Jurisdiction Flashcards
What is the difference between a court having jurisdiction and the laws that will apply?
English and Welsh court can conclude it has jurisdiction to hear a dispute but this does not mean that English and Welsh law will apply, for example, French substantive law could apply.
Choice of laws or conflict of laws is about what?
Whether a dispute is determined according to the law of England and Wales, or some other country’s law.
What is the connection between jurisdiction and applicable law?
The two things should be considered separately.
The question of ‘jurisdiction’ is concerned with…
Which courts can determine a dispute.
What is the reference date for whether the Hague Convention on Choice of Court Agreements applies?
1 January 2021 must be considered
Only applies to choice of court agreements concluded on or after 1 October 2015.
What is the purpose of the Hague Convention on Choice of Court Agreements?
Provide certainty for commercial parties that wish to choose a particular country’s courts to determine their disputes regardless of where the dispute takes place or where the parties are based.
What are the questions in a Hague Convention Approach to assess whether the parties have effectively give jurisdiction to the courts of England and Wales?
- Is the matter a civil or commercial matter?
- Is it an excluded matter?
- Does the clause give jurisdiction to a Contracting State?
- Is jurisdiction given exclusively?
- Is the agreement concluded/documented/evidenced in writing?
- Is the agreement an ‘asymmetric’ one?
What matters does the Hague Convention cover?
Commercial and civil matters.
Public and criminal disputes are not covered.
What disputes are excluded from the Hague Convention?
Disputes with consumers and employment matters.
Others.
What are the contracting states to the hague convention?
UK
All EU MS
Mexico
Singapore
Montenegro
If not a contracting state (e.g. Canada, USA) then will need to find the answer to whether it is effective elsewhere. E.g. common law
Can you use clauses to elect multiple jurisdictions under the convention?
Convention only applies to clauses which give exclusive jurisdiction to a particular country.
Can you agree a jurisdiction under the convention orally?
No it must be in writing.
What is an asymmetric agreement under the Hague Convention?
Where the same rights are not given to each party. So for example, one party can only commence in one jurisdiction but the other can commence anywhere.
Unclear whether this would fall under the convention?
Where a clause does fall within the provisions of the Hague Convention, what are the two main consequences in terms of jurisdiction?
- The court indicated as having jurisdiction will have jurisdiction and cannot decline it on the basis that the dispute should be decided in another country;
- Any other court must refuse to hear the proceedings (limited exceptions under Article 6)
When will the courts of England and Wales have jurisdiction (broadly) under the common law?
a. It is possible to serve the proceedings on the defendant in the jurisdiction - the defendant is ‘present’ in the jurisdiction (true even if based in another jurisdiction or if subject of proceedings took place in another jurisdiction)
b. the court gives permission to serve the proceedings on the defendant outside of the jurisdiction; or
c. the Courts of England and Wales are given jurisdiction by a clause in a contract.
What must be established to obtain permission to serve proceedings on the defendant outside of the jurisdiction?
- Claimant needs to establish grounds in 6B PD 3.1
- Claim must have reasonable prospects of success
- England and Wales must be the ‘proper place’ in which to bring the claim
If these three matters are established, then the court may grant permission for service outside the jurisdiction.
What are the grounds on which an application for permission to serve outside of the jurisdiction can be based? (jurisdictional gateways)
- 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:
a) was made within the jurisdiction;
b) is governed by English law; or
c) contains a term to the effect that the court shall have jurisdiction to determine any claim in respect of the contract - A claim is made in respect of a breach of contract committed within the jurisdiction
- A claim is made in tort where:
a) damage was sustained, or will be sustained, within the jurisdiction;
b) damage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction
For jurisdiction how high is the ‘reasonable prospect of success’ threshold?
Relatively low.
Same as the prospect of success needed to resist an application for summary judgment.
How do you establish that England and Wales is the ‘proper place’?
Can be the proper place to bring the claim if it’s the natural place to bring the proceedings:
- witnesses are based there
- English law applies
- defendant is normally based there
Even it is not the natural place can still be the proper place if justice requires the claim be tried in England and Wales e.g. risk of improper government interference in a different jurisdiction or some other reason why the trial will not be fair
What is the service period for serving an issued claim form outside the jurisdiction?
Six months.
Within the jurisdiction is 4 months.