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International Commercial Disputes

Commercial Conflict of Laws in English Courts

By: Jonathan Hill, Adeline Chong
Media of International Commercial Disputes
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Published: 28-09-2010
Format: Paperback
Edition: 4th
Extent: 1030
ISBN: 9781841138510
Imprint: Hart Publishing
RRP : £90.00
 

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Loren Epson

About International Commercial Disputes

This is the fourth edition of this highly regarded work on the law of international commercial litigation as practised in the English courts. As such it is primarily concerned with how commercial disputes which have connections with more than one country are dealt with by the English courts. Much of the law which provides the framework for the resolution of such disputes is derived from international instruments, including recent Conventions and Regulations which have significantly re-shaped the law in the European Union. The scope and impact of these European instruments is fully explained and assessed in this new edition.

The work is organised in four parts. The first part considers the jurisdiction of the English courts and the recognition and enforcement in England of judgments granted by the courts of other countries. This part of the work, which involves analysis of both the Brussels I Regulation and the so-called traditional rules, includes chapters dealing with jurisdiction in personam and in rem, anti-suit injunctions and provisional measures. The work's second part focuses on the rules which determine whether English law or the law of another country is applicable to a given situation. The part includes a discussion of choice of law in contract and tort, with particular attention being devoted to the recent Rome I and Rome II Regulations. The third part of the work includes three new chapters on international aspects of insolvency (in particular, under the EC Insolvency Regulation) and the final part focuses on an analysis of legal aspects of international commercial arbitration. In particular, this part examines: the powers of the English courts to support or supervise an arbitration; the effect of an arbitration agreement on the jurisdiction of the English courts; the law which governs an arbitration agreement and the parties' dispute; and the recognition and enforcement of foreign arbitration awards.

Table Of Contents

Chapter 1 – Introduction
1.1 Preliminary Remarks
1.2 Jurisdiction and the Recognition and Enforcement of Foreign Judgments
Basic Concepts
The Traditional Regime
The Brussels I Regulation
Jurisdiction and the Recognition and Enforcements of Judgments with in the United Kingdom
Subsequent Developments
1.3 Choice of Law
Part I: Jurisdiction and the Recognition and Enforcement of Foreign Judgments
Chapter 2 – Persons who Can and Cannot Sue or be Sued
2.1 Legal Capacity to Sue or Be Sued
Foreign Corporations
Other Foreign Juristic Entities
Corporations Established under the Laws of Territories which are not States
International Corporations
Foreign States
Foreign Governments
2.2 Persons who Cannot Sue and Non-justiciable Claims
Enemy Aliens
Non-justiciable Claims
2.3 State Immunity
Background
The Scope of Immunities
The Scheme of the Act
Immunity from Adjudicative Jurisdiction
Immunity from Enforcement Jurisdiction
Service of Process in Proceedings against States
Judgments in Default
2.4 Diplomatic Immunity
Diplomatic Officers
Consular Agents
2.5 International Organisations
Chapter 3 – The Brussels I Regulation: General Considerations
3.1 Introduction
3.2 Interpretation of the Brussels I Regulation
References to the Court of Justice
Methods of Interpretation
Interpretation by National Courts
3.3 Scope of the Brussels I Regulation
Introductory Remarks
Civil and Commercial Matters
Exceptions
3.4 The Relationship between the Brussels I Regulation and Other International Conventions
Chapter 4 – Jurisdiction in Personam under the Brussels I Regulation: Introduction
4.1 Domicile under the Brussels I Regulation
The Domicile of Individuals
The Domicile of Corporations
Multiple Domiciles
4.2 The Basic Structure of the Jurisdiction Rules
Bases of Jurisdiction Applicable to Defendants Domiciled in a Member State: Articles 2 and 3
Bases of Jurisdiction Applicable to Persons who are not Domiciled in a Member State: Article 4
Lis Pendens and Related Actions
The Standard of Proof
4.3 Service Abroad in Cases Falling within the Scope of the Brussels I Regulation
4.4 Procedural Safeguards
Chapter 5 – Bases of Jurisdiction In Personam under the Brussels I Regulation
5.1 Exclusive Jurisdictions
Paragraph (1)
Paragraph (2): Corporations
Paragraph (3): Public Registers
Paragraph (4): Intellectual Property
Paragraph (5): Enforcement Proceedings
Examination of Jurisdiction
5.2 Submission
5.3 Jurisdiction Agreements
Preliminary Considerations
Basic Conditions
Formal Requirements
Maternal Validity and Interpretation
Situation where Jurisdiction is not Exclusive
5.4 Provisional Measures
5.5 The Domicile Rule: Article 2
5.6 Alternative Fora I: Article 5
Introduction
Jurisdiction in Matters Relating to Contract and Tort: Introduction
Jurisdiction in Matters Relating to a Contract
Jurisdiction in Matters Relating to Tort
Branch, Agency or Other Establishment
Trusts
5.7 Alternative Fora II: Article 6
Introduction
Multiple Defendants
Third Party Proceedings
Counterclaims
Contractual Claims Involving Matters Relating to Rights in Rem in Immovable Property
Article 6 and Jurisdiction Agreements
5.8 Insurance, Consumer Contracts and Employment Contracts
Insurance
Consumer Contracts
Jurisdiction in Relation to Employment Contracts
Chapter 6 – Bases of Jurisdiction in Personam under Schedule 4 to the Civil Jurisdiction and Judgments Act 1982
6.1 Jurisdiction in Civil and Commercial Matters: Schedule 4 to the 1982 Act
The Scope of Schedule 4
The Text of Schedule 4
Interpretation
6.2 Bases of Jurisdiction under Schedule 4
Exclusive Jurisdiction
Prorogation of Jurisdiction
Jurisdiction Agreements
Special Jurisdiction
Consumer Contracts and Individual Contracts of Employment
Procedural Matters and Provisional Measures
Chapter 7 – Bases of Jurisdiction in Personam under Traditional Rules
7.1 Presence
Individuals
Companies
Partnerships
Staying Proceedings Founded on the Defendant's Presence
7.2 Submission
Jurisdiction Agreements
Agreements to Submit
Voluntary Appearance
7.3 Service out of the Jurisdiction under CPR 6.36
Introduction
A Serious Question to be Tried
The Heads of CPR PD 6B para 3.1
Forum Conveniens
The Test
Chapter 8 – Bases of Jurisdiction in Admiralty Proceedings
8.1 Jurisdiction under the Supreme Court Act 1981
The Admiralty Jurisdiction of the High Court: Section 20
Jurisdiction in Rem: Section 21 (2)–(8)
Jurisdiction in Actions In Personam: Section 21(1) and Section 22
Commencing Admiralty Proceedings
8.2 The Impact of the Brussels I Regulation
Introduction
The Practical Effect of the Brussels I Regulation
Limitation and Salvage
Chapter 9 – Declining Jurisdiction and Staying Proceedings
9.1 Declining Jurisdiction and Staying Proceedings under the Brussels I Regulation
General Considerations
Lis Pendens
Related Actions
Rival Exclusive Jurisdictions
Concurrent Proceedings within the United Kingdom
9.2 Staying Proceedings on the Basis of the Doctrine of Forum non Conveniens
Forum Shopping
The Development of English Law
The Test of Appropriateness
The Application of the Test: Factors to be Taken into Account
The Weighing of Factors
Appeals Against the Exercise of Discretion
9.3 The Impact of a Jurisdiction Clause
The Traditional Rules
The Hague Choice of Court Convention
9.4 Jurisdiction in Cases Involving Foreign Land and Foreign Intellectual Property Rights
Cases Involving Foreign Land
Cases Involving Foreign Intellectual Property Rights
9.5 Staying Proceedings under the Court's Inherent Jurisdiction in Cases Involving the Brussels I Regulation
Introduction
Cases where Jurisdiction is Founded on the Traditional Rules
Cases where Jurisdiction is Founded on Chapter II and the Alternative Forum is a Member State
Cases where Jurisdiction is Founded on Chapter II and the Alternative Forum is a Non-Member State
Cases Involving Schedule 4 to the 1982 Act
Chapter 10 – Provisional Measures
10.1 Different Types of Provisional Measure
Introduction
Interlocutory Injunctions
Freezing Injunctions
Search Orders
10.2 Jurisdiction to Grant Provisional Measures: Proceedings in Rem
10.3 Jurisdiction to Grant Provisional Measures: Proceedings in Personam
Background: The Position at Common Law
Jurisdiction to Grant Provisional Measures in Support of Foreign Proceedings
Jurisdiction to Grant Provisional Measures in Support of Arbitration Proceedings
10.4 Extraterritorial Provisional Measures
Introduction
Extraterritorial Freezing Injunctions
10.5 Enforcement of Foreign Provisional Measures
Chapter 11 – Anti-suit Injunctions
11.1 Preliminary Remarks
11.2 The Bases on Which an Anti-suit Injunction May Be Granted
Unconscionable Conduct
Infringement of a Legal or Equitable Right
11.3 The Brussels I Regulation
Chapter 12 – Recognition and Enforcement of Foreign Judgments under the Common Law and under Related Statutory Regimes
12.1 Introduction
Why Recognise Foreign Judgments?
Which Foreign Judgments Should be Entitled to Recognition and Enforcement?
12.2 Conditions for Enforcement at Common Law
The Jurisdiction of the Original Court
Final and Conclusive
For a Fixed Sum
12.3 Conditions for Recognition at Common Law
Introduction
On the Merits
Identity of the Parties
Identity of the Cause of Action or Issue
12.4 Defences to Recognition and Enforcement at Common Law
Natural Justice
Fraud
Public Policy
Res Judicata
Civil Jurisdiction and Judgments Act 1982, Section 32
Multiple Damages
12.5 Recognition and Enforcement of Judgments in Rem
Jurisdiction of the Original Court
Defences
Enforcement
12.6 Recognition and Enforcement under Statutory Regimes Based on the Common Law
Enforcement under Part II of the Administration of Justice Act 1920
Recognition and Enforcement under the Foreign Judgments (Reciprocal Enforcement) Act 1933
Chapter 13 – Recognition and Enforcement of Judgments under the Brussels I Regulation, Judgments against States and European Community Judgments
13.1 Basic Conditions for Recognition and Enforcement under the Brussels I Regulation
The Scope of the Brussels I Regulation
What is a 'Judgment'?
The Relationship between Chapter II and Chapter III
13.2 The Principle of Automatic Recognition under the Brussels I Regulation
13.3 Defences to Recognition under the Brussels I Regulation
No Review of the Merits
Limited Review of Jurisdiction
Public Policy
Safeguarding the Rights of the Defendant
Irreconcilability
Appeals in the State of Origin
What is an 'Ordinary Appeal'?
13.4 Enforcement of Judgments under the Brussels I Regulation
Introduction
Application for Enforcement
The Decision
Appeals against Enforcement
Appeals Against a Refusal to Enforce
The Relationship between National Law and Chapter III
13.5 Authentic Instruments and Court Settlements under the Brussels I Regulation
Authentic Instruments
Court Settlements
Grounds for Refusing Enforcement
13.6 Recognition and Enforcement of Judgments within the United Kingdom
Introduction
Recognition
Enforcement
13.7 Judgments against States and European Community Judgments
Recognition of Judgments Given against the United Kingdom
Recognition of Enforcement of Judgments Given against Other States
European Community Judgments
Part II: Choice of Law
Chapter 14 – Choice of Law in Contract
14.1 Introduction
The Common Law
The Rome I Regulation
The Scope of the Rome I Regulation
Exclusion of the Doctrine of Renvoi
14.2 Determining the Applicable Law
The Applicable Law in Cases of Choice
The Applicable Law in the Absence of Choice
14.3 Mandatory Rules and Public Policy
Introduction
The Application of Mandatory Rules
The Application of Overriding Rules
Public Policy: Article 21
14.4 Particular Aspects of the Contract
Preliminary Remarks
Consent and Material Validity: Article 10
Formal Validity: Article 11
Capacity
Performance
Interpretation
Discharge
Nullity
Illegality
Remedies
14.5 Particular Contracts
Contracts of Carriage
Certain Consumer Contracts
Insurance Contracts
Individual Employment Contracts
14.6 Miscellaneous Provisions
Voluntary Assignment and Contractual Subrogation
Legal Subrogation
Multiple Liability
Set-off
Chapter 15 – Choice of Law: Non-contractual Obligations
15.1 The Rome II Regulation
Background of Events Leading to the Rome II Regulation
General Overview of the Rome II Regulation
Choice of Law Rules for Tort
Choice of Law Rules for Other Non-contractual Obligations
Other Provisions
15.2 Choice of Law in Tort: Common Law Rules
Background to the English Choice of Law Rules
The Modern Common Law Position
15.3 Choice of Law under Part III of the Private International Law (Miscellaneous Provisions) Act 1995
Introduction
The General Rule
The Exception
The Scope of the Applicable Law: Substance and Procedure
Public Policy and Overriding Rules
15.4 Parallel Claims and the Potential Interaction of Contract and Tort Choice of Law Rules
Parallel Claims
The Potential Interaction of Contract and Choice of Law Rules
Chapter 16 – Proof of Foreign Law
16.1 Foreign Law: A Question of Fact
16.2 Cases in which Foreign Law Does not Have to be Proved
16.3 Mode of Proof
The Requirement of Evidence
Uncontradicted Evidence
Conflicting Evidence
Who is an Expert?
Decision on Points of Foreign Law in Subsequent Cases
16.4 Appeals
Chapter 17 – EC Regulation on Insolvency Proceedings
17.1 Scope of the Insolvency Regulation
General
Exclusions
Insolvency-related Proceedings
Intra-UK Insolvencies
17.2 Jurisdiction
Two Sets of Conflicting Doctrines
Main Proceedings
Territorial Proceedings
17.3 Choice of Law
General Rule
Exceptions
17.4 Recognition and Enforcement
General
Powers of the Liquidator
17.5 Miscellaneous
The 'Hotchpot' Rule
Publication of Insolvency Proceedings
Creditors' Right to Lodge Claims and to Receive Information
Chapter 18 – International Insolvencies Falling Outside the EC Insolvency Regulation
18.1 Personal Insolvency/Bankruptcy
Jurisdiction
Choice of Law
Effects of an English Bankruptcy Order
Recognition
Concurrent Proceedings
18.2 Corporate Insolvency
Jurisdiction
Choice of Law
Effects of an English Winding-up Order
Recognition
Concurrent Liquidations
18.3 Judicial Co-operation
Re HIH Casualty and General Insurance Ltd
Chapter 19 – The Cross-Border Insolvency Regulations 2006
19.1 Introduction
19.2 General
Scope
Allocation of Jurisdiction between Courts in Great Britain
Co-operation between Courts in Great Britain
Inter-relationship between the Model Law and other International Instruments
British Insolvency Officeholder Acting Abroad
19.3 Access of Foreign Representatives and Creditors to English Courts
19.4 Recognition of a Foreign Proceeding
Relief Available upon the Application for Recognition of a Foreign Proceeding
Effects of Recognition of a Foreign Main Proceeding
Relief Available upon the Recognition of a Foreign Proceeding
Protection of Creditors and Other Interested Persons
Avoidance
19.5 Co-operation with Foreign Courts and Foreign Representatives
19.6 Concurrent Proceedings
19.7 Conclusion and Overview
Part III: Arbitration
Chapter 20 – Arbitration: Introduction
20.1 What is Arbitration Law?
20.2 Various Types of Arbitration
Domestic and International
Ad Hoc and Institutional
Specialised Arbitrations
20.3 Trends in International Commercial Arbitration
Encouragement
Harmonisation
20.4 Outline of English Arbitration Law
The Foundations of Arbitration: the Arbitration Agreement
The Powers of the Tribunal
The Powers of the Court
Chapter 21 – The Agreement to Arbitrate
21.1 The Law Governing the Arbitration Agreement
21.2 Enforcement of the Agreement to Arbitrate
Introduction
Conditions for the Grant of a Stay under Section 9
The Effect of a Stay under Section 9
Inherent Jurisdiction
Chapter 22 – The Law Governing the Conduct of an Arbitration and the Scope of the Court's Powers
22.1 Introduction
Preliminary Remarks
The 'Delocalisation' Theory
The Importance of the Seat of Abritration
22.2 The Scope of the Statutory Provisions: General Principles
22.3 The Scope of the Statutory Provisions: Cases where the Seat of Arbitration Is in England
Introduction
Internal Aspects of the Procedure
External Aspects of the Procedure
22.4 Scope of the Statutory Provisions: Cases where the Seat is Abroad or no Seat Has Been Designated or Determined
22.5 Jurisdiction in Proceedings Ancillary to an Arbitration
Chapter 23 – The Law Applicable to the Merits of a Dispute Referred to Arbitration
23.1 Introduction
Types of Choice of Law Clause
Legal Background
23.2 The Position under the 1996 Act
Section 46 of the 1996 Act
The Exclusion of Section 46
The Three Circumstances Envisaged by Section 46
Cases where the Arbitrator Misapplies Section 46
The Impact of Mandatory Rules
Chapter 24 – Recognition and Enforcement of Arbitration Awards
24.1 Preliminary Issues
The Relationship between Enforcement and Setting Aside
The Enforcement of Domestic Awards
The Enforcement of Foreign Aribtration Awards
24.2 Recognition and Enforcement of Foreign Awards under Part III of the Arbitration Act 1996
The Scope of Part III of the 1996 Act
Conditions for Obtaining Recognition or Enforcement
Grounds for Refusing Recognition or Enforcement
Discretion to Adjourn the Decision on Recognition or Enforcement
24.3 Recognition and Enforcement of Foreign Awards at Common Law
The Relationship between the Arbitration Act 1996 and the Common Law
Methods of Enforcement
Conditions for Recognition or Enforcement at Common Law
Defences at Common Law
24.4 Recognition and Enforcement of Foreign Awards under Part II of the Arbitration Act 1950
The Relationship between Part II of the 1950 Act and Other Regimes
Conditions for Recognition and Enforcement
Defences to Enforcement
24.5 Other Regimes for the Recognition and Enforcement of Foreign Arbitral Awards
Part II of the Civil Jurisdiction and Judgments Act 1982
Part II of the Administration of Justice Act 1920
Part I of the Foreign Judgments (Reciprocal Enforcement) Act 1933
Arbitration (International Investment Disputes) Act 1966
Recognition of Awards Made by the Iran–US Claims Tribunal
24.6 Awards, Judgments and the Cause of Action
Confl icting Judgments and Awards
The Effect of a Foreign Judgment on the Award
The Effect of a Foreign Arbitral Award on the Cause of Action

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