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

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

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]

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:

  • acknowledge service of the claim form to prevent default judgment being entered against them;

  • 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 jurisdiction to the courts of England and Wales.

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

  • 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

  • 3 months residence will prima facie establish domicile (rebuttable presumption)

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