DR - Conflict of Laws

What is the difference between jurisdiction and conflict of laws?

jurisdiction = which court will the case be heard in

conflict of laws = which country's law will govern the dispute

(can apply French law although English court has jurisdiction eg)

What is the first priority when considering a conflict of laws question?

- Is it contract or tort?

- Therefore, does Rome 1 or 2 apply?

What is the regulation governing contractual disputes in England and Wales after Brexit?

- Rome I Regulation, adopted into English law with minor amendments

What is the cut off date for the application of the Rome I Regulation?

Applies to contracts entered into on or after 17 December 2009

How is the applicable law determined under Rome I?

1. have parties chosen the applicable law? if yes, that will apply

2. Does the contract falls under the specific types in Article 4? if yes, that will apply

3. if not, apply the law of the country where the "characteristic performer" has its habitual residence

4. Overriding principle: consider if the contract is "manifestly more closely connected" with another country

What are the rules for party choice of law under Rome I? (1/4)

- Parties are free to choose which country's law will apply

- Choice can be made expressly in the contract or demonstrated by the circumstances of the case

When can parties choose which law applies under Rome 1 Regulation?

- Choice can be made at any time, even after a dispute has arisen

What are the provisions for specific contract types under Article 4? (2/4)

Sale of goods contract: law of the seller's habitual residence

Provision of services contract: law of the service provider's habitual residence

Contract relating to land: law where the land is situated

Distribution contract: law of the distributor's habitual residence

Franchise contract: law of the country where the person paying for the franchise has his habitual residence

Sale by auction: law of the country where auction takes place (if it can be determined)

What is a company/person's habitual residence?

Companies: where the central administration is located

Individuals acting in the course of business: principal place of business

What is the "characteristic performance" rule? (3/4)

- Applies when there's no choice of law in the contract, and the contract doesn't fall under Article 4

- The applicable law is that of the country where the party required to effect characteristic performance has its habitual residence

- Generally, in a contract where one party pays the other for something, the party performing the "something" being paid for is giving the contract its character

What is the "manifestly more closely connected" rule? (4/4)

- Can override determinations made under Article 4 and characteristic performer rule

- Allows the court to apply a different country's law if the contract is manifestly more closely connected with that country

- Rarely used to avoid introducing uncertainty into Rome I's operation

What is the scope of Rome II Regulation?

- Covers most tortious disputes

- With special provisions for product liability, unfair competition, environmental damage, infringement of intellectual property, and industrial action (not on spec)

When is the cut-off date for the Rome 2 Regulation?

Applies to events giving rise to damage which occur on or after 10 January 2009

How is the applicable law determined under Rome II?

1. have parties validly chosen applicable law? if so, this applies

2. if not, do C and D habitually reside in the same country? if yes, use that one

3. if not, apply the law of the country where the damage occurs

4. consider if the tort is "manifestly more closely connected" with another country - if so, can override the other considerations above.

How can parties validly choose the law they want to apply? (1/4) - for tort claims

- choice is effective if agreement is made after the event causing damage

- If agreement is made before the event, it's only effective if both parties are pursuing commercial activity and freely negotiated the choice

- Choice can be express or demonstrated by circumstances of the case

How is habitual residence determined under Rome 2? (2/4)

For companies: location of central administration

For natural persons acting in course of business: principal place of business

What is the "country where the damage occurs" rule? (3/4)

- Applies when there's no valid choice and parties don't reside in the same country

- Law of the country where the damage occurs applies, not where the event causing damage occurs

- For personal injury or property damage, likely the country where injury was sustained or property damaged

What is the "manifestly more closely connected" rule for tortious claims? (4/4)

- Can override determinations made under other rules

- Allows court to apply a different country's law if tort is manifestly more closely connected with that country

- Rarely used to avoid introducing uncertainty into Rome II's operation

Checklist for jurisdiction within the UK:

1. does the matter concern real property? (exclusive jurisdiction rules will apply if so)

2.if not, is there a jurisdiction agreement?

3. if not, has a party submitted to a particular jurisdiction (eg by filing a defence)?

4. if none of the above, does basic rule of being sued where you live apply?

5. can they be sued somewhere else in addition to (4)? (eg for contract/tort/multiple defendants etc)

When is there a statutory rule for exclusive jurisdiction within the UK?

- Proceedings concerning real property must be heard where the property is situated (eg in Scotland for land in Scotland)

(slightly different rules apply for tenancies of 6 months or less for temporary private use)

How do jurisdiction agreements work within the UK?

If parties agree on a particular part of the UK to have jurisdiction, that agreement will be upheld

What is the rule on submitting to jurisdiction within the UK?

- If a party submits to the jurisdiction of a court in the UK (eg by filing a defence), that court will have jurisdiction

- However, this rule cannot override exclusive jurisdiction rules

What is the basic rule for determining jurisdiction within the UK when there is no other information (eg jurisdiction agreement)?

basic rule: a person domiciled in a part of the UK should be sued in the courts of that part (if there is no jurisdiction agreement or statutory rule on which part of the UK should have jurisdiction)

What is domicile?

individuals: determined by residence and substantial connection

companies: domicile is where the 'seat' is, usually the registered office or place of incorporation

Where can C also sue in contract (aside from where D is domiciled)?

courts of the place of performance of the obligation

Where can C also sue in tort (aside from where D is domiciled)?

courts where the harmful event occurred or may occur

Where can C also sue for disputes from operations of branch of a company (aside from where D is domiciled)?

courts where the branch is situated

Where can C sue for disputes with multiple defendants?

courts where any defendant is domiciled, if claims are closely connected

Where can C also sue for counter-claims (aside from where D is domiciled)?

court where the original claim is pending

What is the key point to remember about additional jurisdiction rules?

Even when additional jurisdiction rules apply, the claimant can still choose to sue in the defendant's place of domicile