Jurisdiction and conflict of laws Flashcards
What is the difference between jurisdiction to determine claim and which country’s laws will determine it?
- Jurisdiction = whether E+W will decide dispute
- Which country’s laws = assuming E+W will decide dispute, which laws they will use
E.g. E+W may have jurisdiction but have to use French law
What is the effect on CPR application if E+W law is not the law used to determine a dispute?
Nothing - procedural law remains even if substantive law changes
How is it decided whether E+W has jurisdiction to hear a claim?
- By reference to the Hague Convention
- (Otherwise) by applying common law rules
I.e. Go to common law rules if HC not applicable
What is the general rule re jurisdiction for disputes over matters occurring in E+W?
Courts of E+W will determine disputes (and not over matters taking place outside E+W/invoving nationals of other countries)
But from here additional criteria must be satisfied to establish E+W has jurisdiction
What does the Hague Convention do and when will it apply?
- Allows parties to control which court hears dispute (regardless of where parties are based)
- Applies to court agreements concluded on or after 1 October 2015 and proceedings commenced on or after 1 Jan 2021
Choice will be made in agreement/contract between parties
Must the parties be from a contracting state of Hague Convention to enter into a court agreement under it?
No
But the chosen court must be!
What is the only situation in which the Hague Convention will apply?
- The matter is a civil or commercial matter
- It is not a type of dispute excluded from the Hague Convention
- A clause in the contrat grants jurisdiction to a contracting state
- …and exclusively that state
- The agreement is (evidenced) in writing
What types of disputes are excluded from the Hague Convention?
Consumers and employment matters
Public and criminal not included too
Must jurisdiction be granted to a contracting state of the Hague Convention?
Yes
Even though neither party must be based there
What are the contracting states of the Hague Convention?
UK, all EU MS, Mexico, Singapore, Montenegro
What happens if a clause indicates jurisdiction will be had by a non-contracting state?
Convention does not apply - but agreement not necessarily ineffective as can operate through common law rules
See later card
What is meant by the requirement that jurisdiction must be granted exclusively to that state?
Hague Convention only applies if clause means that country and no other country will have jurisdiction
E.g.
“The Courts of E+Ws will have exclusive jurisdiction to determine any dispute arising out of this contract” = HC applies
“The Courts of E+Ws will have non-exclusive jurisdiction to determine any dispute arising out of this contract” = HC does not apply
Must the clause say ‘exclusive jurisdiction’?
But only says one place of jurisdiction
No - will be assumed to mean exclusive jurisdiction
E.g. “The Courts of E+Ws will have jurisdiction to determine any dispute arising out of this contract”
Would an asymmetric agreement fall within the Hague Convention?
Asymmetric agreement = one that provides that one party can commence proceedings only in a specific named country, but the other party can commence proceedings in that country or any other which would have jurisdiction under any other relevant rules
Unclear to say
What are the two main consequences of a valid Hague Convention?
- Court indicated as having jurisdiction will have jurisdiction and cannot decline it
- Any other court must refuse to hear proceedings (with limited exceptions)
How can the court have jurisdiction if there is no Hague Convention?
By applying the common law rules (on service of proceedings)
What are the 3 ways the court can have jurisdiction (and service of proceedings can be carried out) under common law?
(Where jurisdiction is disputed obvs)
- The D is present in the jurisdiction and it is possible to serve proceedings on them
- The court gives permission to serve proceedings on D outside jurisdiction
- Courts of E+W are given jurisdiction by a clause in a contract
When can proceedings be served on D whilst they are in the jurisdiction?
- Where D is foreign (and based in another jurisdiction)
- The subject matter of the proceedings took place in another jurisdiction
What are the methods of serving proceedings on the D whilst they are in jurisdiction?
- Personal service - on individual even if briefly in E+W
- Place of business of company in E+W if not incorporated in E+W
- Solicitor in jurisdiction if D has appointed solicitor in E+W to accept service on behalf
What three matters must be established to obtain permission from the court to serve proceedings on D outside of jurisdiction?
Used if party cannot/does not want to serve proceedings on D in jurisdic
- One of the grounds (jurisdictional gateways)
- Reasonable prospects of success
- E+W must be the proper place in which to bring a claim
What are the jurisdictional gateways?
Requirement 1
Claim made:
- For remedy against person domiciled in jurisdiction
- In respect of a contract made within jurisdiction, governed by English law or contains a term to effect court shall have jurisdiction
- In respect of breach of contract committed within jurisdiction
- In tort where damage (will be) sustained in jurisdiction (from an act committed within jurisdiction)
What is the threshold for reasonable prospect of success in obtaining permission?
Requirement 2
Low - equated to prospect of success needed to resist application for summary judgement
What does it mean for the jurisdiction to be the ‘proper place’ to bring proceedings?
Requirement 3
If it is the natural place to bring proceedings e.g. witness based there, D normally resides there
Can jurisdiction still be the proper place if not the natural place?
Yes - if justice nonetheless requires claim be tried in E+W e.g. risk of improper GOV interference in different jurisdiction
What is the difference between the Hague Convention and the common law rule that E+W can be given jurisdiction by clause in contract?
Both are without court’s permission
Common law rule applies:
- To exclusive choice of court agreements made before 1 Oct 2015
- If jurisdiction is not given to E+W exclusively
I.e. an alternative, backup route
Where a claim form is validly issued for proceedings to be served on a D outside of the jurisdiction, what is the period of service?
Six months
Longer period for to serve than claim form to be served within jurisdict
From when it is issued
When is the court’s permission not required to serve proceedings out of the jurisdiction?
- Hague Covention gives court jurisdiction
- Contract contains a term to the effect that courts of E+W will have jurisdiction to determine claim
Permission required to effet services in other circumstances
NB no permission needed for presence in jurisdiction bc not serving outside jurisdiction!!
What are the 2 different procedures for serving an English claim form aborad when permission needed and not needed?
- Needed - make application to court asking court to allow to serve the claim form - is an interim application made pursuant to usual rules
- Not needed - file form N150 when it files claim form, confirming to court basis upon which it has jurisdiction over foreign-domiciled D (permission not sought)
What are the methods of service outside the UK?
- Service in accordance with regulation, convention or treaty
- Service through GOV of destination country
- Service by any method permitted by law of destination country
Often preferred to take local advice in destination country and engage agent
What is the response period for a D outside the UK?
I.e. to file ack of service/defence etc.
Extra time - will vary depending on country
What orders can be made where it is not possible to serve effectively through usual methods?
- Order for alternative service (where good reason to do so)
- Order dispensing with service
What should an application for alternative service set out?
- Why service in accordance with CPR methods is not possible
- Why attempts to serve in accordance with these methods has been unsuccessful
- The alternative method proposed
Court may order that (alt) steps already taken constitute good service
Examples of alternative service inc serving on solicitors acting for a party where solicitor has not been authorised to accept service or placing newspaper advert notifying D that proceedings have commenced against it
What are the restrictions on alternative service?
- Cannot be used retrospectively
- Cannot be used to remedy irregular service
Where would a court usually dispense with service?
Where other side already aware of document (very rare otherwise)
E.g. if the C wished to make an amendment to its particulars of claim and the D agreed to that amendment being made, the C would need to make an application to court to amend the document.
If the court agreed to the amendment being made, it might dispense with service, i.e. order that the C does not have to serve the document on the D, because D is aware of the amendment.
Must the receiving D of court proceedings accept E+W’s jurisdiction to hear the claim?
No
E.g. disputes that claim falls within Hague Convention (and common law rules should apply), that E+W not proper place to hear claim (even if court say it is) etc.
What is the two-part procedure for the D in disputing the court’s jurisdiction?
- File ack of service and tick box to indicate D intends to contest jurisdiction
- Apply within 14 days after filing ack of service disputing court’s jurisdiction (with evidence)
What should a party who wishes to oppose the court’s jurisdiction not do?
I.e. how would submission be shown
Take any steps to engage with proceedings (e.g. filing defence) beyond ack of service and applying to court to challenge jurisdiction
This would mean submitting
How can the D later dispute jurisdiction if they have submitted to courts of E+W?
They cannot! Court’s jurisdiction has been established and cannot later be disputed
What is the relevant law used to decide which country’s laws will apply in a contractual dispute and from what date does it apply?
Rome I - applies to contracts entered into on or after 17 Dec 2009
What are the steps for deciding which country’s law will apply in a contractual dispute?
- Have the parties chosen which law should apply (whether before or after dispute arises)?
- Is the contract a type specified in Art 4(1)(a-h)?
2a. Yes = Those articles apply
2b. No = Applicable law is that of the country where the ‘characteristic performer’ has its habitual residence - Is the contract “manifestly more closely connected with another country”?
What happens if the parties have not chosen which law should apply?
- If the contract is of the type specified in Art 4(1) = those articles apply
- If it is not = applicable law is that of the country where the ‘characteristic performer’ has its habitual residence
What are the types of contracts specified in Art4(1) and what is the applicable law for each?
- Sale of goods = seller’s habitual residence
- Provisions of services = service provider’s habitual residence
- Contract relating to land = where land is situated
- Distribution contract = distributor’s habitual residence
What does ‘habitual residence’ mean?
Where its central administration is
For natural person acting in course of business = where that person’s principal place of business is
Which party is the “characteristic performer” in the case where the applicable law is that of country where that party has its habitual residence?
Where contract not Art 4(1) type
The party that is doing something which is giving the contract its character
I.e. the party not making payment in a contract where party being paid to do something
When will a court apply a different country’s law if the law has been determined under Art 4(1) (type of contract) or Art 4(2) (characteristic performance)?
If the contract is manifestly more connected with other country
Not used lightly for sake of uncertainty
E.g. bank account in another country, services in another country etc.
What is the relevant law used to decide which country’s laws will apply in a tortious dispute and from what date does it apply?
Rome II - applies to events giving rise to damage which occurred on or after 10 Jan 2009
What are the steps for deciding which country’s law will apply in a tortious dispute?
- Have the parties validly chosen which law should apply?
- Do the C and D habitually reside in the same country?
2a. Yes = That country’s laws apply
2b. No = Apply the law of the country in which damage occurs - Is the contract “manifestly more closely connected with another country”?
Can the parties agree on which law should apply before the event giving rise to tortious damage?
Only if both parties are pursuing a commercial activity and freely negotiated the choice of law
Choice after event giving rise to tortious damage = effective
Must the parties’ choice be expressed?
Can be expressed or demonstrated by circumstances of the case
What happens if the parties have not chosen which law should apply?
- If C and D habitually reside in same country = that country’s laws apply (even if damage happened in other country!)
- If they do not = laws of country in which damage (not event or indirect consequences) occurs apply
Does the ‘manifestly more closely connected’ test apply to tort disputes as it does contractual?
Yes
What happens if there is a conflict of which law applies between E+W and Scotland or NI?
The same way as other countries
Is the Hague Convention or common law used to determine jurisdiction between E+W and Scotland or NI?
Neither - determined by Civil Jurisdiction and Judgements Act (CJJA) 1982
What is exclusive jurisdiction under CJJA?
Particular types of dispute will mean one and only one part of UK has jurisdiction
How do proceedings concerned with real property/tenancies in real property engage exclusive jurisdiction?
The part of UK where property is situated will have exclusive jurisdiction
What are jurisdiction agreements under the CJJA?
Parties agree that a particular part of UK will have jurisdiction
What is submission under CJJA?
A court will have jurisdiction if a party submits to that jurisdiction e.g. files defence rather than contests jurisdiction
Can submission override exclusive jurisdiction?
No
If exclusive jurisdiction, jurisdiction agreements or submission all do not apply, what is the basic rule as to jurisdiction?
A person is sued in the courts in the part of the UK where they are domiciled
When is a person or company domiciled in a part of the UK?
- Person: They are a resident there and nature/circumstances of their residence indicates they have a substantial connection with that part
- Company: where its ‘seat’ is i.e. registered office or where it is incorporated
Can a person be sued in parts of the UK in which they are not domiciled?
Yes
- Contract - place of performance of obligation
- Tort - where harmful event occurred
- Where 1 of several Ds - where any one of them is domiciled (provided claims are close enough that they must be heard together)
Some more
Where options are available to sue where D is not domiciled, must the C use them?
I.e. if you can sue in jurisdiction because the contract was performed there, must you?
No - can still sue where domiciled. Ultimately has a choice re where to commence proceedings
Summary for UK jurisdiction
- Exclusive jurisdiction (e.g. real property), if not…
- Jurisdiction agreements (in contracts), if not…
- Submission (by filing defence), if not…
Basic rule = a person domiciled in a part of the UK should be sued there, but can also be sued where not domiciled for place of performance, tortious event, where they have establishment
