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Sem 1 And 2 Thwarting Other Side Notes

BCL Law Notes > Conflict of Laws Notes

This is an extract of our Sem 1 And 2 Thwarting Other Side document, which we sell as part of our Conflict of Laws Notes collection written by the top tier of University Of Oxford students.

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THWARTING THE PARTY WHO HAS BROUGHT PROCEEDINGS IN A FOREIGN COURT

GENERALLY

1. To get an anti-suit injunction or declaration of non-liability against D from an English court, you have to bring proceedings against D in an English court

2. SO, this means you need to get personal jurisdiction over D. This is exactly the same as if you were to sue him. Just apply Brussels I/Common Law as you would if you were suing D.

3. REMEMBER: you can get an anti-suit injunction against D when you have jurisdiction under Brussels I. You just can't get it against a MS court. If, for example, D lives in Ruritania, and you have jurisdiction over him under Art

22. Then you can get an anti-suit injunction against him.

Declaration of Non-Liability

1. The Tatry - If English court has jurisdiction over D under Brussels I, and C has an action for a declaration of non-liability, D cannot object to this on jurisdictional grounds (ie. he can't apply for a stay) as there is no wrong in a court with jurisdiction under the Regulation doing this BUT

2. If English court has jurisdiction over D under CL, D can object to jurisdiction in the same way he would if C was suing D.

Lis Alibi Pendens

1. If there are proceedings in another MS, you can't get an anti-suit injunction (turner v Grovit) AND 1

2. You can't bring proceedings for a DNL as this would be against Art 27 (indirectly confirmed by The Alexandros T)

ANTI-SUIT INJUNCTION

WHERE IT APPLIES

1. You can get an anti-suit injunction irrespective of whether England has jurisdiction over the matter under Brussels I, Residual Jurisdiction or just plain CL (indeed, you don't need to have proceedings in England at the time).

2. The point is, you can't have an anti-suit injunction of another MS according to Turner v Grovit (European Court)

3. But besides that, you can get an anti-suit injunction for other non-MS whether Brussels I applies or not

STATUTORY TEST (still applies to anti-suit injunction)

1. s.37 Senior Courts Act 1981 - where it's just and convenient

WHAT NEEDS TO BE SHOWN TO GET AN ANTI-SUIT INJUNCTION

*

PROCEDURE: anti-suit injunction is a final relief (although interim anti-suit is possible) so R must be served with process in order to be subjected to the personal jurisdiction of the court in respect of the claim for an injunction. So it needs to be permission out, D submits or is present in the jurisdiction (or alternatively whatever is needed to satisfy Brussels I - remember you can have jurisdiction under Brussels I and still get an anti-suit injunction - the key point is you just can't get it against another MS). None of the subsections of CPR

2

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