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(FLK1) Dispute Resolution > Jurisdiction > Flashcards

Jurisdiction Flashcards

1
Q

What is Jurisdiction?

A

The question of which Court can Hear which Claim.

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2
Q

What is Choice of Law?

A

The question of which Nation’s Law governs a Claim.

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3
Q

To which Agreements does the Hague Convention apply?

A

Civil and Commercial Agreements that:

  • Are dated on or after 01/10/2015.
  • Are Written, or evidenced in Writing.
  • Give Exclusive Jurisdiction to a Convention State.
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4
Q

Which Types of Disputes are Excluded from the Hague Convention?

A
  • Consumer Disputes.
  • Employement Disputes.
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5
Q

Which States are Party to the Hague Convention?

A
  • The EU.
  • Mexico.
  • Singapore.
  • Montenegro.
  • England & Wales.
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6
Q

What is the Primary Effect of the Hague Convention applying to an Agreement?

A
  • The Specified Jurisdiction will be the sole location the Dispute can be resolved.
  • The Specified Jurisdiction cannot decline to hear the Case on Jurisdictional grounds.
  • Any other Jurisdiction must refuse to resolve the Dispute.
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7
Q

Regarding Domestic Courts, what is the Earliest Date a Dispute requiring consideration of the Hague Convention may arise?

A
  • 01/01/2021.
  • Before this date, Common Law rules applies.
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8
Q

Under the Common Law, when may the Domestic Courts have Jurisdiction to Hear a Claim?

A
  • The Claimant Serves Proceedings on the Defendant in the Jurisdiction for business purposes; or
  • The Court gives permission to Serve Proceedings on the Defendant outside the Jurisdiction; or
  • The Courts are given Jurisdiction by a Contractual Clause, regardless of Date or Exclusivity.
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9
Q

Under the Common Law, when will the Court grant Permission to Serve Proceedings on a Defendant outside the Jurisdiction?

A
  • The Claim has reasonable prospects of success.
  • England & Wales is the Proper Place for the Claim.
  • The Claimant shows one of the Jurisdictional Gateways.

Ultimately, the matter is at the Court’s Discretion.

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10
Q

Under the Common Law, what are the Jurisdictional Gateways to gain Permission to Serve Proceedings on a Defendant outside the Jurisdiction?

A

Domiciled Defendants:

  • The Claim is made against a Person Domiciled within the Jurisdiction.

Contractual Claims:

  • The Contract was made in the Jurisdiction.
  • The Contract is governed by English Law.
  • The Contract contains a Clause that gives affirms the Jurisdiction as the site of Dispute Resolution.

Breach of Contract:

  • The Claim is in respect to a Breach of Contract that occurred within the Jurisdiction.

Tortious Claims:

  • Damage was, or will be, sustained within the Jurisdiction; or
  • Damage already, or to be, sustained results from an Act already, or likely to be, done within the Jurisdiction.
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11
Q

Under the Common Law, when is England & Wales the Proper Place for a Claim?

A
  • When it is the Natural Place for the Proceedings; but
  • If another Jurisdiction is the Natural Place, the Claim may still be Heard Domestically if Justice requires.
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12
Q

What is the Deadline for Serving a Claim Form outisde the Jurisdiction?

A

Six Months from Issuance.

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13
Q

When is it Unnecessary to Seek Court Permission to Serve Proceedings on a Defendant outisde the Jurisdiction?

A
  • The Hague Convention applies.
  • The Underpinning Contract gives Jurisdiction to England & Wales.
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14
Q

What is the Procedure for Serving a Claim Form outisde the Jurisdiction without Permission?

A

File Form N510 alongisde the Claim Form.

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15
Q

What is the Procedure for Serving a Claim Form outisde the Jurisdiction with Permission?

A

The Claimant must Apply to the Court, and the Application is treated as an Interim Applicaiton.

Beware that this could be a No-Notice Application.

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16
Q

What are the Methods for Serving a Claim Form outisde the Jurisdiction?

A
  • Serve through the Destination State’s Government.
  • Serve through any Methods permitted by the Destination Nation’s Law.
  • Serve through the Procedures in any Bilateral or Multilateral Instruments.

Sometimes, though, alternative measures are necessary.

17
Q

What are the Alternative Methods for Serving a Claim Form outisde the Jurisdiction?

A
  • An Order for Alternative Service.
  • An Order Dispensing with Service.
18
Q

What is an Order for Alternative Service?

A

Definition:

  • An Order permitting Service by an Alternative Method if Orthodox Methods are ineffective or impossible; or
  • Recognising whatever means the Claimant has already attempted as Good Service.

Application Requirements:

  • The Application should explain why this is necessary with examples of the Orthodox Methods failing.
  • The Application should state the proposed Alternatives.
19
Q

What are the Main Alternative Methods of Service.

A
  • Service on the Defendant’s Solicitor if it has not been authorised to Accept Service.
  • Advertisement in Newspapers notifying the Defendant that Proceedings against it have commenced.
20
Q

What is an Order Dispensing with Service?

A
  • An Order dispensing with the need to Serve.
  • This is usually reserved for where the Counterparty already knows of the relevant Document.
21
Q

On what Grounds can a Foreign Defendant Object to Contest the Domestic Court’s Jurisdiction?

A
  • The Claimant has failed to satisfy the Common Law requisites.
  • The Court does not have Jurisdiction under the Hague Convention.
  • There is an alternative, more appropriate forum to resolve the Dispute.
22
Q

What is the Procedure for a Foreign Defendant that seeks to Contest the Domestic Court’s Jurisdiction?

A
  • The Defendant must File an Acknowledgement of Serivce and indicate it seeks to contest Jurisdiction.
  • Within 14 Days of Filing, it must Apply to Dispute Jurisdiction with supporting evidence.
23
Q

Can a Defendant Contest the Domestic Court’s Jurisdiction after Submitting thereto?

A
  • No.
  • To avoid Submission, the Defendant must not do anything beyond the Procedure to Contest.
    • This includes Applying for an Extension to File an Acknowledgment of Service.

This also applies to Intranational Contests.

24
Q

Which Instrument applies to Cross-Border Contract Disputes?

A

The Rome I Regulation.

This Instrument was domesticated after Brexit.

25
Q

What is the Cut-Off Date for Rome I’s Applicability?

A

Contracts Before 17/12/2009.

Note that Contracts of Carriage, as well as Consumer, Employment, and Insurance Contracts all have special provisions that are not examinable.

26
Q

Under Rome I, in the Absence of a Choice of Law Clause, how is the Applicable National Law determined?

A

Contract for Goods:

  • The Seller’s Habitual Residence.

Contract for Services:

  • The Provider’s Habitual Residence.

Contract Relating to Land:

  • The State the Land is located.

Contract for Distribtuion:

  • The Distributor’s Habitual Residence.

These are called the Rome I 4(1) Criteria.

27
Q

Under Rome I or II, what is a Habitual Residence?

A

The place of central administration or principal place of business.

28
Q

Under Rome I, in the Absence of a Choice of Law Clause and the 4(1) Criteria, how is the Applicable National Law determined?

A
  • The Habitual Residence of the Party required to effect Characteristic Performance under the Contract.
  • This is usually the Non-Paying Party.

This is called the Rome I 4(2) Criterion.

29
Q

Under Rome I, in the Absence of a Choice of Law Clause, can the Court apply National Laws different to the findings of the 4(1) Criteria or 4(2) Criterion?

A

Yes, but only if it the Contract is manifestly more closely connected with those National Laws.

This is called the Rome I 4(3) Criterion.

This Article is not used lightly.

30
Q

Which Instrument applies to Cross-Border Tortious Disputes?

A

The Rome II Regulation.

This Instrument was domesticated after Brexit.

31
Q

What is the Cut-Off Date for Rome II’s Applicability?

A

Events giving rise to Damage Before 10/09/2009.

Note that Product Liability, Unfair Competition, Environmental Damage, Intellectual Property Infringmenet, and Industrial Action all have special provisions that are not examinable.

32
Q

Under Rome II, when will the Parties’ Choice of Law be Effective?

A

Agreement After the Tortious Damage:

  • The Clause is effective.

Agreement Before the Tortious Damage:

  • The Clause is only effective if both Parites are pursuing commercial activities and freely negotiated.

The Choice can be Express or Implied by the Case’s circumstances.

33
Q

Under Rome II, in the Absence of a Choice of Law Clause, how is the Applicable National Law determined?

A

The Parites Reside in the Same Nation:

  • The given Nation’s Laws will apply, even if the Damage ocurred elsewhere.

The Parites do not Reside in the Same Nation:

  • The Laws applied will those of the Nation where the Damage ocurred.

These are called the Rome II 4(1), 4(2) Criterion, respecitvely.

34
Q

Under Rome II, in the Absence of a Choice of Law Clause, can the Court apply National Laws different to the findings of the 4(1) Criteria or 4(2) Criterion?

A

Yes, but only if it the Contract is manifestly more closely connected with those National Law.

This is called the Rome II 4(3) Criterion.

This Article is not used lightly.

35
Q

Which Instrument applies to Intranational Jurisdictional Disputes?

A

Civil Jurisdiction and Judgments Act 1982.

36
Q

In an Intranational Jurisdiction Dispute, absent a Jurisdiction Clause, when will the Jurisdiction be determined by the Dispute’s Location?

A

Disputes concerned with Real Property or Tenancies in Real Property.

In such cases, Jurisdiction is Exclusive.

37
Q

In an Intranational Jurisdiction Dispute, absent a Jurisdiction Clause, Automatic Determination by Location, or Submission, how is Jurisdiction determined?

A

By reference to where the Defendant is Domiciled.

38
Q

In an Intranational Jurisdictional Dispute, when can a Defendant be Sued other than in their Domiciled Jurisdiction?

A

Contractual Disputes:

  • Where the Obligation in question is to be performed.

Tortious Disputes:

  • Where the Damage ocurred or may occur.

Disputes with a Branch, Agency, or Establishment:

  • Where the Branch, Agency, or Establishment is situated.

Disputes with Multiple Defendants:

  • Where any one Defendant is Domiciled, given the Claims are so connected that joining them is most efficient.

Counterclaims:

  • Where the Original Claim is pending.

(FLK1) Dispute Resolution (18 decks)

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