4. Jurisdiction Notes

Jurisdiction

Notes on how to approach jurisdiction for a claim

Rules applicable within Europe (determines by international convention and legislation):

Governed by the Jurisdiction Regulation (Reg 44/2001/EC) (WB Vol 2)

As it is a regulation it has direct effect without subsidiary implementing legislation.

Article 1 – scope

“Civil and commercial matters whatever the nature of the court of tribunal. It shall not extend in particular, to revenue, customs or administrative matters”.

Does not apply

Status or legal capacity

Matrimonial property

Wills and succession

Bankruptcy/insolvency/winding up

Social security

Arbitration

Article 2 – Basic domicile rule (of limited relevance)

“Subject to this Regulation, persons domiciled in a member state shall whatever their nationality, be sued in the courts of that member state”.

Convention applies even where claimant is not domiciled in contracting State but is seeking to bring an action against a defendant based in one of them –

Universal General Insurance Co v Group Josi Reassurance Co SA (Case C 412/98) [2000] ECR 1 – 5925

The issue of domicile is one of that member state, who is “domiciled” in England –

Civil Jurisdiction and Judgments Order 2001 (SI 2001/3929) SCH 1 paras 9-12

(for Lugano see ss41-46 of CJJA 1982)

“a) he is resident in the United Kingdom; and

b) the nature and circumstances of his residence indicate that he has a substantial connection with the UK

• presumed to have a substantial connection after being resident for 3 months

Corporation is domiciled (Art 60 of Jur Reg)

“seat, central administration or principal place of business”

CJJO –

“A corporation or association has its seat in the UK if and only if:

1. It was incorporated or formed under the law of a part of the UK and has its registered office or some other official address in the UK; or

2. Its central management and control is exercised in the UK”

Article 5 – Exceptions to the domicile rule (i.e. when you do not have to sue in the defendant’s domicile (and not an area otherwise excluded))

Contract

“A person domiciled in a Member state may, in another Member State, be sued:

1. In matters relating to a contract, in the courts or the place of performance of the obligation in question;

2. For the purpose of the provision and unless otherwise agreed, the place of performance of the obligation in question shall be:

• In the case of a sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered (note: for a CIF contract this is where the goods go on the ship: Scottish v Newcastle)

• In the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided.

3. If (b) does not apply, then (a) applies”

Tort

Handelskewkerif G.J.Bier BV v Mines De Potasse D’Alsace SA (Case 21/76) [1978] QB 708. Claimant has option of either starting where wrongful act ot omission or damage.

N.b. as well as “special jurisdiction” above, the Reg provides for certain types of dispute the courts of a particular country will have jurisdiction. E.g. insurance, consumer, employment, land and company constitution (See Arts 6-22).

Article 23 – Requirements of a jurisdiction clause

Exclusive jurisdiction clause

Where parties agree that a dispute can only be proceeded with in England and Wales

“(1) If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or courts of a Member State are to have jurisdiction to settle any disputes which have arisen or may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise.”

Requirements of such a clause

• In writing

• In a form which the parties have established among themselves

• In international trade or commerce, in a form which

Accords with usage of which the parties are or ought to have been aware

Is widely known in the trade, and

Is regularly observed in the trade

• If electronic, a durable record equivalent to being in writing

Service

CPR r.6.33

Must ensure that

• English courts have jurisdiction (as above)

• There are no current proceedings concerning the same claim in any other UK court or court within a contract state; and

• D must be domiciled in UK or a contracting state or the English courts must otherwise have jurisdiction over D under the Reg or Convention either because of an agreement as to jurisdiction or under certain rules regarding exclusive jurisdiction

Rules applicable between England and the rest of the world (governed by common law)

Non EU/EFTA states.

2 ways to bring a claim against a foreign D –

1. The basic rule, service of the claim within the jurisdiction

2. Obtaining permission to serve the claim form outside of jurisdiction

Service in jurisdiction

Individual –

Maharanee of Barona v Wildenstein [1972] 2 QB 283

Possible to serve on an individual in the country, even if temp stay.

Companies –

CPR r.6.3(2) – company may be served by any method permitted by either the CPR Part 6 or the Companies Legislation.

Branch of foreign company within jurisdiction –

S1139(2) companies Act 2006 makes provision for service within jurisdiction where the company has registered as an overseas company under the Act.

Service on director of foreign company in jurisdiction

SSL International plc v TTK LIG Ltd [2011] EWCA Civ 1170; [2012] 1 ELR 1842 this is not so

Parties...

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