Jurisdiction and Conflict of Laws

Question 1

What does the Hague Convention allow parties to do and from what time period does it apply?

Answer 1

It allows parties to control which Court will hear a dispute. It only applies to choice of court agreements concluded on or after 1 October 2015.

Question 2

What type of matters does the Hague Convention apply to?

Answer 2

The Hague Convention only applies to civil and commercial matters. Public law and criminal disputes are not covered.

Question 3

What types of disputes are excluded from the Hague Convention?

Answer 3

Certain types of disputes are excluded from the Hague Convention, which includes disputes with consumers and employment matters.

Question 4

What are the contracting states under the Hague Convention?

Answer 4

-the UK
-all EU member states
-Mexico
-Singapore
-Montenegro

Question 5

If jurisdiction is given exclusively to a contracting state, does the Hague Convention apply?

Answer 5

Yes, it only applies to clauses which give exclusive jurisdiction to a contracting state.

Question 6

Does the Hague Convention only apply if the jurisdiction agreement is in writing, or evidenced/documented in writing?

Answer 6

Yes, it only applies if the jurisdiction agreement is in writing, or evidenced/documented in writing.

Question 7

What does an asymmetric agreement mean?

Answer 7

This is an agreement which 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.

Question 8

What are the two main consequences if a clause falls within the provisions of the Hague Convention?

Answer 8

-The Court indicated as having jurisdiction will have jurisdiction, and cannot decline it on the basis that the dispute should be decided in another country;

-Any other Court must refuse to hear the proceedings

Question 9

When will the Court have jurisdiction under the common law?

Answer 9

-It is possible to serve the proceedings on the D in the jurisdiction (they are present in the jurisdiction)

-The Court gives permission to serve the proceedings on the D outside of the jurisdiction

-the Courts of England/Wales are given jurisdiction by a clause in a contract

Question 10

In order to obtain permission to serve proceedings on a D outside of the jurisdiction, what three matters must be established?

Answer 10

-The C needs to establish one of the jurisdictional gateways in 6B PD 3.1

-The claim must have reasonable prospects of success

-England and Wales must be the ‘proper place’ in which to bring the claim

Question 11

What are the jurisdictional gateways under 6B PD 3.1?

Answer 11

The most important grounds/jurisdictional gateways are:

A claim is made for a remedy against a person domiciled within the jurisdiction (1).

A claim is made in respect of a contract where the contract (6)-
(a) was made within the jurisdiction;
(b) is governed by English law; or
(c) contains a term to the effect that the Court shall have jurisdiction to determine any claim in respect of the contract

A claim is made in respect of a breach of contract committed within the jurisdiction (7).

A claim is made in tort where (9)
(a) damage was sustained, or will be sustained, within the jurisdiction; or
(b) damage which has been or will be sustained results from an act committed, or likely to be committed within the jurisdiction

Question 12

What is the period for service of a claim outside the jurisdiction?

Answer 12

6 months from the date of issue.

Question 13

Is it necessary to seek the Court’s permission to serve proceedings out of the jurisdiction if the Hague Convention gives the Court jurisdiction?

Answer 13

No, it is not. Permission of the Court will be required in other circumstances.

Question 14

When may the Court permit service by an alternative method?

Answer 14

The Court may permit service by an alternative method if there is good reason to do so.

An application must be made to Court setting out why service in accordance with the CPR is impossible/ineffective and should state the alternative method proposed.

Question 15

When may the Court dispense with service of a document?

Answer 15

The Court may dispense with service of a document but this discretion is usually only exercised where the other side is already aware of the document.

It is very rare for the Court to dispense with service of a claim form where the other party is not aware of the proceedings.

Question 16

What is the procedure for disputing the Court’s jurisdiction?

Answer 16

-D must file an AOS, ticking the box to indicate that they intend to contest jurisdiction

-D must then apply within 14 days after filing the AOS, disputing the Court’s jurisdiction with evidence

There is no requirement to file a defence.

Question 17

If a party submits to the jurisdiction, can they later dispute that jurisdiction?

Answer 17

No!

Question 18

What is the relevant law to determine which country’s laws will apply to determine a contractual dispute?

Answer 18

The relevant law is the Rome I Regulation, which applies to contracts entered into on or after 17 December 2009.

Question 19

Can the parties to a contract choose which country’s laws will apply to any dispute under Rome I Regulation?

Answer 19

Yes, the parties are free to choose which country’s law will apply. This will done by a ‘choice of law’ clause.

Question 20

What country’s laws will apply to a contract for the sale of goods?

Answer 20

Seller’s habitual residence.

Question 21

What country’s laws will apply to a contract for the provision of services?

Answer 21

Service provider’s habitual residence.

Question 22

What country’s laws will apply to a contract relating to land?

Answer 22

Country where the land is situated.

Question 23

What country’s laws will apply to a distribution contract?

Answer 23

Distributor’s habitual residence.

Question 24

If there is no choice of law clause and the contract does not fall into one of the recognised categories, what country’s laws will apply to a contractual dispute?

Answer 24

The applicable law is the law of the country where the party required to effect characteristic performance of the contract has its habitual residence.

E.g. which party is giving the performance which gives the contract its character.

Question 25

When will the Court apply a different country’s law to a contractual dispute under Rome I Regulation?

Answer 25

The Court will apply a different country’s law if the contract is manifestly more connected with that other country.

This provision is not used lightly.

Question 26

What is the relevant law to determine which country’s laws will apply to determine a tortious dispute?

Answer 26

The relevant law is the Rome I Regulation, which applies to events giving rise to damage which occurred on or after 10 January 2009.

Question 27

Can the parties to a tortious dispute choose which country’s laws will apply under Rome I Regulation?

Answer 27

Yes, if the agreement is entered into after the tortious event this choice will be effective.

If entered before, then this choice will only be effective if both parties are pursuing a commercial activity and freely negotiated the choice of law.

Question 28

In the absence of choice, if the parties both reside in the same country, what country’s laws will apply to a tortious dispute?

Answer 28

If the C and D both reside in the same country, then that country’s laws will apply even if the damage happened in a different country.

Question 29

What is the general rule on what country’s laws apply to a tortious dispute where there is no valid choice and the parties do not reside in the same country?

Answer 29

The applicable law is that of the country in which the damage occurs.

Question 30

When will the Court apply a different country’s laws to a tortious dispute under Rome 1 Regulation?

Answer 30

The Court will apply a different country’s law if the tort is manifestly more closely connected with that other country.

This provision is not used lightly.

Question 31

What country’s laws will apply to a dispute about land within the UK?

Answer 31

Generally, disputes about land must be heard in the part of the UK where the land is.

Question 32

If the parties have agreed which part of the UK has jurisdiction, will that agreement be upheld?

Answer 32

Yes!