Jurisdiction and conflict of laws Flashcards
(173 cards)
1
Q
Hague Convention on Choice of Court Agreements
A
What international agreement gives effect to certain jurisdiction agreements in international disputes?
2
Q
Proceedings commenced on or after 1 January 2021
A
For which proceedings does the question of jurisdiction need to be answered by reference to the Hague Convention (if it applies)?
3
Q
Common law rules
A
If the Hague Convention does not apply to proceedings commenced on or after 1 January 2021
4
Q
Disputes over matters occurring in England and Wales
A
As a general rule
5
Q
Additional criteria
A
What needs to be considered if a dispute takes place outside England and Wales or involves a national from a different country to establish English jurisdiction?
6
Q
Certainty for commercial parties wishing to choose a particular country’s courts
A
What is the aim of the Hague Convention on Choice of Court Agreements?
7
Q
On or after 1 October 2015
A
For choice of court agreements concluded when does the Hague Convention only apply?
8
Q
In an agreement between the parties (e.g.
A
in a contract)
9
Q
Any jurisdiction (do not need to be in a Contracting State)
A
Where can the parties to a choice of court agreement be based for the Hague Convention to potentially apply?
10
Q
Civil or commercial matter
A
What is the first key consideration when ascertaining if the Hague Convention applies?
11
Q
Public law and criminal disputes
A
What types of disputes are NOT covered by the Hague Convention (Article 1(1))?
12
Q
Excluded matter (e.g.
A
consumer
13
Q
Check Article 2 of the Hague Convention
A
Where should you check for a full list of excluded matters?
14
Q
Clause gives jurisdiction to a Contracting State
A
What is the third key consideration when ascertaining if the Hague Convention applies (Article 3(a))?
15
Q
UK
A
all EU members states
16
Q
Hague Convention applies
A
If a clause states the Courts of France have jurisdiction
17
Q
Hague Convention will not apply
A
If a clause indicates the courts of a particular state in the USA have jurisdiction
18
Q
Find answer elsewhere (e.g.
A
common law rules)
19
Q
Jurisdiction given exclusively
A
What is the fourth key consideration regarding the type of jurisdiction clause for the Hague Convention to apply (Article 4(1) and Article 3(a) and (b))?
20
Q
The Courts of England and Wales will have exclusive jurisdiction…
A
Give an example of a clause where the Hague Convention applies due to exclusive jurisdiction.
21
Q
Assumed to mean exclusive jurisdiction
A
How does the Hague Convention treat a clause that simply states “The Courts of England and Wales will have jurisdiction…”?
22
Q
Hague Convention applies
A
Does the Hague Convention apply to a clause stating “The Courts of England and Wales will have jurisdiction…”?
23
Q
Hague Convention will not apply
A
Does the Hague Convention apply to a clause stating “The Courts of England and Wales will have non-exclusive jurisdiction…”?
24
Q
Concluded / documented / evidenced in writing
A
What is the fifth key consideration for the Hague Convention to apply (Article 3(c))?
25
Asymmetric agreement (one party limited
other not)
26
Court indicated as having jurisdiction will have it and cannot decline
What is the first main consequence of a clause falling within the Hague Convention regarding jurisdiction (Article 5(1) and (2))?
27
Any other court must refuse to hear the proceedings (with limited exceptions)
What is the second main consequence of a clause falling within the Hague Convention regarding jurisdiction (Article 6)?
28
Aim for certainty in commercial choice of court; applies if civil/commercial
not excluded
29
Common law
What body of law is considered when the Hague Convention on Choice of Court Agreements does not apply to determine jurisdiction?
30
Proceedings commenced on or after 1 January 2021
For which proceedings are common law rules used to determine jurisdiction if the Hague Convention does not apply?
31
Service of proceedings
What is broadly linked to the question of jurisdiction under the common law?
32
Serve defendant in the jurisdiction; permission to serve outside jurisdiction; jurisdiction clause in contract
What are the three broad ways the court will have jurisdiction under the common law?
33
Defendant is 'present' in England and Wales when served
Under the common law
34
Yes
even if foreign defendant or subject matter outside England and Wales
35
Personal service (CPR 6.5)
Give an example of a method of serving proceedings on an individual defendant within the jurisdiction.
36
At any place of business in England and Wales (CPR 6.9(2))
Where can a company not incorporated in England and Wales be served within the jurisdiction?
37
Serve on solicitor in England and Wales appointed to accept service
How can service within the jurisdiction be effected if a defendant appoints a solicitor for that purpose?
38
Serve proceedings on the printers at its branch in England
In the paper supplier example
39
Apply to serve proceedings on defendant outside the jurisdiction
If a party cannot or does not want to serve within the jurisdiction
40
Court grants permission and proceedings are duly served outside
What gives the courts of England and Wales jurisdiction (in principle) if a defendant is served outside the jurisdiction?
41
Ground in 6B PD 3.1; reasonable prospects of success; England and Wales is the 'proper place'
What three matters must be established to obtain permission to serve outside the jurisdiction (CPR 6.37)?
42
Claim against person domiciled within jurisdiction (1)
Name one ground in 6B PD 3.1 for permission to serve outside the jurisdiction.
43
Claim re contract made within jurisdiction (6)(a)
Name another ground in 6B PD 3.1 for permission to serve outside the jurisdiction (contract).
44
Claim re contract governed by English law (6)(c)
Name another ground in 6B PD 3.1 for permission to serve outside the jurisdiction (contract).
45
Claim re contract with jurisdiction clause (6)(d)
Name another ground in 6B PD 3.1 for permission to serve outside the jurisdiction (contract).
46
Claim re breach of contract within jurisdiction (7)
Name another ground in 6B PD 3.1 for permission to serve outside the jurisdiction (breach).
47
Claim in tort where damage sustained within jurisdiction (9)(a)
Name another ground in 6B PD 3.1 for permission to serve outside the jurisdiction (tort).
48
Claim in tort where damage from act committed within jurisdiction (9)(b)
Name another ground in 6B PD 3.1 for permission to serve outside the jurisdiction (tort).
49
Jurisdictional gateways
What is another term for the grounds in 6B PD 3.1 for seeking permission to serve outside the jurisdiction?
50
Prospect of success needed to resist summary judgment (De Molestina v Ponton)
What is the threshold for "reasonable prospects of success" when seeking permission to serve outside jurisdiction?
51
Forum conveniens (convenient / appropriate forum)
What is another term for "England and Wales is the 'proper place' in which to bring the claim"?
52
Natural place to bring proceedings (witnesses
law
53
Justice requires trial in England (e.g.
risk of interference elsewhere)
54
Contract contains term that English/Welsh courts have jurisdiction (CPR 6.33(2B))
In what situation can a claimant serve a claim form outside the jurisdiction without the court's permission under common law?
55
Exclusive choice of court agreements concluded on or after 1 October 2015
To what does the Hague Convention apply that this common law rule (CPR 6.33(2B)) provides an alternative?
56
Agreement before 1 Oct 2015 or non-exclusive jurisdiction clause
When might the common law rule (CPR 6.33(2B)) be used instead of the Hague Convention for jurisdiction clauses?
57
Damage sustained and act committed within jurisdiction (tort)
In the car accident example
58
Serve in jurisdiction; permission to serve outside (with grounds
prospects
59
Ground in 6B PD 3.1; reasonable prospect of success; England and Wales is the 'proper place'
What three matters must be established to obtain permission to serve outside the jurisdiction under the common law?
60
Six months
What is the period for service of a claim form outside the jurisdiction (CPR 7.5(2))?
61
Four months
What is the normal validity period for serving a claim form within the jurisdiction (CPR 7.5(1))?
62
Hague Convention on Choice of Court Agreements; contract with jurisdiction clause (CPR 6.33(2B))
In what two situations is it NOT necessary to seek the court's permission to serve proceedings out of the jurisdiction?
63
Form N510
If serving abroad without permission
64
Confirms basis of jurisdiction over foreign-domiciled defendant without seeking permission
What is the purpose of filing Form N510?
65
Interim application using Form N244 (CPR 23)
If serving abroad WITH permission
66
CPR 6.40
Which Civil Procedure Rule outlines the possible methods of service outside the UK?
67
Nothing in rules/order authorises/requires anything against destination country's law
What important limitation applies to the methods of service outside the UK?
68
Agreed regulation
convention or treaty; government of destination country; any method permitted by law of destination country
69
Countries that have contracted into it along with the UK
To which countries does any regulation
70
Often preferred to take local advice and engage local agent
What is a common practical approach when serving by a method permitted by the law of the destination country?
71
Extended periods apply
What is the general rule regarding the time allowed for a defendant served outside the jurisdiction to file an acknowledgment of service/defence?
72
Varies depending on the country involved
Does the amount of 'extra time' for response vary?
73
Usual rules for 'domestic' disputes
How is service effected if the defendant is present in the jurisdiction (no service out)?
74
Comply with rules for service out (e.g.
method permitted by target country)
75
Comply with rules for service out (e.g.
method permitted by target country)
76
Whether permission is needed; which methods of service are possible
What are the two main considerations when serving out of the jurisdiction?
77
Hague Convention on Choice of Court Agreements or contractual term
In which situations will permission NOT be needed to serve out of the jurisdiction?
78
Most other circumstances (besides Hague Convention/contractual term)
In which situations WILL permission be needed to serve out of the jurisdiction?
79
Any method permitted by destination law; applicable regulation/convention/treaty; government of destination country
What are the possible methods of service outside of the UK?
80
Extended
What happens to the validity of the claim form and response times for the defendant when service is out of the jurisdiction?
81
Not possible to serve effectively through usual methods
What is the primary reason for seeking alternative service or dispensing with service?
82
Alternative service (CPR 6.15) or dispensing with service (CPR 6.16)
What are the two types of orders a court might make when usual service methods are ineffective?
83
Good reason (ineffective or impossible usual methods)
What must be shown to the court to permit alternative service?
84
Application to court explaining why usual methods not possible/unsuccessful and proposing alternative method
How is an order for alternative service sought?
85
Serving on solicitors not authorised to accept; placing advert in newspaper
Give examples of alternative service methods.
86
Order that steps already taken to bring claim form to defendant's attention is good service
What can the court order regarding steps already taken for alternative service?
87
Cannot be used retrospectively; cannot remedy irregular service
What are the limitations on the use of alternative service?
88
Other side is already aware of the document
In what situation might the court dispense with service of a document?
89
Amendment to particulars of claim where defendant agrees
Give an example of when a court might dispense with service of an amended document.
90
Very rare for claim form if other party unaware of proceedings
How often will the court dispense with service of a claim form when the other party is unaware?
91
Impossible to serve effectively (within or out of jurisdiction) through usual methods
When might the court allow alternative service?
92
Clear the other side is already aware of the documents
When might the court dispense with service?
93
Argue no jurisdiction at all OR argue court should decline to exercise jurisdiction
What are the two main ways a party might challenge the English/Welsh court's jurisdiction?
94
Claimant alleges jurisdiction under convention (e.g.
Hague); permission to serve out of jurisdiction challenged; proceedings served within jurisdiction but more appropriate forum exists
95
Depends on grounds claimant relies on (e.g.
challenge Hague Convention
96
Challenge that claim falls within Hague Convention or its interpretation; challenge common law rules apply or gateway met; argue England/Wales not proper place
Give examples of arguments a defendant might use to dispute jurisdiction.
97
No
defendant can still argue England/Wales is not proper place upon receipt of proceedings
98
File acknowledgement of service (CPR 11(2)) indicating intention to contest; apply within 14 days of filing acknowledgement with supporting evidence
What are the key procedural steps for disputing the court's jurisdiction?
99
Opposite of disputing; if party submits
cannot later dispute
100
Do not take steps to engage beyond acknowledgement of service and application to challenge (e.g.
do not file a defence)
101
Content for proceedings to continue in England/Wales
In what situation might a party be content to submit to the court's jurisdiction?
102
Attack basis of claimant's assertion of jurisdiction AND/OR argue England/Wales is not proper forum
What are the two main arguments a party will need to make when disputing jurisdiction?
103
File acknowledgement of service indicating dispute; apply to court within 14 days of acknowledgement
What is the procedural summary for disputing jurisdiction?
104
Opposite of disputing; prevents later challenge
What is the summary of submitting to jurisdiction?
105
Avoid engaging beyond acknowledgement and application to challenge
How can a defendant avoid submitting to jurisdiction procedurally?
106
Which country's laws govern a contractual dispute
What is the central question in conflict of laws regarding contract?
107
Regulation 593/2008 (Rome I)
What was the primary legislation governing contractual disputes prior to Brexit?
108
Adopted into English law (with minor amendments) by EU Exit Regulations 2019 and 2020
How was Rome I treated in English law after the Brexit transition period?
109
Rome I (as amended and retained)
What is the relevant law for contractual disputes in England and Wales post-Brexit (broadly)?
110
Article references are to amended Rome I
To which version of Rome I do article references in this context refer?
111
Some areas of law (Article 1); contracts before 17 Dec 2009; carriage
consumer
112
Parties' choice (Article 3)
What is the primary principle in determining the applicable law in a contractual dispute?
113
Expressly in the contract (choice of law clause)
How is the parties' choice of applicable law usually made?
114
Demonstrated by circumstances of the case; can be made at any time (even after dispute)
What are other ways the parties' choice of applicable law can be indicated and when can it be made?
115
Articles 4(1)(a) to (h)
In the absence of choice
116
Sale of goods: seller's habitual residence; provision of services: service provider's habitual residence; relating to land: where land situated; distribution: distributor's habitual residence
Name some types of contracts and the applicable laws under Article 4(1).
117
Central administration (company); principal place of business (natural person in business)
How is 'habitual residence' defined for a company and a natural person acting in business?
118
Law of country where party required to effect characteristic performance has habitual residence
If there is no choice and the contract doesn't fall under Article 4(1)(a)-(h)
119
Party doing the 'something' for which the other is paying
In a typical contract
120
Manifestly more closely connected with another country (Article 4(3))
When might a different country's law be applied even if applicable law is determined under Article 4(1) or 4(2)?
121
Not used lightly to avoid uncertainty
How is the "manifestly more closely connected" provision expected to be used by the courts?
122
No express/implied choice; contract for provision of services (Art 4(1)(b)); service provider (Vision) habitually resident in England
In the Vision Ltd example
123
Arguably "manifestly" more closely connected with Spain (Spanish bank
services to Spain
124
Applies to contracts on/after 17 Dec 2009; special rules for certain contracts not covered; parties free to choose law; absent choice
Art 4 specifies law for contract types (seller/provider/land/distributor's residence); if not listed
125
Which country's laws govern a tortious dispute
What is the central question in conflict of laws regarding tort?
126
Regulation 864/2007 (Rome II)
What was the primary legislation governing tortious disputes prior to Brexit?
127
Adopted into English law (with minor amendments) by EU Exit Regulations 2019 and 2020
How was Rome II treated in English law after the Brexit transition period?
128
Rome II (as amended and retained)
What is the relevant law for tortious disputes in England and Wales post-Brexit (broadly)?
129
Article references are to amended Rome II
To which version of Rome II do article references in this context refer?
130
Some areas of law (Article 1); events before 10 Jan 2009; product liability
unfair competition
131
Parties' choice (Article 14)
What is the primary principle in determining the applicable law in a tortious dispute?
132
After the event giving rise to damage
When is a choice of applicable law always effective in tort?
133
Before the event giving rise to damage
When is a choice of applicable law only effective in tort if both parties are commercial and the choice is freely negotiated?
134
Express agreement or demonstrated by circumstances
How can the parties' choice of applicable law be indicated in tort?
135
Claimant and defendant habitually reside in the same country (Article 4(2))
In the absence of choice
136
Country where central administration is (company); country where principal place of business is (natural person in business)
How is 'habitual residence' defined for a company and a natural person acting in business in the context of Rome II?
137
Law of the country in which the damage occurs (Article 4(1))
If there is no valid choice and the parties do not reside in the same country
138
Country where injury sustained or property damaged
In cases of personal injury or damage to property
139
Not where event giving rise to damage occurs
nor where indirect consequences occur
140
Tort is manifestly more closely connected with another country (Article 4(3))
When might a different country's law be applied even if applicable law is determined under Article 4(1) or 4(2) in tort?
141
Not used lightly to avoid uncertainty
How is the "manifestly more closely connected" provision expected to be used by the courts in tort cases?
142
No choice of law; claimant (IFL) in England
defendant (Transportation) in France; they don't reside in same country
143
Netherlands (where goods defrosted and became unusable)
In the IFL example
144
Belgium (where refrigeration turned off)
Where did the event giving rise to the damage occur in the IFL example?
145
England (failure to get paid)
Where might most of the indirect consequences of the tort be suffered in the IFL example?
146
Dutch law
Which country's law is the English court most likely to apply in the IFL example?
147
No manifest closer connection to another country (relevant factors for French
English
148
Applies to events on/after 10 Jan 2009; special rules for certain torts not covered; choice after event always effective
choice before only if commercial/freely negotiated; absent choice
149
Scotland and Northern Ireland
Besides England and Wales
150
Choice of law and jurisdiction
What two legal issues can arise in disputes within the UK involving different jurisdictions?
151
Conflict of laws
Which legal issue (choice of law or jurisdiction) is relatively simple within the UK?
152
Same way as if deciding whether French law applies
How does an English/Welsh court determine whether Scottish or Northern Irish law applies?
153
Conflict of laws in contractual and tortious disputes
To which other elements should you refer for the rules on choice of law within the UK?
154
Jurisdiction
Which legal issue (choice of law or jurisdiction) is more complicated within the UK?
155
Civil Jurisdiction and Judgments Act 1982 (the Act) (s.16 and schedule 4)
When the defendant is based in Scotland or Northern Ireland
156
Exclusive jurisdiction; jurisdiction agreements; submission; basic rule (sue where D domiciled); additional jurisdiction
What are the main principles of the Civil Jurisdiction and Judgments Act 1982 regarding jurisdiction within the UK?
157
Schedule 4
rule 11
158
Real property or tenancies in real property
What is a key type of dispute where the part of the UK where the property is situated has exclusive jurisdiction?
159
Slightly different rules for tenancies of 6 months or less for temporary private use
Are there any exceptions to the rule of exclusive jurisdiction for real property?
160
Schedule 4
rule 12
161
Parties agree that a particular part of the UK will have jurisdiction
What is the effect of a jurisdiction agreement under the Act?
162
Schedule 4
rule 13
163
Filing a defence rather than contesting jurisdiction
Give an example of how a party might submit to the jurisdiction of a court in the UK.
164
Cannot override exclusive jurisdiction rules
What is a limitation on the principle of submission to jurisdiction?
165
Schedule 4
rule 2
166
Resident there and nature/circumstances indicate substantial connection (s.41)
Broadly speaking
167
Where its 'seat' is (registered office or incorporation if no registered office) (s.42 and s.42A)
How is a company "domiciled" in a part of the UK?
168
Schedule 4
rules 3 and 5
169
Place of performance of the obligation (contract); place where harmful event occurred/may occur (tort); place of branch/agency (dispute from operations); domicile of any one defendant (multiple defendants with connected claims); court where original claim pending (counter-claim)
In what circumstances can a person be sued in a part of the UK where they are not domiciled?
170
Exclusive jurisdiction rules do not apply
In the computer hardware example
171
Parties agreed exclusive jurisdiction to Scotland
In the computer hardware example
172
Sue where defendant domiciled (Scotland) OR where contract performed (England)
If the exclusive jurisdiction clause was absent in the hardware example
173
Land disputes in location of land; upheld jurisdiction agreements; jurisdiction by submission; generally sue where defendant domiciled OR where contract performed/tort occurred
Summarise the key principles of jurisdiction within the UK under the Civil Jurisdiction and Judgments Act 1982.
