简介
A look at the development of the Bauhaus design school and at the key figures involved in it - Walter Gropius, Mies van der Rohe, Laslo Moholy-Nagy and Josef Albers. The history of the Bauhaus is set in the context of the political unrest and economic chaos of the Weimar Republic in Germany.
目录
Table Of Contents:
List of Tables xxv
Table of Cases xxvii
Table of Legislation, Treaties, and Conventions xlv
PART I PRELIMINARY
1. Introduction 3
The scope and purpose of this book
What is a foreign aspect in litigation, and why is it important?
Conflict of laws
The distinction between law and jurisdiction
Meaning of 'foreign', 'country', and 'state'
2. Forum Shopping and Foreign Law 7
Introduction
Forum shopping
Choosing the best place to bring proceedings
Being the first to start proceedings
Reacting to proceedings started by the opposing party
Bringing ancillary proceedings to assist an action in another country
Bringing proceedings in several countries at once
Ignoring foreign proceedings
Foreign law
The different systems of law
Finding out about foreign law
England, Wales, Scotland, Northern Ireland, and the United Kingdom
The Channel Islands, the Isle of Man, and Gibraltar
The European Union
The United States of America
PART II JURISDICTION
3. Jurisdiction of the English Courts: The Regimes 25
Basic principles
Jurisdiction regimes
The traditional regime (mainly outside Europe)
Key features of the traditional regime
When do the traditional rules apply?
Discretion
Interpretation
The Judgments Regulation (most European countries)
Territorial scope and date in force
General effect of the Regulation
Which jurisdictional rules take precedence under the Judgments Regulation?
Discretion and the Judgments Regulation
International scope
Subject-matter scope
Interpretation of the Judgments Regulation
The Convention regime (primarily Switzerland, Norway, and Iceland)
Territorial scope and date in force of the Conventions
Gibraltar
Effect of the Conventions
Differences between the old Lugano Convention and the Judgments Regulation
Which jurisdictional rules take precedence under the Conventions?
Discretion and the Conventions
International scope
Subject-matter scope
Interpretation of the Lugano and Brussels Conventions
The Modified Regulation (England and Wales, Scotland, and Northern Ireland)
Territorial scope and date in force
Effect of the Modified Regulation
Differences between the Modified Regulation and the Judgments Regulation
Which jurisdictional rules take precedence under the Modified Regulation?
Discretion and the Modified Regulation
Subject-matter scope of the Modified Regulation
Interpretation of the Modified Regulation
Specialized jurisdiction regimes
Interrelation between jurisdiction regimes
Relationship between the traditional regime and the Judgments Regulation
Demarcation line between the Judgments Regulation and the Lugano Convention
Interrelation between specialized jurisdiction regimes and the Judgments Regulation
Interrelation between the Modified Regulation, the Judgments Regulation, and the traditional regime
Multiple and mixed claims
Are the proceedings within the scope of the Judgments Regulation?
Are the proceedings subject to exclusive jurisdiction?
Several claims against a single defendant
Claims against multiple defendants
4. Jurisdiction Based on Defendant's Location in England 67
Introduction
Jurisdiction based on domicile in England
Meaning of domicile鈥攊ndividuals
Meaning of domicile鈥攃ompanies and associations
Seat of companies for purpose of exclusive jurisdiction rules
Meaning of domicile鈥攖rusts
Jurisdiction based on presence in England
Jurisdiction based on an agent, branch, or place of business in England
Foreign defendant with agent in England
Foreign defendant domiciled in another Member State, with a branch, agency, or other establishment in England
Insurance, consumer, and employment contracts鈥攄omicile based on branch, agency, or other establishment in England
Foreign corporation with a presence in Great Britain
Foreign partnership or individual carrying on business in England
5. Jurisdiction Based on Consent to English Jurisdiction 83
Introduction
Jurisdiction agreements
Types of jurisdiction agreement
Which jurisdiction regime applies?
Article 23(1) of the Judgments Regulation
Jurisdiction agreements as between England, Scotland, and Northern Ireland
The traditional jurisdiction regime
Formal requirements
Article 23(1)(a)-in writing or evidenced in writing
Article 23(1)(b)-course of dealing
Article 23(1)(c)- trade usage
Interpretation and validity of jurisdiction agreements
Exclusive effect of jurisdiction agreement
Non-exclusive jurisdiction clauses
Multiple and other unusual jurisdiction clauses
Third parties and jurisdiction agreements
Jurisdiction agreements in insurance, consumer, and employment cases
Jurisdiction provisions in trust instruments
Submission to the jurisdiction
The principles
Acknowledgment of service or filing defence
Steps inconsistent with a jurisdictional challenge
Failure to set default judgment aside
Obtaining a default judgment in Judgments Regulation cases
Setting the judgment aside
Service by agreed method or on a solicitor
6. Jurisdiction Based on Subject-Matter Connection with England 107
Introduction
Carriage by air
The air carriage conventions
The Warsaw Convention
The Guadalajara Convention 1961
The 1999 Montreal Convention
The jurisdictional rules
Challenging jurisdiction
Carriage by road
The CMR convention
The jurisdictional rules
Challenging jurisdiction
Companies, directors, partnerships, and associations
Partnerships and associations
Internal, constitutional matters
Company cases and the parts of the United Kingdom
The seat of a company
Consumer contracts
Branch or agency of supplier
Definition of consumer contracts
Jurisdiction rules with respect to consumer contracts
Contract claims
Defendant domiciled in an EU Member State or Lugano State
Matters relating to a contract
The obligation in question
Place of performance
Contract claims鈥攄efendants domiciled outside Member States or Lugano States
Claim in respect of a contract
Contract made in England
Contract governed by English law
Breach of contract in England
Claim for a declaration that no contract exists
Insurance
Branch or agency of insurer
Jurisdiction rules with respect to insurance
Claims against the insurer
Liability insurance and insurance of immovable property
Direct claims by injured parties against insurers
Claims against the insured
Jurisdiction agreements
Intellectual property
Cases concerned with the validity of English patents and other registered rights
Other claims concerning English intellectual property rights
Defendants domiciled in a Member State or Lugano State
Defendant not domiciled in an EU Member State or Lugano State
Foreign intellectual property rights
Land and personal property
Title to land
Rights in rem in immovable property
Leases
Holiday lettings
Other claims relating to land or personal property located in England
Restitution
Defendants domiciled in a Member State or a Lugano State
Restitution claims under Article 5(1)
Restitution claims under Article 5(3)
Defendants not domiciled in a Member State or Lugano State
Tort
Defendants domiciled in a Member State or a Lugano State
Matters relating to tort
Demarcation between contract and tort
The harmful event
The first stage鈥攖he event giving rise to the damage
The second stage鈥攖he place where the damage occurred
Defendants not domiciled in a Member State or a Lugano State
A claim made in tort
Damage sustained within the jurisdiction
An act committed within the jurisdiction
Trusts
Defendant domiciled in an EU Member State or a Lugano State
Express trusts
Constructive trusts
Defendant not domiciled in a Member State or a Lugano State
Express trusts
Constructive trusts
Wills and succession
7. Jurisdiction Based on Procedural Connection with England 171
Introduction
Co-defendants
Defendant domiciled in an EU Member State or Lugano State
Domicile of anchor defendant
Closely connected claims
Defendant not domiciled in an EU Member State or Lugano State
Service on the anchor defendant
The claim against the anchor defendant
Necessary or proper party
Third parties
Third party domiciled in an EU Member State or Lugano State
Definition of third party proceedings
Connection between the original proceedings and the third party proceedings
Third party not domiciled in an EU Member State or Lugano State
Counterclaims
Defendant to counterclaim domiciled in an EU Member State or Lugano State
'Counterclaim'
'Same contract or facts'
Defendant to counterclaim not domiciled in an EU Member State or Lugano State
Injunctions to do or refrain from doing an act in England
PART III GOVERNING LAW
8. Governing Law 189
Introduction
Contracts made before 17 December 2009: The Rome Convention
Interpretation of the Rome Convention
Subject-matter scope
Express choice of law
Implied choice of law
Jurisdiction and arbitration clauses
Standard forms
Express choice of law in related transactions
Previous course of dealing
Reference to provisions of a foreign system of law
Applicable law in the absence of choice
Presumption regarding characteristic performance
Meaning of characteristic performance
Habitual residence, central administration, or principal place of business
Presumption regarding country where land is situated
Carriage of goods
Disregarding the presumptions
Consumer contracts
Employment contracts
Scope of the applicable law
Mandatory rules and public policy
Article 7(2)-Overriding rules of court hearing the case
Article 3(3)-Mandatory rules of country with which all elements of situation are connected
Consumer and employment contracts
Public policy
Law determining various aspects of a contract
Capacity
Form
Illegality
Interpretation
Limitation of actions
Performance
Procedure
Validity
Contracts made after 17 December 2009: Rome I
Interpretation
Subject-matter scope
Express or implied choice of law
Applicable law in the absence of choice
Contracts of carriage
Consumer contracts
Insurance contracts
Mandatory provisions
Other matters
Tort
The Common law regime鈥攄ouble actionability
Private International Law (Miscellaneous Provisions) Act 1995
Scope of the 1995 Act
The applicable law under the 1995 Act
The limits of the applicable law
The Rome II Regulation
Temporal scope
Universal application and application as between the parts of the United Kingdom
Interpretation
Subject-matter scope
Excluded matters
Applicable law
The limits of the applicable law
Agreement on law
Other matters
Restitution
Foreign limitation periods
PART IV THE COURSE OF PROCEEDINGS
9. Issuing and Serving Proceedings 239
Introduction
Which court?
County court or High Court
The Commercial Court
Mercantile Courts
Other specialist courts
Claims for less than 拢15,000
The European Small Claims procedure and European Order for Payment procedure
The European Order for Payment (EOP) procedure
The European Small Claims Procedure (ESCP)
The claim form
Details of parties
Particulars of claim
Notice confirming that the court has jurisdiction
When is the notice required?
Form of the notice
Failure to include the notice
Claiming in a foreign currency
Debt claims
Damages for breach of contract
Tort
Statement in claim form
Time periods in Notes for Defendant and Response Pack
The general rules
Special requirements of the Commercial Court and Mercantile Courts
Serving the claim form in England
Methods of service
Personal service
Postal service
Leaving the document at a specified place
Service by fax or other electronic means
Address for service
Address given by defendant
Service at solicitor's address
Default address for service
Last known address
Service under Companies Act 1985 and Companies Act 2006
Service by an alternative method
Permission to serve the claim form abroad
When is permission required?
The European regimes-no permission required
Jurisdiction under an enactment
The traditional regime鈥攑ermission still required
Mixed claims
Uncertain cases
Permission to serve the claim form out of the jurisdiction鈥攇rounds
The heads of PD 6B, para 3.1
England is the proper place in which to bring the claim
The claim has a reasonable prospect of success
Permission to serve proceedings out of the jurisdiction鈥攑rocedure
Serving the claim form abroad
Methods of service
Service in the English manner
Service by a method permitted by the law of the country addressed
The Service Regulation
The Hague Convention
Bilateral conventions
Service through official channels
Service abroad by an alternative method
Service in specific countries
Scotland and Northern Ireland
EU Member States
The United States of America
Commonwealth countries and British territories
Other common law countries
Countries which are neither EU nor common law countries
Service of other documents abroad
Application of service rules to other originating process
Permission to serve other documents in same action
Application notices
10. Challenging Service and Jurisdiction 281
Basis for challenging service
Basis for challenging jurisdiction
Inconvenient forum
Forum non conveniens and the Judgments Regulation
Challenging permission to serve defendant abroad
Stay of proceedings based on service in England
The doctrine of forum non conveniens
Limited availability of the doctrine
Principles on which a stay is granted
Foreign jurisdiction agreements
Is there a valid and effective jurisdiction agreement?
Exclusion of English jurisdiction
Jurisdiction agreement for the courts of a Member State or Lugano State
Jurisdiction agreement for the courts of a non鈥擬ember State/Lugano State
Jurisdiction agreement for the courts of Scotland or Northern Ireland
Proceedings pending abroad鈥攍is pendens
Proceedings already pending in another Member State or Lugano State
Proceedings involving the same cause of action Articles 27 and 29
Related proceedings鈥擜rticle 28
Whether to stay or decline jurisdiction
Proceedings already pending in a non鈥擬ember State/Lugano State
Proceedings already pending in Scotland or Northern Ireland
Foreign land and other matters not justiciable in England
Foreign land
Land situated in another EU Member State, Lugano State, Scotland, or Northern Ireland
Land situated in a non鈥擬ember State/Lugano State
Foreign intellectual property rights
Where the validity of the right is in issue
Where the validity of the right is not in issue
Foreign penal and revenue laws
Procedure for challenging service or jurisdiction
CPR Pt 11鈥擠isputing the court's jurisdiction
CPR, r 3.4鈥擲triking out
CPR Pt 13鈥擲etting aside default judgment
Remedying irregular service
11. Interim Remedies 315
Introduction
Worldwide freezing orders
Nature of freezing order
Grounds for worldwide order
Effect of worldwide order on third parties
Permission to enforce an English worldwide freezing order abroad
Wording of worldwide freezing orders
Interim relief abroad in aid of English proceedings
Interim relief in England in aid of foreign proceedings
Is it expedient to grant interim relief?
Substantive proceedings in another Member State or Lugano State
Anti-suit injunctions
Jurisdiction over the defendant
The grounds for an anti-suit injunction
Foreign proceedings brought in breach of a legal right
Unconscionable foreign proceedings
Security for costs
Claimant resident in a non-Member State/Lugano State
Impecunious British or foreign company
PART V FOREIGN JUDGMENTS
12. Foreign Judgments 335
Introduction
Enforcing and recognizing foreign judgments
Enforcement regimes
Recognition and enforcement under the Judgments Regulation and Conventions
Subject-matter and judgments covered
Defences to recognition and enforcement
Jurisdictional defences
Public policy
Fraud
Default judgments
Without notice judgments
Irreconcilability with another judgment
Procedure for recognition and enforcement
Automatic recognition
Enforcement procedure
The first stage-registration without notice
The second stage-challenge by appeal
Enforcement steps
Stays and further appeals
Provisional measures
European Enforcement Orders
Scope of the EEO Regulation
Uncontested claims
Certification as an EEO
Minimum procedural standards
Defences to enforcement in the enforcing State
Enforcement procedure
Judgments from Scotland and Northern Ireland
Procedure for certification and registration
Defences to registration
Recognition
Recognition and enforcement under the common law
Final and conclusive, for a sum of money, and on the merits
Final and conclusive
A sum of money
On the merits
The jurisdiction of the foreign court
Territorial jurisdiction
Jurisdiction based on consent
Defences to recognition and enforcement
Natural justice
Fraud
Public policy
Protection of Trading Interests Act 1980
Judgments in breach of jurisdiction agreements
Pending appeal
Previous judgment on same matter
Procedure for enforcement
Recognition and enforcement under statute
The jurisdiction of the foreign court
Territorial jurisdiction
Jurisdiction based on consent
Defences to enforcement
Procedure for enforcement
The first stage鈥攔egistration without notice
The second stage鈥攁pplication to set aside registration
Enforcement steps
Recognition
Enforcing English judgments abroad
Member States and Lugano States
Scotland and Northern Ireland
Certain Commonwealth countries etc
PART VI SPECIALIST AREAS
13. Arbitration 377
Introduction
The nature of arbitration
Governing law
The seat of the arbitration
Mandatory and non-mandatory provisions
Law applicable to the arbitration agreement
Law governing the substance of the dispute
Procedure for arbitration claims
Staying court proceedings in favour of arbitration
Anti-suit injunctions in favour of arbitration
Interim remedies in support of arbitration
Injunctions
Security for costs
Other assistance by the courts in aid of arbitration
Extension of time for beginning arbitration
Appointment and removal of arbitrators
Preliminary point of jurisdiction or law
Evidence and assets
Challenge and appeal
Recognition and enforcement of arbitration awards
English awards
Scottish and Northern Irish awards
Foreign awards
New York Convention awards
Awards under the 1920 or 1933 Act
CMR awards
14. Shipping 391
Introduction
The scope of Admiralty jurisdiction
Admiralty claims
In personam claims
Collision claims
The nature of in rem claims
Claims covered by Supreme Court Act 1981, s 21(4)
Beneficial ownership of ship against which action brought
The person who would be liable
Sister ships
Ownership disputes and mortgage claims
Maritime liens
Arrest and security
Challenging jurisdiction
The Judgments Regulation and in rem jurisdiction
Article 71 of the Judgments Regulation
The Arrest Convention
The 1952 Collision Convention
Exclusion of English jurisdiction by the Regulation
Inconvenient forum
Proceedings pending elsewhere
Foreign jurisdiction agreements
Retention of security
Admiralty procedure
The court
The claim form
In personam actions
Service of in rem claim form
Acknowledgement of service by defendant
15. Employment 405
Introduction
Jurisdiction in employment cases
Defendant domiciled in a Member State or Lugano State
Application of the Judgments Regulation and Conventions
Claims by employee again employer
Work in several countries
Place of business which engaged the employee
Disputes arising out of the operation of a branch or agency
Claims by employer again employee
Jurisdiction agreements
Interrelation with other jurisdiction rules
Defendant not domiciled in a Member State or Lugano State
Employment tribunals
Applicable law
The Rome Convention and Rome I Regulation
Express or implied choice of law
Governing law in the absence of choice
Mandatory rules
Concurrent claims in contract and tort
Territorial scope of employment law
The Employment Rights Act 1996
Discrimination
National Minimum Wage Act 1998
Transfer of undertakings
16. Insolvency 419
Introduction
Jurisdiction
Debtors based in EU Member States (apart from Denmark)
Application of the Insolvency Regulation
Insolvency proceedings
Time of the opening of proceedings
Centre of Main Interests - COMI
Jurisdiction in main and local proceedings
Interim measures
Local proceedings
Ancillary actions
Insolvency jurisdiction over debtors based in non-EU Member States
Winding up foreign (non-EU based) companies
Bankruptcy jurisdiction over foreign (non-EU based) individuals
Insolvency jurisdiction as between England, Scotland, and Northern Ireland
Scottish companies
Northern Irish companies
Scottish and Northern Irish individuals
Applicable law
Applicable law under the Insolvency Regulation
The basic choice of law rule-Article 4
Overriding the law of the State of the opening of proceedings
Applicable law where debtor's COMI is outside the EU
Corporate insolvency
Bankruptcy
Recognition and enforcement
Recognition and enforcement under the Insolvency Regulation
Recognition of main proceedings
Recognition of local proceedings
Coordination of main and local proceedings
Judgments in the course of proceedings and ancillary judgments
Enforcement
Refusal of recognition
Recognition and enforcement under common law
Corporate insolvency
Personal bankruptcy
Recognition and enforcement regarding Scotland and Northern Ireland
Assisting foreign insolvency proceedings
Assistance under the Insolvency Regulation
Insolvency Act 1986, s 426
The Cross-Border Insolvency Regulations 2006
Recognition and assistance
Relief while application is pending
Effects of recognition of foreign main proceeding
Relief upon recognition of foreign proceeding
Avoidance of acts detrimental to creditors
Access of foreign officeholders and creditors to British insolvency proceedings
Coordination of English and foreign insolvency proceedings
Cooperation with foreign courts and officeholders
Cooperation between English and Scottish courts
Service abroad in insolvency cases
Glossary 445
Index 449
List of Tables xxv
Table of Cases xxvii
Table of Legislation, Treaties, and Conventions xlv
PART I PRELIMINARY
1. Introduction 3
The scope and purpose of this book
What is a foreign aspect in litigation, and why is it important?
Conflict of laws
The distinction between law and jurisdiction
Meaning of 'foreign', 'country', and 'state'
2. Forum Shopping and Foreign Law 7
Introduction
Forum shopping
Choosing the best place to bring proceedings
Being the first to start proceedings
Reacting to proceedings started by the opposing party
Bringing ancillary proceedings to assist an action in another country
Bringing proceedings in several countries at once
Ignoring foreign proceedings
Foreign law
The different systems of law
Finding out about foreign law
England, Wales, Scotland, Northern Ireland, and the United Kingdom
The Channel Islands, the Isle of Man, and Gibraltar
The European Union
The United States of America
PART II JURISDICTION
3. Jurisdiction of the English Courts: The Regimes 25
Basic principles
Jurisdiction regimes
The traditional regime (mainly outside Europe)
Key features of the traditional regime
When do the traditional rules apply?
Discretion
Interpretation
The Judgments Regulation (most European countries)
Territorial scope and date in force
General effect of the Regulation
Which jurisdictional rules take precedence under the Judgments Regulation?
Discretion and the Judgments Regulation
International scope
Subject-matter scope
Interpretation of the Judgments Regulation
The Convention regime (primarily Switzerland, Norway, and Iceland)
Territorial scope and date in force of the Conventions
Gibraltar
Effect of the Conventions
Differences between the old Lugano Convention and the Judgments Regulation
Which jurisdictional rules take precedence under the Conventions?
Discretion and the Conventions
International scope
Subject-matter scope
Interpretation of the Lugano and Brussels Conventions
The Modified Regulation (England and Wales, Scotland, and Northern Ireland)
Territorial scope and date in force
Effect of the Modified Regulation
Differences between the Modified Regulation and the Judgments Regulation
Which jurisdictional rules take precedence under the Modified Regulation?
Discretion and the Modified Regulation
Subject-matter scope of the Modified Regulation
Interpretation of the Modified Regulation
Specialized jurisdiction regimes
Interrelation between jurisdiction regimes
Relationship between the traditional regime and the Judgments Regulation
Demarcation line between the Judgments Regulation and the Lugano Convention
Interrelation between specialized jurisdiction regimes and the Judgments Regulation
Interrelation between the Modified Regulation, the Judgments Regulation, and the traditional regime
Multiple and mixed claims
Are the proceedings within the scope of the Judgments Regulation?
Are the proceedings subject to exclusive jurisdiction?
Several claims against a single defendant
Claims against multiple defendants
4. Jurisdiction Based on Defendant's Location in England 67
Introduction
Jurisdiction based on domicile in England
Meaning of domicile鈥攊ndividuals
Meaning of domicile鈥攃ompanies and associations
Seat of companies for purpose of exclusive jurisdiction rules
Meaning of domicile鈥攖rusts
Jurisdiction based on presence in England
Jurisdiction based on an agent, branch, or place of business in England
Foreign defendant with agent in England
Foreign defendant domiciled in another Member State, with a branch, agency, or other establishment in England
Insurance, consumer, and employment contracts鈥攄omicile based on branch, agency, or other establishment in England
Foreign corporation with a presence in Great Britain
Foreign partnership or individual carrying on business in England
5. Jurisdiction Based on Consent to English Jurisdiction 83
Introduction
Jurisdiction agreements
Types of jurisdiction agreement
Which jurisdiction regime applies?
Article 23(1) of the Judgments Regulation
Jurisdiction agreements as between England, Scotland, and Northern Ireland
The traditional jurisdiction regime
Formal requirements
Article 23(1)(a)-in writing or evidenced in writing
Article 23(1)(b)-course of dealing
Article 23(1)(c)- trade usage
Interpretation and validity of jurisdiction agreements
Exclusive effect of jurisdiction agreement
Non-exclusive jurisdiction clauses
Multiple and other unusual jurisdiction clauses
Third parties and jurisdiction agreements
Jurisdiction agreements in insurance, consumer, and employment cases
Jurisdiction provisions in trust instruments
Submission to the jurisdiction
The principles
Acknowledgment of service or filing defence
Steps inconsistent with a jurisdictional challenge
Failure to set default judgment aside
Obtaining a default judgment in Judgments Regulation cases
Setting the judgment aside
Service by agreed method or on a solicitor
6. Jurisdiction Based on Subject-Matter Connection with England 107
Introduction
Carriage by air
The air carriage conventions
The Warsaw Convention
The Guadalajara Convention 1961
The 1999 Montreal Convention
The jurisdictional rules
Challenging jurisdiction
Carriage by road
The CMR convention
The jurisdictional rules
Challenging jurisdiction
Companies, directors, partnerships, and associations
Partnerships and associations
Internal, constitutional matters
Company cases and the parts of the United Kingdom
The seat of a company
Consumer contracts
Branch or agency of supplier
Definition of consumer contracts
Jurisdiction rules with respect to consumer contracts
Contract claims
Defendant domiciled in an EU Member State or Lugano State
Matters relating to a contract
The obligation in question
Place of performance
Contract claims鈥攄efendants domiciled outside Member States or Lugano States
Claim in respect of a contract
Contract made in England
Contract governed by English law
Breach of contract in England
Claim for a declaration that no contract exists
Insurance
Branch or agency of insurer
Jurisdiction rules with respect to insurance
Claims against the insurer
Liability insurance and insurance of immovable property
Direct claims by injured parties against insurers
Claims against the insured
Jurisdiction agreements
Intellectual property
Cases concerned with the validity of English patents and other registered rights
Other claims concerning English intellectual property rights
Defendants domiciled in a Member State or Lugano State
Defendant not domiciled in an EU Member State or Lugano State
Foreign intellectual property rights
Land and personal property
Title to land
Rights in rem in immovable property
Leases
Holiday lettings
Other claims relating to land or personal property located in England
Restitution
Defendants domiciled in a Member State or a Lugano State
Restitution claims under Article 5(1)
Restitution claims under Article 5(3)
Defendants not domiciled in a Member State or Lugano State
Tort
Defendants domiciled in a Member State or a Lugano State
Matters relating to tort
Demarcation between contract and tort
The harmful event
The first stage鈥攖he event giving rise to the damage
The second stage鈥攖he place where the damage occurred
Defendants not domiciled in a Member State or a Lugano State
A claim made in tort
Damage sustained within the jurisdiction
An act committed within the jurisdiction
Trusts
Defendant domiciled in an EU Member State or a Lugano State
Express trusts
Constructive trusts
Defendant not domiciled in a Member State or a Lugano State
Express trusts
Constructive trusts
Wills and succession
7. Jurisdiction Based on Procedural Connection with England 171
Introduction
Co-defendants
Defendant domiciled in an EU Member State or Lugano State
Domicile of anchor defendant
Closely connected claims
Defendant not domiciled in an EU Member State or Lugano State
Service on the anchor defendant
The claim against the anchor defendant
Necessary or proper party
Third parties
Third party domiciled in an EU Member State or Lugano State
Definition of third party proceedings
Connection between the original proceedings and the third party proceedings
Third party not domiciled in an EU Member State or Lugano State
Counterclaims
Defendant to counterclaim domiciled in an EU Member State or Lugano State
'Counterclaim'
'Same contract or facts'
Defendant to counterclaim not domiciled in an EU Member State or Lugano State
Injunctions to do or refrain from doing an act in England
PART III GOVERNING LAW
8. Governing Law 189
Introduction
Contracts made before 17 December 2009: The Rome Convention
Interpretation of the Rome Convention
Subject-matter scope
Express choice of law
Implied choice of law
Jurisdiction and arbitration clauses
Standard forms
Express choice of law in related transactions
Previous course of dealing
Reference to provisions of a foreign system of law
Applicable law in the absence of choice
Presumption regarding characteristic performance
Meaning of characteristic performance
Habitual residence, central administration, or principal place of business
Presumption regarding country where land is situated
Carriage of goods
Disregarding the presumptions
Consumer contracts
Employment contracts
Scope of the applicable law
Mandatory rules and public policy
Article 7(2)-Overriding rules of court hearing the case
Article 3(3)-Mandatory rules of country with which all elements of situation are connected
Consumer and employment contracts
Public policy
Law determining various aspects of a contract
Capacity
Form
Illegality
Interpretation
Limitation of actions
Performance
Procedure
Validity
Contracts made after 17 December 2009: Rome I
Interpretation
Subject-matter scope
Express or implied choice of law
Applicable law in the absence of choice
Contracts of carriage
Consumer contracts
Insurance contracts
Mandatory provisions
Other matters
Tort
The Common law regime鈥攄ouble actionability
Private International Law (Miscellaneous Provisions) Act 1995
Scope of the 1995 Act
The applicable law under the 1995 Act
The limits of the applicable law
The Rome II Regulation
Temporal scope
Universal application and application as between the parts of the United Kingdom
Interpretation
Subject-matter scope
Excluded matters
Applicable law
The limits of the applicable law
Agreement on law
Other matters
Restitution
Foreign limitation periods
PART IV THE COURSE OF PROCEEDINGS
9. Issuing and Serving Proceedings 239
Introduction
Which court?
County court or High Court
The Commercial Court
Mercantile Courts
Other specialist courts
Claims for less than 拢15,000
The European Small Claims procedure and European Order for Payment procedure
The European Order for Payment (EOP) procedure
The European Small Claims Procedure (ESCP)
The claim form
Details of parties
Particulars of claim
Notice confirming that the court has jurisdiction
When is the notice required?
Form of the notice
Failure to include the notice
Claiming in a foreign currency
Debt claims
Damages for breach of contract
Tort
Statement in claim form
Time periods in Notes for Defendant and Response Pack
The general rules
Special requirements of the Commercial Court and Mercantile Courts
Serving the claim form in England
Methods of service
Personal service
Postal service
Leaving the document at a specified place
Service by fax or other electronic means
Address for service
Address given by defendant
Service at solicitor's address
Default address for service
Last known address
Service under Companies Act 1985 and Companies Act 2006
Service by an alternative method
Permission to serve the claim form abroad
When is permission required?
The European regimes-no permission required
Jurisdiction under an enactment
The traditional regime鈥攑ermission still required
Mixed claims
Uncertain cases
Permission to serve the claim form out of the jurisdiction鈥攇rounds
The heads of PD 6B, para 3.1
England is the proper place in which to bring the claim
The claim has a reasonable prospect of success
Permission to serve proceedings out of the jurisdiction鈥攑rocedure
Serving the claim form abroad
Methods of service
Service in the English manner
Service by a method permitted by the law of the country addressed
The Service Regulation
The Hague Convention
Bilateral conventions
Service through official channels
Service abroad by an alternative method
Service in specific countries
Scotland and Northern Ireland
EU Member States
The United States of America
Commonwealth countries and British territories
Other common law countries
Countries which are neither EU nor common law countries
Service of other documents abroad
Application of service rules to other originating process
Permission to serve other documents in same action
Application notices
10. Challenging Service and Jurisdiction 281
Basis for challenging service
Basis for challenging jurisdiction
Inconvenient forum
Forum non conveniens and the Judgments Regulation
Challenging permission to serve defendant abroad
Stay of proceedings based on service in England
The doctrine of forum non conveniens
Limited availability of the doctrine
Principles on which a stay is granted
Foreign jurisdiction agreements
Is there a valid and effective jurisdiction agreement?
Exclusion of English jurisdiction
Jurisdiction agreement for the courts of a Member State or Lugano State
Jurisdiction agreement for the courts of a non鈥擬ember State/Lugano State
Jurisdiction agreement for the courts of Scotland or Northern Ireland
Proceedings pending abroad鈥攍is pendens
Proceedings already pending in another Member State or Lugano State
Proceedings involving the same cause of action Articles 27 and 29
Related proceedings鈥擜rticle 28
Whether to stay or decline jurisdiction
Proceedings already pending in a non鈥擬ember State/Lugano State
Proceedings already pending in Scotland or Northern Ireland
Foreign land and other matters not justiciable in England
Foreign land
Land situated in another EU Member State, Lugano State, Scotland, or Northern Ireland
Land situated in a non鈥擬ember State/Lugano State
Foreign intellectual property rights
Where the validity of the right is in issue
Where the validity of the right is not in issue
Foreign penal and revenue laws
Procedure for challenging service or jurisdiction
CPR Pt 11鈥擠isputing the court's jurisdiction
CPR, r 3.4鈥擲triking out
CPR Pt 13鈥擲etting aside default judgment
Remedying irregular service
11. Interim Remedies 315
Introduction
Worldwide freezing orders
Nature of freezing order
Grounds for worldwide order
Effect of worldwide order on third parties
Permission to enforce an English worldwide freezing order abroad
Wording of worldwide freezing orders
Interim relief abroad in aid of English proceedings
Interim relief in England in aid of foreign proceedings
Is it expedient to grant interim relief?
Substantive proceedings in another Member State or Lugano State
Anti-suit injunctions
Jurisdiction over the defendant
The grounds for an anti-suit injunction
Foreign proceedings brought in breach of a legal right
Unconscionable foreign proceedings
Security for costs
Claimant resident in a non-Member State/Lugano State
Impecunious British or foreign company
PART V FOREIGN JUDGMENTS
12. Foreign Judgments 335
Introduction
Enforcing and recognizing foreign judgments
Enforcement regimes
Recognition and enforcement under the Judgments Regulation and Conventions
Subject-matter and judgments covered
Defences to recognition and enforcement
Jurisdictional defences
Public policy
Fraud
Default judgments
Without notice judgments
Irreconcilability with another judgment
Procedure for recognition and enforcement
Automatic recognition
Enforcement procedure
The first stage-registration without notice
The second stage-challenge by appeal
Enforcement steps
Stays and further appeals
Provisional measures
European Enforcement Orders
Scope of the EEO Regulation
Uncontested claims
Certification as an EEO
Minimum procedural standards
Defences to enforcement in the enforcing State
Enforcement procedure
Judgments from Scotland and Northern Ireland
Procedure for certification and registration
Defences to registration
Recognition
Recognition and enforcement under the common law
Final and conclusive, for a sum of money, and on the merits
Final and conclusive
A sum of money
On the merits
The jurisdiction of the foreign court
Territorial jurisdiction
Jurisdiction based on consent
Defences to recognition and enforcement
Natural justice
Fraud
Public policy
Protection of Trading Interests Act 1980
Judgments in breach of jurisdiction agreements
Pending appeal
Previous judgment on same matter
Procedure for enforcement
Recognition and enforcement under statute
The jurisdiction of the foreign court
Territorial jurisdiction
Jurisdiction based on consent
Defences to enforcement
Procedure for enforcement
The first stage鈥攔egistration without notice
The second stage鈥攁pplication to set aside registration
Enforcement steps
Recognition
Enforcing English judgments abroad
Member States and Lugano States
Scotland and Northern Ireland
Certain Commonwealth countries etc
PART VI SPECIALIST AREAS
13. Arbitration 377
Introduction
The nature of arbitration
Governing law
The seat of the arbitration
Mandatory and non-mandatory provisions
Law applicable to the arbitration agreement
Law governing the substance of the dispute
Procedure for arbitration claims
Staying court proceedings in favour of arbitration
Anti-suit injunctions in favour of arbitration
Interim remedies in support of arbitration
Injunctions
Security for costs
Other assistance by the courts in aid of arbitration
Extension of time for beginning arbitration
Appointment and removal of arbitrators
Preliminary point of jurisdiction or law
Evidence and assets
Challenge and appeal
Recognition and enforcement of arbitration awards
English awards
Scottish and Northern Irish awards
Foreign awards
New York Convention awards
Awards under the 1920 or 1933 Act
CMR awards
14. Shipping 391
Introduction
The scope of Admiralty jurisdiction
Admiralty claims
In personam claims
Collision claims
The nature of in rem claims
Claims covered by Supreme Court Act 1981, s 21(4)
Beneficial ownership of ship against which action brought
The person who would be liable
Sister ships
Ownership disputes and mortgage claims
Maritime liens
Arrest and security
Challenging jurisdiction
The Judgments Regulation and in rem jurisdiction
Article 71 of the Judgments Regulation
The Arrest Convention
The 1952 Collision Convention
Exclusion of English jurisdiction by the Regulation
Inconvenient forum
Proceedings pending elsewhere
Foreign jurisdiction agreements
Retention of security
Admiralty procedure
The court
The claim form
In personam actions
Service of in rem claim form
Acknowledgement of service by defendant
15. Employment 405
Introduction
Jurisdiction in employment cases
Defendant domiciled in a Member State or Lugano State
Application of the Judgments Regulation and Conventions
Claims by employee again employer
Work in several countries
Place of business which engaged the employee
Disputes arising out of the operation of a branch or agency
Claims by employer again employee
Jurisdiction agreements
Interrelation with other jurisdiction rules
Defendant not domiciled in a Member State or Lugano State
Employment tribunals
Applicable law
The Rome Convention and Rome I Regulation
Express or implied choice of law
Governing law in the absence of choice
Mandatory rules
Concurrent claims in contract and tort
Territorial scope of employment law
The Employment Rights Act 1996
Discrimination
National Minimum Wage Act 1998
Transfer of undertakings
16. Insolvency 419
Introduction
Jurisdiction
Debtors based in EU Member States (apart from Denmark)
Application of the Insolvency Regulation
Insolvency proceedings
Time of the opening of proceedings
Centre of Main Interests - COMI
Jurisdiction in main and local proceedings
Interim measures
Local proceedings
Ancillary actions
Insolvency jurisdiction over debtors based in non-EU Member States
Winding up foreign (non-EU based) companies
Bankruptcy jurisdiction over foreign (non-EU based) individuals
Insolvency jurisdiction as between England, Scotland, and Northern Ireland
Scottish companies
Northern Irish companies
Scottish and Northern Irish individuals
Applicable law
Applicable law under the Insolvency Regulation
The basic choice of law rule-Article 4
Overriding the law of the State of the opening of proceedings
Applicable law where debtor's COMI is outside the EU
Corporate insolvency
Bankruptcy
Recognition and enforcement
Recognition and enforcement under the Insolvency Regulation
Recognition of main proceedings
Recognition of local proceedings
Coordination of main and local proceedings
Judgments in the course of proceedings and ancillary judgments
Enforcement
Refusal of recognition
Recognition and enforcement under common law
Corporate insolvency
Personal bankruptcy
Recognition and enforcement regarding Scotland and Northern Ireland
Assisting foreign insolvency proceedings
Assistance under the Insolvency Regulation
Insolvency Act 1986, s 426
The Cross-Border Insolvency Regulations 2006
Recognition and assistance
Relief while application is pending
Effects of recognition of foreign main proceeding
Relief upon recognition of foreign proceeding
Avoidance of acts detrimental to creditors
Access of foreign officeholders and creditors to British insolvency proceedings
Coordination of English and foreign insolvency proceedings
Cooperation with foreign courts and officeholders
Cooperation between English and Scottish courts
Service abroad in insolvency cases
Glossary 445
Index 449
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