SGS 10 - foreign jurisdiction

Question 1

When considering foreign jurisdiction, what are the three overarching questions you need to ask yourself?

Answer 1

1) Does the Regulation apply?
2) Do the courts of England and Wales have jurisdiction?
3) Will the court accept jurisdiction?

Question 2

When considering whether the Regulation applies, what three sub-questions do you need to ask yourself?

Answer 2

1) Is there an ‘international element’ to the claim
2) Does the claim fall within the Regulation’s material scope?
3) Does the claim fall within the Regulation’s temporal scope?

Question 3

When considering the material scope of the Regulation what two things do you need to look?

Answer 3

1) a connection with the EU - Arts 62; 63; 24; 25?

2) the type of claim (civil or commercial) Article 1(1) and (2)

Question 4

When considering the temporal scope, what article do you need to look at, and what is the relevant date?

Answer 4

Article 66, claim form needs to be issued on or after 10 January 2015

Question 5

In determining whether the English courts have jurisdiction, what is the order of priority of the Articles?

Answer 5

1) Article 24 - exclusive jurisdiction
2) Article 26 - Submission
3) Article 25 - exclusive jurisdiction clause
4) Articles 4, 7 and 8

Question 6

What does Bier v Mines De Potasse say about Art 7(2)?

Answer 6

In relation to tort claims - if the harmful event occurred in one place and the damage occurred in another, the claim can be commenced in the place where damage occurred

Question 7

What protections does the regulation give for ‘weaker parties’

Answer 7

Consumers Arts 17-19

Employees Arts 20- 23

Question 8

In what 3 circumstances might the common law rules grant jurisdiction?

Answer 8

1) Presence
2) Submission
3) Permission

Question 9

When establishing presence, if the director of a company is on holiday in the jurisdiction and the claim if brought against the company - will this be sufficient to establish presence?

Answer 9

No - when suing a company you need a ‘trading presence’ in the jurisdiction

Question 10

In the Regulation, when must the court stay proceedings if a claim is commenced?

Answer 10

Art 29 - Where the same proceedings re the same dispute and same parties have already been commenced somewhere else. Must stay proceedings (unless the court is the court first seised)

Question 11

In the Regulation, when may the court stay proceedings if a claim is commenced?

Answer 11

Art 30 - If two related actions are ‘so closely connected’ that it is expedient to hear and determine them together to avoid irreconcilable judgments. I.e two non-identical claims but related, can stay proceedings so both are dealt with together in the court first seised

Question 12

Where can you find the jurisdictional gateways in order to obtain permission to bring a case within the english jurisdiction?

Answer 12

6B PD 3.1
Contract (6) & (7)
Tort (9)

Question 13

Which CPR says that for permission to be granted, the claim must have a reasonable prospect of success?

Answer 13

CPR 6.37(1)(b)

Question 14

Which CPR says that for permission to be granted, the court must be the forums conveniens (i.e the proper place for the claim to be brought)?

Answer 14

6.37(3)

Question 15

What is the two stage test to apply when considering whether the court is the forums conveniens?

Answer 15

1) is the English court the natural forum? within this consider:
- applicable law
- where witnesses are located
- local knowledge
- any cost/delay to holding in the English court

2) if NOT - does substantial justice require the case to be heard in the english court anyway?