Law Notes Conflict of Laws Notes
Conflict of Laws notes fully updated for recent exams in the UK. These notes cover all the major conflicts of laws cases and so are perfect for anyone doing a law degree in the UK or, given the international nature of this subject, these notes also make a great supplement for those studying law abroad.
These notes were formed directly from a reading of the cases and main texts and are vigorous, concise and very well written. Everything is conveniently split up by topic as you can see by the l...
The following is a more accessible plain text extract of the PDF sample above, taken from our Conflict of Laws Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
JURISDICTION UNDER BRUSSELS I REGULATION (PART 1)
Brussels I Regulation will govern grounds for exercising jurisdiction if:
Regulation applies to subject matter of the dispute; and
There is sufficient connection with the EU
When Does BIR Apply?
Subject-Matter of Proceedings
‘Civil and Commercial Matters’
Article 1: Regulation only applies to civil and commercial matters.
Exercise of public law powers by public authority fall outside scope of Regulation.
However if relationship between public authority and other party to case is governed solely by private law, is inside scope of BIR.
Case falls inside scope of regulation insofar as it does not involve an exercise of powers by State going beyond that existing under rules governing private relations
Preservatrice Fonciere TIARD SA v Netherlands [2003]
Even where a body is acting in exercise of public law powers, case still inside scope of Regulation if the subject-matter of proceedings is private.
Verein fur Konsumenteninformation v Henkel [2002]
Excluded Matters
Bankruptcy
For case to fall outside BIR, bankruptcy must form ‘principal subject matter of proceedings’
Thus even where dispute arises out of bankruptcy, may still fall under BIR.
e.g. where trustee in bankruptcy makes order for sale of property
Ashurst v Pollard [2001]
Arbitration
Arbitration proceedings themselves fall outside scope of Regulation
Marc Rich [1991] (ECJ)
However when determining whether court proceedings to do with arbitration fall within Regulation, test is whether essential nature of substantive dispute is within Regulation.
The Wadi Sudr [2010]
Thus judgment may fall in BIR if arbitration is preliminary to main issue of proceedings
hinted at in Marc Rich [1991] (ECJ)
The Wadi Sudr [2010]
ECJ had earlier held that applications for interim relief measures under (what is now) Art 31 Regulation where a valid arbitration clauses existed was not excluded from BIR
i.e. as for Art 31, the subject-matter of proceedings on merits is irrelevant
is relevant factor is the aim of interim measures sought
where measures are to protect C from financial loss, fall within Regulation
Van Uden [1998]
Regulation however does not apply to proceedings “in support” of arbitration:
decisions on whether arbitration agreement is valid or not
Van Uden Maritime [1998] (ECJ)
injunctions against parties continuing arbitration once it has been decided an arbitration clause is invalid
Van Uden Maritime [1998] (ECJ)
nor decisions of a court asked to appoint an arbitrator under an arbitration clause
Marc Rich [1991] (ECJ)
Sufficient Connection to EU
Regulation is engaged where matter is ‘civil and commercial’ and if either:
D is Community-domiciled
D is not Community-domiciled, but either Art 22 or 23 apply.
Article 4
If D is not domiciled in any Member State, jurisdiction falls to be determined by the national rules of relevant Member State.
unless Art 22/23 apply
Domicile of claimant is irrelevant to application of Brussels Regulation.
Thus can be jurisdiction under BIR even if C is domiciled in a third-State.
Group Josi Reinsurance [2000] (ECJ)
Domicile
Individuals
Article 59: a party’s domicile falls to be determined by national law.
i.e. if D claims he is domiciled in Member State A, law of Member State A must be applied to see if this is case.
even if claim is being heard in a different MS to one in which D claims domicile
Even if D resides in non-Member State, may still fall under BIR if he has ‘special business domicile’ in an MS (under that MS’s law)
Haji-Ioannu v Frangos [1999]
Civil Jurisdiction and Judgments Order 2001
Para 9, Schedule 1
C is domiciled in UK only if:
Resident in UK; and
Nature and circumstances of residence show C has substantial connection with UK
Where C has been resident in UK for three months or more, C presumed to be domiciled in UK unless contrary is proven.
Corporations
Article 60
For purposes of Regulation, company or legal entity is domiciled at place in which it has its:
statutory seat; or
central administration; or
principal place of business
For purposes of companies domiciled in UK, “statutory seat” means registered office/place of incorporation.
Principal place of business is place at centre of company’s operation
King v Crown Energy Trading AG [2003]
Thus not necessarily place in which most of company’s business is carried out
Rather it is place where company is controlled or managed
Ministry of Defence of Iran v FAZ Aviation [2007]
Thus under rules for domicile in BIR, is possible for individual or a company to be domiciled in more than one Member State
e.g. where central administration and principal place of business in different MSs.
Special Jurisdiction
Where D is not domiciled in EU:
case falls under Article 23 if C is EU-domiciled
if both D and C are not EU domiciled
case only falls under BIR if Article 22 applies.
if Art 22 does not apply, jurisdiction allocated by Article 4
Bases of Jurisdiction
Where shown that a case falls under BIR, bases of jurisdiction are:
Special interest
Consent of parties
Submission
Domicile
Special jurisdiction
Special Contracts
Are two ways in which priority of jurisdictional bases is allocated:
Hierarchy
certain bases of jurisdiction are stated by Regulation to have priority over others
Chronology
where no country has exclusive jurisdiction, country of courts first seised by claimant have jurisdiction
Hierarchy
Article 22 has priority
This clear from wording of Arts 23+24
Article 24 (subsequent agreement) overrides Art 23 agreement
Article 23 – an exclusive prior jurisdiction clause overrides general grounds.
if none of these exist
Article 2, Article 5, Article 23 (if jurisdiction clause non-exclusive)
Chronology
Where no grounds has priority, jurisdiction allocated on basis of chronology (see sup 2)
Exclusive
Special interest – Article 22
Allows...
Buy the full version of these notes or essay plans and more in our Conflict of Laws Notes.
Conflict of Laws notes fully updated for recent exams in the UK. These notes cover all the major conflicts of laws cases and so are perfect for anyone doing a law degree in the UK or, given the international nature of this subject, these notes also make a great supplement for those studying law abroad.
These notes were formed directly from a reading of the cases and main texts and are vigorous, concise and very well written. Everything is conveniently split up by topic as you can see by the l...
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