Jurisdiction and conflict of laws

Question 1

The question of ‘jurisdiction’ is concerned with…

Answer 1

Which courts can determine a dispute.

Question 2

The topic of choice of law or conflict of laws is about…

Answer 2

Whether a dispute is determined according to the law of England and Wales, or some other country’s law.

Question 3

What is the connection between jurisdiction and applicable law?

Answer 3

The two things should be considered separately.

Question 4

Broadly when does the Hague Convention apply?

Answer 4

The parties have contractually agreed the jurisdiction.
The Hague Convention is about choice of court agreements – where the parties have chosen the court (contractually).

Question 5

In order for the Hague Convention to apply, jurisdiction must be given to a contracting state (a state which has signed up to the Convention) exclusively. This means…

Answer 5

A contracting state has jurisdiction and nowhere else has jurisdiction.

Question 6

In order to obtain permission to serve proceedings out of the jurisdiction, three matters must be established.

Answer 6

England and Wales must be the ‘proper place’ in which to bring the claim

The claim must have reasonable prospects of success

The claimant needs to establish one of the gateways in the CPR, such as that the claim is a breach of contract committed in the jurisdiction

Question 7

If the three matters are established, then the court…

Answer 7

…may grant permission to serve out of the jurisdiction.

Question 8

A French citizen is in England for 1 month for business purposes. It is likely to be best to serve proceedings on him in relation to a claim against him personally by….

Answer 8

personal service on him whilst he is in England.

Question 9

A party can serve proceedings outside of the jurisdiction without the court’s permission if…

Answer 9

the contract contains a term to the effect that the courts of England and/or Wales shall have jurisdiction to determine that claim (whether or not jurisdiction is exclusive); or

the Hague Convention on Choice of Court Agreements gives the court jurisdiction

Question 10

Where a claim form has validly been issued, the period for service where the claim form is to be served outside the jurisdiction is how many months?

Answer 10

6 months

Question 11

Where a claim form is served out of the jurisdiction without the permission of the court, how will the court know on what basis it is alleged that the court has jurisdiction over the foreign defendant?

Answer 11

This is indicated on Form N510 filed when the claim is issued.

Question 12

How long does the defendant have to respond to proceedings (with either an acknowledgement of service or a defence) when served out of the jurisdiction?

Answer 12

This varies, depending primarily on the country in which service takes place.

Question 13

Alternative service is…

Answer 13

…serving by a method not generally permitted by the CPR.

Question 14

In order to obtain an order for alternative service, it is generally necessary to show that…

Answer 14

…the usual methods of service are impossible / ineffective.

Question 15

Is the court likely to dispense with service of a claim form?

Answer 15

This is very unlikely unless the defendant is aware of the proceedings.

Question 16

A defendant who objects to the jurisdiction of England and Wales should do what?

Answer 16

Indicate this on the acknowledgement of service and then apply to court disputing the court’s jurisdiction.

Question 17

Within how many days after filing an acknowledgement of service must an application disputing the court’s jurisdiction be made?

Answer 17

14

Question 18

The effect of submitting to the court’s jurisdiction is that…

Answer 18

… the court is, for practical purposes, given jurisdiction.

Question 19

Rome I applies (with some exceptions) to…

Answer 19

…contracts entered into on or after 17 December 2009

Question 20

Once you have determined that Rome I applies, the starting point with Rome I is to consider…

Answer 20

…whether the parties have made a choice of law.

Question 21

In the absence of a choice of law by the parties, a sale of goods contract is most likely to be governed by the law of…

Answer 21

…the country where the seller habitually resides.

Question 22

Rome II applies (with some exceptions) to…

Answer 22

…events giving rise to damage which occur on or after 10 January 2009

Question 23

Once you have determined that Rome II applies, the starting point with Rome II is to consider…

Answer 23

…whether the parties have made a choice of law.

Question 24

In the absence of a choice of law by the parties and assuming both parties are not resident in the same jurisdiction, the general rule is that the applicable law is that of…

Answer 24

…the country where the damage occurs.