of the characteristic performance, there is a final question…]

3 unless Contract “manifestly more closely connected” with another country (rare)

Question 23

Conflict of Laws
Under Rome 1, How do you decide which country will have jurisdiction for a contract dispute?
When Articles 4(1)(a) to (h) apply re – Sale of goods contract:

Answer 23

applicable law is that of the seller’s habitual residence*

Question 24

Conflict of Laws
Under Rome 1, How do you decide which country will have jurisdiction for a contract dispute?
When Articles 4(1)(a) to (h) apply re – Provisions of services contract:

Answer 24

applicable law is that of the service provider’s habitual residence*

Question 25

Conflict of Laws
Under Rome 1, How do you decide which country will have jurisdiction for a contract dispute?
When Articles 4(1)(a) to (h) apply re – Contract relating to land:

Answer 25

applicable law is that where the land is situated

Question 26

Conflict of Laws
Under Rome 1, How do you decide which country will have jurisdiction for a contract dispute?
When Articles 4(1)(a) to (h) apply re – Distribution contract:

Answer 26

applicable law is that of the distributor’s habitual residence*

Question 27

Conflict of Laws
Under Rome 1 for contracts, Generally, who is the “characteristic performer” when deciding “The applicable law is that of the country where the “characteristic performer” has its habitual residence”

Answer 27

it is generally the party doing the ‘something’ which is giving the contract its character, not the party making the payment

Question 28

Conflict of Laws
Rome 2 governs where tort disputes should be governed. Which torts does Rome 2 not apply to:

Answer 28

Rome II only applies to events giving rise to damage which occurred on or after 10 January 2009

Question 29

Conflict of Laws
Under Rome 2 for torts
How do you decide which countries laws will have jurisdiction for a tort dispute?

Answer 29

1 Have the parties validly chosen which law should apply?

• If yes: That country’s law will apply
• If no then…

2 Do the claimant and defendant habitually reside in the same country?

• If yes: That country’s laws apply
• If no: Apply the law of the country in which damage occurs

[Whether applying the habitual residence rule or the ‘country in which damage occurs’ rule, there is a final question…]

3 Tort “manifestly more closely connected” with another country?

Question 30

Conflict of Laws
Under Rome 2 for torts
If the parties choose which country’s laws will be effective, when will their choice be valid?

Answer 30

• If the agreement is entered into after the event, this choice will be effective.

If the agreement is entered into before the event this choice will only be effective if both parties are:
- pursuing a commercial activity and
- freely negotiated the choice of law

Question 31

Conflict of Laws
Under Rome 2 for torts
What happens if there is no choice and the claimant and defendant do not reside in the same country?

Answer 31

The applicable law is that of the country in which the damage occurs –

NOTE: not where the event giving rise to damage occurs, nor where indirect consequences might occur.

Question 32

UK
When will a Court in the UK have rights?

Answer 32

• Jurisdiction agreements
• Submission

Question 33

UK
What is the basic rule for conflict of laws in the UK?

Answer 33

Depends on where the person being sued is domiciled

Question 34

UK
When can a person be sued in a UK jurisdiction in which they are not domiciled?

Answer 34

• contract - place of performance 📝👇
• tort - harmful event occurred💥
• operations of branch/agency - where the branch or agency is🎄👇
• multiple defendants - any jurisdiction in which one defendant if domiciled if it is expedient to hear the cases together🤷‍♀️
• counter claim - heard in the same jurisdiction as the original claim 🫵