Jurisdiction and choice of law

Question 1

when should jurisdiction and applicable law be considered?

Answer 1

pre-action

Question 1

For proceedings commenced on or after 1 Jan 2021, whether the courts of England and Wales have jurisdiction to determine a claim is a question that must be answered by reference to the

Answer 1

Hague Convention

Question 1

What kind of matters does the Hague Convention apply to?

Answer 1

Hague Convention only applies to civil and commercial matters

Question 2

What does the Hague Convention not apply to?

Answer 2

public law, criminal disputes, disputes with customers and employment matters

Question 3

Who does the Hague Convention apply to?

Answer 3

contracting member states eg UK, EU, Singapore

Question 4

The HC only applies if the jurisdiction agreement is in what format?

Answer 4

in writing, or evidenced/documented in writing

Question 5

An asymmetric agreement

Answer 5

provides that one party can commence proceedings only in a specific named country, but the other party can commence proceedings in that country or any other which would have jurisdiction under any other relevant rules

Question 6

What are the 2 main consequences on jurisdiction if there is a clause which falls within Hague Convention?

Answer 6

The court indicated as having jurisdiction will have jurisdiction, and cannot decline it on the basis that the dispute should be decided in another country (Article 5(1) and (2));
Any other court must refuse to hear the proceedings

Question 7

A defendant will (in principle) be subject to the jurisdiction of the courts of England and Wales if proceedings are served on the defendant whilst

Answer 7

that defendant is within the jurisdiction

Question 8

If a party cannot serve proceedings within the jurisdiction, they can apply for

Answer 8

permission to serve the proceedings on the defendant outside of the jurisdiction

Question 9

3 criteria for applying for permission to serve proceedings out of the jurisdiction

Answer 9

1. The claimant needs to establish one of the grounds in 6B PD 3.1;
2. The claim must have reasonable prospects of success;
3. England and Wales must be the ‘proper place’ in which to bring the claim

Question 10

Threshold for reasonable prospects of success

Answer 10

equates to the prospect of success needed to resist an application for summary judgment

Question 11

England and Wales is the ‘proper place’ requirement

Answer 11

Either:
a) England or Wales can be the proper place to bring the claim if it is the natural place to bring the proceedings

b) If England or Wales is not the natural place, but rather another jurisdiction is the natural place, the Courts of England and Wales can still be the proper place in which to bring the claim if justice nonetheless requires that the claim be tried in England

Question 12

What is the period for service for a validly issued claim form issued outside of the jurisdiction?

Answer 12

6 months (rather than the normal 4 months)

Question 13

When is it not necessary to seek the court’s permission to serve proceedings out of the jurisdiction if the Courts of England and Wales have jurisdiction?

Answer 13

Either the Hague Convention gives the court jurisdiction; or
a contract contains a term to the effect that the Courts of England and/or Wales shall have jurisdiction to determine the claim

Question 14

If a claimant is seeking to serve an English claim form abroad without permission, which form must they file when they issue and files the claim form?

Answer 14

Form N510

Question 15

Application for alternative service

Answer 15

An application must be made to court setting out why service in accordance with the methods listed in the CPR are not possible or why attempts to serve in accordance with these methods have been unsuccessful.
The application should state the alternative method proposed.

Question 16

Procedure for disputing jurisdiction

Answer 16

defendant must first file an acknowledgement of service and then apply within 14 days after filing the acknowledgement of service, disputing the court’s jurisdiction

Question 17

To avoid submitting to the court’s jurisdiction, a defendant served with proceedings must not

Answer 17

take any steps to engage with the proceedings beyond filing an acknowledgement of service and then applying to court to challenge its jurisdiction e.g. filing a defence

Question 18

Which country’s laws will apply to determine a contractual dispute?

Answer 18

general rule - sue a defendant in their own court

Question 19

pre-Brexit, majority of contractual disputes were governed by which treaty?

Answer 19

Rome I

Question 20

A company’s habitual residence

Answer 20

where its “central administration” is

Question 21

If the applicable law has been determined under Article 4(1) or 4(2), the court will apply a different country’s law if

Answer 21

the contract is manifestly more closely connected with that other country

Question 22

pre-Brexit, majority of tortious disputes were governed by

Answer 22

Rome II

Question 23

Rome II only applies to events giving rise to damage which occurred

Answer 23

on or after 10 Jan 2009

Question 24

Why is the 'manifestly more closely connected rule' rarely deployed?

Answer 24

Because it could undermine Rome I or Rome II

Question 24

Rome I does not apply to contracts entered into before

Answer 24

17 Dec 2009

Question 25

Which part of the UK will have exclusive jurisdiction in proceedings which are concerned with real property or tenancies in real property?

Answer 25

the part of the UK in which the property is situated

Question 26

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

Answer 26

that part will have jurisdictin

Question 27

Basic starting point for determining jurisdiction within the UK

Answer 27

a person domiciled in a part of the UK should be sued in the courts of that part

Question 28

A person is “domiciled” in a part of the UK if

Answer 28

They are resident there; and The nature and circumstances of their residence indicate a substantial connection with that part

Question 28

For contract disputes, a person can be sued in parts of the UK where they are not domiciled if it is the

Answer 28

place of performance of the obligation in question

Question 29

For tort, a person can be sued in the UK in a part where they are not domiciled if it is

Answer 29

where the harmful event occurred or may occur

Question 30

Additional jurisdiction for multiple defendants

Answer 30

a number of defendants can be heard in the courts in a 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