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Jurisdiction Selection Challenging Jurisdiction Notes

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Jurisdiction Selection Where can proceedings be issued? - EU Jurisdiction flowchart Brussels Regulation Recast (1215/2012). Consider CPR 6.36 and 6.37 and an application for permission to serve out of the jurisdiction. Documents to be served with claim form.

The claimant should ask whether the defendant has submitted to the jurisdiction of the particular court? In England and Wales this generally occurs when the defendant files a defence. Any clause in the contract conferring jurisdiction on another court would be

Under Section 41 of the Civil Jurisdiction and Judgments Act 1982 an individual is domiciled in England and Wales if they're resident there and the nature and circumstances of their residence indicate a substantial connection with the United Kingdom

Art 1 excludes:

1. Revenue, customs or administrative matters; Liability of the State

2. (a) Legal capacity, matrimonial property (b) Bankruptcy (c) Social security (d) Arbitration (e) Maintenance obligations Art 24 (1) (2) (3) (4) (5)

Property situated (in rem) Validity of companies Validity of public registers Validity of patents, TM etc Enforcement of judgments

if a defendant wishes to challenge the right of the courts of England and Wales to hear a case they must acknowledge service of the claim form to prevent default judgment being entered against them. The defendant must then challenge the jurisdiction of the court with an application under CPR 11 within 14 days, on the ground that there is a valid clause in the contract conferring the right to hear the case in another court in the EU. The defendant must take care not to file a defence or they will lose their right to challenge under CPR 11 as they would be deemed to have submitted to the

'Forum shopping' once a court is "seised of proceedings" (that is proceedings have been validly started according to the law of that state) then the courts of another state must decline jurisdiction over any claim involving the same cause of action and the same parties. (Art 29; Art 32)

Rules on jurisdiction Defendant in EU under Reg 1215/2012 (Brussels Regulation) Step by Step Apply the rules of jurisdiction to cases involving Defendant inside EU and advise client of appropriate jurisdiction It is possible to seek interim relief such as injunction in the courts of any MS in aid of proceedings being taken elsewhere in the EU if it is just and convenient to do so (client gets a choice if more than one article is satisfied)

Is it a Civil or Commercial Matter? (Art 1) Brussels regulations does not apply to:
? Para 2(a) - Questions of status or legal capacity of natural persons, rights in matrimonial property, wills or succession
? Para 2(b) - bankruptcy or winding up of companies
? Para 2(d) Does not apply to arbitration (including disputes as to whether there is an arbitration agreement)
? Para 2(e) maintenance obligations arising from a family relationship
? Para 2(f) wills and succession Client who enters into agreement whereby all disputes will be resolved by arbitration England has by-passed the Brussels Regulation (recast) (Recital 12) - does not prevent courts from determining if arbitration clause operative

YES Is there exclusive jurisdiction? (Art 24) Parties cannot alter the rules by agreement and do not have option of suing in D's local courts for the following:
? 24(1) Land = courts where the property is situated (minor exception for short leases). Equitable interests and declaration of trusts also outside of scope
? Companies - 24(2) = validity of constitution/dissolution of co, association, other legal person jurisdiction where co has seat
? 24(4) IP = registration/validity of patents/TP/designs and other registered intellectual property rights must be taken in state where reg was applied for or has taken place (infringement not covered and subject to the normal rules)
? Entries in public reg 24 (3)= State where the register is kept
? Enforcement 24(5) State where judgement is being enforced

NO Has there been submission to a particular jurisdiction? (Art 26) If D voluntarily submits to the jurisdiction of a foreign court then irrespective of 1215/2012 that court will usually be entitled to deal with case
? Any clause in contract is overwritten if D does this.
? If acting for D do not submit to jurisdiction otherwise will not be able to challenge it:E&W acknowledge service of claim form to prevent Default Judgement and challenge jurisdiction under CPR 11 within 14 days (28 days in commercial/mercantile court) don't file defence (CPR 11 extends time for filing defence until court rules on jurisdiction)
? Another EU country - contact solicitor in that country for advice on how to challenge
? It is not possible to submit to jurisdiction if exclusive jurisdiction (above) applies

NO Is it an insurance (Art 10-16)??Insured can also sue insurer in courts of state where inured is based, but may use insurers local court if prefers (Art 11) Insurer must sue in insured's local courts art 14(1) Liability insurers and insurers of immovable property can be sued in courts for state where

?harm giving rise to the claim occurred (Art 12) Jurisdiction can only be altered by agreement after dispute has arisen (Art 15) Above doesn't apply to reinsurance

Or consumer (Art 17-19) contract???

Consumer can usually "play at home" - although there is special rules for transport contracts Jurisdiction can only be altered by agreement after dispute has arisen (Art 19) Consumer = person entering into contract for purpose outside of his trade/profession Consumer contract = SOG on instalment credit terms/loan repayable by instalments/credit
[HPA]/ contract for activities outside of a persons commercial or professional activities in the consumers MS of domicile [internet selling]

NO Is there a jurisdiction agreement between the parties? (Art 25)??Parties to contract/dispute may agree to confer jurisdiction on courts of whichever state they choose In writing, evidenced in writing or capable of being inferred from international trade/commercial activity Should also state which country's laws apply and if doesn't then Rome convention applies Should analyse the jurisdiction clause along with limitation clause to see if valid

Where there is a valid jurisdiction clause conferring the right on a particular court to hear the case and the claimant issues in a different court the defendant has a very strong ground for challenging the jurisdiction of that court.
? If not, must challenge the proceedings using the appropriate procedure and within the specified time limits of the country in which the action has been commenced
?????if a defendant wishes to challenge the right of the courts of England and Wales to hear a case they must: o acknowledge service of the claim form to prevent default judgment being entered against them; o then challenge the jurisdiction of the court with an application under CPR 11 within 14 days, on the ground that there is a valid clause in the contract conferring the right to hear the case in another court in the EU. o The defendant must take care not to file a defence or they will lose their right to challenge under CPR 11 as they would be deemed to have submitted to the jurisdiction to the courts of England and Wales. NO BASIC RULE - Where is D domiciled/have its seat? (Art 4)??

D must be sued in his home courts D domicile is ascertained on basis of facts as they exist when proceedings issued Individual o s.41 CJJA 1982 - domicile = place with which a person has a substantial connection, bearing in mind the nature and circumstances of his residence indicate a substantial connection o 3 months residence will prima facie establish domicile (rebuttable presumption) Note: defendants can be served with proceedings whilst they are in E&W however briefly, then the courts will have jurisdiction

Company/Corporate Body o o

Corporate body (article 63) - seat = registered office or other official address or place where centrally managed/controlled Can be sued where branch, agency or other establishment is located (Art 7(5)) where foreign branch then check with the Registrar of Companies for identity of person authorised to accept service

UNLESS

Exceptions to basic rule

Contract (Art7(1)) Courts of the state for the place of performance of the obligation in question
? Contract may specify (e.g. clause as to where payment to be made)
? If not specified:
? goods = where the goods were to be delivered
? services = where the services were to be provided
? More than one obligation, the principle obligations courts have jurisdictions.
? Obligations rank equally = D local court will be able to hear entire claim and court elsewhere will only be able to deal with that part of dispute which related to the term to be performed in its jurisdiction???

Tort (Art 7(3)) Jurisdiction on courts of state where the physically harmful event occurred or may even occur (this includes where the harm caused by the tort occurred) C can choose to sue either where the tort was committed OR where the damage occurred Courts where D domiciled/had seat could deal with the harm caused in all MS whereas court for state where occurred could only award remedies for harm which occurred in that state Court for state where C commences decides whether D conduct is a tort or has caused a harmful event under laws of state Misrepresentation cases = jurisdiction with state where misrepresentation made not where it was received?Branch (Art 7(5)) Co domiciled in one EU state but the dispute arises out of activities of a branch, agency of other establishment in another EU state then C can elect to sue in the courts of that state instead Merely instructing an independent trader to represent interests in a country isn't enough

If a foreign company has an established place of business within the jurisdiction, proceedings can be served on it there under s 1139 of the Companies Act 2006 in order to give the English court jurisdiction.Co-Defendants (Art 8(1))
? Only applies where court has jurisdiction over primary D under basic rule (alternatives to basic rule do not allow Co-D's to be joined)
? 1 D domiciled in England, can be sued here then C can join other D's even if domiciled elsewhere
? D can issue part 20 proceedings joining parties over whom English courts would not have had jurisdiction
? Third party (Art 8(2))
? Claims must be so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgement resulting from separate proceedings
? Counterclaim (Art 8(3))

The UK Convention:
? UK convention (deals with Scottish and English courts) Sch 4 CJJA 1982 [ same rules as Brussels Regulation Recast apart from]
? IP rights are not civil and commercial matters and disputes are subject to common law rules which apply to rest of the world
? No special rules on insurance contracts
? Does not require jurisdiction agreements to be written, they may also be oral 2007 Lugano Convention
? non-EU Western European countries of Iceland, Norway and Switzerland
? Excludes the Channel Islands, Isle of Man (not part of UK or EU).

Jurisdiction summary for selecting EU jurisdiction The following questions can be used to determine if the court/s of a Member State of the EU has jurisdiction under the Brussels Regulation Recast (1215/2012). Q1: Does the dispute concern a Civil or Commercial matter for the purposes of Art 1?
(a) Yes: go to Q2. (b) No: the Brussels Regulation Recast does not apply. Q2: Is exclusive jurisdiction conferred on the court/s of a Member State pursuant to Art 24?
(a) Yes: proceedings must be taken in that court. (b) No: go to Q3. Q3: Have the parties agreed for the purposes of Art 25 that the court/s of a Member State are to have jurisdiction to deal with the dispute?
(a) Yes: proceedings must be taken in that court. (b) No: go to Q4. Q4: Has the defendant entered an appearance in proceedings in the court/s of a Member State for the purposes of Art 26?
(a) Yes: proceedings will continue in that court (unless the appearance was entered to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Art 24). (b) No: go to Q5. Q5: Is the defendant domiciled in a Member State for the purposes of Art 4?
(a) Yes: proceedings must be taken in that court unless any of the alternatives listed below apply. (i) By Art 7(1) where the claim is in contract the proceedings may be taken in the Member State where the obligation in question was to be performed; (ii) By Art 7(2) where the claim is in tort the proceedings may be taken in the Member State where the harmful event occurred or may occur; (iii) By Art 7(5) where the claim arises out of the operations of a branch, agency or other establishment, proceedings may be taken in the courts of the Member State where the branch, agency or other establishment is situated; (iv) As to co-defendants, third parties and counter-claimants, see Art 8(1), (2) and (3) respectively. (v) In matters relating to insurance, see Arts 10 to 16; (vi) For consumer contracts, see Arts 17 to 19; (vii) For employment contracts, see Arts 20 to 23. (b) No: the Brussels Regulation Recast does not apply. Service and Response under the Regulation Proceedings to be issued in England and Wales can be served on defendants in EU member states who are party to the Regulation without the permission of the court.
? The claim form must be accompanied by practice form N510, setting out the grounds under r

6.33 on which the claimant relies to serve out of the jurisdiction.
? done by quoting the Regulation itself. Claim form must be served within six months after the date of issue (as compared with four months where it is served within the jurisdiction).
? It can be served by any method which is permitted by the country in which it is to be served.
? Defendant has 21 days in which to acknowledge service of The Particulars of Claim and must file their defence within 35 days of service of The Particulars of Claim.

Default judgments Regulation and Convention CountriesOnce the claim form has been served, the defendant should acknowledge service and serve a defence.If he fails to do either of these two things, the claimant is, of course, entitled to enter a default judgment. Unlike the procedure where both parties are based in England , the claimant has to make a formal application under Part 23.
??????He applies without notice with supporting evidence explaining: (a) why the English court has jurisdiction; (b) how the claim form was served; and

(c) that no other court has exclusive jurisdiction. This enables the court to satisfy itself that it does have jurisdiction to grant judgment.

Default judgments - Non-Convention Countries - usual way If the defendant does not acknowledge service of the claim form or serve a defence, the claimant is entitled to a default judgment. He does not have to make a special application to the court because the court has already satisfied itself that it does have jurisdiction (see 16.4.1). The claimant can therefore enter default judgment in the usual way.

Should the client challenge jurisdiction under CPR11??

Brussels Regulation Recast 1215/2102 not properly applied; or Part 6.36 not properly applied OR England and Wales is not the proper place to bring proceedings.

Grounds and procedures for challenging jurisdiction of courts of E&W Step 1:
? Where should the action be conducted?
? Where is the defendant located?
? Have proceedings been issued in the right jurisdiction?
? What provisions are in the contract (arbitration/jurisdiction clauses may take precedence)?
Staying If a claimant sues a foreign defendant in England, the defendant may seek a stay of English proceedings so that the matter can be litigated in another country. proceedings
: Grounds: If one of the parties is based outside the EU, that party can object to the jurisdiction of the English courts on the ground that the English courts are not the most appropriate ones for resolving the dispute. Parties A defendant may object to the jurisdiction of the English courts on the Location of are based ground, for example, that it would be more convenient for the action to parties: in be tried by the courts of Northern Ireland (Cumming v Scottish Daily different Record and Sunday Mail [1995] EMLR 538) (see 16.6.3). parts of the UK The defendant can also object to proceedings in one part of the UK on the grounds that proceedings have already been commenced in another part of the UK (see 16.6.1). Parties are based in different EU States Apply Reg 1215/201 2

The court will first look to see whether there is a binding jurisdiction agreement or whether the defendant has done something whereby he is deemed to have submitted to the jurisdiction. Reg 1215/2012 Article 25 If the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State. Assuming this isn't the case and English courts have jurisdiction defendant cannot stop English proceedings even if he can show it would be more convenient for litigation to be conducted in a different EU state He can stop English proceedings if he can show proceedings have commenced elsewhere in the EU - the court of a different MS is already "seised" of the matter (Article 29 Reg 1215/2015) If the proceedings elsewhere do not involve the same cause of action but just a related one then English court has discretion whether to decide to accept (Article 30 Reg 1215/2015) If there is a risk that English court judgement will conflict with judgment of other EU court dealing with related issue then English court should decline (Virgin Aviation Services Ltd v CAD Aviation Services (1990)).

Parties are based outside

Defendant can object to the jurisdiction of the English courts on the ground that the English courts are not the most appropriate ones for resolving the dispute.

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