Private International Law Flashcards
LTU v Eurocontrol [1976] ECR 1541
Test for “civil and commercial” within the meaning of Art. 1 Brussels I Regulation
- Is the dispute of a private nature?
- Are the parties exercising any special public powers?
Webb v Webb [1994] ECR I 1717
A declaration of trust over immovable property is personal in nature and, as such, not covered by Art. 24 Brussels I
Speed Investments Ltd v Formula One Holdings Ltd [2004] EWCA Civ 1512
The exclusive grounds for jurisdiction in Art. 24 override all other grounds, including an exclusive jurisdiction agreement under Art. 25
Deutsche v Asia Pacific Broadband [2008] EWCA Civ 1091
A jurisdiction clause is treated as severable from the remainder of the contract
Harada Ltd (t/a Chequepoint UK) v Turner (No. 2) [2003] EWCA Civ 1695
Submission requires more than simply entering an appearance to contest jurisdiction (even in the alternative)
Young v Anglo American South Africa Ltd [2014] EWCA Civ 1130
A subsidiary’s place of central administration is not the location of its parent company for the purposes of Art. 63 Brussels I, UNLESS all the essential or entrepreneurial decisions are made by the parent
Ministry of Defence for Iran v Faz Aviation [2007] EWHC 1042 (Comm)
Day-to-day activities in a place do not indicate a principal place of business for the purposes of Art. 63 Brussels I if such activities are subject to the control of senior management located elsewhere
Canada Trust Co v Stolzenberg (No. 2) [2002] 1 AC 1
The test for domicile as per Arts. 62 or 63 Brussels I should be applied at the time proceedings are commenced; it does not matter if the defendant leaves the jurisdiction prior to service
De Bloos v Bouyer [1976] ECR 1497
in relation to Art. 7(1) Brussels I
The place of performance for the purposes of Art. 7(1) Brussels I is determined in relation to the obligation underpinning the claim
Shenavai v Kreischer [1987] ECR 239
In the case of a contract involving various obligations, it is the principal obligation that should be used for the purposes of Art. 7(1) Brussels I
Viskase Ltd v Paul Kiefel GmbH [1999] 1 WLR 1305
Where the contract contains multiple principal obligations of equal importance, then each obligation gives rise to a separate ground for jurisdiction under Art. 7(1) Brussels I
Dumez France v Hessische Landesbank [1990] ECR I 49
The place of damage giving rise to jurisdiction under Art. 7(2) Brussels I is the place of the direct damage; it does not extend to consequential losses
Somafer v Saar-Ferngas [1978] ECR 2183
A branch is defined as a place of business with the appearance of permanency for the purposes of Art. 7(5)
De Bloos v Bouyer [1976] ECR 1497
in relation to Art. 7(5) Brussels I
The test for an agency relation is that one party must be:
- under the direction and control of another; and
- obliged to act other than by reason of a contractual relationship
Freeport v Arnoldsson [2007] ECR I 8319
Proceedings will be deemed closely related for the purposes of Art. 8(1) even if they involve different causes of action, provided that enjoinder would avoid the risk of conflicting judgements
The Tatry [1994] ECR I 5439
Art. 29 Brussels I does not prevent proceedings involving the other, non-identical parties from continuing
Sarrio v Kuwait Investment Authority [1999] 1 AC 32
The court should follow a common sense approach in determining whether there is a risk of irreconcilable judgements for the purposes of Art. 30 Brussels I
Maharanee of Baroda v Wildenstein [1972] 2 QB 283
The test for presence of a natural person under the common law rules is mere physical presence, no matter how transitory
Cleveland Museum of Art v Capricorn Art International [1990] 2 LLR 166
A fixed place of business under the common law rules for presence of a legal entity does not need to be a branch; it can simply be a premises or storage facility
Rakusens v Baser [2001] EWCA Civ 1820
A fixed place of business under the common law rules for presence of a legal entity may also include an agency relationship, provided the agent does more than simply relay orders abroad; the company must carry out some business within the territory
Sharab v Prince Al-Waleed [2009] EWCA Civ 353
Permission to serve out under PD 6B CPR will be granted where a contract was initially concluded in the jurisdiction, despite being subsequently amended
Cooley v Ramsey [2008] EWHC 129
Permission to serve out under PD 6B CPR will be granted where the damage sustained in the territory as a result of a tort is purely indirect
Seaconsar v Bank Markazi [1993] 4 All ER 456
Permission to serve out under PD 6B CPR will only be granted if:
- there is a good and arguable case as to jurisdiction; and
- there is a serious issue to be tried on the merits
The Spiliada [1987] AC 460
The test for a good and arguable case (doctrine of forum conveniens) is two-fold:
- Is there another clearly more appropriate forum?
- If so, would the English claimant be denied justice in this forum?
Novus Aviation Ltd v Onur Air Tasimacilik [2009] EWCA Civ 122
The choice of English law as the governing law is only one of many factors to be considered for forum conveniens purposes; it is not decisive
The Vishva Ajay [1989] 2 LLR 558
Delay and the absence of an opportunity to reccover cots will indicate that a claimant is likely to be denied justice
Connelly v RTZ [1998] AC 854
A lack of opportunity to pursue a case abroad owing to the absence of legal aid will indicate that a claimant is likely to be denied justice
Lucasfilm Ltd v Ainsworth [2011] UKSC 39
in relation to jurisdiction at common law
The Mozambique rule does not apply to foreign intellectual property rights
Lubbe v Cape Plc [2000] UKHL 41
A lack of sufficient expertise or medical knowledge will indicate that a claimant is likely to be denied justice
Interdesco v Nullfire [1992] 1 Lloyds LR 180
The fraud defence will only be available on public policy grounds for the purpose of Art. 45(1)(a) Brussels I if it was not already (or could not already have been) considered by the foreign court
Sonntag v Waidmann [1993] ECR I 1963
Entering an appearance and then failing to raise a defence or play any further part in proceedings does not permit the defendant to invoke the defence of procedural unfairness under Art. 45(1)(b) Brussels I
SA Consortium General Textiles v Sun & Sand Agencies [1978] QB 279
(in relation to final and conclusive awards)
A foreign judgement is still enforceable under the common law rules until such time as it is set aside, notwithstanding any procedural irregularity or defect
Colt Industries Inc v Sarlie (No. 2) [1966] 3 All ER 85
A judgement will be regarded as final, even if it is capable of appeal, although the English court may stay proceedings pending the outcome of the appeal
SA Consortium General Textiles v Sun & Sand Agencies [1978] QB 279
(in relation to awards for fixed sums of money)
An award of exemplary damages does not constitute a penalty
Lucasfilm v Ainsworth [2009] EWCA Civ 1328
in relation to enforcement of foreign judgements
Presence of a legal person requires more than simply doing business or advertising in the foreign territory; a fixed place of business is necessary
Israel Discount Bank v Hadjipateras [1984] 1 WLR 137
Entering an appearance before the foreign court to contest the merits of a case without also contesting jurisdiction is deemed submission under English law
(N.B. s. 33 CJJA 1982)
Tracomin v Sudan Oil Seeds (No. 1) [1983] 3 All ER 137
When determining if a court has jurisdiction under the common law rules for enforcement of a foreign judgement, the English courts will always consider whether an exclusive jurisdiction agreement applies, even if already discussed by the foreign court.
Showlag v Mansour [1995] 1 AC 431
The first-in-time rule prevails at common law as to the order of enforcement for foreign judgements, UNLESS there are other grounds that would bar enforcement
Jet Holdings v Patel [1990] 1 QB 335
The English courts will always consider the fraud defence to enforcement at common law, UNLESS there have been separate, untainted proceedings dealing with the issue
Adams v Cape Industries [1990] Ch 433
The defence to enforcement alleging a breach of procedural or substantive justice must have a very serious cause, e.g. using a fundamentally different measure than actual loss to calculate damages
Dallah Real Estate and Tourism Holding Company v Pakistan [2010] UKSC 46
The English courts will always review the terms of an arbitration agreement when deciding whether or not to enforce a foreign arbitral award
Sulamerica Cia Nacional de Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638
The choice of law used to determine the validity of an arbitration agreement is the law of the seat of the arbitration
Fiona Trust v Pirvalov [2007] UKHL 40
Arbitration agreements should be construed broadly, so all disputes will be covered unless expressly excluded
Soleimany v Soleimany [1999] QB 785
Enforcing an arbitral award relating to a dispute that arises from an illegal contract is contrary to public policy
Raiffeisen Zentralbank Österreich AG v Five Star General Trading [2001] QB 825
Characterisation should be carried out in a broadly internationalist spirit
Case 9/87 SPRL Arcado v SA Haviland [1988] ECR 1539
Issues involving contractual and/or non-contractual (tortious) obligations must be characterised according to European law
Re Martin [1900] P 211
Save in the case of Art. 62 and 63 Brussels I, domicile should be determined in accordance with English law
Iran v Berend [2007] EWHC 132 (QB)
Renvoi has no general application in disputes relating to property, but should be considered on policy grounds where appropriate
Re Askew [1930] 2 Ch 259
The doctrine of partial renvoi is not part of English law
R v Brentwood Superintendant Registrar of Marriages [1968] 2 QB 956
Renvoi applies in the case of issues relating to marriage
N.B. s. 212(2) CPA 2004
Re Annesley [1926] Ch 692
Renvoi applies to issues of succession
Egon Oldendorff v Liberia Corp [1996] 1 Lloyds Rep 380
The use of legal terms common to a particular legal system gives rise to an implied choice of law under Art. 3 of the Convention/Rome I
Halpern v Halpern [2007] EWCA Civ 291
The law chosen under Art. 3 of the Convention/Rome I does not have to be the law of a distinct state, e.g. Jewish law
Ralli Bros v Compania Naviera [1920] 2 KB 287
The courts may elect not to enforce a contract held to be valid under the governing law on the grounds of foreign illegality in the place of performance
Print Concept GmbH v GEW (EC) Ltd [2001] EWCA Civ 352
The characteristic performer of a distribution agreement under the Convention is the manufacturer
(N.B. This position has been reversed under Rome I)
Ennstone Building Products Ltd v Stanger Ltd [2002] EWCA Civ 916
The presumption of Art. 4(5) of the Convention is only rebutted if there are obvious alternative connections, not simply many balanced ones
(N.B. Definitely Maybe (Touring) Ltd v Marek Lieberberg Konzertagentur GmbH [2001] 2 All ER (Comm) 1)
Macmillan Inc v Bishopsgate Investment Trust (No. 3) [1996] 1 WLR 387
(in relation to the classification of a dispute)
Characterisation should be carried out according to the laws of the lex fori, having regard to the nature of the issue rather than the form of the claim
Boys v Chaplin [1971] AC 356
in relation to procedural/substantive laws
The nature of damages is substantive, but the quantification of damages is procedural (except where Rome I or II applies)
Ennstone Building Products Ltd v Stanger Ltd [2002] EWCA Civ 916
The presumption of Art. 4(5) of the Convention is only rebutted if there are obvious alternative connections, not simply many balanced ones
(N.B. Definitely Maybe (Touring) Ltd v Marek Lieberberg Konzertagentur GmbH [2001] 2 All ER (Comm) 1)
Szalatnay-Stacho v Fink [1947] 1 KB 1
A tort committed in England is governed by English law under the common law rules
Phillips v Eyre (1870) LR 6 QB 1
The test for double-actionability requires the defendant to be liabile under both the:
- lex loci delicti; and
- lex fori
Boys v Chaplin [1971] AC 356
in relation to double-actionability
Liability under the lex loci delicti may be disapplied where a dispute is more closely connected with English law
Edmunds v Simonds [2001] 1 WLR 1003
A tort involving two English holidaymakers has a closer connection to England for the purposes of s. 12 PIL(MP)A 1995
Morin v Bonhams and Brooks [2003] EWCA Civ 1802
The law of a place where a negligent misstatement is relied upon governs the dispute rather than the law of the place where the statement is made for the purposes of s. 12 PIL(MP)A 1995
Winrow v Hemphill [2014] EWHC 3164
The test for a manifestly closer connection under Art. 4(3) Rome II is a strict one
Winkworth v Christie, Manson & Woods [1980] Ch 496
The material time for determining the location of property is the time at which the alleged transfer took place
Macmillan v Bishopsgate Investment Trust [1996] 1 WLR 387
in relation to choice of law for property disputes
Where a dispute involves contractual rights in rem, the applicable law is the law governing the underlying contract
Re Collens [1986] Ch 505
There is no exception to the choice of law rules in succession where the deceased died intestate, i.e. moveables are governed by domicile and immoveables by the lex rei sitae
Oppenheimer v Catermole [1976] AC 249
The public policy defence under Art. 16 of the Convention, Art. 21 Rome I or Art. 26 Rome II is likely to apply where a rule of law would otherwise be fundamentally contrary to a person’s human rights
Krombach v Bamberski [2000] ECR I-1935
The public policy defence under Art. 16 of the Convention, Art. 21 Rome I or Art. 26 Rome II is likely to apply where a rule of law violates the fundamental principle of access to justice
Balmoral Group Ltd v Borealis [UK] Ltd [2006] EWHC 1900
The laws of the forum will apply by default where the parties fail to adduce sufficient evidence of the applicable foreign law
Bumper Development Corp Ltd v Commissioner of Police [1991] 4 All ER 638
The English courts may not inquire as to the provisions of foreign law of their own motion, but they may draw their own conclusions on the evidence presented
How do you determine the applicable law?
- Characterise the issue to identify the CoL rule
- Evaluate the connecting factor in the CoL rule
- Distinguish between substantive/procedural laws
- Consider any issues of renvoi
Characterisation
Carried out in accordacne with the laws of the lex fori, UNLESS the issue involves contractual/non-contractual claims
Sources of CoL rules
Contracts:
- Prior to 17/12/09 = Rome Convention
- After 17/12/09 = Rome I
Torts:
- Prior to 11/01/09 = PIL(MP)A 1995
- After 11/01/09 + privacy = Rome II
- defamation = common law
Substantive vs procedural
- Procedural rules are governed by the lex fori
- Substantive laws are governed by the applicable law
Connecting Factors
- Domicile must always be evaluated in accordance with English law (Re Martin), UNLESS Brussels I applies (Arts. 62 and 63)
- Habitual residence must always be evaluated in accordance with English law, UNLESS Rome I or Rome II applies (Arts. 19(1) or 23(1))
Renvoi
Renvoi does not apply in the case of:
- contracts (Art. 50 Rome Convention or Art. 20 Rome I)
- torts (s. 9(5) PIL(MP)A 1995 or Art. 24 Rome II)
- property (Iran v Berend)
Renvoi does apply in the case of:
- marriage (R v Brentwood Sup Reg of Marriages)
- civil partnerships (s. 212(2) CPA 2004)
- succession (Re Annesley)
Choice of Law in Contract
General Principles
- Look at when the contract was cocluded
- Check whether the parties have chosen a governing law
- Ensure the contract is not frustrated by illegality in the place of performance (Ralli Bros; Arts. 9(3) and (4) Rome I)
Choice of Law in Contract
Rome Convention
Applicable law is that of the place with which the contract is most closely connected (Art. 4(1))
- This is presumed to be HR of the characteristic performer (Art. 4(2), UNLESS:
- the contract is obviously (Definitely Maybe; Ennstone Building v Stanger) more closely connected with another country (Art. 4(5)
Choice of Law in Contract
Rome I
Applicable law is determined by reference to the type of contract (Art. 4(1)), UNLESS:
- the contract does not fall within one of the categories; or
- the contract covers multiple categories; IN WHICH CASE:
- the appliicable law of the place where the characteristic performer has HR, UNLESS:
- – the contract is manifestly more closely connected with another place (Art. 4(3))
Choice of Law in Tort
Common Law
Tort must satisfy double-actionability (Phillips v Eyre), UNLESS:
- the lex loci delicti portion of the rule may be disapplied because of a closer connection to England (Boys v Chaplin)
Choice of Law in Tort
PIL(MP)A 1995
Tort is governed by the lex loci delicti (s. 11), UNLESS:
- there is a substantially more appropriate law (s. 12)
Choice of Law in Tort
Rome II
Determine if the parties have elected a governing law (Art. 14), IF NOT the governing law is:
- the HR of the parties if this HR is shared (Art. 4(2)); or
- lex loci damni (direct) if HR is different (Art. 4(1)), UNLESS:
- the tort has a manifestly closer connection to another country (Art. 4(3))
Choice of Law in Property
- Claims involving title to property are governed by the lex rei sitae
- Claims involving contractual rights in rem are governed by the law governing the underlying contract
Choice of Law in Succession
- Issues of succession are governed by:
- lex domicilii of the deceased (moveable)
- lex rei sitae (immoveable)
- Issues surrounding the validity of a will are governed by:
- s. 1 WA 1963 (formal validity)
- lex domicilii (substantive validity for moveables)
- lex rei sitae (substantive validity for immoveable)
- Issues of interpretation of a will are governed by:
- law chosen by T; or
- lex domicilii at death (in absence of choice)
Choice of Law in Marriage/Civil Partnerships
- Issues surrounding the validity of a marriage are governed by:
- lex loci celebrationis (formal validity)
- lex domicilii of parties (substantive validity)
N.B. There is a presumption that if a celebration has been concluded and parties cohabit as H+W, then this is a valid marriage, UNLESS:
- Ceremony not capable of creating a valid marriage (Burns v Burns)
- Parties did not intend for ceremony to give rise to a valid marriage (Hudson v Leigh)
- Issues surrounding the validity of a civil partnership are governed by the relevant law, i.e. lex loci celebrationis + renvoi (s. 212 CPA 2004)
- Issues surrounding recognition of a foreign civil partnership are governed by the test in s. 214 CPA 2004
Overriding Principles
The laws of the forum may override the governing law in the event of:
- manifest incompatibility with public policy (Art. 16 Rome Convention, Art. 21 Rome I or Art. 26 Rome II)
- mandatory or non-derogable provisions that arise because of:
a) a desire to protect the public interests of a country (Art. 9(1) Rome I)
b) would be non-derogable but for the choice of law on account of an otherwise exclusive connection (Arts. 3(3) and (4) Rome I; Arts. 14(2) and (3) Rome II) - failure to present sufficient evidence as to the contents of foreign law (Balmoral Group v Borealis)
Jurisdiction Agreements under Brussels I
- Agreement is seveerable from the remainder of contract (Deutsche v Asia Pacific Broadband)
- Presumed to be exclusive (Art. 25)
- Test for validity found in:
- Art. 25 (formal)
- Recital 20 (substantive), i.e. law of court (incl. CoL rules) nominated
- Overriden by matters contained in Art. 24 (Speed Investments)
Domicile under Brussels I
- Domicile of a natural person determined in accordance with law of relevant MS (Art. 62)
- For England, the test is residence + substantial connection (Art. 9(3) Sch. 1 CJJO 2001)
- Domicile of legal person based on (Art. 63) location of:
- statutory seat
- central administration
- principal place of business
Jurisdiction under Brussels I
The rules only apply if:
- the dispute “civil and commercial” in nature;
- there are exclusive grounds (Arts. 24, 25, 26); or
- D is domiciled in EU (Art. 5)
Where D is domiciled in EU, jurisdiction is allocated according to:
- place where D is domiciled (Art. 4)
- place of performance of contract (Art. 7(1))
- place of tort or place of damage (Art. 7(2))
- place of branch, agency or establishment (Art. 7(5))
- place chosen in non-exclusive jurisdiction agreement (Art. 25)
- place where closely related proceedings already underway (Art. 8(1))
Parallel Proceedings under Brussels I
- Is the court second seised empowered by virtue of an exclusive jurisdiction agreement (Art. 31(2))?
- If proceedings in another MS are:
- - identical, a stay is compulsory (Art. 29)
- - related, a stay is discretionary (Art. 30) - If proceedings outside EU are:
- - identical or related, a stay is discretionary (Arts. 33 and 34)
Jurisdiction at Common Law
The rules only apply if:
- there no exclusive jurisdiciton clause (Art. 25 Brussels I); and
- D is domiciled outside EU (Art. 6 Brussels I)
The English courts have jurisdiction if:
- claim does not relate to foreign immoveable property;
- D has submitted to English courts;
- D is present in the territory; or
- PD 6B CPR applies and C has leave of court to serve out under doctrine of forum conveniens
Test for Presence at Common Law
A natural person is present simply through being in the jurisdiction, no matter how transitory (Maharanee of Baroda)
A legal person is present if they have a fixed place of business in the jurisdiction
Test for Permission to Serve Out
Forum Conveniens
- There must be a serious issue to be tried
- C must make out a good and arguable case for jurisdiction (The Spiliada):
a) Is there another more appropriate forum?
b) Would C be denied justice if case heard in that forum?
Test for Permission to Serve Out
Forum Conveniens
- There must be a serious issue to be tried
- C must make out a good and arguable case for jurisdiction (The Spiliada):
a) Is there another more appropriate forum?
b) Would C be denied justice if case heard in that forum?
Enforcement of a Foreign Judgement (EU)
Defences:
- Manifestly contrary to public policy (Art. 45(1)(a)), e.g. fraud
- - N.B. Fraud argument must not already have been considered (Interdesco) - Procedural unfairness (Art. 45(1)(b)), e.g. no notice of proceedings
- - N.B. Not applicable if D failed to raise a defence after entering an appearance (Sonntag) - Conflicts with prior enforceable judgement (Art. 45(1)(c) and (d))
- Foreign court lacked jurisdiction, but only on account of contravention of Art. 24 (Art. 45(1)(e)(ii)
- - N.B. Jurisdiction cannot be challenged on other grounds (Art. 45(3)) - Judgement is subject to appeal (Art. 38)
- - N.B. Enforcement proceedings will only be stayed pending the outcome
Enforcement of Foreign Judgement (Non-EU)
Positive Requirements:
- Final and conclusive award
- Fixed sum of money and not punitive
- - N.B. Multiple damages are punitive (s. 5(1) PTIA 1980) - Court had jurisdiction based on D’s:
a) presence
b) submission
Defences:
- Breach of jurisdiction agreement (s. 32 CJJA 1982)
- Prior judgement already obtained
- Fraud on or by foreign court
- Breach of procedural or substantive justice
Arbitration Agreements
- Severable from rest of contract (s. 7 AA 1996)
- Outside scope of Rome I (Art. 1(2)(e)) and Brussels I (Art. 1(2)(d))
- Art II(3) of NY Convention obliges courts to decline jurisdiction where there is a valid arbitration agreement
- Art. III of NY Convention obliges states to recognise arbitral awards as binding
- Interpreted broadly unless expressly restricted (Fiona Trust v Privalov)
Enforcement of Arbitral Awards
Defences:
- Arbitral tribunal lacked jurisdiction on account of formal or substantive invalidity of arbitration agreement (s. 103(2)(a) and (b) AA 1996)
- N.B. English courts will always decide (applying law of seat of arbitration as default), even if:
- - a foreign court has ruled otherwise (Allianz SpA v West Tankers; Recital 12)
- - arbitral panel has decided itself (Dallah Real Estate v Pakistan) - lack of notice to D of arbitral proceedings (s. 103(2)(c) AA 1996)
- dispute not covered by terms of arbitration agreement (s. 103(2)(d) AA 1996)
- composition of tribunal or procedure differed from terms of agreement (s. 103(2)(e) AA 1996)
- enforcement of the award would be contrary to public policy (s. 103(3) AA 1996), on account of:
- - non-arbitral subject matter; or
- - foreign illegality of contract (Soleimany v Soleimany)
N.B. Even where a foreign court rules an arbitral award to be unenforceable, the English courts may still enforce it if the judgement of the foreign court is an abuse of process (Yukos v Rosneft)
