SGS 10: Foreign Jurisdiction

Question 1

When does international jurisdiction become an issue?

Answer 1

• Is one of the parties located abroad

- Is contract performed abroad?

Question 2

What are the 2 key questions re jurisdiction?

Answer 2

1. In which jurisdiction can proceedings be brought?

2. Which country laws govern the claims?

Question 3

What are the key jurisdiction regimes?

Answer 3

1. Regulation

2. Common Law Rules

Question 4

Does the ‘jurisdiction’ mean the UK?

Answer 4

• No, it means England & Wales.

Question 5

Give a summary of the questions that need to be asked for Regulation?

Answer 5

1. Does the regulation apply?
2. Do the EW courts have jurisdiction under the Regulation to determine the claim
3. Will the courts of EW accept jurisdiction?

Question 6

QUESTION 1 to ask for the regulation: explain the question of “does the regulation apply”

Answer 6

International element
- Does not have to be a member state

Material scope

• Connection with EU member state AND
• Domicile of D (Art 4) Individual Art. 62 – whether someone is domiciled in E&W is a matter of English Law. Companies Art. 63 – domiciled if has statutory seat/central admin/principal place of business in E&W.
• Exclusive jurisdiction (Art. 24) – Specific types of cases e.g. land which must be heard in a particular jurisdiction.
• Choice of jurisdiction (Art 25) – Agreement by the parties as to which jurisdiction should be used to settle any disputes which may arise.

Temporal scope

• This applies for proceedings that started on / after 10 Jan 2015
• According to Article 61 & 81

Question 7

QUESTION 2: to ask for the regulation:

Do the Courts of E & W have jurisdiction under the Regulation to determine the claim?

Answer 7

Relevant article
Exclusive jurisdiction - Art 24
Submission - Art. 26 – i.e. Takes any step in the court process E.g. serving AoS or Defence
Choice of jurisdiction - Art. 25
General rule (domicile of D) - Art. 4
Special rules - Articles 7-8
- Contract 7(1) – Where goods delivered or services provided
- Tort 7(2) – Where harmful event occurred
- Agency 7(5) – Where the branch/agency is situated
- Co-Defendants 8(1) – Where co-D is domiciled, provided claims are so closely connected
- 3P 8(2) – In court in which original claim is pending
- Counterclaims 8(3) – In court in which original claim is pending
Are there weaker party exceptions? – Art. 10-19
- Insurance
- Consumer – Tend to be able to bring proceedings in the consumer’s domicile where there is a significant difference in bargaining power.

Question 8

What happens if Article 4, AND 7-8 both apply?

Answer 8

• Then the claimant has a choice

Question 9

QUESTION 3: to ask for the regulation:

1. Will Courts of E & W accept jurisdiction?

Answer 9

• Lis Pendens – same cause of action, 2nd court must stay proceedings – Art. 29
• Related Actions – related cause of action, 2nd court may stay proceedings – Art. 30

‘Court first seised’ – Art. 32 – deemed when (i) document initiating proceedings is received by the court or (ii) when it is received by the agent responsible for service.

Question 10

What are the aspects of the common law rules?

Answer 10

• Presence
• Submission
• Permission

Question 11

Explain the (1) PRESENCE aspect of the common law rules?

Answer 11

• Have to consider the difference for individual, company or partnership, or
  † If proceedings are served whilst D is within the jurisdiction (permanent or temporary)
  † NB. Court has discretion to stay proceedings if considers E&W is not forum conveniens – D can challenge jurisdiction on this basis but has the burden of proof.

Question 12

Explain the (2) SUBMISSION aspect of the common law rules?

Answer 12

• If appointing an agent within the jurisdiction – must be clear instructions to the other side – ‘this is the solicitor on whom you can serve proceedings’ – E.g. appointing a solicitor in England & Wales
• Appearing in proceedings.

Question 13

What should be done to avoid submitting to the jurisdictions?

Answer 13

• D should not do anything more than
  (i) Acknowledge service within time limit, indicating intention to dispute jurisdiction,
  (ii) Apply under CPR 11 for a declaration that English courts lack jurisdiction.

Question 14

Explain the (3) PERMISSION aspect of the common law rules?

Answer 14

Grounds

(i) Establish a jurisdictional gateway – CPR 6.37(1)(a) – 6B PD 3.1
Š Necessary or proper party (3) and (4)
Š Contract (6) and (7)
Š Tort (9)

Reasonable prospect of sucess

(i) CPR 6.37(1)(b) –
- This is a low threshold

E & W is the proper place to bring the claim

• Court has discretion. This is a 2 stage test
  Stage 1 i. Is E & W natural Forum, and if not…
  
  • Residence/Place of business of D
  • Governing law
  • Availability of witnesses
  • Cost/delay/inconvenience to proceedings
  • Language problems/experts needing to travel
    Stage 2 i. Does substantial justice require case to be heard in E &W anyway?
  • Legal aid in one jurisdiction but not the other?
  • Risks of assassination?
  • Lack of a fair trial?
  • Risk of improper government interference/corruption?

Question 15

Is the courts permission required to serve a claim form abroad when the Regulations do not apply?

Answer 15

• Yes

- CPR 6.36

Question 16

Explain the process of applying for permission to serve the CF outside of the jurisdiction?

Answer 16

CPR 6.37 – Applying for Permission to serve the CF outside the jurisdiction

(1) An application for permission under CPR 6.36 must set out –
(a) Which ground in paragraph 3.1 PD 6B is relied on;
(b) That C believes the claim has a reasonable prospect of success; and
(c) The D’s address or, if not known, in what place the defendant is likely to be found.

(2) The court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim.