Jurisdiction and conflict of laws Flashcards
Jurisdiction is concerned with…
Which courts can determine a dispute.
Choice of law or conflict of law is about
Whether a dispute is determined according to the law of England and Wales, or some other country’s law.
Timing for Hague Convention
Only applies to choice of court agreements concluded on or after 1 October 2015.
Hague convention approach
- Is the matter a civil or commercial matter?
- only applies to commercial and civil - Is it an excluded matter?
- consumers
- employment - Does the clause give jurisdiction to a contracting state?
- UK
- EU
- Mexico
- Singapore
- Montenegro - Is jurisdiction given exclusively?
- only applies to clauses which give exclusive jurisdiction to a particular country - Is the agreement concluded/documents/evidenced in writing?
- contract must be in writing - Is the agreement an asymmetric one?
- one party has more power than the other
- unclear how these apply
Key principles of hague convention
If clause falls within provisions there are two main consequences:
- Court indicated as having jurisdiction will have jurisdiction and cannot decline on the basis the dispute should be decided in another country
- Any other court must refuse to hear the proceedings
Common law: establishing jurisdiction
Linked to service of proceedings.
Court will have jurisdiction under the common law if:
- possible to serve the proceedings on the defendant in the jurisdiction;
- the court gives permission to serve the proceedings on the defendant outside the jurisdiction; or
- the Courts are given jurisdiction by a clause in the contract
Permission to serve outside the jurisdiction
- establish grounds in 6B PD 3.1
- Claim must have reasonable prosepct of success
- England and Wales must be the ‘proper place’ in which to bring the claim
Grounds in 6B PD 3.1
- Claim is made against a person domiciled in the jurisdiction
- Claim is made in respect of a contract where the contract:
a) was made within the jurisidiction
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 - Claim is made in respect to a breach of contract committed within the jurisdiction
- Claim is made in tort where;
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
Proper place
‘Natural place’:
- witnesses are based there
- English law applies
- defendant is normally resident
- justice (other jurisdiction would not conduct a fair trial)
Time to serve claim form outside of jurisdiction
Period for service is 6 months.
Service out - procedure
No permission needed:
- Must file Form n510 when it issues and files its claim form. Confirms to the court the basis upon which it has jursidiction
With permission:
- interim application will be made
Response times will be extended as well depending on the country involved.
Methods to serve outside the UK
- Service in accordance with an agreed regulation, convention or treaty.
- Service through government of the destination country
- Service by any method permitted by the law of the destination country - take local advice
Difficulties with service
Can apply for:
- order for alternate service
- order dispensing with service
Alternative service
May permit where there is good reason to do so.
Generally necessary to show the usual methods of service are impossible/ineffective.
examples:
- serving on solicitors acting for party where solicitor is not authorised
- placing advert in a newspaper
- delivering by email
Dispensing with service
- Discretion is usually only exercised where the other side is already aware of the document
Very rare.
