Prep 10 Jurisdiction and Conflict of Laws (copy)

Three things to consider for an international dispute

1. Do the courts of England and 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?

Hage Convention on Choice of Court Agreements

Aims to provide certainty for commercial parties that wish to choose a particualr country’s courts to determine their disputes, regardless of where the dispute takes place or the parties are based

Hague Convention Approach

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 ‘asymmetric’?

Examples of excluded matters under the Hague Convention

• DIsputes with consumers

• Employment matters

• Others listed in Article 2

Contracting states to the Hague Convention

• The UK

• All EU Member States

• Mexico

• Singapore

• Montenegro

Consequences of a clause falling within the Hage Convention

1. Court cannot decline jurisdiction on the basis that the dispute should be decided in another country; and

2. Any other court must refuse to hear proceedings

Matters to establish to obtain permission to serve proceedings on the defendant outside of the jurisdiction under CPR 6.37

1. Claimant needs to establish one of the grounds in 6B PD 3.1;

2. Claim must have reasonable prospects of success;

3. England and Wales must be the proper place in which to bring the claim

Grounds for permission under 6B PD 3.1

• Person domiciled within the jurisdiction

• Contract made within the jurisdiction

• Contract goverened by English law

• Contract contains a term that the court will have jurisdiction

• Breach of contracts occurred within the jurisdiction

• Tortious damage occurred or will occure within the jurisdiction

Reasonable prospect of success udner De Molestina v Ponton

For permission, this is a low threshold akin to the threshold required to resist an application for summary judgment

Under the common law, the Courts of England and Wales will have jurisdiction if…

• It is possible to serve proceedings on the defendant in the jurisdiction; or

• The court gives permission to serve the proceedings on the defendant outside of the jurisdiction; or

• The courts of England and Wales are given jurisdiction by a clause in the contract

Time Limit for Service out of the jurisdiction

Where a claim form has been validly issued, the period ofr service is 6 months

When is the court’s permission not required to serve from a different jurisdiction into England and Wales

• The Hague Convention applies; or

• The contract contains a clause that England and Wales shall have jurisdiction

Form N510

Used when claimant is seeking to serve an English claim form abroad without permission

Form N244

Used when seeking to serve a claim form abroad with permission

Options for methods of service outside the UK

• In accordance with an agreed regulation, convention or treaty

• Through the government of the destination country

• By any method permitted by the law of the destination country

Alternative Service under CPR 6.15

Where normal service is not possible or has been unsuccessful so the claimant serves using a different method such as:

• Serving on the defendant’s unauthorised solicitors; or

• Placing an advert in a newspaper notifying the defendant

Dispensing with service under CPR 6.16

Usually only exercised when the other side is already aware of the document

Disputing

A party, on receipt of court proceedings, may wish to challenge the English and Welsh court jurisdiction to hear a dispute

Procedure for Disputing

1. File an acknowledgment of service indicating intention to dispute

2. Apply within 14 days after filing acknowledge to dispute the jurisdiction with evidence

Submitting to the court’s jurisdiction

If a party submits to the jurisdiction of the courts of England and Wales, then they cannot later dispute that jurisdiction

Questions to ask where a contract has a conflict of laws under Rome I

1. Have the parties chosen which law should apply?

2. Does the contract relate to one of the cases specified in Articles 4(1)(a) to (h)?

3. If no, where is the “characteristic performer’s” habitual residence?

4. Is the contract “manifestly more closely connected” with another country?

Types of contract under Articles 4(1)(a) to (h) and their applicable law

• Sale of Goods → Seller’s habitual residence

• Provision of services → Service provider’s habitual residence

• Contract relating to land → Where the land is situated

• Distribution contract → Distrobutor’s habitual residence

Questions to ask where a tort has a conflict of laws under Rome II

• Have the parties validly chosen which law should apply?

• Do the claimant and defendant habitually reside in the same country?

• In which country did the tort occur?

• Is the tort “manifestly more closely connected” with another country?

Parties choice for which laws apply to a Tort

• If after the tort, the choice will be effective

• If before the tort, the choice will only be effective if both parties are pursuing a commercial activity and freely negotiated the choice of law

Where is a country’s habitual residence?

Where that person’s principal place of business is

Civil Jurisdiction and Judgment Act 1982

Governs which UK nation should have jurisdiction when the defendant is based in the UK

Exclusive Jurisdiction under Sch 4, Rule 11 Civil Jurisdiction and Judgment Act 1982

For some particular types of dispute, the Act provides that one part of the UK, and only that part, can have jurisdiction such as real property which can only be heard where it is situated

Jurisdiction Agreemnts under Sch 4, Rule 12 Civil Jurisdiction and Judgment Act 1982

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

Submission under Sch 4, Rule 13 Civil Jurisdiction and Judgment Act 1982

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

Basic rule for Jurisdiction within the UK under Sch 4, Rule 2 Civil Jurisdiction and Judgments Act 1982

If exclusive jurisdiction, jurisdiction agreements or submission do not apply, the starting point s that a person domiciled in a part of the UK should be sued in the courts at that part

Additional Jurisdiction under Sch 4, Rules 3 and 5 Civil Jurisdiction and Judgments Act 1982

• In matters relating to a contract in the courts for the place of performance of the obligation in question;  

• In matters relating to tort in the courts for the place where the harmful event occurred or may occur; 

• 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; 

• Where the person is a number of defendants in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together; 

• On a counterclaim arising from the same contract or facts on which the original claim was based in the court in which the original claim is pending.