Jurisdiction Flashcards
What is Jurisdiction?
The question of which Court can Hear which Claim.
What is Choice of Law?
The question of which Nation’s Law governs a Claim.
To which Agreements does the Hague Convention apply?
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.
Which Types of Disputes are Excluded from the Hague Convention?
- Consumer Disputes.
- Employement Disputes.
Which States are Party to the Hague Convention?
- The EU.
- Mexico.
- Singapore.
- Montenegro.
- England & Wales.
What is the Primary Effect of the Hague Convention applying to an Agreement?
- 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.
Regarding Domestic Courts, what is the Earliest Date a Dispute requiring consideration of the Hague Convention may arise?
- 01/01/2021.
- Before this date, Common Law rules applies.
Under the Common Law, when may the Domestic Courts have Jurisdiction to Hear a Claim?
- 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.
Under the Common Law, when will the Court grant Permission to Serve Proceedings on a Defendant outside the Jurisdiction?
- 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.
Under the Common Law, what are the Jurisdictional Gateways to gain Permission to Serve Proceedings on a Defendant outside the Jurisdiction?
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.
Under the Common Law, when is England & Wales the Proper Place for a Claim?
- 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.
What is the Deadline for Serving a Claim Form outisde the Jurisdiction?
Six Months from Issuance.
When is it Unnecessary to Seek Court Permission to Serve Proceedings on a Defendant outisde the Jurisdiction?
- The Hague Convention applies.
- The Underpinning Contract gives Jurisdiction to England & Wales.
What is the Procedure for Serving a Claim Form outisde the Jurisdiction without Permission?
File Form N510 alongisde the Claim Form.
What is the Procedure for Serving a Claim Form outisde the Jurisdiction with Permission?
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.
What are the Methods for Serving a Claim Form outisde the Jurisdiction?
- 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.
What are the Alternative Methods for Serving a Claim Form outisde the Jurisdiction?
- An Order for Alternative Service.
- An Order Dispensing with Service.
What is an Order for Alternative Service?
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.
What are the Main Alternative Methods of Service.
- 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.
What is an Order Dispensing with Service?
- An Order dispensing with the need to Serve.
- This is usually reserved for where the Counterparty already knows of the relevant Document.
On what Grounds can a Foreign Defendant Object to Contest the Domestic Court’s Jurisdiction?
- 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.
What is the Procedure for a Foreign Defendant that seeks to Contest the Domestic Court’s Jurisdiction?
- 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.
Can a Defendant Contest the Domestic Court’s Jurisdiction after Submitting thereto?
- 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.
Which Instrument applies to Cross-Border Contract Disputes?
The Rome I Regulation.
This Instrument was domesticated after Brexit.
What is the Cut-Off Date for Rome I’s Applicability?
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.
Under Rome I, in the Absence of a Choice of Law Clause, how is the Applicable National Law determined?
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.
Under Rome I or II, what is a Habitual Residence?
The place of central administration or principal place of business.
Under Rome I, in the Absence of a Choice of Law Clause and the 4(1) Criteria, how is the Applicable National Law determined?
- 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.
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?
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.
Which Instrument applies to Cross-Border Tortious Disputes?
The Rome II Regulation.
This Instrument was domesticated after Brexit.
What is the Cut-Off Date for Rome II’s Applicability?
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.
Under Rome II, when will the Parties’ Choice of Law be Effective?
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.
Under Rome II, in the Absence of a Choice of Law Clause, how is the Applicable National Law determined?
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.
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?
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.
Which Instrument applies to Intranational Jurisdictional Disputes?
Civil Jurisdiction and Judgments Act 1982.
In an Intranational Jurisdiction Dispute, absent a Jurisdiction Clause, when will the Jurisdiction be determined by the Dispute’s Location?
Disputes concerned with Real Property or Tenancies in Real Property.
In such cases, Jurisdiction is Exclusive.
In an Intranational Jurisdiction Dispute, absent a Jurisdiction Clause, Automatic Determination by Location, or Submission, how is Jurisdiction determined?
By reference to where the Defendant is Domiciled.
In an Intranational Jurisdictional Dispute, when can a Defendant be Sued other than in their Domiciled Jurisdiction?
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.
