DR: Jurisdiction Flashcards
(33 cards)
What are the two distinct questions when a dispute has an international dimension?
(1) Do the courts of England and Wales have jurisdiction to determine the claim? (2) Which country’s laws will apply to determine the dispute?
Why is it important to determine whether the courts of England and Wales have jurisdiction before issuing proceedings?
Because if the chosen court lacks jurisdiction, proceedings may be refused or stayed, wasting time and expense; also, more than one court may have jurisdiction, giving the claimant a strategic choice.
Under the Hague Convention, which types of disputes qualify for its application?
Only civil and commercial matters are covered; public law, criminal, consumer, and employment disputes are excluded.
What are the five requirements for a choice‐of‐court clause to fall within the Hague Convention?
(1) Civil or commercial matter; (2) Not excluded type; (3) Clause grants jurisdiction to a Contracting State; (4) Jurisdiction is exclusive; (5) Agreement is in writing or evidenced in writing.
How does the Hague Convention treat a clause stating ‘The Courts of England and Wales will have jurisdiction to determine any dispute’?
It is deemed to grant exclusive jurisdiction to England and Wales courts, so the Convention applies even if ‘exclusive’ is not expressly stated.
What is an ‘asymmetric’ jurisdiction agreement and does the Hague Convention clearly cover it?
A clause giving one party exclusive rights to sue in a chosen court while the other party can sue in multiple courts; due to the Convention’s wording, it is unclear whether such asymmetric clauses are within its scope.
If a valid Hague Convention choice‐of‐court clause exists, what must other courts do if a party tries to sue elsewhere?
Any other court must refuse to hear the proceedings, except in very limited circumstances (e.g., the chosen court declines jurisdiction or in cases of inadequate notice).
Under common law, how can the courts of England and Wales acquire jurisdiction over a foreign defendant present in the jurisdiction?
By validly serving proceedings on the defendant within England and Wales—personal service on an individual or at a place of business for a foreign company—because presence in the jurisdiction confers prima facie jurisdiction.
What three conditions must be satisfied to obtain the court’s permission to serve proceedings on a defendant outside England and Wales?
(1) A jurisdictional gateway under CPR 6B PD 3.1 is applicable; (2) The claim has a reasonable prospect of success; (3) England and Wales is the proper place (forum conveniens) to bring the claim.
List three common ‘jurisdictional gateways’ under CPR 6B PD 3.1 for service outside the jurisdiction.
(1) Defendant is domiciled in England and Wales (gateway 1); (2) Contract governed by English law or made in England or contains an English jurisdiction clause (gateway 6); (3) Tort where damage occurred in England and Wales or the tort was committed here (gateway 9).
How is ‘reasonable prospect of success’ defined when seeking permission to serve out of jurisdiction?
It is the same threshold as resisting summary judgment: a more‐likely‐than‐not realistic chance of success, not a mere fanciful claim.
What factors determine whether England and Wales is the ‘proper place’ to bring a claim?
Connections such as where the key events occurred, where witnesses and evidence are located, whether English law applies, and whether another jurisdiction is clearly more appropriate for reasons of fairness or ability to conduct a fair trial.
When does CPR allow service abroad without seeking permission from the court?
When jurisdiction is established under the Hague Convention or by a contractual clause giving English/Welsh courts jurisdiction (CPR 6.33(2B)); in such cases, the claimant files Form N510 to notify the court rather than apply for permission.
What is the extended validity period for a claim form served outside England and Wales?
Six months from the date of issue instead of the usual four months for service within the jurisdiction.
What methods are permitted for serving proceedings outside England and Wales under CPR 6.40?
(1) In accordance with any applicable treaty or convention; (2) Through the government authority of the destination country; (3) By any method permitted by the destination country’s law; once properly served, the claim is valid even if it contravenes the destination country’s local rules.
What application should a claimant make if service through usual methods is impossible or has failed?
An application for an order for alternative service (CPR 6.15), specifying the reasons why ordinary methods are ineffective and proposing a workable alternative (e.g., service on a solicitor or advertisement).
In what rare circumstances can the court dispense with service altogether under CPR 6.16?
When the other party is already aware of the document (e.g., amendments to particulars agreed), the court may dispense with formal service rather than require repeated or pointless serving.
How can a defendant formally dispute the court’s jurisdiction upon receiving proceedings?
By indicating on the acknowledgement of service that they intend to dispute jurisdiction and filing an application supported by evidence within 14 days of filing that acknowledgement, challenging the basis on which the claimant asserts jurisdiction.
What action by a defendant constitutes submission to English/Welsh jurisdiction and waives any future challenge?
Taking any step beyond filing an acknowledgement of service—such as filing a defence, seeking case management directions, or participating substantively in the proceedings—constitutes submission and bars a later jurisdictional challenge.
Under Rome I, when is a party’s choice of law in a contract respected?
Parties may choose any law to govern their contract (Article 3), expressly or impliedly, even after a dispute arises; the choice is effective provided it meets formal requirements and does not violate public policy.
If no choice of law exists in a contract, how does Rome I determine the applicable law for (a) sale of goods, (b) provision of services, and (c) contracts not covered by specific categories?
(a) Sale of goods: law of the seller’s habitual residence; (b) Services: law of the service provider’s habitual residence; (c) Other contracts: law of the country where the party required to effect characteristic performance has habitual residence.
What does Article 4(3) of Rome I provide if the contract is manifestly more closely connected to another country?
Even if the applicable law has been identified under Articles 3 or 4(1)–(2), the court may apply the law of another country if the contract is manifestly more closely connected to that other country, promoting certainty while preserving fairness.
Under Rome II, when can parties validly choose the governing law for a tort arising after the choice?
If the agreement is reached after the tortious event and is freely negotiated by commercial parties, their choice is effective under Article 14; pre-event choices by commercial parties are also valid if freely negotiated.
In the absence of choice, how does Rome II determine applicable law for torts?
(1) If claimant and defendant habitually reside in the same country, that country’s law applies; (2) If not, the law of the country where the damage occurs applies, even if the tortious act happened elsewhere or further consequences occur in a third country.
