foreign jurisdiction Flashcards

Question

contracts of employment

Answer 1

art. 21 - R can be sued in... (See list) art. 22 - employer can only bring proceedings where E is domiciled art. 23 - choice of jurisdiction clause only valid if it gives E choice (SEe art)

Answer 2

RECITAL 13 - domicile based on internal law - companies (art.63, art.63(2)) - partnerships (art.63) (Association of natural persons) In UK – Civil Jurisdiction and Judgements Order 2001: domiciled if (1) she/he is a resident in the UK and (2) nature and circumstances of his/her residence indicate that he/she has a substantial connection with the UK (presumed if resident for last 3m or more) if domicile disputed, BOP on C to show good arguable case and that D was domiciled/resident within jurisdiction at the time CF was served (Canadata trust v Stolzenberg)

Answer 3

RECITAL 16 - close connection, sound administration of justice certain types of cases heard in that jurisdiction regardless of domicile (so regulation could be triggered even if neither party domiciled in Reg MS) art.24 list

Answer 4

Substance not form that matters - look beyond statements of case and consider substance of dispute - interpreted broadly - consider principal subject matter and if it falls within 1 exception

Answer 5

SUBMISSION if ‘enter an appearance’ (unless appearance is to contest jurisdiction) Entering an appearance = taking a step in court process For English court – this will be if D: - Acknowledges service of CF/POC indicating he admits/will defend the claim, or - Files a defence can be implicit (so D should be very careful in how it corresponds with C - if D wans to contest, raise this ASAP and all the time, tick AOS box contesting jurisdiction)

Answer 6

ART.26(2) - CONSUMER OR EMPLOYEE Regulation rules on submission does not apply until ‘weaker party’ D has been informed of: (a) its right to contest jurisdiction (b) the consequences that will arise if it enters (or does not enter) an appearance in the proceedings

Answer 7

art.31(2) E.g. C commences proceedings in MS B (clause says MS A) MS B’s courts must stay proceedings as soon as courts of MS A have been seised (i.e. become involved by e.g. D making an application to it) pending decision of MS A as to whether it has jurisdiction over the claim

Answer 8

Regulation applies and English court has jurisdiction This means C can proceed to serve CF on D outside jurisdiction using appropriate method of service If C serving English CF without permission (i.e. under Regulation) – must file N510 when it issues and files its CF (confirms to the court the basis upon which it has jurisdiction over a foreign-domiciled defendant; not required pursuant to CPR 6.34)

Answer 9

Proposed D is domiciled outside jurisdiction and is physically located outside of the jurisdiction at the time that it is sought to serve proceedings (6.36, 6.37) English Court will decide whether it can exercise ‘exorbitant’ jurisdiction (I.e. does English court have jurisdiction over D even though he/she/it is not physically present within the jurisdiction?) Courts of England & Wales may give C permission to serve proceedings on foreign defendant out of jurisdiction (CPR 6.36)

Answer 10

just like any other interim application under CPR 23 - AN - Draft order - WS - D's address or country D is likely to be found

Answer 11

SERVE CF: 6m AOS: 21 days after POC DEFENCE: 35 days after AOS of POC

Answer 12

SERVE CF: 6m AOS: see table in 6BPD DEFENCE: number in table plus 14 days

Answer 13

THE WAY PERMITTED BY LAW OF THE COUNTRY IN WHICH CF IS TO BE SERVED - consult lawyers in that country - unable to enforce judgement obtained if do not serve correctly

Answer 14

normal rules only apply to CF served in jurisdiction (and Scotland and NI) if outside UK - date of service determined in accordance with particular regime pursuant to which doc was served 2 regimes: ONE - EU SERVICE REGULATION (law of relevant MS) TWO - Hague Service Convention (served via diplomatic/judicial channels, cert will be issued specifying date of service based on method of service being used)

Answer 15

C must - CF file and served with notice containing statement of grounds on which C is entitled to serve CF out of jurisdiction with court's permission (bc REGULATION claim) - serve copy of that notice on D when serving the CF

Answer 16

Consider all jurisdictions in which client may bring proceedings and obtain advice from foreign lawyers as necessary factors: • Cost of commencing/pursuing proceedings (incl. court fees/level of fees charged by local lawyers) * Availability of interim orders (e.g. security for costs/injunctions) * Extent of parties’ disclosure obligations - CPR is very extensive, cards on the table approach – you must reveal even if it is adverse - Other jurisdictions – only disclose things if it is good for you * Location of relevant documents/witnesses * Length of proceedings (some countries faster than others, some countries do court case management; others let parties decide so there can be deadlock) * Level of costs recovery (some countries = full indemnity basis, some = bear own costs) * Methods of enforcement available (if local = where assets are + less admin)

Answer 17

• Different jurisdictions = offers client different procedural advantages BUT remember you have to act quickly - Court first seized may be only court that can then hear the claim (in Regulation cases especially) even if another country is more suitable - Parties might start proceedings to preclude another party commencing proceedings in another country

foreign jurisdiction Flashcards

(41 cards)