Week 10- Jurisdiction and Conflict of laws

Question 1

Where a dispute has an international dimension there are 2 broad questions to consider, what are they?

Answer 1

1. Jurisdiction: Do the courts of England and Wales have jurisdiction to determine the claim?
2. Applicable law: Which country’s law will apply to determine a dispute?

Question 2

To what proceedings does HC apply?

Answer 2

1. Proceedings commenced on/after 1 January 2021 in relation to a **civil and commercial matter. **;
2. It is not an excluded matter;
3. Clause gives exclusive jurisdiction to a Contracting State;
4. Agreement is in writing; and
5. If clause is ‘Asymmetric’, unclear whether HC will apply.

Question 3

When is the court’s permission to serve proceedings outside the jurisdiction not needed?

Answer 3

1) The Hague Convention has given the court jurisdiction or
2) The courts of England and Wales are given jurisdiction by a clause in a contract

Question 4

What is an assymetric jurisdiction clause in relation to HC?

Answer 4

The ps have different rights re which courts they can institute proceedings in eg one party can commence proceedings only in a specific named country, but the other party can commence proceedings in that country or any other which would have jurisdiction under any other relevant rules.

Question 5

What are the 2 main consequences of the Hague Convention applying?

Answer 5

1. The court indicated as having jurisdiction will have jurisdiction, and cannot decline it
2. Any other court must refuse to hear the proceedings

Question 6

What are the excluded matters under the Hague Convention?

Answer 6

Consumer and employment matters

Question 7

What are the contracting states under the Hague Convention?

Answer 7

UK, all EU member states, Mexico and Singapore

Question 8

Absent HC applying, when do the courts of England and Wales have jurisdiction under the common law?

Answer 8

1. Presence: It is possible to serve proceedings on D in England and Wales (i.e. D is present in jurisdiction); or
2. The court gives permission to serve proceedings on D outside of the jurisdiction; or
3. The courts of England and Wales are given jurisdiction by a clause in a contract

Question 9

How is a business ‘present’ for the purposes of English courts having jurisdiction?

Answer 9

If an individual/director is physically present (in their capacity as a director).

A foreign company (i.e. not incorporated here) can be served at any place of business of the company (eg branch or office of D) within England and Wales (CPR 6.9(2)).

Question 10

What are the conditions for applying for permission to serve D outside of jurisdiction?

Answer 10

(1) C needs to establish one of the grounds in 6B PD 3.1:
(2) The claim must have reasonable prospects of success
(3) England and Wales must be the **‘proper place’ in which to bring the claim. **

Question 11

What are the jurisdictional gateways?

Question 12

What is the test for ‘reasonable prospects of success’?

Question 13

Even if the conditions are satisified, does the court have to grant permission to serve outside of jurisdiction?

Question 14

What is the deadline for service of claim form outside of jurisdiction?

Answer 14

6 months from issue of CF (CPR 7.5(2)

Question 15

What is the procedure for service of CF outside of jurisdiction when permission is not needed from the court?

Answer 15

C files Form N510 when it issues and files its CF. This essentially confirms to the court the basis upon which it has jurisdiction over a foreign-domiciled D in circumstances where the court’s permission has not been sought to serve the claim form abroad. (CPR 6.34).

Question 16

What is the procedure for service of CF outside of jurisdiction when permission is needed from the court?

Answer 16

C makes an interim application to court using Form N244, asking court to allow it to serve CF on D (CPR 23).

Question 17

When CF is served on D out of jurisdiction, what are the time limits that apply to D filing a defence/acknowledgement of service?

Answer 17

Comply with rules for service outside of jurisdiction (i.e. the rules governing service in that particular country)

Question 18

What court orders can be made where the usual methods of service do not work (“impossible or ineffective”) to serve D out of jurisdiction?

Answer 18

1. Allow C to serve using an alternative method
   Eg: Where parties have a consistent line of communication by email and the usual service methods arent workign as D is evading and not disclosing its location, court might permit service by email. NB usually service by email only allowed if agreed between the ps (it is not a usual service method).
2. Order that steps already taken to bring the claim form to D’s by an alternative method or at an alternative place is good service. Alternative service cannot be used retrospectively and it cannot be used to remedy irregular service.

Question 19

When can a court dispense with the req of service?

Answer 19

Usually only where the other side is already aware of the document i.e. so official service is superfluous

Question 20

What is the procedure for disputing jurisdiction?

Answer 20

1. D first serves an acknowledgement of service (CPR 11(2))
   There is a box on the acknowledgement of service to indicate that D intends to contest jurisdiction.
2. D makes **application disputing court’s jurisdiction within 14 days of filing the acknowledgement of service. ** That application must be supported by evidence.

Question 21

As D’s solicitor, what should you advise regarding submitting to jurisdiction?

Answer 21

Anything other than an acknowledgement of service (and application disputing jurisdiction) is construed as **irrevocably **submitting to the court’s jurisdiction.

Question 22

Set out the steps for determining what law governs a contractual dispute?

Rome I

Answer 22

1. IF THE CHOSE IT, THEN THAT (Art 3)
2. IF not, then one of specified cases in Art 4(1): Sale of goods contract; Services contract; Distribution contract; Contract relating to land
3. IF NONE ABOVE APPLY, THEN: LAW IS THAT OF THE COUNTRY WHERE THE “CHARACTERISTIC PERFORMER” (viz the party doing something eg service provider/seller) IS HABITUALLY RESIDENT (Art 4(2))
4. UNLESS “MANIFESTLY MORE CLOSELY CONNECTED” WITH ANOTHER COUNTRY (Art 4(3)).

Question 23

What is the crucial date for when Rome I applies?

Answer 23

Rome I does not apply to contracts entered into before 17 December 2009

Question 24

In the absence of a governing law clause, what is the applicable law for contracts relating to land contracts?

Answer 24

Country where the land is situated

Question 25

In the absence of a governing law clause, what is the applicable law for distribution contracts?

Answer 25

Distributor’s habitual residence

Question 26

In the absence of a governing law clause, what is the applicable law for services contracts?

Answer 26

Service provider’s habitual residence

Question 27

In the absence of a governing law clause, what is the applicable law for sale of goods contracts?

Answer 27

Seller’s habitual residence

Question 28

What is meant by an individual’s or company’s ‘habitual residence’?

Answer 28

• Business: Where its central administration is.
• Natural person = their principal place of business.

Question 29

Which country’s laws governs a tortious dispute?

Rome II

Answer 29

1. IF VALIDLY CHOSE IT, THEN THE AG:
   a. Validly agreed after tortious act (i.e. breach): Agreement 100% effective
   b. Validly agreed before tortious act: Only effective if both ps pursuing commercial activity and *freely negotiated *the choice of law
2. IF NO AGREEMENT, THEN IF C AND D BOTH HABITUALLY RESIDE IN SAME COUNTRY THEN THAT
3. IF NOT THEN WHERE THE DAMAGE OCCURED

Question 30

What is the crucial date for when Rome I applies?

Answer 30

Rome II does not apply where the events giving rise to damage (i.e. breach) occurred before 10 Jan 2009

Question 31

Where D is based in Northern Ireland or Scotland, which part of the UK has jurisdiction?

Answer 31

1) If Act gives a part of the UK exclusive jurisdiction
Eg: In proceedings which are concerned with real property or tenancies in real property, the part of the UK in which the property is situated will have exclusive jurisdiction (nb there are slightly different rules for tenancies of 6 months or less for temporary private use).

2) If not, then if parties have agreed which part

3) If D has submitted to the jurisdiction of a particular part

4) If none of the above apply, then sue where D is domiciled (sch 4, rule 2)

Individual: ‘Domiciled’ = resident
Company: ‘Domiciled’ = Usually registered office (or if doesnt have one, then where it was incorporated (s.42 and s.42A)).

Question 32

When can a person be sued in a part of the UK in which they are not domiciled?

Answer 32

1. Contract: **In the courts for the place of performance of the obligation **in question;
2. Tort: In the courts for the place where the breach occurred/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. Multiple Ds: In the place where any D is domiciled, provided the claims are so closely connected that it 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, in the court in which the original claim is pending.