Jurisdiction Flashcards
(23 cards)
What three issues arise when a dispute has an international dimension?
- Do the courts of England and Wales have jurisdiction?
- Which country’s law applies to the dispute?
- Will the judgment need to be enforced abroad and how?
How are jurisdiction and applicable law distinct?
- Jurisdiction: whether English/Welsh courts can hear the case
- Applicable law: which country’s law governs the dispute
- The CPR always governs procedure; substantive law may differ
When does the Hague Convention on Choice of Court Agreements apply?
- Civil/commercial matters
- Agreement concluded on/after 1 October 2015
- Exclusive jurisdiction clause
- Agreement in writing
- Clause gives jurisdiction to a Contracting State
What is the effect of a valid Hague Convention clause?
- The chosen court must accept jurisdiction (Article 5)
- Other courts must decline jurisdiction (Article 6)
Does the Hague Convention apply to non-exclusive or asymmetric jurisdiction clauses?
- No – it only applies to exclusive jurisdiction clauses
- Unclear whether it applies to asymmetric clauses
When do English courts have jurisdiction under common law?
- Defendant is served within the jurisdiction
- Court grants permission to serve out of jurisdiction
- Contract gives jurisdiction to English courts
What are the 3 conditions to obtain permission to serve out?
- A jurisdictional gateway
- Reasonable prospect of success
- England/Wales is the proper place to bring the claim
What is a jurisdictional gateway?
Examples include:
- Claim against person domiciled in jurisdiction
- Contract made/governed by English law
- Tort causing damage in England/Wales
When is permission NOT needed to serve out of the jurisdiction?
- Hague Convention applies
- Contract gives exclusive jurisdiction to England/Wales
What is Form N510 and when is it used?
- Used when serving without permission
- Confirms basis for jurisdiction over foreign defendant
What are valid methods of service outside the UK?
- Under applicable treaty or convention
- Via government of the destination country
- Via a method permitted by the local law
What is alternative service?
- Court can allow service by another method where good reason exists
Examples: newspaper advert, solicitor not authorised to accept service
When can service be dispensed with?
- Where the party is already aware of the document
- Rarely used unless justified
How does a defendant dispute jurisdiction?
- File acknowledgment of service indicating intention to contest
- Apply within 14 days of acknowledgment, with supporting evidence
What constitutes submission to jurisdiction?
- Taking any step beyond acknowledgment (e.g. filing a defence)
- Cannot later dispute jurisdiction once submitted
What is the primary rule for applicable law in contract (Rome I, Article 3)?
Parties may freely choose the governing law, even after contract formation
What applies if no choice of law is made? (Rome I, Article 4)
Article 4(1):
- Sale of goods – seller’s residence
- Services – service provider’s residence
- Land – location of land
- Distribution – distributor’s residence
Article 4(2): characteristic performance
Article 4(3): apply different law if “manifestly more closely connected”
What is the general rule for tort disputes (Rome II, Article 4)?
Law of the country where the damage occurs
What if parties reside in the same country?
That country’s law applies, even if damage occurs elsewhere
Can parties choose applicable law in tort?
- Yes, but pre-tort choices are valid only for commercially negotiated agreements
- Post-tort choices are always valid
When can the court apply a different law?
If the tort is “manifestly more closely connected” with another country
How is jurisdiction decided within the UK?
- Exclusive jurisdiction for land disputes – where the land is
- Jurisdiction clause – respected
- Submission – court has jurisdiction
- Default rule: sue where defendant is domiciled
- Additional bases: place of performance, tortious act, branch location
How is applicable law decided between UK jurisdictions?
Same as international disputes – Rome I and Rome II apply
Treated like any other foreign legal system
