Plan - Foreign Jurisdiction

Question 1

General structure (reg applies)

Answer 1

1. Does the regulation apply?
2. Do the courts of England & Wales have jurisdiction under the regulation?
3. Will they accept jurisdiction?

Question 2

General structure (reg doesn’t apply)

Answer 2

1. Does the regulation apply?

2. Resort to common law i.e. Presence, Submission, Permission.

Question 3

Does the regulation apply?

Answer 3

There must be:

1. International aspect
2. Material scope - civil or commercial case with sufficient connection with reg. member state.
3. Temporal scope - after 10th Jan 2015

Question 4

Do the courts of E&W have jurisdiction under the regulation?

Answer 4

1. General rule (Art.4) J is D’s domiciled state (pursuant to Art.63).
2. If claim based in contract, Art.7 applies special jurisdiction where the contract was to be performed.
   Otherwise:
3. Art.24 - Exclusive jurisdiction
4. Art.25 - Choice
5. Art.26 - Submission

Question 5

Will courts of E&W accept jurisdiction?

Answer 5

Any reason not to?

1. Lis pendens (Art.29)
2. Related proceedings (Art.30)

Question 6

Common law jurisdiction

Answer 6

E&W may have jurisdiction if one of the three is satisfied:

1. Presence - D is present in E&W
2. Submission - D appoints an agent to receive action or takes an action to accept jurisdiction.
3. Permission - Courts may grant permission to serve an action in a foreign country if the three limb test is passed:

• Jurisdictional gateway under CPR 6B PD 3.1
• C must show that the claim has a reasonable prospect of success (low threshold)
• English court must be the “proper place” to bring the action i.e. “Forum Conveniens” - e.g. residence of D, availability of witnesses, location of action in question. If no, does substantial justice require the case to be heard in E&W anyway.