Jurisdiction and conflicts of law Flashcards
Does Hague Convention apply?
The parties can choose jurisdiction of courts of a certain country. The clause is effective if:
- It’s a civil or commercial matter
- It’s not an excluded matter (examples: consumer and employment disputes)
- Thirdly, the Hague Convention only applies where the parties have chosen a Contracting State as the court that will have jurisdiction (EU, UK, Mexico, Singapore, Montenegro)
- Exclusive jurisdiction
1 “The Courts of England and Wales will have exclusive jurisdiction to determine any dispute arising out of this contract” – the Hague Convention applies to this.
2 “The Courts of England and Wales will have jurisdiction to determine any dispute arising out of this contract” – the Hague Convention states that this will be assumed to mean exclusive jurisdiction, and the Hague Convention applies to this.
- The agreement is in writing or evidenced/documented in writing
Effect of The Hague Convention applying
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 in a different country must refuse to hear the proceedings
Establishing jurisdiction under common law rules
a. it is possible to serve the proceedings on the defendant in the jurisdiction (in England and Wales) – the defendant is ‘present’ in the jurisdiction; or
b. the court gives permission to serve the proceedings on the defendant outside of the jurisdiction; or
c. the Courts of England and Wales are given jurisdiction by a clause in a contract.
Serving proceedings on D in the jurisdiction
Proceedings can be personally served on an individual defendant in England and Wales even if they live in another jurisdiction and are only very briefly in England and Wales.
a company not incorporated in England and Wales can be served at any place of business of the company within England and Wales
if a defendant appoints a solicitor in England and Wales to accept service on its behalf, and the proceedings can then be served on that solicitor within the jurisdiction.
Permission to serve proceedings on D outside of the jurisdiction
If a party cannot (or for some reason does not want to) serve proceedings within the jurisdiction, it can apply to serve the proceedings on the defendant outside of the jurisdiction. If the court grants permission for this and the proceedings are duly served outside of the jurisdiction, then this gives the courts of England and Wales (in principle) the jurisdiction to determine the claim.
How to obtain permission to serve outside of jurisdiction
1 The claimant needs to establish one of the grounds in 6B PD 3.1;
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
(d) 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.
2 The claim must have reasonable prospects of success;
3 England and Wales must be the ‘proper place’ in which to bring the claim.
- Examples: parties or witnesses reside here, governed by eng law
- risk of improper government interference in a different jurisdiction, or some other reason why the trial will not be fair in a different country - then England can be the proper place
Jurisdiction clauses
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
it does not need to be exclusive jurisdiction like with the Hague Convention
Time limit for serving a claim form outside the jurisdiction
Where a claim form has validly been issued, the period for service is six months
NO permission needed to serve outside of jurisdiction if
Hague convention applies
Jurisdicition clause in the contract
Alternative service methods - when can you use them?
The court may permit service by an alternative method if there is good reason to do so, ie where the other available methods of service would be ineffective or impossible.
An application must be made to court setting out why service in accordance with the methods listed in the CPR are not possible or why attempts to serve in accordance with these methods have been unsuccessful. The application should state the alternative method proposed.
Alternative service cannot be used retrospectively and it cannot be used to remedy irregular service.
Dispensing with service - when is it possible?
The court may dispense with service of a document. This discretion is usually only exercised where the other side is already aware of the document.
Disputing the court’s jurisdiction - procedure
1 The defendant must first file an acknowledgement of service – there is a box on the acknowledgement of service to indicate that the defendant intends to contest jurisdiction.
2 The defendant must then apply within 14 days after filing the acknowledgement of service, disputing the court’s jurisdiction. That application must be supported by evidence.
Submitting to the court’s jurisdiction - how do you do it? Can you dispute jurisdiction after you already submitted to it?
Submitting to the court’s jurisdiction can be considered the opposite of disputing it. If a party submits to the jurisdiction of the Courts of England and Wales, then they cannot later dispute that jurisdiction, so effectively the court’s jurisdiction is established.
The party must not, for example, file a defence - this would be submitting to jurisdiction
Conflicts of law - contract (Rome I)
Have the parties chosen which law should apply?
YES - that country’s law will apply
NO - does the contract relate to one of the case specified in art.4(1)(a)-(h)?
YES - those articles apply
Then consider if the contract is ‘manifestly more closely connected’ with another jurisdiction’?
NO - the applicable law is that of the country where the ‘characteristic performer’ has its habitual residence
Then consider if the contract is ‘manifestly more closely connected’ with another jurisdiction’?
Articles 4(1)(a)-(h)
Sale of goods contract: applicable law is that of the seller’s habitual residence
Provisions of services contract: applicable law is that of the service provider’s habitual residence
Contract relating to land: applicable law is that where the land is situated
Distribution contract: applicable law is that of the distributor’s habitual residence
A company’s habitual residence is where its ‘central administration’ is.
Characteristic performance - who gives it?
In a contract where one party is paying the other party for something, it is generally the party doing the ‘something’ which is giving the contract its character, not the party making the payment.
Conflict of laws - tort (Rome II)
Have the parties validly chosen which law should apply?
YES - that country’s law will apply
NO - do the claimant and defendant habitually reside in the same country?
YES - that country’s laws apply
Is the tort ‘manifestly more closely connected’ with another country?
NO - apply the law of the country in which damage occurred
Is the tort ‘manifestly more closely connected’ with another country?
Rome II - tort - The parties’ choice - agreement before ot after damage is valid?
If the agreement is entered into after the event giving rise to the tortious damage, then this choice will be effective.
If the agreement is entered into before the event giving rise to the tortious damage, then this choice will only be effective if both parties are pursuing a commercial activity and freely negotiated the choice of law
Conflicts of laws within the UK
General rule: a person domiciled in a part of the UK should be sued in the courts of that part
a person is domiciled in a part of the UK if they are resident there and the nature and circumstances of their residence indicate they have a substantial connection with that part
A company is domiciled where its ‘seat’ is, and a company will generally have its seat where it has its registered office, or if it has none, where it was incorporated
Exception: D sued where the goods were to be delivered / services provided / harmful tortious event occurred if no agreement
