Topic 15 - Arbitration and Jurisdiction and conflict of laws

Question 1

What is arbitration in the context of commercial dispute resolution?

Answer 1

A process by which a dispute is resolved by an impartial adjudicator whose decision is final and binding.

Question 2

What are the two key stages when the question of arbitration typically arises?

Answer 2

• Negotiating a contract to include an arbitration clause
• Choosing arbitration after a dispute has arisen

Question 3

List some advantages of choosing arbitration over litigation.

Answer 3

• Privacy and confidentiality
• Easier enforcement in certain jurisdictions
• Ability to choose a specialist
• Flexibility to suit parties’ needs

Question 4

What does the term ‘tribunal’ refer to in arbitration?

Answer 4

The arbitrator(s) resolving the dispute.

Question 5

What is the purpose of the Arbitration Act 1996?

Answer 5

To provide the framework within which arbitration takes place in England and Wales.

Question 6

What are the three general principles outlined in Section 1 of the Arbitration Act 1996?

Answer 6

• Fair resolution of disputes by an impartial tribunal
• Freedom for parties to agree on dispute resolution
• Limited court intervention

Question 7

What are mandatory provisions in the Arbitration Act 1996?

Answer 7

Provisions that cannot be excluded by the parties.

Question 8

What must an arbitration agreement be in order to be enforceable under the Act?

Answer 8

In writing or evidenced in writing.

Question 9

What is the process if parties commence court proceedings despite an existing arbitration agreement?

Answer 9

• Acknowledge service to contest jurisdiction
• Apply to the court to stay proceedings

Question 10

What is required in an application under CPR 62.8?

Answer 10

• Application notice
• Draft order
• Evidence in support

Question 11

What is the common procedure for commencing arbitration?

Answer 11

One party serves a written request to arbitrate on the other.

Question 12

How is an arbitrator typically appointed?

Answer 12

According to the procedure in the arbitration agreement or the rules adopted.

Question 13

What is the general duty of the arbitrator as per Section 33 of the Act?

Answer 13

• Act fairly and impartially
• Provide reasonable opportunity for both parties
• Avoid unnecessary delay or expense

Question 14

What are the duties of the parties in arbitration according to Section 40 of the Act?

Answer 14

• Proper conduct of arbitral proceedings
• Comply with tribunal’s procedural determinations

Question 15

What is the purpose of a preliminary meeting in arbitration?

Answer 15

To establish a procedural timetable and give directions.

Question 16

What are the court’s powers under Section 44 of the Act?

Answer 16

• Taking evidence
• Preserving evidence
• Interim injunctions
• Appointing a receiver

Question 17

What is an arbitration claim?

Answer 17

An application made to court to decide whether an order under s. 44 should be made.

Question 18

What is the typical format of the arbitration hearing?

Answer 18

Conducted in private with only tribunal and parties allowed to attend.

Question 19

What does Section 46 of the Act state about the arbitrator’s decision?

Answer 19

The arbitrator will decide the dispute under the law chosen by the parties.

Question 20

What is the significance of an arbitration award?

Answer 20

It is equivalent to a judgment in litigation and is final and binding.

Question 21

What does Section 60 of the Act stipulate regarding costs in arbitration?

Answer 21

Any clause requiring one party to pay all costs irrespective of outcome is void unless agreed post-dispute.

Question 22

True or False: The arbitrator’s decision is always subject to appeal.

Answer 22

False

Question 23

Fill in the blank: An arbitration agreement must be _______ to be enforceable under the Act.

Answer 23

[in writing]

Question 24

What is a mandatory provision in the Act relating to costs?

Answer 24

Provision for the arbitrator to order one party to pay the costs of the arbitration

Other provisions include applying the general principle that costs will follow the event and allowing for costs awards to include the arbitrator’s fees.

Question 25

What is the general principle regarding the finality of an arbitrator's decision on questions of fact?

Answer 25

The arbitrator’s decision is final on questions of fact and there is no right of appeal to the court on a question of fact.

Question 26

What are the two basic types of challenge to an arbitrator's decision that cannot be excluded by agreement?

Answer 26

* Section 67 Challenge on jurisdiction * Section 68 Challenge for serious irregularity

Question 27

What is the non-mandatory challenge available in relation to an arbitrator's decision?

Answer 27

Section 69 Appeal on a point of law

Question 28

What steps can a successful party take if the unsuccessful party does not comply with the arbitration award?

Answer 28

* Bring an ordinary civil claim in the High Court * Use the summary procedure in section 66 of the Act

Question 29

What does section 66 of the Act allow a party to do?

Answer 29

Apply to the High Court for permission to convert the arbitration award into a court judgment.

Question 30

What is the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards?

Answer 30

It provides an extensive enforcement regime for international arbitration awards.

Question 31

What are the three considerations when a dispute has an international dimension?

Answer 31

* Do the courts of England and Wales have jurisdiction? * Which country's laws will apply? * Will it be necessary to enforce the judgment abroad?

Question 32

What is the difference between law and jurisdiction in legal disputes?

Answer 32

Law concerns which laws apply to decide the dispute, while jurisdiction concerns whether the English/Welsh courts can decide the dispute.

Question 33

What is the Hague Convention on Choice of Court Agreements?

Answer 33

It gives effect to certain jurisdiction agreements in international disputes.

Question 34

What types of matters does the Hague Convention apply to?

Answer 34

Civil and commercial matters.

Question 35

What types of disputes are excluded from the Hague Convention?

Answer 35

* Disputes with consumers * Employment matters

Question 36

What must a jurisdiction clause provide to fall under the Hague Convention?

Answer 36

It must give exclusive jurisdiction to a particular country.

Question 37

What is an 'asymmetric' agreement in the context of jurisdiction?

Answer 37

An agreement that allows one party to commence proceedings only in a specific country, while the other party can commence proceedings in any jurisdiction.

Question 38

What are the key considerations to ascertain jurisdiction under the Hague Convention?

Answer 38

* Is the matter a civil or commercial matter? * Is it an excluded matter? * Does the clause give jurisdiction to a Contracting State? * Is the agreement an 'asymmetric' one? * Is the agreement concluded/written? * Is jurisdiction given exclusively?

Question 39

What is necessary for the courts of England and Wales to have jurisdiction under common law?

Answer 39

* The defendant is present in the jurisdiction * The court gives permission to serve outside the jurisdiction * Jurisdiction is granted by a contract clause

Question 40

What is a jurisdictional gateway?

Answer 40

Grounds established to seek permission to serve outside of the jurisdiction.

Question 41

What are the three matters to establish permission to serve outside of the jurisdiction?

Answer 41

* Establish a ground in 6B PD 3.1 * Show the claim has reasonable prospects of success * Prove England/Wales is the proper place for the claim

Question 42

What does 'proper place' refer to in legal terms?

Answer 42

It refers to the most convenient or appropriate forum for bringing a claim.

Question 43

What is the claim sometimes referred to as?

Answer 43

forum conveniens

Question 44

Under what circumstances can England or Wales be the proper place to bring a claim?

Answer 44

If it is the natural place for proceedings, due to factors like witness location, applicable law, or defendant's residence

Question 45

What allows claimants to serve a claim form on a defendant outside the jurisdiction without court permission?

Answer 45

A contract containing a term that the courts of England and/or Wales have jurisdiction (CPR 6.33(2B))

Question 46

What is a 'gateway' in the context of serving a claim form outside the jurisdiction?

Answer 46

A basis for establishing jurisdiction when damage is sustained within the jurisdiction and results from an act committed there

Question 47

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

Answer 47

Six months (CPR 7.5(2))

Question 48

What must a claimant file to serve an English claim form abroad without permission?

Answer 48

Form N510

Question 49

What is required to serve an English claim form abroad with court permission?

Answer 49

An application to court using Form N244

Question 50

What methods of service are available for serving outside the UK?

Answer 50

* Service in accordance with an agreed regulation, convention, or treaty * Service through the government of the destination country * Service by any method permitted by the law of the destination country

Question 51

What happens to response times when a claim form is served out of the jurisdiction?

Answer 51

Extended periods for filing an acknowledgment of service/defense apply

Question 52

What is an order for alternative service?

Answer 52

A court order permitting service by a method other than those listed in the CPR when those methods are ineffective or impossible

Question 53

What discretion does the court have regarding dispensing with service?

Answer 53

The court may dispense with service if the other side is already aware of the document

Question 54

What must a defendant do to dispute the court's jurisdiction?

Answer 54

File an acknowledgement of service and apply within 14 days disputing jurisdiction

Question 55

What is the consequence of submitting to the court's jurisdiction?

Answer 55

The party cannot later dispute that jurisdiction

Question 56

What is a 'choice of law' clause?

Answer 56

A clause in a contract where parties choose which country's law will apply

Question 57

What is the applicable law for a sale of goods contract according to Rome I?

Answer 57

The law of the seller's habitual residence

Question 58

What is the applicable law for a service contract according to Rome I?

Answer 58

The law of the service provider's habitual residence

Question 59

What is the applicable law for a contract relating to land?

Answer 59

The law where the land is situated

Question 60

What determines the applicable law if there is no choice and the contract does not fall into specified categories?

Answer 60

The law of the country where the party required to effect characteristic performance has its habitual residence

Question 61

What is the condition for a court to apply a different country's law under Article 4(3)?

Answer 61

If the contract is manifestly more closely connected with another country

Question 62

What determines the applicable law for a contract without a choice of law clause?

Answer 62

The law of the service provider's habitual residence applies ## Footnote In this case, the service provider is Vision, habitually resident in England.

Question 63

Under Article 4(3), when can a court apply a different country's law to a contract?

Answer 63

If the contract is manifestly more closely connected with that other country ## Footnote This is meant to avoid uncertainty in the operation of Rome I.

Question 64

What is the significance of habitual residence in determining applicable law?

Answer 64

It indicates the location of a party's central administration or principal place of business ## Footnote This applies to both individuals and companies.

Question 65

What is the general rule regarding applicable law in tortious disputes when there is no valid choice?

Answer 65

The law of the country where the damage occurs applies ## Footnote This rule applies even if the event giving rise to damage occurred elsewhere.

Question 66

What are the criteria for parties to choose which country's law should apply to their agreement?

Answer 66

The choice must be effective and can be express or demonstrated by circumstances ## Footnote The choice is only effective if both parties are pursuing a commercial activity.

Question 67

What happens if both the claimant and defendant habitually reside in the same country?

Answer 67

That country's laws will apply ## Footnote This holds true even if the damage occurred in a different country.

Question 68

In cases of personal injury or property damage, where is the damage deemed to occur?

Answer 68

In the country where the injury was sustained or where the property was damaged

Question 69

What is the starting point for jurisdiction if none of the exclusive rules apply?

Answer 69

A person domiciled in a part of the UK should be sued in the courts of that part ## Footnote This is based on the Civil Jurisdiction and Judgments Act 1982.

Question 70

What type of disputes have exclusive jurisdiction based on location?

Answer 70

Disputes concerning real property or tenancies have exclusive jurisdiction where the property is situated ## Footnote There are specific rules for tenancies of 6 months or less.

Question 71

What is the rule for suing a defendant in a different part of the UK in matters relating to contracts?

Answer 71

In the courts for the place of performance of the obligation in question

Question 72

What is the rule regarding tort claims in relation to jurisdiction?

Answer 72

In the courts for the place where the harmful event occurred or may occur

Question 73

What is the effect of a party submitting to the jurisdiction of a UK court?

Answer 73

That court will have jurisdiction ## Footnote This is subject to exclusive jurisdiction rules.

Question 74

What is the significance of Article 4(2) in tort cases?

Answer 74

It applies if the claimant and defendant habitually reside in the same country

Question 75

What happens if a claimant wishes to bring a breach of contract claim against a supplier based in another part of the UK?

Answer 75

They can sue where the defendant is domiciled or where the contract is to be performed ## Footnote This depends on whether there is an exclusive jurisdiction clause.