Topic 10- Jurisdiction and Conflict of Laws

Question 1

what is the test for the Hague Convention?

Answer 1

1. is the matter a civil or commercial?
2. is it an excluded matter?
3. does the clause give jurisdiction to a contracting state?
4. is jurisdiction given exclusively?
5. is the agreement concluded in writing?

• DO NOT HAVE TO APPLY FOR PERMISSION IF CONTRACTUALLY AGREED.

Question 2

WHEN WILL A COURT HAVE JURISDICTION UNDER THE COMMON LAW?

Answer 2

a) It is possible to serve the proceedings on the D in the jurisdiction (England) and D is ‘present’ in the jurisdiction (permission not needed)

b) Court gives permission to serve the proceedings on the D outside the jurisdiction, or

c) Courts of England and Wales are given jurisdiction by a clause in the contract- court has discretion.

Question 3

when will the court give permission to serve out of jurisdiction?

Answer 3

a) Claimant needs to establish one of the grounds in 6B PD 3.1.
b) Reasonable prospect of success (low threshold)
c) England and Wales must be the ‘proper place’ to serve claim.

grounds include contract being made in jurisdiction, governed by English law, where the breach of contract occured etc

Question 4

which jurisdiction may be used in a claim in tort?

Answer 4

(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.

Question 5

how to dispute the court’s jurisdiction>

Answer 5

1. D must first file an acknowledgement of service- there is a box on the acknowledgement of service to indicate the D intends to contest jurisdiction.
2. D must then apply within 14 days filing the acknowledgment of service, disputing the court’s jurisdiction. Supported by evidence.

Question 6

conflict of laws- contract test?

Answer 6

1. have the parties chosen which law should apply>
2. does the contract relate to one of the cases specified in Articles 4(1)(a) to (h).
3. If not, the law is that of the country where the characteristic performer has its habitual residence.
4. contract manifestly more closely connected with another country.

Question 7

conflict of laws- tort?

Answer 7

1. have the parties validly chosen which law should apply?
2. do the C and D habitually reside in the same country.
3. apply the law of the country in which damage occured.
4. tort manifestly more closely connected with another country.

Question 8

when must a claim form be served out of jurisdiction?

Answer 8

Must be served within 6 months of the date of issue.