Jurisdiction and conflicts of law Flashcards
International aspects of a dispute?
Do courts of England have jurisdiction to determine claim?
Which country’s law will apply?
Will it be necessary to enforce the judgement abroad and how will this be done?
Jurisdiction and why it matters?
It is also important to know which court(s) have jurisdiction because:
(a) If you commence proceedings in a court which does not have jurisdiction, the court might
refuse to decide the dispute, and this can lead to time and money being wasted; and
(b) It is possible that more than one court has jurisdiction to determine a dispute. You might then
be able to choose whichever is preferable.
It is important to understand which country’s law applies – without knowing which law applies,
you cannot carry out a useful case analysis.
For the first question - Do the courts of England and Wales have jurisdiction?
Hague convention approach?
Is the matter a civil or commercial matter?
Firstly, the Hague Convention only applies to civil and commercial matters: this covers a wide
range of matters, meaning most of the common types of contracts between commercial entities
will be included. Public law and criminal disputes are not covered (
Exclusions
Disputes with consumers on employment matters
Jurisdiction to a contracting state?
Thirdly, the Hague Convention only applies where the parties have chosen a Contracting State as
the court that will have jurisdiction (Article 3(a)). The Contracting States at the time of writing are
the UK, all EU members states, Mexico, Singapore and Montenegro. So if there is a clause in a
contract stating that the Courts of France (an EU member state) have jurisdiction, then that falls
within the Convention
Exclusive jurisdiction
he Hague Convention only applies to clauses which give exclusive jurisdiction to a
particular country – ie that country and no other has jurisdiction (
Concluded / evidenced in writing
The Hague Convention only applies if the jurisdiction agreement is in writing, or evidenced /
documented in writing
Outcome of hauge convention applying? Wont need permission of court?
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 (Article 5(1) and (2));
(b) Any other court must refuse to hear the proceedings (Article 6 – there are limited exceptions)
Hauge convention short?
1) Civil and commercial matters – ONLY APPLIES TO THEM. Public and criminal are not covered.
2) 2) exclusions – certain types excluded like disputed with consumers and employment matters. Art 2
3) Jurisdiction to a contracting state – only applies when the parties have chosen a contracting state as the court that will have jurisdiction. Contracting states at the time of writing are the UK, all EU member states.
4) Exclusive jurisdiction – ONLY APPLIES TO CLAUSES which give exclusive jurisdiction to a particular country. So, like ‘courts of England and Wales will have non-exclusive jurisdiction- THE HAUGE WILL NOT APPLY
5) Concluded in writing
6) Asymmetric agreements – unclear whether it would fail or not
Dispute the courts jurisdiction?
Procedure
defendant must file an acknolwegdment of service
tick the box to indiacte it intends to contest jurisdiction
defendant must then apply within 14 days after filing the acknowlegdment of service, must be supproted by evidence.
dont file a defence or take part in proceedings - could amount to submission.
Jurisdiction - common law? THE FIRST QUESTION STILL.
- It’s linked to service of proceedings – broadly the court WILL have jurisdiction if:
It is possible to serve proceedings on defendant in the jurisdiction
o True even if defendant is a foreign defendant
o Can be served by a variety of methods including personal service.
o A company not incorporated in E and W can be served at any place of business within E and W
OR
- The court gives permission to serve proceedings on the defendant outside of the jurisdiction
In order to obtain permission, three matters must be established (CPR 6.37):
(a) The claimant needs to establish one of the grounds in 6B PD 3.1;
- The grounds 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;
(c) is governed by English law; or
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.
(b) The claim must have reasonable prospects of success;
(c) England and Wales must be the ‘proper place’ in which to bring the claim
- if the witnesses are here
Or
there is a jurisdiction clause
Finally, the claimant can serve the claim form on a defendant outside the jurisdiction without the
court’s permission where a contract contains a term to the effect that the courts of England
and/or Wales shall have jurisdiction to determine that claim
Serving a claim form outside the jurisdiction?
Validity of process
- Where a claim form has been validly issues, the period for service is 6 months where the claim form is to be served outside the jurisdiction
- LONGER THAN THE NORMAL 4 MONTHS
Service out
Permission
- Not necessary to seek courts permission to serve proceedings out of the convention if the Hague convention applies to a contract contains a term that means England and Wales court will have jurisdiction.
Procedure
- If claimant seeking to serve an English claim form abroad without permission it must FILE FORM N510 and when it issues and files it claims form.
- If seeking to serve with permission, claimant will have to make an application to court asking for the court to allow it to serve the claim from on defendant. This is an interim application, made on Form N244
Methods
Methods of service to choose from when serving outside the UK include:
- Service in accordance with an agreed regulation, convention or treaty
- Service through the government of the destination country
- Service by any method permitted by the law of the destination country.
Response times
- extended periods for filing an acknowledgment of service/defence
Difficulties with service?
Sometimes its difficult to serve through usual methods. Rule therefore allows for an application to the court for an order to deal with this type of situation where this is justified.
Might be required to make an application to court for
- an order for alternative service
o if there is good reason to do. Application must be made to court setting out why usual service is not possible or why it’s been unsuccessful.
o Cannot be used retrospectively
- an order dispensing with service
o discretion only really sued where other side is already aware of the document.
Conflicts of law - contract?
Question 2 – Which country’s law will apply to determine a dispute?
Relevant legislation
- Prior to Brexit the contractual disputes were governed by regulation 593/2008 – Rome I regulation
- Adopted into enshrined law with minor amendments.
- So, Rome I is what’s used.
- Doesn’t apply to contracts enter into before 17 Dec 2009
- Special provisions in Rome I for carriage, consumer contracts, employment contracts and insurance contracts.
ROME 1?
Have the parties chosen which law should apply? - YES the countrys law will apply
IF NO - does the contract relate to type of contract in art 4?
ART 4
Sale of goods = sellers habitual residence
Provisisons of services - Service providers habitual residence
Contract relating to land - where the land is situated
Distribution contract - habitual residence
IF YES THEN APPLY THOSE ARTICLES
IF NO THEN - applicable law is that of the country where the characteristc perfomer has its habitual residence.
Manifestly more closely connected
- If applicable law has been determined under art 4(1) or 4(2) then court will apply a different country’s law if the contract is manifestly more closely connected with that other country.
Conflicts of law TORT?
Which country’s laws will apply to determine a tortious dispute specifically
Relevant legislation
- Prior to Brexit majority of tortious disputes were governed by regulation 864/2007 – Rome II
- Relevant law now is Rome II
- Only applies to events giving rise to damage which occurred on or after 10th January 2009
- Some special provisions for product liability, unfair competition, environmental damage.
ROME 2?
Have the parties validly chosen which law should apply?
IF YES - that countrys law will apply
IF NO - do the claimaint and defendant habitually reside in the same country?
IF YES - THAT COUNTRYS LAW APPLIES
IF NO - THE LAW OF COUNTRY WHERE DAMAGE OCCURS
The party’s choice
- Art 14 – parties are free to choose
- If agreement if entered into after the event giving rise to the tortious damage then this choice will be effective.
- If agreement is entered into before the even then this choice will only be effective is both parties are pursuing a commercial activity and freely negotiated the choice of law
