Week 10- Jurisdiction and Conflict of laws Flashcards
Where a dispute has an international dimension there are 2 broad questions to consider, what are they?
- Jurisdiction: Do the courts of England and Wales have jurisdiction to determine the claim?
- Applicable law: Which country’s law will apply to determine a dispute?
To what proceedings does HC apply?
- Proceedings commenced on/after 1 January 2021 in relation to a **civil and commercial matter. **;
- It is not an excluded matter;
- Clause gives exclusive jurisdiction to a Contracting State;
- Agreement is in writing; and
- If clause is ‘Asymmetric’, unclear whether HC will apply.
When is the court’s permission to serve proceedings outside the jurisdiction not needed?
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
What is an assymetric jurisdiction clause in relation to HC?
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.
What are the 2 main consequences of the Hague Convention applying?
- The court indicated as having jurisdiction will have jurisdiction, and cannot decline it
- Any other court must refuse to hear the proceedings
What are the excluded matters under the Hague Convention?
Consumer and employment matters
What are the contracting states under the Hague Convention?
UK, all EU member states, Mexico and Singapore
Absent HC applying, when do the courts of England and Wales have jurisdiction under the common law?
- Presence: It is possible to serve proceedings on D in England and Wales (i.e. D is present in jurisdiction); or
- The court gives permission to serve proceedings on D outside of the jurisdiction; or
- The courts of England and Wales are given jurisdiction by a clause in a contract
How is a business ‘present’ for the purposes of English courts having jurisdiction?
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)).
What are the conditions for applying for permission to serve D outside of jurisdiction?
(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. **
What are the jurisdictional gateways?
What is the test for ‘reasonable prospects of success’?
Even if the conditions are satisified, does the court have to grant permission to serve outside of jurisdiction?
What is the deadline for service of claim form outside of jurisdiction?
6 months from issue of CF (CPR 7.5(2)
What is the procedure for service of CF outside of jurisdiction when permission is not needed from the court?
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).
What is the procedure for service of CF outside of jurisdiction when permission is needed from the court?
C makes an interim application to court using Form N244, asking court to allow it to serve CF on D (CPR 23).
When CF is served on D out of jurisdiction, what are the time limits that apply to D filing a defence/acknowledgement of service?
Comply with rules for service outside of jurisdiction (i.e. the rules governing service in that particular country)
What court orders can be made where the usual methods of service do not work (“impossible or ineffective”) to serve D out of jurisdiction?
- 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). - 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.
When can a court dispense with the req of service?
Usually only where the other side is already aware of the document i.e. so official service is superfluous
What is the procedure for disputing jurisdiction?
- 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. - D makes **application disputing court’s jurisdiction within 14 days of filing the acknowledgement of service. ** That application must be supported by evidence.
As D’s solicitor, what should you advise regarding submitting to jurisdiction?
Anything other than an acknowledgement of service (and application disputing jurisdiction) is construed as **irrevocably **submitting to the court’s jurisdiction.
Set out the steps for determining what law governs a contractual dispute?
Rome I
- IF THE CHOSE IT, THEN THAT (Art 3)
- IF not, then one of specified cases in Art 4(1): Sale of goods contract; Services contract; Distribution contract; Contract relating to land
- 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))
- UNLESS “MANIFESTLY MORE CLOSELY CONNECTED” WITH ANOTHER COUNTRY (Art 4(3)).
What is the crucial date for when Rome I applies?
Rome I does not apply to contracts entered into before 17 December 2009
In the absence of a governing law clause, what is the applicable law for contracts relating to land contracts?
Country where the land is situated
