Jurisdiction & Conflict of Laws Flashcards
What are the 3 methods of establishing that the E&W court has jurisdiction to hear a case?
- Hague Convention contract
- Common law rules
- Civil Jurisdiction and Judgments Act 1982 (for Scotland / NI only)
Used when dispute takes place outside of England and Wales but involving E&W national or in E&W but involves national from another country.
When does the Hague Convention apply to establish jurisdiction? What is the effect?
- Agreement in writing between the parties concluded before 1 Oct 2015 which gives exclusive jurisdiction to Hague Convention MS court (UK, EU, Mexico, Singapore, Montenegro).
- Civil and commercial matters
- Symmetric
If established, that court must hear the claim and other courts must reject the claim. If these conditions do not apply, apply common law rules.
What are the common law methods of establishing jurisdiction?
- Served personally on D on E&W soil
- Court gives its permission to serve abroad
- Courts of E&W given jurisdiction by clause in contract.
How does personal service work under the common law jurisdiction rules?
No permission from the court is required, can just follow the normal rules of service. Can serve on Ds solicitor if they are appointed to accept service on D’s behalf.
How does a contract establish jurisdiction under the common law rules?
If the contract was agreed before 1 Oct 2015 or did not grant exclusive jurisdiction, then it can still establish jurisdiction.
How can the claimant obtain permission to serve proceedings abroad?
1. Grounds for Permission:
* Contract made in E&W, governed by E&W law, breached in E&W or contains jurisdiction clause.
* Tort: damage sustained in E&W or tortious act committed in E&W
2. Reasonable prospect of success
Claim must have reasonable prospect of success, low bar.
3. E&W is the proper place to proceed
* Natural place to bring proceedings, i.e witnesses based there, English law applies or D resident there
* Justice may require that case is heard elsewhere, e.g risk of improper govt interference elsewhere.
How can D submit to jurisdiction?
By filing a defence.
How can D challenge jurisdiction?
By submitting an AOS ONLY, not a defence and dispute within 14 days after AOS + evidence. If no AOS, judgment in default.
Must challenge on ground that Hague Convention or permission to serve abroad not met or that there is another more appropriate forum.
What are the rules for service of the claim form abroad?
Claim form must be served 6 months after the date of issue. Permission from the court is required unless:
* Hague Convention applies
* Jurisdiction clause in contract
* D in England and Wales
Form N510: without permission, confirms jurisdiction when issuing and filing claim form.
Form N244: interim application to court for permission to serve on D abroad.
Claimant must not use method of service which is unlawful in another country + service through government may be required.
What is an order for alternative service and when is it likely to be made?
Where the claimant cannot use the standard methods of service, for example because it is ineffective or impossible. May be able to serve on solicitor (even where not authorised) or by ad in local newspaper.
Court may decide that alternative step already taken is sufficient. This is not a method to remedy irregular service.
When can the court dispense with service?
Usually only where the other side are already aware of the dispute (i.e both sides agree to amendments).
What is conflict of laws?
The rules that apply to determine which country’s laws apply to the dispute, i.e the English court may have jurisdiction but to hear the case and make a decision using French law. Governed by Rome I and Rome II regulations.
What does Rome I say about contractual disputes?
- Parties agree
- Default provisions:
* Sale of goods = seller’s habitual residence
* Provision of services = provider’s habitual residence
* Distributor = distributor’s habitual residence
* Land contract = where land is - Characteristic performance
- Manifestly more closely connected
What does Rome II say about tortious disputes?
- Parties choice (if after event, choice effective; if before, only effective if both parties commercial and freely negotiated).
- D and C are resident in same country
- Country where damage occurs (likely to be country where tortious act occurs).
- Manifestly more closely connected
Which conflict of law rules apply to NI and Scotland?
Rome I and Rome II
