W10 A&Q (Jurisdiction & Conflict of Law)

Question 1

What should be considered when a dispute has an international dimension?

Answer 1

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?

Question 2

What is the question concerned with ‘Do the courts of England & Wales have jurisdiction to determine the Claim?’

Answer 2

Whether English/Wales courts will decide a dispute or is it a dispute that should not be resolved in some other court/tribunal

Question 3

What is the question concerned with Which Country’s laws will apply to determine a dispute?

Answer 3

Which laws in English and Wales will apply to decide the dispute, assuming they have jurisdiction

Question 4

Why is it important to know which court(s) have jurisdiction?

Answer 4

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.

Question 5

When would a claim with an international dimension be referenced by the Hague Convention on Choice of Court Agreement?

Answer 5

Where proceedings are commenced on or after 1st of January, 2021

Question 6

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?

Answer 6

The Hague Convention on Choice of Court Agreement

Question 7

If the Hague Convention on Choice of Court Agreement, does not apply which rules applies?

Answer 7

Common Law rules applies

Question 8

What dispute matters will the Courts of England and Wales determine?

Answer 8

Will determine dispute over matters occurring in England & Wales

Question 9

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?

Answer 9

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.

Question 10

What is the aim of The Hague Convention on Choice of Court aim to do?

Answer 10

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)

Question 11

Does the Hague Convention apply to choice of court agreement concluded before the 1st of October 2015?

Answer 11

No

Question 12

Does the Hague Convention apply to choice of court agreement concluded after/on the 1st of October 2015?

Answer 12

Yes.

Question 13

When does the Hague Convention apply to choice of court agreement?

Answer 13

If the choice of court agreement concluded on or after the 1st of October 2015.

Question 14

Do the parties need to be based in a contracting State of the Hague Convention in order to enter a choice of court agreement?

Answer 14

No

The parties to such an agreement may be based in any jurisdiction.

Question 15

What are key considerations that should be addressed to ascertain whether the parties have effectively given jurisdiction to the courts of England and Wales?

Answer 15

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?

Question 16

Which disputes are covered in the Hague Convention?

Answer 16

Civil and commercial matter

Question 17

Which disputes are not covered in the Hague Convention?

Answer 17

Public law and criminal disputes

Question 18

Is criminal disputes covered in the Hague Convention?

Answer 18

No

Question 19

Is public law disputes covered in the Hague Convention?

Answer 19

No

Question 20

What certain types of disputes from civil and commercial matters are excluded from the Hague Convention?

Answer 20

Consumer and Employment matters

Question 21

Would the Hague Convention apply to if there is no clause which give exclusive jurisdiction to a particular country?

Answer 21

No, the Hague convention only applies to clauses which gives exclusive jurisdiction to a particular country

Question 22

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’?

Answer 22

Yes

The Hague Convention applies

Question 23

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”?

Answer 23

Yes

The Hague Convention states that this will be assumed to mean exclusive jurisdiction, and the Hague Convention applies

Question 24

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’?

Answer 24

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.

Question 25

What form does the jurisdiction agreement should be for the Hague Convention to apply?

Answer 25

Only applies if the jurisdiction agreement is in writing or evidenced/ documented in writing

Question 26

What is an ‘asymmetric’ agreement?

Answer 26

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)

Question 27

Would an ‘asymmetric’ agreement fall within the Hague convention?

Answer 27

Due to the way the Hague Convention is worded, it is unclear whether such a clause would fall within the Hague Convention or not.

Question 28

What is the consequence of the Hague Convention, in terms of jurisdiction?

Answer 28

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

Question 29

When will the Courts of England and Wales have jurisdiction under the common law?

Answer 29

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

Question 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?

Answer 30

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.

Question 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?

Answer 31

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.

Question 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?

Answer 32

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.

Question 33

What are the requirements in order to obtain permission to serve the proceedings on D outside of the Jurisdiction?

Answer 33

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

Question 34

If a party cannot serve proceedings within the jurisdiction, can the party apply to serve the proceedings on D outside of the jurisdiction?

Answer 34

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.

Question 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?

Answer 35

Yes (in principle)

Question 36

What are the grounds that C needs to establish for application for permission to serve outside of the jurisdiction can be based?

Answer 36

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.

Question 37

How is a reasonable prospect of success established for an application for permission to serve outside of the jurisdiction?

Answer 37

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.

Question 38

What constitutes as England or Wales are the ‘proper place’ to bring a claim?

Answer 38

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

Question 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?

Answer 39

Yes

If justice nonetheless requires the claim be tired in England

Example:

• There is a risk of improper government interference in a different jurisdiction.

Question 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?

Answer 40

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.

Question 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?

Answer 41

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)).

Question 42

What are the Contracting States?

Answer 42

• UK
• All EU members states

-Mexico

-Singapore

and

-Montenegro

Question 43

Will the Hague Convention apply, If the clause indicates that the courts of a particular state in the USA has jurisdiction?

Answer 43

No

As the USA is not a contracting state

Question 44

Will the Hague Convention apply, If the clause indicates that the courts of a particular state in the France has jurisdiction?

Answer 44

Yes

As France is an Eu member = Contracting State

Question 45

What is the period of service, where the claim form is to be served outside the jurisdiction?

Answer 45

6 months

Question 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?

Answer 46

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

Question 47

What should be considered when serving a claim out of the jurisdiction?

Answer 47

1) Whether permission from the court to do so is needed

and

2) Which methods of service are possible

Question 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?

Answer 48

Form N510

Question 49

What is the procedure, if C is seeking to serve an English claim form aboard without permission?

Answer 49

C must file:

• Form N510 when it issues and files its claim form

Question 50

What is Form N510 ?

Answer 50

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.

Question 51

What is the procedure, If C is seeking to serve an English claim form aboard with permission?

Answer 51

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.

Question 52

What are the methods of service when serving outside the UK?

Answer 52

• 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.

Question 53

Can a court order authorise or require any person do anything in the destination country which against the law of that country?

Answer 53

No

Question 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?

Answer 54

The amount of ‘extra time’ allowed will vary depending on which country is involved

Question 55

What is the extended periods for filing a defence when the claim form/ particulars of claim have been served out of jurisdiction?

Answer 55

The amount of ‘extra time’ allowed will vary depending on which country is involved

Question 56

What is the method to serve proceedings on D, who is in the jurisdiction?

Answer 56

By a variety of methods

Including personal service (actually leaving the proceedings with an individual defendant)

Question 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?

Answer 57

Yes

Question 58

Can a company not incorporate in England and Wales be served at any business of the company within England and Wales?

Answer 58

Yes

Question 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?

Answer 59

Yes

Question 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 ?

Answer 60

Yes

Question 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?

Answer 61

No

applies whether or not the jurisdiction is exclusive

Question 62

If it is not possible to serve effectively through any of the usual method, within the jurisdiction, what can the claimant do?

Answer 62

An application to the court for an order:

1. An order for alternative service

or

2. an order dispensing with service

Question 63

If it is not possible to serve effectively through any of the usual method, outside the jurisdiction, what can the claimant do?

Answer 63

An application to the court for an order:

1. An order for alternative service

or

2. an order dispensing with service

Question 64

When can the court permit service by an alternative method?

Answer 64

If there is good reason to do so

i.e where the other available methods of service would be ineffective or impossible

Question 65

What is the procedure to obtain an order for an alternative service?

Answer 65

• 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.

Question 66

What are examples of alternative service method?

Answer 66

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..

Question 67

When cannot an alternative service be used?

Answer 67

1) retrospectively

and

2) to remedy irregular service

Question 68

Can an alternative service be used retrospectively?

Answer 68

No

Question 69

Can an alternative service be used to remedy irregular service?

Answer 69

No

Question 70

When can the court dispense with service of a document?

Answer 70

When the other side is already aware of the document.

• Courts discretions applies

Question 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?

Answer 71

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.

Question 72

How is contractual disputes governed for claims with international dimension?

Answer 72

Rome I

Question 73

Does Rome I apply to contacts entered before 17 December 2009?

Answer 73

No

Question 74

Are parties free to choose which country’s law will apply in contractual disputes ?

Answer 74

The parties are free to choose which country’s law will apply

Question 75

How can parties choose which country’s law will apply for contractual disputes?

Answer 75

1) Having a choice of law clause

or

2) demonstrated by the circumstances of the case.

Question 76

What is a choice of law clause?

Answer 76

A clause expressly stating which country’s law will apply in the contract

Question 77

When can parties choose which country’s law apply for contractual disputes?

Answer 77

The choice can be made at any time

(before and after the dispute has arisen)

Question 78

If the parties has chosen which law should apply for contractual disputes, which country’s law will apply?

Answer 78

The chosen law that the parties chose.

Question 79

If the parties did not choose which law should apply in contractual disputes, what would be the applicable law?

Answer 79

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

Question 80

What are cases specified in Article 4(1) (a) to (h) in Rome I? and what is the applicable law?

Answer 80

• 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

Question 81

If the parties did not choose which law should apply, what is the applicable law for a contract for the sales of good?

Answer 81

Seller’s habitual residence

Question 82

If the parties did not choose which law should apply, what is the applicable law for a contract for the provisions of service?

Answer 82

Service provider’s habitual residence

Question 83

If the parties did not choose which law should apply, what is the applicable law for a contract relating to land?

Answer 83

Where the land is situated

Question 84

If the parties did not choose which law should apply, what is the applicable law for a contract for distribution?

Answer 84

Distributor’s habitual residence

Question 85

What is habitual residence of a company?

Answer 85

Is where its central admission is

Question 86

What is the habitual residence for a natural person acting in the course of business?

Answer 86

It is where that person’s principal place of business is.

Question 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?

Answer 87

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)

Question 88

If the applicable law has been determined for a contractual dispute, can the court apply a different country’s law?

Answer 88

Yes,

If the contract is manifestly more closely connected with that other country

Question 89

What are the steps to determine which applicable law applies in contractual disputes?

Answer 89

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?

Question 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?

Answer 90

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

Question 91

Can conclusions reached via the choice provision be displaced for contractual disputes?

Answer 91

Yes

If the contract is manifestly more closely connected with another country

Question 92

Does Rome I apply to beaches of contract on or after 17 of December 2009?

Answer 92

No

Contract needs to be entered by 17 of December 2009

Question 93

Does Rome I apply to proceeding in relation to breach of contract commenced on or after 17 of December 2009?

Answer 93

No

Contract needs to be entered by 17 of December 2009

Question 94

Does Rome I apply to losses caused by a breach of contract suffered on or after 17th of December 2009?

Answer 94

No

Contract needs to be entered by 17 of December 2009

Question 95

What are contracts that are included in Rome I special provisions?

Answer 95

1) Contracts of carriage

2) Consumer Contracts

3) Employment Contracts

4)Insurance Contracts

Question 96

How is tortious disputes governed for claims with international dimension?

Answer 96

Rome II

Question 97

Does Rome II apply to events giving rise to damage which occurred on or after 10 January 2009?

Answer 97

Yes

Question 98

Does Rome II apply to events giving rise to damage which occurred before 10 January 2009?

Answer 98

No

Question 99

Do Rome II apply to proceedings which occurred on 10th of January 2009?

Answer 99

No

Only applies to events giving rise to damage which occurred on or after 10th of January 2009

Question 100

What are special provisions that are included in Rome II ?

Answer 100

1) Product liability

2) Unfair Competition

3) Environmental damage

4) Infringement of intellectual property

and

5) Industrial action

Question 101

Are parties free to choose which country’s law will apply in tortious disputes ?

Answer 101

The parties are free to choose which country’s law will apply

Question 102

How can parties choose which country’s law will apply for tortious disputes?

Answer 102

1) Having an express contractual term between parties

or

2) demonstrated by the circumstances of the case.

Question 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?

Answer 103

The choice of law in the agreement will be effective

Question 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?

Answer 104

The choice of law will be effective if both parties are pursuing a commercial activity and freely negotiated the choice of law

Question 105

If the parties validly chosen law should apply. which law will be applicable?

Answer 105

The chosen law of the country will apply.

Question 106

If the parties did not validly choose which law should apply in tortious disputes, what would be the applicable law?

Answer 106

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

Question 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?

Answer 107

The country both parties reside in

Question 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?

Answer 108

The applicable law is: the law of the country where the damages occurs

Question 109

If the applicable law has been determined for a tortious dispute, can the court apply a different country’s law?

Answer 109

Yes,

The court can apply a different law if the tort is manifestly more closely connected with that other country

Question 110

Can conclusions reached via the choice provision be displaced for tortious disputes?

Answer 110

Yes,

The court can apply a different law if the tort is manifestly more closely connected with that other country

Question 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?

Answer 111

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

Question 112

What are the steps to determine which applicable law applies in tortious disputes?

Answer 112

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?

Question 113

Does Rome II apply to torts arising out of relationships formed on or after 10 January 2009?

Answer 113

No

Question 114

Can the issue of choice of law and jurisdiction arise within the UK?

Answer 114

Yes

Whether English or Scottish courts or Northern Irish have jurisdiction

or

Whether English/Welsh or Scottish law or Northern Irish law applies

Question 115

How is situation in relations to conflict of law decided in countries within the UK?

Answer 115

Rome I: Contractual disputes

Rome II: Tortious Disputes

Question 116

How is situation in relation to jurisdiction decided within the UK?

Answer 116

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

Question 116

In regards to jurisdiction with in the UK, what is exclusive jurisdiction?

Answer 116

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

Question 117

In regards to jurisdiction with in the UK, what is a type of dispute that has exclusive jurisdiction?

Answer 117

Disputes about land

*Land must be heard in the part of the UK where the land is.

Question 118

In regards to jurisdiction with in the UK, what is jurisdiction agreement?

Answer 118

Where parties agree that a particular part of the UK will have jurisdiction, then that part will have jurisdiction

Question 119

In regards to jurisdiction with in the UK, what is submission?

Answer 119

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

Question 120

In regards to jurisdiction with in the UK, can submission override exclusive jurisdiction rules?

Answer 120

No

Question 121

In regards to jurisdiction with in the UK, if submission, exclusive jurisdiction and jurisdiction agreement do not apply, how is jurisdiction decided?

Answer 121

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)

Question 122

What constitutes a person is domiciled in part of the UK?

Answer 122

1) If they are residents there

and

2) the nature and circumstance of their residences indicate they have a substantial connection with that part.

Question 123

What constitutes a the domicile of a company in the UK?

Answer 123

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

Question 124

What are the circumstances in which a person can be sued in parts of the UK, in which they are not domiciled in?

Answer 124

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

Question 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?

Answer 125

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.

Question 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?

Answer 126

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.

Question 127

Why might a receipt of court proceedings may challenge the English/Welsh court’s jurisdiction to hear a dispute?

Answer 127

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.

Question 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?

Answer 128

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.

Question 129

What does the procedure involve for disputing the court’s jurisdiction??

Answer 129

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.

Question 130

What is the time limit, after the defendant filed the acknowledgment of service to apply to dispute the courts jurisdiction?

Answer 130

Within 14 days after filing the acknowledgement of service

Question 131

If a party submits to the jurisdiction of the Courts of England and Wales. can the party later dispute that jurisdiction?

Answer 131

They can NOT

Question 132

What is the effect of a party submitting to the court’s jurisdiction?

Answer 132

The court’s jurisdiction is established

Question 133

How can a party submit to the court’s jurisdiction?

Answer 133

By engaging with the proceeding beyond filing an acknowledgment of service.

Question 134

How can a party avoid submitting to the court’s jurisdiction?

Answer 134

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).