DR 14 - Jurisdiction & Conflict Flashcards
Jurisdiction - Hague Convention
From when does the Hague Convention on Choice of Court Agreements apply?
Must apply for proceedings started after 1 January 2021 and contracts entered into after 1 October 2015
Jurisdiction - Hague Convention
What are the headline considerations when applying the Hague Convention?
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?
Jurisdiction - Hague Convention
Does the Hague Convention apply to criminal matters?
No, only Civil
Jurisdiction - Hague Convention
What disputes are excluded from the Hague Convention
Main ones:
- consumers
- employment matters
Jurisdiction - Hague Convention
Does the Hague Convention apply where the choice of contracting state is not a
Hague Convention country?
No.
Contracting Countries are EU, Mexico, Singapore
Jurisdiction - Hague Convention
Does the Hague Convention apply where the clauses do not give exclusive jurisdiction to a state?
No the contract must give exclusive jurisdiction to a member state
Jurisdiction - Hague Convention
What is a ‘asymetric’ clause?
Gives jurisdiction rights to one party rights but different jurisdiction rights to another party. Unclear as to whether The Hague convention applies.
Jurisdiction - Hague Convention
Does the Hague Convention require that the agreement be in writing?
Yes
(Includes evidenced in writing)
Jurisdiction - Common Law
When will the Court have jurisdiction under the common law?
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.👉📝
Jurisdiction - Common Law
What is required for permission to be granted to serve proceedings outside of the jurisdiction under the common law:
- 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)
Jurisdiction - Common Law
What are the gateways?
- 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
Jurisdiction - Common Law
How long does the claimant have to serve the claim form outside of the jurisdiction?
6 months
Jurisdiction - Common Law
When is permission not required to serve outside of the jurisdiction?
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.
Jurisdiction - Common Law
How can service be made outside the jurisdiction?
- 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.
Jurisdiction - Common Law
What if it is not possible to use the normal methods of service?
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.
Jurisdiction
What does ‘alternative service’ involve?
- 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.
Jurisdiction
What does ‘dispensing with service’ involve?
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.
Jurisdiction
What is the process if the defendant wishes to dispute the court’s jurisdiction?
- 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.
Jurisdiction
How can a defendant submit to the court’s jurisdiction?
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
Jurisdiction
What happens if a defendant submit to the court’s jurisdiction?
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.
Conflict of Laws
Rome 1 governs where contract disputes should be governed. Which contracts does Rome 1 not apply to:
Rome I does not apply to contracts entered into before 17 December 2009
Conflict of Laws
Under Rome 1 for contracts
How do you decide which country’s law will apply for a contract dispute?
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)
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:
applicable law is that of the seller’s habitual residence*
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:
applicable law is that of the service provider’s habitual residence*
