Jurisdiction Flashcards
Describe the key considerations for determining jurisdiction under the Hague Convention.
The key considerations include whether the matter is civil or commercial, if it is an excluded matter, whether the clause gives jurisdiction to a Contracting State, if jurisdiction is given exclusively, if the agreement is documented in writing, and if the agreement is asymmetric.
Define what is meant by an ‘asymmetric’ agreement in the context of jurisdiction.
An ‘asymmetric’ agreement refers to a jurisdiction clause that grants one party the right to choose the jurisdiction while limiting the other party’s options, often favoring the interests of the party with more bargaining power.
What types of matters are excluded from the jurisdiction considerations under the Hague Convention?
Excluded matters typically include family law, inheritance, and certain administrative matters, which are not covered by the jurisdiction rules of the Hague Convention.
List the current Contracting States of the Hague Convention.
The current Contracting States include the UK, all EU member states, Mexico, Singapore, and Montenegro.
How does a jurisdiction clause in a contract affect the applicability of the Hague Convention?
If a contract specifies that the courts of a Contracting State, like France, have jurisdiction, it falls under the Hague Convention. However, if it specifies a court in the USA, the Convention does not apply.
When do the common law rules apply?
Common law rules are applied to determine jurisdiction when the Hague Convention does not apply.
Define the term ‘present’ in the context of jurisdiction in England and Wales.
In the context of jurisdiction, ‘present’ refers to the ability to serve legal proceedings on a defendant who is physically located within the jurisdiction of England and Wales.
How was the contract between the paper supplier and the printing company negotiated?
The contract was negotiated and completed via the printing company’s office in the USA, despite the printing company having a branch office in London, England.
Would the courts of England and Wales have jurisdiction over the dispute?
Yes, the courts of England and Wales would have jurisdiction because the paper supplier can serve proceedings on the printing company’s branch in England.
How are claims determined in the courts of England and Wales if the Hague Convention does not apply?
Claims are determined by applying common law rules.
What is the role of CPR 6.37 in the context of serving proceedings outside of the jurisdiction?
CPR 6.37 outlines the requirements that must be met for a claimant to obtain permission to serve proceedings on a defendant outside of the jurisdiction.
What are the three main ways a court can establish jurisdiction over a defendant?
The three main ways are:
1) serving the proceedings on the defendant within the jurisdiction,
2) obtaining permission to serve the defendant outside the jurisdiction, and
3) having jurisdiction established through a contractual clause.
Explain the significance of a contractual clause in establishing jurisdiction.
A contractual clause can grant the Courts of England and Wales jurisdiction over a defendant, allowing legal proceedings to be initiated based on the terms agreed upon in the contract.
Do courts in England and Wales require permission to serve proceedings outside their jurisdiction?
Yes, courts in England and Wales require permission to serve proceedings on a defendant located outside of their jurisdiction.
When is a foreign defendant subject to the jurisdiction of the courts of
A defendant is subject to the jurisdiction of the courts of England and Wales if proceedings are served on them while they are within the jurisdiction, regardless of whether the defendant is foreign or the subject matter of the proceedings is based elsewhere.
Define personal service in the context of legal proceedings in England and Wales.
Personal service refers to the method of serving legal documents directly to an individual defendant, ensuring they receive the proceedings.
How can a company not incorporated in England and Wales be served with proceedings?
A company not incorporated in England and Wales can be served at any place of business it has within England and Wales.
What happens if a defendant appoints a solicitor in England and Wales?
If a defendant appoints a solicitor in England and Wales to accept service on their behalf, proceedings can be served on that solicitor within the jurisdiction.
Describe the process for serving proceedings on a defendant outside of the jurisdiction.
A party can apply to serve proceedings on a defendant outside of the jurisdiction if they cannot or do not want to serve within it. The court must grant permission, and if the proceedings are duly served, the courts of England and Wales can determine the claim.
Define the three matters that must be established to obtain permission for service outside of the jurisdiction.
- The claimant must establish one of the grounds in CPR 6B PD 3.1; 2. The claim must have reasonable prospects of success; 3. England and Wales must be the ‘proper place’ to bring the claim.
Describe the grounds for permission to serve outside of the jurisdiction according to 6B PD 3.1.
The grounds include: a claim for a remedy against a person domiciled within the jurisdiction, a claim in respect of a contract made within the jurisdiction or governed by English law, a breach of contract committed within the jurisdiction, and a tort where damage was sustained within the jurisdiction.
How does the court determine if England and Wales is the ‘proper place’ for a claim?
The court assesses whether the circumstances of the case justify bringing the claim in England and Wales, considering factors such as the connection of the parties and the subject matter to the jurisdiction.
Explain the significance of having reasonable prospects of success in obtaining permission for service outside the jurisdiction.
Establishing reasonable prospects of success indicates that the claim is not frivolous and has a legitimate chance of succeeding, which is a requirement for the court to consider granting permission.
How does a claim for a remedy against a person domiciled within the jurisdiction serve as a ground for permission?
This ground allows for permission to serve outside the jurisdiction if the claim is made against an individual who is legally recognized as residing within the jurisdiction.
What conditions must be met for a breach of contract to be considered within the jurisdiction?
A breach of contract is considered within the jurisdiction if it was committed within the jurisdiction.
Identify the criteria for a tort claim to be valid under the jurisdictional gateways.
A tort claim is valid under the jurisdictional gateways if damage was sustained within the jurisdiction or if the damage results from an act committed within the jurisdiction.
Describe the factors that determine if England or Wales is the proper place to bring a claim.
Factors include whether it is the natural place for the proceedings, the location of witnesses, the applicability of English law, and the residency of the defendant.
How can the Courts of England and Wales still be considered the proper place for a claim if another jurisdiction is the natural place?
The of England and Wales can be deemed the proper place if justice requires the claim to be tried there, such as concerns over fairness or potential government interference in the other jurisdiction.
Describe the conditions under which a claimant can serve a claim form on a defendant outside the jurisdiction without court permission.
A claimant can serve a claim form on a defendant outside the jurisdiction without court permission if the contract contains a term stating that the courts of England and/or Wales shall have jurisdiction to determine that claim (CPR 6.33(2B)).
Define the term ‘gateway’ in the context of serving proceedings out of jurisdiction.
A ‘gateway’ refers to a legal basis that allows a claimant to serve proceedings on a defendant outside the jurisdiction, such as when damage is sustained within the jurisdiction due to an act committed there.
What legal action does the woman wish to take against the man?
The woman wishes to commence tort proceedings against the man for negligence.
Define the term ‘permission to serve proceedings out of the jurisdiction’.
It refers to the legal requirement to obtain court approval before serving legal documents to a defendant located outside the jurisdiction.
How does the service period for a claim form differ between inside and outside the jurisdiction?
The service period for a claim form served outside the jurisdiction is six months, while for a claim form served within the jurisdiction, it is normally four months.
Explain the significance of CPR 6.33(2B) in relation to jurisdiction.
CPR 6.33(2B) outlines that if a contract contains a term granting jurisdiction to the Courts of England and/or Wales, then court permission is not needed to serve proceedings.
Describe the process for serving an English claim form abroad without permission.
A claimant must file Form N510 when issuing and filing its claim form, confirming the court’s jurisdiction over a foreign-domiciled defendant without seeking permission.
How does a claimant serve an English claim form abroad with permission?
The claimant must make an application to the court using Form N244, requesting permission to serve the claim form on the defendant.
How should one approach service in a destination country when serving outside the UK?
It is often preferred to seek local advice and engage a local agent to effect service by a method permitted in the destination country.
What is the implication of a government’s willingness in the context of service outside the UK?
If the government of the destination country is willing, service can be conducted through that government, which may facilitate the process.
Describe the implications of serving a claim form out of the jurisdiction.
Extended periods for filing an acknowledgment of service or defense apply when the claim form or particulars of claim have been served out of the jurisdiction.
How does the amount of extra time for filing vary when serving out of the jurisdiction?
The amount of extra time allowed will vary depending on which country is involved.
What is the purpose of an order dispensing with service?
An order dispensing with service allows the court to waive the requirement for service in exceptional circumstances, as specified in CPR 6.16.
How can difficulties with service be addressed legally?
Difficulties with service can be addressed by applying to the court for orders such as alternative service or dispensing with service.
How can a solicitor be involved in alternative service?
One method of alternative service is serving on solicitors acting for a party, even if the solicitor has not been authorized to accept service.
What is one example of an alternative service method involving public notification?
Placing an advertisement in a newspaper to notify the defendant that proceedings have been commenced against them is an example of an alternative service method.
Describe the circumstances under which a court may dispense with service of a document.
A court may dispense with service of a document when the other side is already aware of the document.
How does a claimant proceed if they wish to amend their particulars of claim with the defendant’s agreement?
The claimant must make an application to the court to amend the document.
What might the court do if it agrees to a claimant’s amendment of a document?
The court might dispense with service, meaning the claimant does not have to serve the document on the defendant.
How can a defendant dispute the jurisdiction of an English or Welsh court?
A defendant can dispute jurisdiction by arguing that the court lacks jurisdiction, that the claimant has not satisfied the necessary gateways for serving proceedings out of the jurisdiction, or that there is a more appropriate forum for the case.
Explain the term ‘proper place’ in the context of court jurisdiction.
The term ‘proper place’ refers to the most appropriate forum for a legal dispute to be heard, which may be determined by factors such as the location of the parties, the subject matter of the dispute, and the convenience of the court.
Describe the first step a defendant must take to dispute the court’s jurisdiction.
The defendant must file an acknowledgement of service, indicating their intention to contest jurisdiction.
How long does a defendant have to apply to dispute the court’s jurisdiction after filing the acknowledgement of service?
The defendant must apply within 14 days after filing the acknowledgement of service.
What must accompany the application to dispute the court’s jurisdiction?
The application must be supported by evidence.
Describe the relationship between submitting to a court’s jurisdiction and disputing it.
Submitting to a court’s jurisdiction is the opposite of disputing it; once a party submits, they cannot later dispute that jurisdiction.
How can a defendant avoid submitting to the court’s jurisdiction?
A defendant can avoid submitting by not engaging with the proceedings beyond filing an acknowledgement of service and applying to challenge the jurisdiction.
What action should a party avoid to prevent establishing the court’s jurisdiction?
A party should avoid filing a defence to prevent establishing the court’s jurisdiction.
Define the consequence of submitting to the jurisdiction of the Courts of England and Wales.
Once a party submits to the jurisdiction, it establishes the court’s authority, and they cannot later dispute it.
What is the significance of acknowledging service in relation to court jurisdiction?
Acknowledging service is a step that must be taken without further engagement to avoid submitting to the court’s jurisdiction.
Describe the situation when there is no choice regarding the applicable law of a contract.
The applicable law is determined by the country where the party required to effect characteristic performance of the contract has its habitual residence.
Define the term ‘manifestly more closely connected’ in the context of applicable law.
It refers to a situation where a contract is more closely related to another country than the one initially considered, potentially leading to the application of that other country’s law.
Do the parties have the option to select the applicable law for their contract?
Yes, the parties can choose which law should apply to their contract, and that law will govern their agreement.
How is the applicable law determined if the parties have not chosen one?
If the parties have not chosen a law, the applicable law is that of the country where the ‘characteristic performer’ has its habitual residence.
Describe the significance of the parties’ choice of law in a contract.
The parties’ choice of law determines which country’s legal framework will govern the contract.
What is the significance of Article 4(3) in international contract law?
Article 4(3) provides a mechanism for courts to apply the law of a country that has a stronger connection to a contract, ensuring that legal outcomes are more aligned with the realities of the contractual relationship.
Define the term ‘manifestly more closely connected’ in the context of Article 4(3).
‘Manifestly more closely connected’ refers to a situation where a contract has a clear and strong relationship with another country, justifying the application of that country’s law instead of the initially determined applicable law.
Describe the conditions under which a court may apply a different country’s law according to Article 4(3).
A court may apply a different country’s law if the contract is manifestly more closely connected with that other country, after determining the applicable law under Article 4(1) or 4(2).
In a contract where one party pays for a service, which party is considered the characteristic performer?
Generally, the party doing the ‘something’ or providing the service is considered the characteristic performer, not the party making the payment.
How is the applicable law determined if a contract does not fall into the specified categories of Articles 4(1)(a) to (h)?
The applicable law is that of the country where the characteristic performer has its habitual residence.
Define ‘characteristic performance’ in the context of a contract.
Characteristic performance refers to the performance that gives the contract its character, typically the action being performed rather than the payment.
Explain the difference between contractual and tortious disputes in legal terms.
Contractual disputes arise from the breach of agreements between parties, while tortious disputes involve wrongful acts that cause harm or loss to another party, independent of any contractual relationship.
Identify the applicable law for a distribution contract.
The applicable law for a distribution contract is based on the distributor’s habitual residence.
Explain the concept of habitual residence in the context of contracts.
A company’s habitual residence is where its ‘central administration’ is located, while for a natural person, it is where their principal place of business is.
What determines the applicable law for a contract relating to land?
The applicable law for a contract relating to land is determined by the location of the land.
Define the applicable law for a service provision contract.
The applicable law for a service provision contract is based on the service provider’s habitual residence.
How is the applicable law determined for a sale of goods contract?
The applicable law for a sale of goods contract is determined by the seller’s habitual residence.
Describe the types of contracts outlined in Articles 4(1)(a) to (h).
The types of contracts include sale of goods, provisions of services, contracts relating to land, and distribution contracts.
What happens if the parties do not choose a law to apply?
If the parties do not choose a law, the applicable law will be determined based on other legal principles, such as the location of the contract’s performance or the domicile of the parties.
What is the significance of a ‘choice of law’ clause in a contract?
A ‘choice of law’ clause specifies which country’s law will apply to the contract, providing clarity and predictability in legal disputes.
Identify the date before which contracts are not covered by the Rome I Regulation.
Contracts entered into before 17 December 2009 are not covered by the Rome I Regulation.
Identify some areas of law that are excluded from the Rome II Regulation.
Certain areas of law are excluded from Rome II, as noted in Article 1 of the regulation.
What does Rome II apply to?
Tortious matters
How does the connection of a tort to a country influence the applicable law?
If a tort is ‘manifestly more closely connected’ with another country, that country’s law may apply instead of the law chosen by the parties.
Define the criteria for applying the law of the country where damage occurs.
The law of the country where damage occurs applies when the parties have not validly chosen a law or when the connection to that country is stronger.
What happens if the claimant and defendant habitually reside in the same country?
If the claimant and defendant habitually reside in the same country, that country’s laws will apply to their legal dispute.
Describe the conditions under which parties can choose the applicable law in a tortious damage agreement.
Parties can choose the applicable law if the agreement is made after the event causing the damage. If made before, the choice is valid only if both parties are engaged in commercial activity and have freely negotiated the choice.
Explain the implications of a valid choice of law in a tortious damage case.
If the parties have validly chosen a law, that country’s law will apply to the case.
Do the laws of a country apply if the claimant and defendant are from different countries?
No, the laws of the country where the damage occurred may apply instead.
Describe the conditions under which a court may apply a different country’s law according to Article 4(3).
A court may apply a different country’s law if the tort is manifestly more closely connected with that other country, even if the applicable law has been determined under Article 4(1) or 4(2).
How does Article 4(3) of Rome II affect the determination of applicable law in tort cases?
Article 4(3) allows for the application of a different country’s law if the tort is manifestly more closely connected to that country, potentially overriding the initial determination of applicable law.
Define the term ‘manifestly more closely connected’ as used in Article 4(3).
‘Manifestly more closely connected’ refers to a situation where the relationship between the tort and another country is so strong that it justifies applying that country’s law instead of the initially determined applicable law.
How does the location of damage affect the applicable law in tort cases?
The law of the country where the damage occurs will apply, even if the event causing the damage happened elsewhere.
Identify the types of contracts that have special rules under the Civil Jurisdiction and Judgments Act 1982.
The Act includes special rules for consumer contracts and employment contracts, which are not covered in detail in the provided content.
Describe exclusive jurisdiction in relation to disputes in the UK.
Exclusive jurisdiction refers to the legal authority granted to a specific part of the UK to handle certain types of disputes, such as those involving real property, where only that part can have jurisdiction.
How does the location of real property affect jurisdiction in the UK?
The location of real property determines jurisdiction, as the part of the UK where the property is situated will have exclusive jurisdiction over disputes related to that property.
How does submission to a court’s jurisdiction interact with exclusive jurisdiction rules?
Submission to a court’s jurisdiction does not override exclusive jurisdiction rules, meaning that even if a party submits, the exclusive jurisdiction of a specific part of the UK still applies.
What are the implications of filing a defense in relation to jurisdiction?
Filing a defense implies submission to the court’s jurisdiction, thereby granting that court the authority to hear the case, as long as it does not conflict with exclusive jurisdiction rules.
Describe the circumstances under which a person can be sued in parts of the UK where they are not domiciled. L
A person can be sued in the UK in the following circumstances: 1) in matters relating to a contract, in the courts for the place of performance; 2) in matters relating to tort, in the courts for the place where the harmful event occurred; 3) for disputes arising from a branch or agency, in the courts where that establishment is located; 4) if there are multiple defendants, in the courts where any one of them is domiciled if the claims are closely connected; 5) on a counter-claim related to the original claim, in the court where the original claim is pending.
What options does a claimant have if there is no exclusive jurisdiction clause in a contract for a breach of contract claim?
The claimant can either sue the defendant where it is domiciled (Scotland) or where the contract is to be performed (England, the place of delivery).
What options does a claimant have when suing a defendant in the UK?
The claimant can choose to sue the defendant where the defendant is domiciled or in certain other parts of the UK where the defendant is not domiciled.
How does section 42 define the domicile of a company?
Section 42 defines a company’s domicile as where its ‘seat’ is, typically where it has its registered office.
What does section 42A specify about company incorporation and domicile?
Section 42A specifies that if a company has no registered office, its domicile is where it was incorporated.
How does the presence of multiple defendants affect jurisdiction in the UK?
If there are multiple defendants, a person can be sued in the courts for the place where any one of them is domiciled, provided the claims are closely connected.
What is the jurisdiction for counter-claims in the UK?
A counter-claim arising from the same contract or facts as the original claim can be heard in the court where the original claim is pending.
Where else can a person be sued in parts of the UK in which they are not domiciled
• in matters relating to a contract, in the courts for the place of performance of the obligation in question;
• in matters relating to tort, in the courts for the place where the harmful event occurred or may occur;
• as regards a dispute arising out of the operations of a branch, agency or other
establishment, in the courts for the place in which the branch, agency or other establishment is situated;
• where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together;
• on a counter-claim arising from the same contract or facts on which the original claim was based, in the court in which the original claim is pending
