Jurisdiction over foreign matters-
Choice of jurisdiction vs choice of law-
To render a binding judgment on a party, a court MUST have jurisdiction over the dispute.
Whenever a contentious dispute has an international element, two principal questions arise:
Which country can the proceedings be brought?
What country’s laws govern the claim? (not examinable)
Where 2 or more countries law may apply, the court may apply its own choice of law rules to decide
which country’s laws will actually be applied to the substantive dispute between the parties.
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When is foreign jurisdiction an issue?-
Usually an issue where one of the intended parties or the subject matter of the proceedings is foreign
or located abroad.
Once you decide that foreign jurisdiction is an issue, you must then consider whether the courts of
England and Wales actually have jurisdiction over a cause of action involving a foreign element. To do
this, you must look at the relevant rules on jurisdiction.
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Overview of the rules on jurisdiction -
Historically, the international jurisdiction of the English courts has been governed by the common law
(the ‘Common Law Rules’).
Following the UK’s entry into the European Community (‘EU’), additional jurisdiction regimes
were introduced in order to deal with the proper allocation of cases between the courts of the
EU Member States.
Council Regulation (EC) No. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments
in Civil and Commercial Matters has contained the relevant rules on jurisdiction for the last several
years.
It was replaced by Regulation (EU) No. 1215/2012 from 10 January 2015. (‘the Regulation’
Regulation 44/2001 ceased to be relevant after 10 January 2015 in relation to cases now falling
within the scope of the Regulation.
The Regulation deals with two key cross-border litigation issues,
(1) the international jurisdiction of the courts (e.g. whether the English courts will have
jurisdiction over a defendant domiciled in another EU Member State) and
(2) the enforcement of foreign court judgments (e.g. the way in which a judgment from another
EU Member State’s courts can be enforced in England and Wales).
, o The enforcement of foreign judgments is beyond the scope of this module.
the Regulation starts with 41 numbered ‘recitals’. These provide the legislative background to the
Regulation and an introduction to the way in which it is intended to operate. The recitals can be
helpful when interpreting how parts of the Regulation might be applied in practice. The (non- binding)
recitals are then followed by 81 ‘articles’, containing the operative parts of the Regulation. The rules
on international jurisdiction are contained within Articles 1 to 35 inclusive. There are then some
general/supplemental provisions in Articles 61 to 65. Finally, relevant time limits for the application of
the Regulation are contained in Articles 66 and 81.
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The regulation-
Ignore Recital 41 to the Regulation; it has been superseded.
To decide if the English courts have jurisdiction under the Regulation, we must apply a three step test,
as follows:
Does the Regulation apply?
Do the courts of England and Wales have jurisdiction under the Regulation to determine the
claim?
If so, can the courts of England and Wales actually accept jurisdiction?
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1) Does the regulation apply?-
Look at 3 factors:
There must be an international element
The claim must fall within the Material scope of the Regulation
The claim must fall within the Temporal scope of the Regulation
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International element -
The Regulation is only triggered is a dispute has an international element. It can be:
The involvement of another member state or the subject matter or the domicile of a party
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Material scope of the Regulation-
The Regulation’s material scope relates to substance; the Regulation only applies where:
i) There is a sufficient connection between the claim and a Regulation Member State; and
ii) It only applies to certain types of claim.
, Connection-
Whether the international aspect(s) of the claim has a connection with one or more of the Regulation
Member States.
This ensures EU Member States have jurisdiction over claims which are connected with their
territories.
o Highlighted in Recital 13- “[t]here must be a connection between proceedings to which
this Regulation applies and the territory of the [EU] Member States”.
There are currently 28 Regulation Member States in the EU. These are Austria, Belgium, Bulgaria,
Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland,
Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovenia, Slovakia,
Spain, Sweden and the UK (together, the ‘Regulation Member States’).
The principal ‘connecting’ factor with the EU will generally be the domicile of the defendant – i.e. is the
defendant domiciled in a Regulation Member State?
There are, however, some other ways in which this connection can be established.
Establishing a connection with the EU/ MS?-
A) DOMICILE
Domicile - Individuals
Connection if the def is domiciled in a regulation MS
Art 62 - To determine if a party is domiciled in a RMS – the court must apply the internal law of
that state
Civil Jurisdiction and Judgments Order 2001 governs the position in the UK.
An individual is domiciled in the UK if, and only if: (1) s/he is resident in the UK and (2) the
nature and circumstances of his/her residence indicate that s/he has a substantial connection
with the UK.
An individual perceived as being ‘resident’ in the UK if it is "a settled or usual place of abode" which
connotes "some degree of permanence or continuity"
(Bank of Dubai Limited v Fouad Haji Abbas)
A substantial connection is presumed to exist where the individual has been resident in the UK
for the last three months or more.
Where this is disputed – the burden of proof is on the claimant – to show a good arguable case that the
def was domiciled/ resident within the jurisdiction at the same time the claim form was served -
(Canada Trust v Stolzenberg (No 2))
Waller LJ - 'Good arguable case' reflects in that context that one side has a much better
argument on the material available. It is the concept which the phrase reflects on which it is
