W10 A&Q (Jurisdiction & Conflict of Law) Flashcards
1
Q
What should be considered when a dispute has an international dimension?
A
1) Do the courts of England & Wales have jurisdiction to determine the Claim?
2) Which Country’s laws will apply to determine a dispute?
3) Will it be necessary to enforce the judgment abroad and how will this be done?
2
Q
What is the question concerned with ‘Do the courts of England & Wales have jurisdiction to determine the Claim?’
A
Whether English/Wales courts will decide a dispute or is it a dispute that should not be resolved in some other court/tribunal
3
Q
What is the question concerned with Which Country’s laws will apply to determine a dispute?
A
Which laws in English and Wales will apply to decide the dispute, assuming they have jurisdiction
4
Q
Why is it important to know which court(s) have jurisdiction?
A
Because:
1) If you commence proceedings in a court which does not have jurisdiction, the court might refuse to decide the dispute, and this can lead to time and money being wasted
and
2) It is possible that more than one court has jurisdiction to determine a dispute. You might then be able to choose whichever is preferable.
5
Q
When would a claim with an international dimension be referenced by the Hague Convention on Choice of Court Agreement?
A
Where proceedings are commenced on or after 1st of January, 2021
6
Q
If a proceeding is commenced with an international law convention after 1st of January 2021, how should the courts determine which jurisdiction would be applicable?
A
The Hague Convention on Choice of Court Agreement
7
Q
If the Hague Convention on Choice of Court Agreement, does not apply which rules applies?
A
Common Law rules applies
8
Q
What dispute matters will the Courts of England and Wales determine?
A
Will determine dispute over matters occurring in England & Wales
9
Q
Can the Court of England and Wales determine disputes over matters automatically, that take place outside England and Wales or that concerns nationals of other countries?
A
No,
You need to consider whether there are additional criteria that must be satisfied to establish that the courts of England and Wales have jurisdiction.
10
Q
What is the aim of The Hague Convention on Choice of Court aim to do?
A
To provide certainty in this area for commercial parties that wish to choose a particular country’s courts to determine their disputes regardless of where the dispute takes place or where the parties are based.
(Allows the parties to control which court will hear a dispute)
11
Q
Does the Hague Convention apply to choice of court agreement concluded before the 1st of October 2015?
A
No
12
Q
Does the Hague Convention apply to choice of court agreement concluded after/on the 1st of October 2015?
A
Yes.
13
Q
When does the Hague Convention apply to choice of court agreement?
A
If the choice of court agreement concluded on or after the 1st of October 2015.
14
Q
Do the parties need to be based in a contracting State of the Hague Convention in order to enter a choice of court agreement?
A
No
The parties to such an agreement may be based in any jurisdiction.
15
Q
What are key considerations that should be addressed to ascertain whether the parties have effectively given jurisdiction to the courts of England and Wales?
A
1) Is the matter a civil or commercial matter?
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/documented/ evidenced in writing?
6) Is the agreement an ‘asymmetric’ one?
16
Q
Which disputes are covered in the Hague Convention?
A
Civil and commercial matter
17
Q
Which disputes are not covered in the Hague Convention?
A
Public law and criminal disputes
18
Q
Is criminal disputes covered in the Hague Convention?
A
No
19
Q
Is public law disputes covered in the Hague Convention?
A
No
20
Q
What certain types of disputes from civil and commercial matters are excluded from the Hague Convention?
A
Consumer and Employment matters
21
Q
Would the Hague Convention apply to if there is no clause which give exclusive jurisdiction to a particular country?
A
No, the Hague convention only applies to clauses which gives exclusive jurisdiction to a particular country
22
Q
Is jurisdiction given exclusively for a clause that states ‘ The Courts of England and Wales will have exclusive jurisdiction to determine any dispute arising out of this contract’?
A
Yes
The Hague Convention applies
23
Q
Is jurisdiction given exclusively for a clause that states “The Courts of England and Wales will have jurisdiction to determine any dispute arising out of this contract”?
A
Yes
The Hague Convention states that this will be assumed to mean exclusive jurisdiction, and the Hague Convention applies
24
Q
Is jurisdiction given exclusively for a clause that states “The Courts of England and Wales will have non-exclusive jurisdiction to determine any dispute arising out of this contract’?
A
No
The clause aims to give the Courts of England and Wales jurisdiction on top of any other country which would have jurisdiction under any other relevant rules = Hague Convention does NOT apply.
25
What form does the jurisdiction agreement should be for the Hague Convention to apply?
Only applies if the jurisdiction agreement is in writing or evidenced/ documented in writing
26
What is an 'asymmetric' agreement?
Is an agreement that provides that one party can commence proceedings only in a specific named country, but other party can commence proceedings in that country or any other which would have jurisdiction under any other relevant rules.
(Same rights are not given to each party)
27
Would an 'asymmetric' agreement fall within the Hague convention?
Due to the way the Hague Convention is worded, it is unclear whether such a clause would fall within the Hague Convention or not.
28
What is the consequence of the Hague Convention, in terms of jurisdiction?
1) The court indicated as having jurisdiction will have jurisdiction, and cannot decline it on the basis that the dispute should be decided in another country and
2) Any other court must refuse to hear the proceedings
29
When will the Courts of England and Wales have jurisdiction under the common law?
If:
1) It is possible to serve the proceedings on the defendant in the jurisdiction (in England and Wales) - D is 'present' in jurisdiction
or
2) The Court gives permission to serve the proceeding on D outside of the jurisdiction
or
3) The Courts of England and Wales are given jurisdiction by a clause in a contract
30
Would a foreign D be subject to the jurisdiction of the Courts of England and Wales if proceedings are served on D whilst D is within England and Wales?
Yes
A D will (in principle) be subject to the jurisdiction of the courts in England and Wales if proceeding are served on D whilst D is within the jurisdiction.
31
If a subject matter of proceedings is based in/ took place in another jurisdiction, would D be subjected into the jurisdiction of the Courts of England and Wales if proceedings are served on D whilst D is within England and Wales?
Yes
A D will (in principle) be subject to the jurisdiction of the courts in England and Wales if proceeding are served on D whilst D is within the jurisdiction.
32
A paper supplier in England entered into a contract with a printing company incorporated in Delaware USA. Pursuant to that contract, the printing company ordered 100,000 units of high quality paper at a cost of $35,000. It was agreed that the paper would be delivered to the printing company's storage facility in Newark, Delaware. Although the printing company has a branch office in London, England, the contract was negotiated by and completed via the printing company's office in the USA. The supplier duly delivered the paper. In breach of the contract, the printing company has failed to pay the purchase price for the paper.
Would the courts of England and Wales have jurisdiction to hear a claim by the paper supplier in relation to the printing company's failure to pay?
The paper supplier can serve proceedings on the printers at its branch in England. The very fact that the paper supplier serves proceedings on this branch within the jurisdiction is sufficient to (prima facie) give the courts of England and Wales jurisdiction to hear the dispute.
33
What are the requirements in order to obtain permission to serve the proceedings on D outside of the Jurisdiction?
1) C needs to establish one of the grounds in 6B PD 3.1
2) The claim must have reasonable prospect of success
3) England and Wales must be the proper place in which bring the claim
*If these matters are established, then the court may grant permission for service outside of the jurisdiction
34
If a party cannot serve proceedings within the jurisdiction, can the party apply to serve the proceedings on D outside of the jurisdiction?
Yes,
if the courts grants permission for this and proceedings are duly served outside of the jurisdiction, then this gives the courts of England and Wales (in principle) the jurisdiction to determine the claim.
35
If the courts grants permission for proceeding on D outside the jurisdiction and proceedings are duly served outside of jurisdiction, Does this give the courts of England and Wales the jurisdiction to determine the claim?
Yes (in principle)
36
What are the grounds that C needs to establish for application for permission to serve outside of the jurisdiction can be based?
6B PD 3.1:
A claim is made for a remedy against a person domiciled within the jurisdiction (1).
A claim is made in respect of a contract where the contract (6) –
(a) was made within the jurisdiction;
(c) is governed by English law; or
(d) contains a term to the effect that the court shall have jurisdiction to determine any claim in respect of the contract.
A claim is made in respect of a breach of contract committed within the jurisdiction (7).
A claim is made in tort where (9)
(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.
37
How is a reasonable prospect of success established for an application for permission to serve outside of the jurisdiction?
This is a relatively low threshold and has been equated to the prospect of success needed to resist an application for summary judgment: De Molestina v Ponton [2002] 1 Lloyd's Rep 271.
Summary Judgement:
no real prospect means: the position is fanciful, imaginary or false.
38
What constitutes as England or Wales are the 'proper place' to bring a claim?
If it is the natural place to bring the proceedings.
Examples:
- Evidential matter (witnesses are based there)
- English law applies
and/or
- D is normally resident in England/Wales
39
If it was established that England or Wales is not the natural place, but rather another jurisdiction is the natural place, Can the Courts of England and Wales still have jurisdiction to determine the claim?
Yes
If justice nonetheless requires the claim be tired in England
Example:
- There is a risk of improper government interference in a different jurisdiction.
40
A woman is driving to a football match. On the motorway, a man drives into the back of her car. The woman suffers an injury and her car is rendered valueless. The woman wishes to commence proceedings against the man in England and Wales. The man permanently resides in Canada and has returned there.
Which jurisdiction would apply under common law?
There does not appear to be any way to serve proceedings on the man in the jurisdiction.
Accordingly, it will be necessary to apply for permission to serve proceedings on the man out of the jurisdiction.
As this is a tort claim (negligence), a ‘gateway’ (6B PD 3.1) can be shown on the basis that the damage was sustained within the jurisdiction and resulted from an act committed within the jurisdiction. The claim appears to have a reasonable prospect of success (you would need to consider the detail) and England appears to be the proper place given where the accident happened, where the losses have been suffered and English law is likely to apply. So the court may well grant permission.
41
If an agreement of jurisdiction for England and/or Wales, is concluded before 1st of October 2015. Does England and/ or Wales have jurisdiction?
Yes,
The claimant can serve the claim form on a defendant outside the jurisdiction without the court's permission where a contract contains a term to the effect that the courts of England and/or Wales shall have jurisdiction to determine that claim (CPR 6.33(2B)).
This provides protection in the same area as the Hague Convention (addressed in a different element). However, the Hague Convention only applies to exclusive choice of court agreements concluded on or after 1 October 2015. If the agreement was concluded before this date, or does not give jurisdiction to the courts of England and Wales exclusively, then the Hague Convention does not apply, and this rule provides an alternative route to establishing jurisdiction (CPR 6.33(2B)).
42
What are the Contracting States?
- UK
- All EU members states
-Mexico
-Singapore
and
-Montenegro
43
Will the Hague Convention apply, If the clause indicates that the courts of a particular state in the USA has jurisdiction?
No
As the USA is not a contracting state
44
Will the Hague Convention apply, If the clause indicates that the courts of a particular state in the France has jurisdiction?
Yes
As France is an Eu member = Contracting State
45
What is the period of service, where the claim form is to be served outside the jurisdiction?
6 months
46
Is it necessary to seek the court's permission to serve proceedings out of the jurisdiction if the Courts of England and Wales have jurisdiction? and why?
No
because:
a) The Hague Convention gives the court jurisdiction
or
b) a contract contains a term to the effect that the Courts of England and/or Wales have jurisdiction to determine the claim
47
What should be considered when serving a claim out of the jurisdiction?
1) Whether permission from the court to do so is needed
and
2) Which methods of service are possible
48
If C is seeking to serve an English claim form aboard without permission which form should file is need when it issues and files its claim form?
Form N510
49
What is the procedure, if C is seeking to serve an English claim form aboard without permission?
C must file:
- Form N510 when it issues and files its claim form
50
What is Form N510 ?
Confirms to the court the basis upon which it has jurisdiction over a foreign -domiciled D in circumstances where the courts permission has not been sought to serve the claim form abroad.
51
What is the procedure, If C is seeking to serve an English claim form aboard with permission?
C will have to make an interim application to court (usual rules applies), by filing an application notice in Form N244, to ask the court to allow it to serve the claim form on D.
52
What are the methods of service when serving outside the UK?
- Service in accordance with an agreed regulation, convention or treaty. Any regulation, convention or treaty in relation to service referred to in this element will only apply to whichever countries have contracted into it, along with the UK.
- Service through the government of the destination country (if that government is willing to do this).
- Service by any method permitted by the law of the destination country. In practice, it is often preferred to take local advice in the destination country and engage a local agent to effect service by a method which is permitted there.
53
Can a court order authorise or require any person do anything in the destination country which against the law of that country?
No
54
What is the extended periods for filing an acknowledgement of service when the claim form/ particulars of claim have been served out of jurisdiction?
The amount of 'extra time' allowed will vary depending on which country is involved
55
What is the extended periods for filing a defence when the claim form/ particulars of claim have been served out of jurisdiction?
The amount of 'extra time' allowed will vary depending on which country is involved
56
What is the method to serve proceedings on D, who is in the jurisdiction?
By a variety of methods
Including personal service (actually leaving the proceedings with an individual defendant)
57
Can proceeding be personally served on an individual defendant in England and Wales even if they live in another jurisdiction and are only very briefly in England and Wales?
Yes
58
Can a company not incorporate in England and Wales be served at any business of the company within England and Wales?
Yes
59
If a D appoints a solicitor in England and Wales to accept service on its behalf, can the proceeding then be served on that solicitor within the jurisdiction?
Yes
60
If the contract contains a term to the effect that the court of England and/ or Wales shall have jurisdiction (which is not exclusive) to determine that claim, can a party serve proceeding outside the jurisdiction without the courts permission ?
Yes
61
If a party serve proceedings outside the jurisdiction without the court's permission due to a term in the contract which is to the effect that the courts of England and Wales shall have jurisdiction to determine that claim. Does the jurisdiction need to be exclusive?
No
applies whether or not the jurisdiction is exclusive
62
If it is not possible to serve effectively through any of the usual method, within the jurisdiction, what can the claimant do?
An application to the court for an order:
1. An order for alternative service
or
2. an order dispensing with service
63
If it is not possible to serve effectively through any of the usual method, outside the jurisdiction, what can the claimant do?
An application to the court for an order:
1. An order for alternative service
or
2. an order dispensing with service
64
When can the court permit service by an alternative method?
If there is good reason to do so
i.e where the other available methods of service would be ineffective or impossible
65
What is the procedure to obtain an order for an alternative service?
- An application must be made to the court
- Setting out why service in accordance with the methods listed in the CPR are not possible or why attempts to serve in accordance with these method have been unsuccessful
+
State the alternative method proposed.
66
What are examples of alternative service method?
1) Serving on solicitors acting for a party where the solicitor has not been authorised to accept service
and
2) placing an advert in a newspaper notifying D that the proceedings have commenced..
67
When cannot an alternative service be used?
1) retrospectively
and
2) to remedy irregular service
68
Can an alternative service be used retrospectively?
No
69
Can an alternative service be used to remedy irregular service?
No
70
When can the court dispense with service of a document?
When the other side is already aware of the document.
* Courts discretions applies
71
If C wished to make an amendment to its particulars of claim and D agreed to that amendment being and made an application to court to amend the document. Can the court dispense with service?
Yes
If the court agreed to the amendment being made, it might dispense with service.
i.e: order that C does not have to serve the document on D, bec D is already aware.
72
How is contractual disputes governed for claims with international dimension?
Rome I
73
Does Rome I apply to contacts entered before 17 December 2009?
No
74
Are parties free to choose which country's law will apply in contractual disputes ?
The parties are free to choose which country's law will apply
75
How can parties choose which country's law will apply for contractual disputes?
1) Having a choice of law clause
or
2) demonstrated by the circumstances of the case.
76
What is a choice of law clause?
A clause expressly stating which country's law will apply in the contract
77
When can parties choose which country's law apply for contractual disputes?
The choice can be made at any time
(before and after the dispute has arisen)
78
If the parties has chosen which law should apply for contractual disputes, which country's law will apply?
The chosen law that the parties chose.
79
If the parties did not choose which law should apply in contractual disputes, what would be the applicable law?
In the absence of choice, you should consider Article 4 (1) (a) to (h), which set out various types of contact and laws that will apply
80
What are cases specified in Article 4(1) (a) to (h) in Rome I? and what is the applicable law?
- Sales of goods: Seller's habitual residence
- Provisions of Service: Service provider's habitual residence
- Contract relating to land: where the land is situated
-Distribution Contract: Distributor's habitual residence
81
If the parties did not choose which law should apply, what is the applicable law for a contract for the sales of good?
Seller's habitual residence
82
If the parties did not choose which law should apply, what is the applicable law for a contract for the provisions of service?
Service provider's habitual residence
83
If the parties did not choose which law should apply, what is the applicable law for a contract relating to land?
Where the land is situated
84
If the parties did not choose which law should apply, what is the applicable law for a contract for distribution?
Distributor's habitual residence
85
What is habitual residence of a company?
Is where its central admission is
86
What is the habitual residence for a natural person acting in the course of business?
It is where that person's principal place of business is.
87
If the parties did not choose which law should apply, and the contract does not fall into the categories in article 4(1)(a) to (h), which law is applicable for contractual disputes?
Article 4 (2):
The applicable law is the law of the country where the party required to effect characteristic performance of the contract has its habitual residence.
(Where the characteristic performer has its habitual service = party doing somethings residence)
88
If the applicable law has been determined for a contractual dispute, can the court apply a different country's law?
Yes,
If the contract is manifestly more closely connected with that other country
89
What are the steps to determine which applicable law applies in contractual disputes?
Step 1: Does Rome I apply? Yes
Step 2: Have the parties chosen which law should apply?
Step 2(a): Yes = the country's law will apply
Step 2(b): No = Step 3
Step 3: Does the contract relate to one of the case specified in Article 4(1) (a) to (h)?
Step 3 (a): Yes = those articles apply
Step 3 (b): No = the country where the 'characteristic performer' has its habitual residence
Step 4: Is the contract manifestly more closely connected with another country?
90
Your client is a marketing company named Vision Limited ('Vision'). Vision is incorporated in England. Its head office is in London. Vision enters into a contract with a pharmaceutical company, Dominguez S.L. ('Dominguez'). Dominguez is incorporated in Spain. Its central administration is in Madrid. Vision contracts to design (and put into effect) a European marketing campaign aimed at the Spanish market for some of Dominguez's products. Payment is to be made by Dominguez in Euros into Vision’s Spanish bank account. Vision’s services under the contract are to be sub-contracted by Vision to two freelancers, both of whom are Spanish nationals and Vision’s contracts with those freelancers are both subject to Spanish law.
There is no choice of law clause in the contract. Dominguez has recently commenced proceedings against Vision before the English courts, alleging breach of contract. The English court has accepted jurisdiction.
Which country’s laws is the English court most likely to apply to the contract?
Step 1: Does Rome I apply? Yes
Step 2: Have the parties chosen which law should apply? No = Step 2
Step 3: Does the contract relate to one of the case specified in Article 4(1) (a) to (h)?
Yes = the service provider's habitual residence
*Vision is the service provider, habitual residence is England = English Law
Step 4: Is the contract manifestly more closely connected with another country?
*The court might apply Spanish law die to the contract is arguably manifestly more connected with Spain rather than England.
Why?
-Spanish bank account
-Services directed to Spain
and
- Spanish freelancers governed by Spanish law
Applicable law = Spanish Law
91
Can conclusions reached via the choice provision be displaced for contractual disputes?
Yes
If the contract is manifestly more closely connected with another country
92
Does Rome I apply to beaches of contract on or after 17 of December 2009?
No
Contract needs to be entered by 17 of December 2009
93
Does Rome I apply to proceeding in relation to breach of contract commenced on or after 17 of December 2009?
No
Contract needs to be entered by 17 of December 2009
94
Does Rome I apply to losses caused by a breach of contract suffered on or after 17th of December 2009?
No
Contract needs to be entered by 17 of December 2009
95
What are contracts that are included in Rome I special provisions?
1) Contracts of carriage
2) Consumer Contracts
3) Employment Contracts
4)Insurance Contracts
96
How is tortious disputes governed for claims with international dimension?
Rome II
97
Does Rome II apply to events giving rise to damage which occurred on or after 10 January 2009?
Yes
98
Does Rome II apply to events giving rise to damage which occurred before 10 January 2009?
No
99
Do Rome II apply to proceedings which occurred on 10th of January 2009?
No
Only applies to events giving rise to damage which occurred on or after 10th of January 2009
100
What are special provisions that are included in Rome II ?
1) Product liability
2) Unfair Competition
3) Environmental damage
4) Infringement of intellectual property
and
5) Industrial action
101
Are parties free to choose which country's law will apply in tortious disputes ?
The parties are free to choose which country's law will apply
102
How can parties choose which country's law will apply for tortious disputes?
1) Having an express contractual term between parties
or
2) demonstrated by the circumstances of the case.
103
If the agreement for a tortious dispute is entered into after the event giving rise to the damage. What will be the applicable law?
The choice of law in the agreement will be effective
104
If the agreement for a tortious dispute is entered into before the event giving rise to the damage. What will be the applicable law?
The choice of law will be effective if both parties are pursuing a commercial activity and freely negotiated the choice of law
105
If the parties validly chosen law should apply. which law will be applicable?
The chosen law of the country will apply.
106
If the parties did not validly choose which law should apply in tortious disputes, what would be the applicable law?
In the absence of choice, if the claimant and defendant both reside in the same country then that country's law will apply, even if the dame happened in a different country
107
If an event arise resulting tortious damage in a different country, but the parties both reside in the same country and the parties have not chosen which law will apply. what is the applicable law?
The country both parties reside in
108
Where there is no valid choice and C and D do not reside in the same country, what is the applicable law in a tort claim?
The applicable law is: the law of the country where the damages occurs
109
If the applicable law has been determined for a tortious dispute, can the court apply a different country's law?
Yes,
The court can apply a different law if the tort is manifestly more closely connected with that other country
110
Can conclusions reached via the choice provision be displaced for tortious disputes?
Yes,
The court can apply a different law if the tort is manifestly more closely connected with that other country
111
IFL is a company incorporated and with its central administration in England and Wales. It grows and sells vegetables. The crops are grown in Belgium and sold to a Dutch supermarket chain. Payment is to be made in Pounds Sterling, into IFL’s English bank account.
IFL hires a company with its central administration in France called Haulage SA (‘Haulage’) to deliver its goods to the supermarket chain. Haulage sub-contracts its obligations to another French company, Transportation SA (‘Transportation’), a company which also has its central administration in Paris).
One of Transportation’s drivers collects a large consignment of frozen produce from IFL’s Belgian farm. Whilst in Belgium and before crossing into the Netherlands, he accidentally turns off the refrigeration units in the lorry. Whilst subsequently driving through the Netherlands, the goods defrost and become unusable.
IFL has commenced proceedings against Transportation in negligence in relation to the damaged goods.
Which country’s laws is the English court most likely to apply to the dispute?
Step 1: Does Rome II apply? Yes
Step 2: Have the parties validly chosen which law should apply?
No = Step 3
Step 3: Do the claimant and defendant habitually reside in the same country?
No (C in England and D in France) = apply the law of the country in which damages occurs
*Netherlands was the place where the damage occurred (the goods defrosted and became unusable)
NOT:
- Belgium = the event giving rise to damage (turning off the refrigeration unit)
or
- England = the indirect consequences of the tort (failure to get paid by Dutch supermarket)
Step 4: Is the claim manifestly more closely connected with another country? NO!
= Applicable law: Dutch law applies
112
What are the steps to determine which applicable law applies in tortious disputes?
Step 1: Does Rome II apply? Yes
Step 2: Have the parties validly chosen which law should apply?
Step 2 (a): Yes = The country's law will apply
Step 2 (b): No = Step 3
Step 3: Do the claimant and defendant habitually reside in the same country?
Step 3 (a): Yes = That country's law apply
Step 3 (b): No = apply the law of the country in which damages occurs
Step 4: Is the claim manifestly more closely connected with another country?
113
Does Rome II apply to torts arising out of relationships formed on or after 10 January 2009?
No
114
Can the issue of choice of law and jurisdiction arise within the UK?
Yes
Whether English or Scottish courts or Northern Irish have jurisdiction
or
Whether English/Welsh or Scottish law or Northern Irish law applies
115
How is situation in relations to conflict of law decided in countries within the UK?
Rome I: Contractual disputes
Rome II: Tortious Disputes
116
How is situation in relation to jurisdiction decided within the UK?
When D is based in the UK in Scotland or Northern Ireland, the question of whether the courts of England and Wales have jurisdiction is governed primarily by:
The Civil Jurisdiction and Judgments Act 1982
116
In regards to jurisdiction with in the UK, what is exclusive jurisdiction?
The Civil Jurisdiction and Judgments Act 1982:
In relation to some particular types of disputes, one part of the UK, and only that part can have jurisdiction
117
In regards to jurisdiction with in the UK, what is a type of dispute that has exclusive jurisdiction?
Disputes about land
*Land must be heard in the part of the UK where the land is.
118
In regards to jurisdiction with in the UK, what is jurisdiction agreement?
Where parties agree that a particular part of the UK will have jurisdiction, then that part will have jurisdiction
119
In regards to jurisdiction with in the UK, what is submission?
If a party submits to the jurisdiction of a court in the UK.
For example: By filing a defence rather than contesting jurisdiction, then that court will have jurisdiction
120
In regards to jurisdiction with in the UK, can submission override exclusive jurisdiction rules?
No
121
In regards to jurisdiction with in the UK, if submission, exclusive jurisdiction and jurisdiction agreement do not apply, how is jurisdiction decided?
Basic Rule:
A person domiciled in a part of the UK should be sued in the courts of that part.
(Sue where D is domiciled)
122
What constitutes a person is domiciled in part of the UK?
1) If they are residents there
and
2) the nature and circumstance of their residences indicate they have a substantial connection with that part.
123
What constitutes a the domicile of a company in the UK?
A company is domiciled:
1) Where its 'seat' is. a A company will generally have its seat where it has its registered office
or
2) If none, where it was incorporated
124
What are the circumstances in which a person can be sued in parts of the UK, in which they are not domiciled in?
1) In matters relating to a contract, in the courts for the place of performance of the obligation in question
2) In matters relating to tort, in the courts for the place where the harmful event occurred or may occur
3) As regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place in which the branch, agency or other establishment is situated
4) where he is one of the numbers of defendants, in the courts for the place where any of them is domiciled, provided the claims are so closely connected that is expedient to hear and determine them together
5) on a counter-claim arising from the same contract or facts on which the original claim was based, on the court which the original claim is pending
125
A claimant domiciled in England wishes to bring a breach of contract claim against a defendant supplier of computer hardware based in Scotland. The contract provides for the goods to be delivered in London (England) and contains a clause giving exclusive jurisdiction to the courts of Scotland.
Which court(s) has jurisdiction?
This not a dispute where the exclusive jurisdiction rules apply.
The parties have agreed that the courts of Scotland will have exclusive jurisdiction, and therefore the defendant must be sued in Scotland.
126
A claimant domiciled in England wishes to bring a breach of contract claim against a defendant supplier of computer hardware based in Scotland. The contract provides for the goods to be delivered in London (England).
Which court(s) has jurisdiction?
The basic rule would be that the defendant should be sued where it is domiciled, therefore in Scotland.
However, the claimant could choose in the alternative to commence proceedings where the contract was to be performed, which was England (the place of delivery).
So the claimant would have a choice as to whether to commence proceedings in Scotland or England.
127
Why might a receipt of court proceedings may challenge the English/Welsh court's jurisdiction to hear a dispute?
1) C alleges that the court has jurisdiction pursuant to a convention such as the Hague Convention on Choice of Court Agreements but D disputes this
2) C has obtained permission to serve proceedings out of the jurisdiction but D considers that none of the gateways for obtaining such permission are satisfied and/or the Courts of England and Wales are not the proper place for the claim to be heard.
3)The proceedings have been served effectively on D within the jurisdiction, but there is another more appropriate forum.
128
If the court has determined that England and Wales is the proper place for a claim to be heard when granting permission.
Can the defendant from, upon receipt of the proceeding, seek to argue that England and Wales is not the proper place for the claim to be heard?
Yes
The fact that the court has determined that England and Wales is the proper place for the claim to be heard when granting permission does not prevent the defendant from, upon receipt of proceedings, seeking to argue that to argue that England and Wales is not the proper place for the claim to be heard.
129
What does the procedure involve for disputing the court's jurisdiction??
1. The defendant must file an acknowledgment of service (there is a box on the acknowledgement of service to indicate that the defendant intends to consent jurisdiction.
2. The defendant must then apply within 14 days after filing the acknowledgment of service, disputing the court's jurisdiction. That application must be supported by evidence.
130
What is the time limit, after the defendant filed the acknowledgment of service to apply to dispute the courts jurisdiction?
Within 14 days after filing the acknowledgement of service
131
If a party submits to the jurisdiction of the Courts of England and Wales. can the party later dispute that jurisdiction?
They can NOT
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What is the effect of a party submitting to the court's jurisdiction?
The court's jurisdiction is established
133
How can a party submit to the court's jurisdiction?
By engaging with the proceeding beyond filing an acknowledgment of service.
134
How can a party avoid submitting to the court's jurisdiction?
A defendant served with proceeding must:
1) Not take any steps to engage with the proceedings beyond filing an acknowledgment of service
and then
2) apply to the court to challenging its jurisdiction (within 14 days of filing an acknowledgment of service).
