Jurisdiction and Conflict of Laws

Question 1

what rules do E&W courts apply for determining jurisdiction?

Answer 1

1) check if Hague Convention applies –> if yes, then court that is given jurisdiction applies

2) otherwise, common law applies

Question 2

Hague Convention - determining jurisdiction (5 steps)

Answer 2

1) agreement gives exclusive jurisdiction to a contracting state (no mention of ‘exclusive’ = deemed exclusive)

2) agreement is in writing

3) civil or commercial matter (not criminal/public)

4) not excluded matter (consumer/employment disputes)

5) agreement is not asymmetric i.e., both parties have same rights re jurisdiction

–> if convention applies, that court cannot decline jurisdiction and no other court can hear proceedings

(contracting states = UK, US, EU, Mexico, Singapore, Montenegro)

Question 3

Common Law - determining jurisdiction

Answer 3

3 different ways:

1) D is present in E&W and proceedings can be served on them - no permission of the court is needed
(individual is physically present, company has a branch, D appoints solicitor in E&W to accept docs)

2) E&W courts are given jurisdiction by a clause in the contract (does not need to be exclusive) - no permission of the court is needed

3) if court gives permission to serve proceedings on D outside the jurisdiction, then E&W courts can have jurisdiction (3 conditions must be satisfied)

Question 4

3 grounds to satisfy in an application to serve proceedings outside E&W

Answer 4

1) one of the following must be established:

• D is domiciled in E&W
• contract: made in E&W, is governed by E&W law, gives jurisdiction to E&W courts, or breach of contract was in E&W
• tort: damages sustained in E&W or damage caused as a result of an action committed in E&W

2) Claimant has a reasonable prospect of success

3) E&W is the proper place to bring the claim
e.g., witnesses are here, D resides here, E&W law applies, or it is otherwise just

note: if permission is given then E&W courts have jurisdiction

Question 5

what is the time limit to serve a claim form outside jurisdiction of E&W?

Answer 5

within 6 months of issue of claim form

Question 6

methods of serving outside E&W jurisdiction

Answer 6

must comply with rules of service in the target country

Question 7

if there are difficulties with serving outside jurisdiction - C can make 2 different orders, what are they?

Answer 7

1) order of alternative service = service by alternative method if there is good reason to do so
(e.g., serving on solicitors where C did not authorise this)

2) order for dispensing with service = usually where other side is aware of the document

Question 8

if D contests the court’s jurisdiction, what must it do / not do?

Answer 8

MUST NOT file a defence (considered submitting to jurisdiction)

MUST apply to court to challenge jurisdiction - procedure:

1) file acknowledgement of service
2) apply to dispute within 14 days of filing the AOS

Question 9

applicable law - contract - Rome 1 Regulations

Answer 9

(1) if parties chose applicable law - that law applies

if not

(2) Article 4 applicable law for types of contract:

• sale of goods –> seller’s habitual residence
• provision of services –> service provider’s habitual residence
• contract for land –> where land is situated
• distribution contract –> distributer’s habitual residence

if not

(3) applicable law of country where the CHARACTERISTIC PERFORMER of the contract habitually resides

if either (2) or (3) apply:

(4) court can still apply a different law if the contract is MANIFESTLY MORE CLOSELY CONNECTED with that country

Question 10

applicable law - tort - Rome II Regulations

Answer 10

(1) parties can choose the applicable law after tort happens (can only choose before if both parties are commercial)

if not

(2) if claimant and defendant habitually reside in same country, that country’s laws apply (even if damage happened in different country)

if not

(3) applicable law of country where damage occured (not where tort or wrongdoing occured)

if either (2) or (3) apply:

(4) court can still apply a different law if the tort is MANIFESTLY MORE CLOSELY CONNECTED with that country

Question 11

conflict of laws within UK jurisdictions - what rules apply?

Answer 11

Rome 1 for contract and Rome 2 for tort

Question 12

conflict of laws within UK jurisdictions - what court has jurisdiction?

Answer 12

if parties did not agree on jurisdiction or a party did not submit to jurisdiction …

starting point = court where defendant is domiciled

otherwise - C can sue in other jurisdiction where:

• contract = court of place of principal obligation performance
• tort = court of place where harm occurred
• specific brach = where that branch is
• domicile of one of many defendant (if closely connected)