Civil jurisdiction and judgments:
Gespeichert in:
| 1. Verfasser: | |
|---|---|
| Format: | Buch |
| Sprache: | English |
| Veröffentlicht: |
London [u.a.]
LLP
2005
|
| Ausgabe: | 4. ed. |
| Schriftenreihe: | Lloyd's commercial law library
|
| Schlagworte: | |
| Online-Zugang: | Inhaltsverzeichnis |
| Beschreibung: | LXI, 743 S. |
| ISBN: | 1843114259 |
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Datensatz im Suchindex
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TABLE OF CONTENTS
PAGE
PREFACE TO THE FOURTH EDITION V
PREFACE TO THE FIRST EDITION IX
TABLE OF CASES XXVII
TABLE OF STATUTES IL
TABLE OF STATUTORY INSTRUMENTS LIII
CIVIL PROCEDURE RULES LV
EUROPEAN LEGISLATION LVII
PARA
1 INTRODUCTION
THE REASONS FOR, AND SCOPE OF, THIS BOOK
GENERAL INTRODUCTION 1.01
THE RELATIONSHIP BETWEEN EUROPEAN LAWS AND THE COMMON LAW
GENERAL 1.02
CONSEQUENCES 1.03
THE CONVENTIONS AND THE CONTRACTING STATES; THE COUNCIL REGULATION AND
THE
MEMBER STATES
THE CONVENTIONS 1.04
THE BRUSSELS CONVENTION 1.05
ACCESSION OF DENMARK, IRELAND AND THE UNITED KINGDOM 1.06
ACCESSION OF THE HELLENIC REPUBLIC 1.07
ACCESSION OF PORTUGAL AND SPAIN 1.08
ACCESSION OF AUSTRIA, FINLAND AND SWEDEN 1.09
THE LUGANO CONVENTION 1.10
THE JUDGMENTS REGULATION: COUNCIL REGULATION (EC) 44/2001 1.11
AMENDMENTS TO THE JUDGMENTS REGULATION 1.12
SECONDARY SOURCES OF THE LAW
GENERAL 1.13
OFFICIAL COMMENTARIES ON THE BRUSSELS AND LUGANO CONVENTIONS 1.14
REFERENCES TO THE COURT OF JUSTICE AND DECIDED CASES 1.15
XI
TABLE OF CONTENTS
ACADEMIC SOURCES ****"
GEOGRAPHICAL MATTERS
CIENERAL
L17
DISCRIMINATION AND HUMAN RIGHTS
EUROPEAN UNION LAW AND THE HUMAN RIGHTS ACT 1-18
THE EUROPEAN CONVENTION ON HUMAN RIGHTS T-19
ARTICLE 6 ECHR AND THE RIGHT TO A FAIR HEARING 1-20
2 JURISDICTION UNDER THE JUDGMENTS REGULATION
GENERAL 2.01
CIENERAL PRINCIPLES OF INTERPRETATION OF THE REGULATION 2.02
AN EQUAL AND UNIFORM INTERPRETATION 2.03
AUTONOMOUS INTERPRETATION 2.04
EXCEPTIONS TO THE DOMICILIARY RULE WILL BE NARROWLY CONSTRUED 2.05
THE RISK OF INCONSISTENT DECISIONS MUST BE KEPT TO A MINIMUM 2.06
EVALUATION 2.07
THE HIERARCHY OF JURISDICTIONAL RULES 2.08
CHALLENGING THE JURISDICTION OF THE ENGLISH COURT 2.09
THE NEED TO COMMENCE PROCEEDINGS FIRST 2.10
PROSPECTIVE CLAIMANT 2.11
PROSPECTIVE DEFENDANT 2.12
THE ABSENCE OF OTHER MEANS OF PREVENTING A COURT FROM EXERCISING
JURISDICTION 2.13
THE BRINGING OF SUBSTANTIVE PROCEEDINGS AND DISREGARDING THOSE IN
ANOTHER COURT 2.14
MAKING AN APPLICATION FOR AN INJUNCTION TO RESTRAIN THE PROCEEDINGS IN
THE OTHER
MEMBER STATES 2.15
THE TAKING OF PROCEEDINGS IN A NON-MEMBER STATE 2.16
WHAT A DEFENDANT SHOULD DO IF SERVED WITH PROCESS IN A CASE TO WHICH THE
REGULATION APPLIES 2.17
WHAT THE CLAIMANT MAY DO IF THE DEFENDANT DOES NOT ENTER AN APPEARANCE
2.18
(/) 77IT' DOMAIN OF THE REGULATION: ARTICLES 66 AND 1
CIENERAL 2.19
TEMPORAL, GEOGRAPHICAL AND PERSONAL SCOPE OF THE REGULATION: ARTICLES 66
AND 1 2.20
CIENERAL 2.21
MATERIAL SCOPE OF THE REGULATION: ARTICLE 1 2.22
GENERAL 2.23
CIVIL AND COMMERCIAL MATTERS 2.24
APPLYING ARTICLE 1 BY REFERENCE TO THE CLAIM, OR THE CLAIM AND DEFENCE
2.25
MATTERS SPECIFICALLY EXCLUDED FROM THE DOMAIN OF THE REGULATION BY
ARTICLE 1 2.26
THE STATUS OR LEGAL CAPACITY OF NATURAL PERSONS, RIGHTS IN PROPERTY
ARISING OUT OF A
MATRIMONIAL RELATIONSHIP, WILLS AND SUCCESSION: ARTICLE L(2)(A) 2.27
BANKRUPTCY, PROCEEDINGS RELATING TO THE WINDING-UP OF INSOLVENT
COMPANIES OR
OTHER LEGAL PERSONS, JUDICIAL ARRANGEMENTS, COMPOSITIONS AND ANALOGOUS
PROCEEDINGS: ARTICLE L(2)(B) 2.28
SOCIAL SECURITY: ARTICLE L(2)(C) 2.29
ARBITRATION: ARTICLE L(2)(D) 2.30
THE SUBJECT-MATTER OF THE REGULATION: GENERAL 2.31
XII
TABLE OF CONTENTS
SCOPE OF THE REGULATION: JURISDICTION FROM OTHER CONVENTIONS 2.32
SCOPE OF THE REGULATION: INTERNATIONAL JURISDICTION 2.33
(2) JURISDICTION UNDER ANOTHER INTERNATIONAL INSTRUMENT: ARTICLES 67 TO
71
GENERAL 2.34
CONVENTION ON PARTICULAR MATTERS 2.35
CO-EXISTENCE BETWEEN THE JUDGMENTS REGULATION AND THE PARTICULAR
CONVENTION 2.36
MARITIME AND OTHER CONVENTIONS 2.37
THE EUROPEAN CONVENTION ON HUMAN RIGHTS AS AN ARTICLE 71 CONVENTION 2.38
COMMUNITY LEGAL INSTRUMENTS 2.39
CONCLUSION 2.40
(3) EXCLUSIVE JURISDICTION, REGARDLESS OF DOMICILE: ARTICLE 22
GENERAL 2.41
TITLE TO, AND TENANCIES OF IMMOVABLE PROPERTY IN A MEMBER STATE: ARTICLE
22(1) 2.42
PROCEEDINGS HAVING AS THEIR OBJECT RIGHTS IN REM 2.43
MUST THE RULES RELIED ON BE RULES PECULIAR TO LAND LAW? 2.44
PROCEEDINGS HAVING AS THEIR OBJECT TENANCIES OF IMMOVABLE PROPERTY 2.45
PROCEEDINGS HAVING ONLY AS AN INCIDENTAL OBJECT A MATTER AS TO WHICH
ARTICLE
22(1) APPLIES 2.46
CONTRACTS FOR THE CONVEYANCE OF IMMOVABLE PROPERTY 2.47
SHORT PRIVATE LETTINGS: CONCURRENT EXCLUSIVE JURISDICTION 2.48
IMMOVABLE PROPERTY IN THE UNITED KINGDOM 2.49
IMMOVABLE PROPERTY IN A NON-MEMBER STATE 2.50
COMPANIES WITH THEIR SEAT IN A MEMBER STATE: ARTICLE 22(2) 2.51
GENERAL 2.52
COMPANY WITH SEAT IN THE UNITED KINGDOM 2.53
VALIDITY OF ENTRIES IN PUBLIC REGISTERS IN MEMBER STATES: ARTICLE 22(3)
2.54
PUBLIC REGISTER KEPT IN THE UNITED KINGDOM 2.55
INTELLECTUAL PROPERTY RIGHTS REGISTERED IN MEMBER STATES: ARTICLE 22(4)
2.56
GENERAL 2.57
DEPOSIT OR REGISTRATION IN THE UNITED KINGDOM 2.58
ENFORCEMENT OF JUDGMENTS FROM THE COURTS OF MEMBER STATES: ARTICLE 22(5)
2.59
GENERAL 2.60
JUDGMENTS FROM NON-MEMBER STATES 2.61
ENFORCEMENT OF JUDGMENTS FROM COURTS OF OTHER MEMBER STATES IN THE
UNITED
KINGDOM 2.62
ARTICLE 22 CONNECTIONS BY ANALOGY: LAND ETC, IN A NON-MEMBER STATE 2.63
CONCLUSION 2.64
(4) JURISDICTION BY ENTERING AN APPEARANCE: ARTICLE 24
GENERAL 2.65
SCHEME OF THE RULE 2.66
ENTERING AN APPEARANCE, OR SUBMISSION? 2.67
CONTESTING THE JURISDICTION OF THE COURT: PRINCIPLES 2.68
CONTESTING THE JURISDICTION OF THE COURT: PROCEDURE 2.69
CONCLUSION 2.70
(5) SPECIAL RULES CONCERNING INSURANCE CONTRACTS: ARTICLES 8 TO 14
GENERAL 2.71
XIII
TABLE OF CONTENTS
JURISDICTIONAL RULES: GENERAL: ARTICLES 8 TO 12 2.72
CHOICE OF COURT AGREEMENTS IN INSURANCE CONTRACTS: ARTICLES 13 AND 14
2.73
INTERNATIONAL JURISDICTION IN THE COURTS OF THE UNITED KINGDOM 2.74
? 7S
CONCLUSION '
(6) SPECIAL RULES CONCERNING CERTAIN CONSUMER CONTRACTS: ARTICLES 15 TO
17
GENERAL
2
-
76
CONSUMERS: ARTICLE 15 2.77
CONSUMERS' CONTRACTS: GENERAL CRITERIA 2.78
CONSUMERS' CONTRACTS: STATUTORY DEFINITION 2.79
JURISDICTIONAL RULES: ARTICLE 16 2.80
CHOICE OF COURT AGREEMENTS: ARTICLE 17 2.81
INTERNATIONAL JURISDICTION IN THE COURTS OF THE UNITED KINGDOM 2.82
CONCLUSION 2.83
(7) JURISDICTION OVER INDIVIDUAL CONTRACTS OF EMPLOYMENT: ARTICLES 18 TO
21
GENERAL 2.84
JURISDICTIONAL RULES: ARTICLES 18 TO 21 2.85
INTERNATIONAL JURISDICTION IN THE COURTS OF THE UNITED KINGDOM 2.86
CONCLUSION 2.87
(8) AGREEMENTS ON CHOICE OF COURT FOR A MEMBER STATE: ARTICLE 23
GENERAL 2.88
THE GENERAL EFFECT OF A CHOICE OF COURT AGREEMENT 2.89
DEALING WITH DISPUTES AS TO THE VALIDITY OF THE AGREEMENT 2.90
THE IMPACT OF PROCEEDINGS TAKEN IN OTHER COURTS TO DEFEAT THE
JURISDICTION
AGREEMENT 2.91
FORMAL REQUIREMENTS FOR A VALID AGREEMENT ON CHOICE OF COURT: GENERAL
2.92
IN WRITING, OR EVIDENCED IN WRITING 2.93
COMPLIANCE WITH PREVIOUS COURSE OF DEALING 2.94
COMPLIANCE WITH THE PRACTICES OF INTERNATIONAL TRADE 2.95
INCORPORATION OF AGREEMENTS ON JURISDICTION FROM ONE CONTRACT TO ANOTHER
2.96
FORMALITY REQUIREMENTS AND THIRD PARTIES TO THE AGREEMENT 2.97
FORMAL REQUIREMENTS AND LUXEMBOURG DOMICILIARIES 2.98
THE SUBSTANCE OF THE CLAUSE: COURTS OF TWO MEMBER STATES 2.99
THE SUBSTANCE OF THE CLAUSE: NON-GEOGRAPHICAL DESIGNATION 2.100
THE SUBSTANCE OF THE CLAUSE: THE COURTS OF THE UNITED KINGDOM 2.101
THE SUBSTANCE OF THE CLAUSE: THE COURTS OF A NON-MEMBER STATE 2.102
THE SUBSTANCE OF THE CLAUSE: CHOOSING A COURT AND CONFERRING
NON-EXCLUSIVE
JURISDICTION UPON IT 2.103
CHALLENGES TO THE VALIDITY OF THE CLAUSE UNDER NATIONAL LAW: FORMAL OR
PROCEDURAL
REQUIREMENTS 2.104
CHALLENGES TO THE VALIDITY OF THE CLAUSE UNDER NATIONAL LAW. ON
SUBSTANTIVE
GROUNDS 2.105
CLAUSES BENEFITING ONLY ONE PARTY 2.106
CHOICE OF COURT WITHIN TRUST INSTRUMENTS 2.107
JURISDICTION BY AGREEMENT DERIVED FROM OTHER CONTRACTUAL TERMS 2.108
INTERNATIONAL JURISDICTION IN THE ENGLISH OR UNITED KINGDOM COURTS 2.109
CONCLUSION 2.110
XIV
TABLE OF CONTENTS
(9) IS THE DEFENDANT DOMICILED IN THE UNITED KINGDOM? ARTICLE 2
GENERAL 2.111
THE DETERMINATION OF A DEFENDANT'S DOMICILE 2.112
DOMICILE IN THE UNITED KINGDOM: INDIVIDUALS 2.113
DOMICILE OF CORPORATIONS AND ASSOCIATIONS: SCHEME AND PURPOSE 2.114
DOMICILE OF COMPANIES OR ASSOCIATIONS FOR GENERAL PURPOSES 2.115
SEAT OF COMPANY OR ASSOCIATION FOR PURPOSE OF ARTICLE 22(2) 2.116
DEEMED DOMICILE OF NON-MEMBER STATE INSURERS, SUPPLIERS AND EMPLOYERS
2.117
DOMICILE OF TRUSTS 2.118
DOMICILE OF THE CROWN 2.119
CONCLUSIONS 2.120
(10) SPECIAL JURISDICTION OVER DEFENDANTS DOMICILED IN ANOTHER MEMBER
STATE:
ARTICLES 5 TO 7
GENERAL 2.121
SPECIAL JURISDICTION UNDER ARTICLE 5 2.122
SPECIAL JURISDICTION IN MATTERS RELATING TO A CONTRACT: ARTICLE 5(1)
2.123
MATTERS RELATING TO A CONTRACT: AN AUTONOMOUS DEFINITION 2.124
THE DECISION IN HANDTE 2.125
THE APPLICATION OF THE DECISION IN HANDTE: STRANGERS TO THE AGREEMENT
2.126
THE APPLICATION OF THE DECISION IN HANDTE: UNDERTAKINGS FREELY ENTERED
INTO 2.127
VOIDABLE CONTRACTS AND "VOID CONTRACTS" AS CONTRACTUAL OBLIGATIONS 2.128
NEGLIGENT PROFESSIONAL SERVICES 2.129
QUASI-CONTRACTUAL OR UNJUST ENRICHMENT CLAIMS 2.130
THE OBLIGATION IN QUESTION: GENERAL 2.131
THE OBLIGATION IN QUESTION AND DISPUTED CONTRACTS 2.132
THE OBLIGATION IN QUESTION: MULTIPLE BROKEN OBLIGATIONS 2.133
THE OBLIGATION IN QUESTION: AN OBLIGATION CALLING FOR PERFORMANCE IN
MORE THAN
ONE STATE 2.134
THE OBLIGATION IN QUESTION: PRIMARY OR SECONDARY OBLIGATIONS 2.135
THE OBLIGATION IN QUESTION: CONTRACTS OF DISTRIBUTORSHIP 2.136
THE PLACE OF PERFORMANCE OF THE OBLIGATION IN QUESTION 2.137
LOCATING THE PLACE OF PAYMENT OF MONEY 2.138
CONTRACTUAL AND NON-CONTRACTUAL CLAIMS IN THE SAME ACTION 2.139
DISPUTING THE VERY EXISTENCE OF A CONTRACT 2.140
CONTRACTS MADE WITH PERSONS DOMICILED IN LUXEMBOURG 2.141
INTERNATIONAL JURISDICTION IN THE UNITED KINGDOM 2.142
SPECIAL JURISDICTION IN MATTERS CONCERNING MAINTENANCE: ARTICLE 5(2)
2.143
SPECIAL JURISDICTION IN MATTERS RELATING TO TORT: ARTICLE 5(3) 2.144
MATTERS RELATING TO TORT, DELICT OR QUASI-DELICT 2.145
THE DECISION IN KALFELIS AND THE MEANING OF LIABILITY 2.146
LATER DECISIONS AND THE MEANING OF LIABILITY 2.147
CONCURRENT CAUSES OF ACTION AND THE RELATIONSHIP BETWEEN ARTICLES 5(1)
AND 5(3) 2.148
OBLIGATIONS BASED ON A DUTY OF CARE 2.149
CLAIMS AGAINST PROFESSIONAL PROVIDERS OF SERVICES 2.150
TORT CLAIMS WITH CONTRACTUAL DEFENCES 2.151
EQUITABLE OBLIGATIONS 2.152
UNJUST ENRICHMENT CLAIMS, OR OBLIGATIONS NOT BASED ON WRONGS 2.153
PRODUCT LIABILITY 2.154
ARTICLES 5(1) AND 5(3): SOME CONCLUSIONS 2.155
XV
TABLE OF CONTENTS
THE HARMFUL EVENT: GENERAL INTERPRETATION 2.156
THE LIRST LIMB OF BIER, THE DAMAGE WHICH SERVES TO LOCATE SPECIAL
JURISDICTION 2.157
THE FIRST LIMB OF BIER, IDENTIFYING WHERE THE DAMAGE OCCURRED 2.158
THE FIRST LIMB OF BIER, DAMAGE OCCURRING IN MORE THAN ONE MEMBER STATE
2.159
THE SECOND LIMB OF BIER, THE EVENT GIVING RISE TO THE DAMAGE 2.160
THE HARMFUL EVENT IN RELATION TO CLAIMS BASED ON UNJUST ENRICHMENT 2.161
NO "ACCESSORY" SPECIAL JURISDICTION OVER RELATED CLAIMS 2.162
SPECIAL JURISDICTION IN RESPECT OF THREATENED OR ANTICIPATED TORTS 2.163
INTERNATIONAL JURISDICTION IN THE ENGLISH COURT 2.164
SPECIAL JURISDICTION IN CIVIL CLAIMS RAISED IN CRIMINAL CASES: ARTICLE
5(4) 2.165
SPECIAL JURISDICTION OVER DEFENDANTS WHO DEAL THROUGH BRANCHES AND
AGENCIES:
ARTICLE 5(5) 2.166
BRANCH, AGENCY, OR OTHER ESTABLISHMENT 2.167
DISPUTE ARISING FROM THE OPERATIONS OF THE BRANCH 2.168
INTERNATIONAL JURISDICTION IN THE ENGLISH COURT 2.169
SPECIAL JURISDICTION OVER A TRUSTEE, BENEFICIARY OR SETTLOR SUED AS
SUCH: ARTICLE
5(6) 2.170
TRUSTS DOMICILED IN THE UNITED KINGDOM 2.171
JURISDICTION OVER PAYMENT IN RESPECT OF SALVAGE CLAIMS: ARTICLE 5(7)
2.172
SPECIAL JURISDICTION UNDER ARTICLE 6 2.173
SPECIAL JURISDICTION OVER CO-DEFENDANTS: ARTICLE 6(1) 2.174
THE CONNECTION BETWEEN THE CLAIMS AGAINST THE DEFENDANTS 2.175
IS THERE A DUTY TO ACCEPT JURISDICTION UNDER ARTICLE 6(1)? 2.176
INTERNATIONAL JURISDICTION IN THE COURTS OF THE UNITED KINGDOM 2.177
SPECIAL JURISDICTION OVER THIRD-PARTY PROCEEDINGS: ARTICLE 6(2) 2.178
THE TYPES OF PROCEEDINGS WITHIN THE ARTICLE 2.179
IS THERE A DUTY TO ACCEPT SPECIAL JURISDICTION UNDER ARTICLE 6(2)? 2.180
PROCEEDINGS IN THE ENGLISH COURT 2.181
SPECIAL JURISDICTION OVER COUNTERCLAIMS: ARTICLE 6(3) 2.182
PROCEEDINGS IN THE ENGLISH COURT 2.183
SPECIAL JURISDICTION IN CLAIMS CONCERNING CONTRACTS RELATING TO LAND:
ARTICLE 6(4) 2.184
LAND IN THE UNITED KINGDOM 2.185
SPECIAL JURISDICTION TO LIMIT LIABILITY: ARTICLE 7 2.186
CONCLUSION 2.187
111) DEFENDANTS NOT DOMICILED IN ANX MEMBER STATE: ARTICLE 4
GENERAL 2.188
CONSEQUENCES OF THE APPLICATION OF ARTICLE 4 2.189
ARTICLE 4 JURISDICTION AND US ALIBI PENDENS 2.190
SERVICE OF PROCESS ON THE DEFENDANT 2.191
112) \ 'ERIFIAITION OF JURISDICTION I ARTICLES 25 AND 26), AND THE
EFFECT OF A LIS ALIBI
PENDENS (ARTICLES 27 TO 30)
YERITIEATION OF JURISDICTION OVER THE DEFENDANT: ARTICLES 25 AND 26
2.192
I! THE DEFENDANT APPEARS, CHECKING FOR THE EXISTENCE OF EXCLUSIVE
JURISDICTION:
ARTICLE 25 2 193
IT THE DELENDANT DOES NOT APPEAR, CHECKING FOR THE EXISTENCE OF
JURISDICTION:
ARTICLE 2(T 2 194
CONCLUSION 2195
THE GENERAL SCHEME FOR DEALING WITH A LIS ALIBI PENDENS: ARTICLES 27 TO
30 2.196
XVI
TABLE OF CONTENTS
SAME CAUSE OF ACTION, BETWEEN SAME PARTIES, IN ANOTHER MEMBER STATE:
ARTICLE
27
2.197
GENERAL APPROACH TO ARTICLE 27 2 198
THE SAME CASE OF ACTION: IDENTITY OF OBJET AND IDENTITY OF CAUSE 2.199
THE SAME PARTIES: IDENTITY OF PARTIES 2.200
DATE ON WHICH A COURT IS SEISED: BACKGROUND 2.201
A UNIFORM DEFINITION OF WHEN A COURT BECOMES SEISED FOR THE PURPOSE OF
THE
REGULATION 2 202
THE DATE OF SEISIN: MULTIPLE DEFENDANTS 2.203
THE DATE OF SEISIN: AMENDMENT OF PLEADINGS 2.204
COURT CEASING TO BE SEISED OR STAYING ITS PROCEEDINGS 2.205
IF THE COURT SEISED SECOND BELIEVES THAT IT HAS JURISDICTION AND THAT
THE COURT
SEISED FIRST DOES NOT 2.206
IF THE COURT SEISED SECOND BELIEVES IT HAS EXCLUSIVE JURISDICTION AND
THE COURT
SEISED FIRST DOES NOT 2.207
COURT SEISED FIRST IN ANOTHER PART OF THE UNITED KINGDOM 2.208
RELATED ACTION IN ANOTHER MEMBER STATE: ARTICLE 28 2.209
THE MEANING OF "RELATED ACTIONS" 2.210
STAYING PROCEEDINGS WHILE THE ACTION IS PENDING IN THE COURT FIRST
SEISED: ARTICLE
28(1) 2.211
DISMISSAL FOR CONSOLIDATION WITH PROCEEDINGS PENDING IN COURT SEISED
FIRST:
ARTICLE 28(2) 2.212
ARTICLE 28: SELECTING BETWEEN THE POSSIBILITIES OFFERED TO THE COURT
2.213
CONCURRENT EXCLUSIVE JURISDICTIONS: ARTICLE 29 2.214
PROCEEDINGS IN DENMARK, ICELAND, NORWAY OR SWITZERLAND 2.215
PROCEEDINGS IN A NON-MEMBER, NON-CONTRACTING STATE 2.216
(13) THE ROLE OF JUDICIAL DISCRETION IN THE EXERCISE OF REGULATION
JURISDICTION
GENERAL 2.217
DISPUTES AS TO THE AVAILABILITY OR APPLICABILITY OF THE JURISDICTIONAL
RULE RELIED ON 2.218
JUDICIAL DISCRETION TO DECLINE TO EXERCISE JURISDICTION CONFERRED BY THE
REGULATION 2.219
ARGUMENTS FOR AND AGAINST THE EXISTENCE OF JURISDICTIONAL DISCRETION
2.220
THE ILLUSION OF A SINGLE BROAD, AND GENERAL ANSWER 2.221
(1) JURISDICTION BASED ON ARTICLE 2; MORE APPROPRIATE FORUM IN ANOTHER
MEMBER
STATE 2.222
(2) JURISDICTION BASED ON ARTICLE 2; MORE APPROPRIATE FORUM IN A
NON-MEMBER
STATE 2.223
(3) JURISDICTION BASED ON ARTICLE 2; AGREEMENT ON CHOICE OF COURT FOR A
NON-MEMBER STATE 2.224
(4) JURISDICTION BASED ON ARTICLE 2; DETERMINATION OF TITLE TO LAND IN A
NON-MEMBER STATE 2.225
(5) JURISDICTION BASED ON ARTICLE 2; PROCEEDINGS ALREADY PENDING IN
COURT OF
NON-MEMBER STATE 2.226
(6) JURISDICTION BASED ON ARTICLE 4; MATERIAL CONNECTION WITH NON-MEMBER
STATE 2.227
(7) JURISDICTION BASED ON ARTICLE 4; MORE APPROPRIATE FORUM IN ANOTHER
MEMBER
STATE 2.228
CONCLUSIONS ON THE EXERCISE OF DISCRETION IN RELATION TO JURISDICTION
2.229
FINAL CONCLUSIONS ON THE OPERATION OF THE REGULATION 2.230
(14) INTERNATIONAL JURISDICTION IN THE COURTS OF THE UNITED KINGDOM
INTERNATIONAL JURISDICTION AND THE ALLOCATION OF JURISDICTION WITHIN THE
UNITED
KINGDOM 2.231
XVII
TABLE OF CONTENTS
INTERNAL JURISDICTION IN NON-INTERNATIONAL CASES 2.151
SCHEDULE 4 TO THE 1982 ACT: GENERAL
2
-
233
SCHEDULE 4 TO THE 1982 ACT: DETAILED PROVISIONS
2
-
234
3 JURISDICTION UNDER THE BRUSSELS AND LUGANO
CONVENTIONS
GENERAL
3
-
01
INTERPRETATION OF THE BRUSSELS AND LUGANO CONVENTIONS 3.02
THE JURISDICTIONAL RULES OF THE BRUSSELS AND LUGANO CONVENTIONS 3.03
(01) DOMAIN OF THE CONVENTIONS: ARTICLES 1 AND 54 3.04
(02) JURISDICTION DERIVED FROM OTHER CONVENTIONS: ARTICLE 57 3.05
(03) EXCLUSIVE JURISDICTION REGARDLESS OF DOMICILE: ARTICLE 16 3.06
(04) JURISDICTION DERIVED FROM THE ENTERING OF AN APPEARANCE: ARTICLE 18
3.07
(05) SPECIAL JURISDICTIONAL RULES CONCERNING INSURANCE CONTRACTS:
ARTICLES 7 TO
12A 3.08
(OD) JURISDICTIONAL RULES CONCERNING CERTAIN CONSUMER CONTRACTS:
ARTICLES 13 TO
15 3.09
(07) JURISDICTION OVER INDIVIDUAL CONTRACTS OF EMPLOYMENT: ARTICLES 5(1)
AND 17(5) 3.10
(08) AGREEMENTS ON CHOICE OF COURT FOR A CONTRACTING STATE: ARTICLE 17
3.11
(09) DEFENDANT DOMICILED IN THE UNITED KINGDOM: ARTICLE 2 3.12
(OH)) SPECIAL JURISDICTION OVER DEFENDANTS DOMICILED IN ANOTHER
CONTRACTING
STATE: ARTICLES 5 TO 6A 3.13
(011) JURISDICTION OVER DEFENDANTS NOT DOMICILED IN ANY CONTRACTING
STATE:
ARTICLE 4 3.14
(012) EXAMINATION OF JURISDICTION AND US ALIBI PENDENS: ARTICLES 19 TO
23 3.15
(013) THE ROLE OF JUDICIAL DISCRETION IN RELATION TO JURISDICTION UNDER
THE
CONVENTION 3.16
(014) INTERNATIONAL JURISDICTION GIVEN BY THE CONVENTIONS TO THE COURTS
OF THE
UNITED KINGDOM 3.17
4 THE COMMON LAW RULES OF JURISDICTION
THE COMMON LAW RULES AND THEIR SPHERE OF APPLICATION
INTRODUCTION 4.01
THE COMMON LAW RULES OF JURISDICTION IN SUMMARY
GENERAL 4.02
SERVICE WITHIN THE JURISDICTION 4.03
SERVICE OUT OF THE JURISDICTION 4.04
CASES WHERE JURISDICTION AT COMMON LAW DOES NOT AND CANNOT EXIST 4.05
DETERMINATION OF TITLE TO FOREIGN LAND 4.06
FOREIGN INTELLECTUAL PROPERTY RIGHTS 4.07
FOREIGN PENAL, REVENUE AND ANALOGOUS PUBLIC LAWS 4.08
JURISDICTIONAL IMMUNITY DERIVED FROM PUBLIC INTERNATIONAL LAW 4.09
PROCEEDINGS COMMENCED BY SERVICE WITHIN THE JURISDICTION
GENERA! 4.10
STAYING PROCEEDINGS: STATUTORY LIMITATIONS ON THE GENERAL POWER 4.11
STAYING PROCEEDINGS: GENERAL 4.12
WHERE THERE IS NO CONTRACTUAL CHOICE OF COURT: THE GENERAL APPROACH 4.13
SPILIADA FIRST LIMB: THE **AVAILABILITY" OF THE FOREIGN FORUM 4,14
XVIII
TABLE OF CONTENTS
SPILIADA FIRST LIMB: THE AVAILABLE FOREIGN FORUM IS CLEARLY OR
DISTINCTLY MORE
APPROPRIATE 4.15
SPILIADA SECOND LIMB: IT IS (NOT) UNJUST TO CONFINE THE CLAIMANT TO THE
FOREIGN
COURT 4.16
THE RELEVANCE OF TIME BARS IN THE ASSESSMENT OF WHAT JUSTICE REQUIRES
4.17
THE IMPACT OF DIFFERENCES AS TO CHOICE OF LAW AND THE ENFORCEABILITY OF
JUDGMENTS 4.18
LIS ALIBI PENDENS AND THE STAYING OF ACTIONS 4.19
CRITICISM 4.20
TIME FOR APPLICATION 4.21
APPLICATIONS FOR A STAY WHERE THERE IS PRIOR AGREEMENT FOR A FOREIGN
COURT 4.22
THE POINT OF DEPARTURE: THE SCOPE AND CONSTRUCTION OF THE AGREEMENT 4.23
THE CLAIM MUST FALL WITHIN THE SCOPE OF THE AGREEMENT 4.24
THE AGREEMENT MUST BE AND MUST REMAIN VALID AND ENFORCEABLE AS BETWEEN
THE PARTIES 4.25
THE AGREEMENT MUST MAKE IT A BREACH OF CONTRACT FOR THE PROCEEDINGS TO
BE
BROUGHT IN ENGLAND 4.26
THE PRINCIPLES ON WHICH A STAY IS GRANTED IF BRINGING THE ENGLISH
PROCEEDINGS IS A
BREACH OF CONTRACT 4.27
THE POSSIBLE APPLICATION OF SPILIADA 4.28
ALTERNATIVE ENFORCEMENT OF THE AGREEMENT BY AN ACTION FOR DAMAGES 4.29
STAYS ON THE BASIS OF AGREEMENTS ON ARBITRATION 4.30
PROCEEDINGS COMMENCED BY SERVICE OUT OF THE JURISDICTION WITH THE
PERMISSION OF
THE COURT
GENERAL 4.31
JURISDICTION TO GRANT PERMISSION: PARAGRAPHS OF CPR R 6.20(1) 4.32
DEFENDANT DOMICILED IN ENGLAND: CPR R 6.20(1) 4.33
INJUNCTIONS: CPR R 6.20(2) 4.34
NECESSARY OR PROPER PARTY: CPR R 6.20(3) 4.35
PART 20 CLAIMS: CPR R 6.20(3A) 4.36
CLAIMS FOR INTERIM REMEDIES: CPR R 6.20(4) 4.37
CLAIMS IN RELATION TO CONTRACTS: CPR R 6.20(5)-(7) 4.38
PARAGRAPHS (5) AND (7): THE TYPE OF CONTRACT 4.39
BREACH OF CONTRACT CLAIMS: CPR R 6.20(6) 4.40
CLAIMS MADE IN TORT: CPR R 6.20(8) 4.41
CLAIMS "MADE IN TORT" 4.42
DAMAGE SUSTAINED WITHIN THE JURISDICTION: CPR R 6.20(8)(A) 4.43
ACT COMMITTED WITHIN THE JURISDICTION: CPR R 6.20(8)(B) 4.44
ENFORCEMENT OF JUDGMENTS AND AWARDS: CPR R 6.20(9) 4.45
PROPERTY LOCATED WITHIN THE JURISDICTION: CPR R 6.20(10) 4.46
TRUSTS: CPR R 6.20(11)
4
-
47
ADMINISTRATION OF ESTATES: CPR R 6.20(12) 4.48
PROBATE: CPR R 6.20(13)
4
-
49
CONSTRUCTIVE TRUSTEESHIP: CPR R 6.20(14) 4.50
CLAIMS FOR RESTITUTION: CPR R 6.20(15) 4.51
CLAIMS BY THE INLAND REVENUE: CPR R 6.20(16) 4.52
CLAIMS FOR COSTS ORDERS FOR OR AGAINST NON-PARTIES TO AN ACTION: CPR
6.20(17) 4.53
CERTAIN ADMIRALTY CLAIMS: CPR R 6.20(17A) 4.54
CLAIMS MADE UNDER SPECIFIC ENACTMENTS: CPR R 6.20(18) 4.55
THE STANDARD OF PROOF NEEDED TO SATISFY THE REQUIREMENTS PF CPR R 6.20
4.56
FURTHER REQUIREMENTS ONCE CPR R 6.20 HAS BEEN SATISFIED: CPR R 6.21 4.57
ENGLAND IS THE PROPER PLACE IN WHICH TO BRING THE CLAIM: CPR R 6.21 (2A)
4.58
XIX
TABLE OF CONTENTS
IT ENGLAND IS NOT THE NATURAL FORUM, IT MAY STILL BE THE PROPER PLACE
FOR THE CLAIM 4.59
IT MUST NOT BE UNJUST TO REQUIRE THE DEFENDANT TO COME TO ENGLAND 4.60
THE CLAIMANT RAISES A SERIOUS ISSUE TO BE TRIED ON THE MERITS 4.61
SPDUIDA AND SEACONSAR. EVALUATION 4.62
CHALLENMNG JURISDICTION AND THE EXERCISE OF JURISDICTION: CPR PART 11
4.63
5 PROCEDURAL LAW: SERVICE OF PROCESS,
CHALLENGING JURISDICTIONS AND THE ART OF
ASSERTIVE FORUM SHOPPING
SCOPE OF THIS CHAPTER 5.01
I A) SERVICE OF PROCESS
SERVICE WITHIN THE JURISDICTION: GENERAL 5.02
SERVICE WITHIN THE JURISDICTION: METHODS 5.03
PERIOD OF VALIDITY FOR SERVICE OF A CLAIM FORM 5.04
SERVICE HY PERSONAL SERVICE 5.05
THE PLACE OF SERVICE 5.06
SERVICE BY LIRST CLASS POST 5.07
SER\ ICE BY DELIVERING OF LEAVING AT A SPECIFIED PLACE 5.08
SERVICE THROUGH A DOCUMENT EXCHANGE 5.09
SERVICE BY FAX 5.10
SERVICE BY OTHER MEANS OF ELECTRONIC COMMUNICATION 5.11
SERVICE BY AN ALTERNATIVE METHOD 5.12
SERVICE OF CLAIM FORM BY AGREED METHOD 5.13
SERVICE OF CLAIM FORM ON LOCAL AGENT OF OVERSEAS PRINCIPAL 5.14
STATUTORY SERVICE ON COMPANIES 5.15
STATUTORY SERVICE UPON A UNITED KINGDOM COMPANY 5.16
STATUTORY SERVICE UPON AN OVERSEA COMPANY: GENERAL 5.17
SECTION 694A SERVICE UPON A SECTION 690A COMPANY: BRANCH REGISTRATION
5.18
SECTION 695 SERVICE UPON A SECTION 691 COMPANY 5.19
SERVICE IN CLAIMS AGAINST PARTNERSHIPS: SUMMARY 5.20
SERVICE OUT OF THE JURISDICTION: UNCERTAINTY AS TO THE NEED FOR
PERMISSION 5.21
SERVICE OUT OF THE JURISDICTION OUTSIDE THE TERRITORIES OF THE MEMBER
STATES 5.22
SERVICE OUT OF THE JURISDICTION WITHIN THE TERRITORY OF A MEMBER STATE
5.23
TIL) DISPUTING TIN' JURISDICTION OF THE COURT
GENERAL 5.24
IGNORING SERVICE OF IHE CLAIM FORM 5.25
DISPUTING THE JURISDICTION OF THE ENGLISH COURT 5.26
THE PROCEDURE OF THE CHALLENGE: CPR PART 11 5.27
GROUNDS LOR DISPUTING THE JURISDICTION 5.28
CONCURRENT APPLICATION FOR A STAY OF PROCEEDINGS 5.29
APPLICATION BY THE DEFENDANT TO HAVE THE CLAIM STRUCK OUT ON SUBSTANTIVE
GROUNDS 5.30
APPLICATION BY THE CLAIMANT FOR SUMMARY JUDGMENT 5.31
DISPUTING THE JURISDICTION: CONCLUSIONS 5.32
(C) SII/Y OF PROCEEDINGS
GENERAL 5 33
XX
TABLE OF CONTENTS
(D) ANTI-SUIT INJUNCTIONS
GENERAL 5.34
JURISDICTION IN PERSONAM OVER THE RESPONDENT 5.35
JURISDICTION IN PERSONAM AND THE JUDGMENTS REGULATION 5.36
JURISDICTION IN PERSONAM APART FROM THE REGULATION 5.37
THE PRINCIPLES UPON WHICH AN INJUNCTION IS ORDERED: GENERAL 5.38
BREACH OF A LEGAL RIGHT NOT TO BE SUED IN THE FOREIGN COURT 5.39
AN EQUITABLE RIGHT NOT TO BE SUED: VEXATIOUS OR OPPRESSIVE OR
UNCONSCIONABLE
FOREIGN PROCEEDINGS 5.40
VEXATIOUS OR OPPRESSIVE CONDUCT IN SUING IN THE FOREIGN COURT 5.41
THE PROBLEM VIEWED AS ONE TO BE SOLVED BY CREATIVE CASE MANAGEMENT 5.42
WHERE THE INJUNCTION PROTECTS THE JURISDICTION OF THE ENGLISH COURT 5.43
OTHER UNCONSCIONABLE ACTS 5.44
RESTRAINING CIVIL OR COMMERCIAL PROCEEDINGS BEFORE THE COURTS OF ANOTHER
MEMBER STATE 5.45
PUBLIC INTEREST FACTORS IN THE EXERCISE OF DISCRETION 5.46
WHERE THE RESPONDENT WILL LOSE IN ENGLAND 5.47
CANADIAN AND AUSTRALIAN AUTHORITY AND ITS RELEVANCE 5.48
THE TIMING OF THE APPLICATION 5.49
MEASURES ANCILLARY TO AN ANTI-SUIT INJUNCTION 5.50
BREACH OF AN ANTI-SUIT INJUNCTION 5.51
FURTHER DEVELOPMENT RELATING TO ENFORCEMENT OF FOREIGN JUDGMENTS 5.52
DAMAGES AS AN ALTERNATIVE TO AN ANTI-SUIT INJUNCTION 5.53
(E) DECLARATORY RELIEF
GENERAL 5.54
JURISDICTION IN PERSONAM OVER THE DEFENDANT 5.55
JURISDICTION IN PERSONAM AND THE JUDGMENTS REGULATION 5.56
JURISDICTION IN PERSONAM APART FROM THE REGULATION 5.57
MAKING THE DECLARATION: SUBSTANTIVE LAW 5.58
6 INTERIM REMEDIES AND PROTECTIVE MEASURES
GENERAL 6.01
INTERIM REMEDIES AVAILABLE FROM AN ENGLISH COURT 6.02
THE FREEZING INJUNCTION 6.03
SEARCH ORDERS 6.04
INTERIM INJUNCTIONS IN GENERAL 6.05
OBTAINING THE ORDER: GENERAL 6.06
JURISDICTION TO GRANT INTERIM REMEDIES 6-07
CIVIL OR COMMERCIAL MATTER; ENGLISH COURT HAS REGULATION-BASED
JURISDICTION
(CASE A) 6.08
CIVIL OR COMMERCIAL MATTER; ENGLISH COURT LACKS REGULATION-BASED
JURISDICTION
BUT ANOTHER MEMBER STATE HAS IT (CASE B) 6.09
CIVIL OR COMMERCIAL MATTER; ENGLISH AND OTHER MEMBER STATE COURT COULD
HAVE
REGULATION-BASED JURISDICTION OVER THE DEFENDANT TO THE SUBSTANTIVE
CLAIM,
BUT NEITHER HAS BEEN SEISED (CASE C) 6.10
CIVIL OR COMMERCIAL MATTER; NEITHER ENGLISH NOR OTHER MEMBER STATE COURT
HAS
REGULATION-BASED JURISDICTION OVER THE DEFENDANT TO THE SUBSTANTIVE
CLAIM
(CASED)
6N
NOT A CIVIL OR COMMERCIAL MATTER; ENGLISH COURT HAS JURISDICTION OVER
THE
DEFENDANT TO THE SUBSTANTIVE CLAIM (CASE E) 6.12
XXI
TABLE OF CONTENTS
NOT A CIVIL OR COMMERCIAL MATTER; ENGLISH COURT DOES NOT HAVE
JURISDICTION OVER
THE DEFENDANT TO THE SUBSTANTIVE CLAIM (CASE F) 6.13
INTERIM REMEDIES WHEN THE ACTION IS STAYED
6
-
14
FURTHER POINTS
POST-JUDGMENT ORDERS FOR INTERIM REMEDIES 6.16
RECOGNITION AND ENFORCEMENT OF ENGLISH ORDERS IN OTHER MEMBER STATES
6.17
INTERIM RELIEF FROM THE COURTS OF OTHER MEMBER STATES 6.18
ORDERS FOR INTERIM RELIEF FROM THE COURTS OF A NON-MEMBER STATE 6.19
7 THE RECOGNITION AND ENFORCEMENT OF FOREIGN
JUDGMENTS
SCHEMES FOR THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS
INTRODUCTION L.IIL
DETERMINING WHICH SCHEME OR SCHEMES OF RECOGNITION AND ENFORCEMENT
WILL APPLY 7.02
THE JUDGMENTS REGULATION: CIVIL AND COMMERCIAL JUDGMENTS FROM THE COURTS
OF
MEMBER STALES
GENERAL 7.03
THE POSITION OF DEFENDANTS NOT DOMICILED IN MEMBER STATES 7.04
RECOGNITION OF THE JUDGMENT: THE ORDER OF ENQUIRY: ARTICLES 32 TO 37
7.05
JUDGEMENT FROM A COURT IN A MEMBER STATE: ARTICLE 32 7.06
CIVIL OR COMMERCIAL MATTERS: ARTICLE 1 7.07
JUDGMENTS GIVEN IN THE CONTEXT OF ARBITRATION 7.08
PROCEEDINGS INSTITUTED AFTER THE REGULATION CAME INTO FORCE: ARTICLE
66(1) 7.09
JUDGMENTS GIVEN AFTER THE REGULATION CAME INTO FORCE: ARTICLE 66(2) 7.10
JURISDICTIONAL OBJECTIONS AS DEFENCES TO RECOGNITION: ARTICLES 35 AND 72
7.11
SUBSTANTIVE DEFENCES TO RECOGNITION: ARTICLE 34 7.12
RECOGNITION MANIFESTLY CONTRARY TO PUBLIC POLICY: ARTICLE 34(1) 7.13
CERTAIN JUDGMENTS IN DEFAULT OF APPEARANCE: ARTICLE 34(2) 7.14
JUDGMENT IRRECONCILABLE WITH LOCAL JUDGMENT: ARTICLE 34(3) 7.15
INCIDENTAL DECISION UPON QUESTION OF STATUS 7.16
JUDGMENT IRRECONCILABLE WITH PRIOR FOREIGN JUDGMENT: ARTICLE 34(4) 7.17
THE CONSEQUENCES OF RECOGNITION 7.18
RECOGNITION AS THE FOUNDATION FOR ISSUE ESTOPPEL 7.19
ENFORCING A JUDGMENT ENTITLED TO RECOGNITION: ARTICLES 38 TO 52 7.20
FIRST STAGE: OBTAINING AN ORDER FOR REGISTRATION FOR ENFORCEMENT:
ARTICLES 38 TO 42 7.21
SECOND STAGE: APPEALS BY THE DISAPPOINTED PARTY: ARTICLES 43 TO 47 7.22
MISCELLANEOUS FURTHER POINTS CONCERNING ENFORCEMENT 7.23
AUTHENTIC INSTRUMENTS AND COURT-APPROVED SETTLEMENTS 7.24
RECOGNITION AND ENFORCEMENT OF JUDGMENTS ON UNCONTESTED CLAIMS CERTIFIED
BY A
EUROPEAN ENFORCEMENT ORDER
GENERAL 7 25
I HE SCOPE OF THE EEO CERTIFICATION PROCEDURE 7.26
ISSUE OF AND OBJECTION TO THE EEO CERTIFICATE 7.27
ENFORCEMENT, AND CHALLENGES TO THE ENFORCEMENT OF THE EEO-CERTIFIED
JUDGMENT 7.28
XXII
TABLE OF CONTENTS
RECOGNITION AND ENFORCEMENT UNDER THE BRUSSELS AND LUGANO CONVENTIONS
GENERAL 7 29
DOMAIN OF THE CONVENTIONS: ARTICLES 1 AND 25 7.30
DATE OF JUDGMENT OR OF PROCEEDINGS: ARTICLE 54 7.31
JURISDICTIONAL OBJECTIONS: ARTICLE 28 7.32
SUBSTANTIVE OBJECTIONS: ARTICLE 27 7.33
ENFORCEMENT PROCEDURE: ARTICLE 31 TO 50 7.34
MISCELLANEOUS POINTS 7.35
FOREIGN JUDGMENTS AT COMMON LAW: RECOGNITION, AND ENFORCEMENT BY ACTION
GENERAL 7.36
RECOGNITION OF JUDGMENTS IN PERSONAM: THE JURISDICTIONAL COMPETENCE OF
THE
FOREIGN COURT 7.37
DEFENDANT PRESENT WITHIN THE JURISDICTION OF THE COURT 7.38
DEFENDANT SUBMITTED TO THE JURISDICTION OF THE FOREIGN COURT 7.39
SUBMISSION BY VOLUNTARY APPEARANCE 7.40
OTHER STEPS TAKEN IN THE FOREIGN PROCEEDINGS, AND SUBMISSION 7.41
SUBMISSION TO THE JURISDICTION OF THE FOREIGN COURT BY AGREEMENT 7.42
SUBMISSION TO A COUNTERCLAIM BY CLAIMANT 7.43
NO OTHER BASIS OF JURISDICTION IS ACCEPTED AS SUFFICIENT AT COMMON LAW
7.44
RECOGNITION OF JUDGMENTS AND ORDERS IN REM: JURISDICTIONAL COMPETENCE OF
THE
FOREIGN COURT 7.45
DEFENCES TO RECOGNITION OTHER THAN LACK OF JURISDICTION 7.46
JUDGMENT NOT FINAL AND CONCLUSIVE UPON THE MERITS 7.47
BREACH OF A VALID AND BINDING ARBITRATION AGREEMENT OR CHOICE OF COURT
CLAUSE 7.48
JUDGMENT OBTAINED BY FRAUD: THE BROAD DEFENCE 7.49
RESTRICTING THE FRAUD DEFENCE: THE DOCTRINE OF ABUSE OF PROCESS 7.50
JUDGMENT CONTRARY TO NATURAL (OR SUBSTANTIAL JUSTICE) 7.51
RECOGNITION CONTRARY TO PUBLIC POLICY 7.52
RECOGNITION PRECLUDED BY HUMAN RIGHTS ACT 1998 7.53
JUDGMENT INCONSISTENT WITH A PRIOR JUDGMENT 7.54
NO OTHER DEFENCES TO RECOGNITION 7-55
EFFECT AND CONSEQUENCES OF FOREIGN JUDGMENT ENTITLED TO RECOGNITION 7.56
RECOGNITION AS BASIS FOR ACTION BY CLAIMANT TO ENFORCE JUDGMENT 7.57
JUDGMENT TO BE ENFORCED MUST BE FOR A FIXED SUM OF MONEY 7.58
NO ENFORCEMENT OF A FOREIGN PENAL OR REVENUE OR OTHER PUBLIC LAW 7.59
NO ENFORCEMENT OF A JUDGMENT CONTRARY TO PROTECTION OF TRADING INTERESTS
ACT
1980 7.60
RECOGNITION OF JUDGMENTS SO AS TO PREVENT A SUCCESSFUL CLAIMANT FROM
SUING AGAIN 7.61
RECOGNITION AS PREVENTING AN UNSUCCESSFUL CLAIMANT FROM SUING AGAIN 7.62
FINDINGS MADE AGAINST THE CLAIMANT: ISSUE ESTOPPEL 7.63
FINDINGS MADE AGAINST THE DEFENDANT: ISSUE ESTOPPEL 7.64
ENFORCEMENT OF CERTAIN FOREIGN JUDGMENTS BY REGISTRATION UNDER THE 1920
AND 1933
ACTS
GENERAL 7.65
COUNTRIES AND JUDGMENTS COVERED BY THE 1920 ACT: GENERAL 7.66
REGISTRATION UNDER THE 1920 ACT: JURISDICTIONAL COMPETENCE OF THE
FOREIGN COURT 7.67
REGISTRATION UNDER THE 1920 ACT: SUBSTANTIVE DEFENCES TO REGISTRATION
7.68
REGISTRATION UNDER THE 1920 ACT: MISCELLANEOUS FURTHER POINTS 7.69
COUNTRIES AND JUDGMENTS COVERED BY THE 1933 ACT: GENERAL 7.70
XXIII
TABLE OF CONTENTS
REGISTRATION UNDER THE 1933 ACT: JURISDICTIONAL COMPETENCE OF THE
FOREIGN COURT 7.71
REGISTRATION UNDER THE 1933: SUBSTANTIVE DEFENCES TO REGISTRATION 7.72
REGISTRATION UNDER THE 1933 ACT: MISCELLANEOUS FURTHER POINTS 7.73
JUDGMENTS FROM SCOTLAND, NORTHERN IRELAND, AND GIBRALTAR
GENERAL
7J4
MISCELLANEOUS POINTS RELATING TO THE RECOGNITION OF FOREIGN JUDGMENTS
SOVEREIGN IMMUNITY '*'*'
COMMUNITY JUDGMENTS 7.76
JUDGMENTS GIVEN ON THE BASIS OF OTHER CONVENTIONS 7.77
S ADMIRALTY ACTIONS IN REM: AN OUTLINE
INTRODUCTION 8.01
ACTIONS IN PERSONAM AND ACTIONS IN REM 8.02
1 HE ACTION //; RENT IS BROUGHT AGAINST A RES 8-03
THE DETINITION OF A RES 8-04
THE MANNER OF SERVICE 8.05
SERVICE OF PROCESS IS SUFFICIENT TO FOUND JURISDICTION 8.06
ARRESTING THE RES 8.07
INTERNATIONAL MARITIME CONVENTIONS 8.08
THE 1952 ARREST CONVENTION 8.09
JURISDICTION BASED UPON ARREST 8.10
MARITIME CLAIMS 8.11
THE 1952 COLLISION CONVENTION 8.12
THE EFFECT OF THE JUDGEMENTS REGULATION AND THE BRUSSELS AND LUGANO
CONVENTIONS 8.13
THE REGULATION AND THE ADMIRALTY ACTION /// REM 8.14
A DEFENDANT DOMICILED IN A MEMBER STATE OT A CONTRACTING STATE 8.15
I.IS ALIBI PENDENS IN ANOTHER MEMBER STATE OR CONTRACTING STATE 8.16
THE MEANING OF "FIRST SEISED" 8.17
INTERIM RELIEF IF AN ACTION IS STAYED 8.18
THE EFFECT OF SECTION 34 OF THE 1982 ACT ON THE ADMIRALTY ACTION IN REM
8.19
9 ARBITRATION
GENERAL 9.01
ARBITRATIONS UNDER THE ARBITRATION ACT 1996
THE 19% ACT: GENERAL 9.02
THE L
L
% ACT: GENERAL PRINCIPLES OF INTERPRETATION 9.03
SCOPE OF THE ACT: TO WHICH ARBITRATIONS DOES THE ACT APPLY? 9.04
THE SEAT OF THE ARBITRATION 9,05
APPLICATION OF THE PROVISIONS OF PART I OF THE 1996: THE LAW WHICH
GOVERNS AN
ARBITRATION AGREEMENT 9.06
APPLICATION OF PART I OF THE 1996 ACT: MANDATORY AND NON-MANDATORY
PROVISIONS 9.07
FORMAL REQUIREMENTS OF AN ARBITRATION AGREEMENT FOR PART I TO APPLY 9.08
1 SXENTIAL VALIDITY, AND SCOPE, OF AN ARBITRATION AGREEMENT 9.09
STAYS OF LEGAL PROCEEDINGS: APPLICATION FOR A STAY 9.10
XXIV
TABLE OF CONTENTS
STAYS OF LEGAL PROCEEDINGS: GRANTING THE STAY 9.11
STAYS IN ADMIRALTY PROCEEDINGS 9.12
INJUNCTIONS IN RESPECT OF PROCEEDINGS IN FOREIGN COURTS 9.13
COMMENCEMENT OF ARBITRAL PROCEEDINGS AND ARBITRAL TRIBUNAL 9.14
JURISDICTION OF THE ARBITRAL TRIBUNAL 9.15
THE ARBITRAL PROCEEDINGS 9.16
POWERS OF THE COURT IN RELATION TO ARBITRAL PROCEEDINGS PRIOR TO THE
AWARD 9.17
THE AWARD 9.18
ENFORCEMENT OF, AND CHALLENGES TO, AWARDS TO WHICH PART I OF THE ACT
APPLIES 9.19
MISCELLANEOUS AND SUPPLEMENTARY MATTERS 9.20
DOMESTIC ARBITRATION AGREEMENTS 9.21
CONSUMER ARBITRATION AGREEMENTS 9.22
SMALL CLAIMS ARBITRATION IN THE COUNTY COURT 9.23
RECOGNITION AND ENFORCEMENT OF FOREIGN AWARDS UNDER PART 111 OF THE 1996
ACT
RECOGNITION AND ENFORCEMENT OF CERTAIN FOREIGN AWARDS PURSUANT TO
CONVENTION 9.24
OTHER BASES OF RECOGNITION OR ENFORCEMENT OF AWARDS 9.25
THE LAW PRIOR TO THE COMING INTO FORCE OF THE 1996 ACT
GENERAL 9.26
THE LAW GOVERNING THE AN ARBITRATION 9.27
THE LAW GOVERNING THE ARBITRATION PROCEEDINGS 9.28
STAYS OF ENGLISH PROCEEDINGS 9.29
ENFORCEMENT OF FOREIGN AWARDS AT COMMON LAW 9.30
ENFORCEMENT OF FOREIGN AWARDS UNDER THE ARBITRATION ACT 1950, PART II
9.31
ENFORCEMENT UNDER THE ARBITRATION ACT 1975 9.32
ENFORCEMENT UNDER CIVIL JURISDICTION AND JUDGMENTS ACT 1982 9.33
ENFORCEMENT UNDER THE ADMINISTRATION OF JUSTICE ACT 1920 OR THE FOREIGN
JUDGMENTS (RECIPROCAL ENFORCEMENT) ACT 1933 9.34
PAGE
APPENDIX I TEXT OF COUNCIL REGULATION (EC) 44/2001 631
APPENDIX II TEXT OF THE BRUSSELS CONVENTION, THE ANNEXED PROTOCOL, AND
655
THE PROTOCOL OF 3 JUNE 1971: CIVIL JURISDICTION AND JUDGMENTS
ACT 1982, SCHEDULES 1 AND 2 (AS AMENDED)
APPENDIX III TEXT OF THE LUGANO CONVENTION: CIVIL JURISDICTION AND 677
JUDGMENTS ACT 1982, SCHEDULE 3C (AS INSERTED BY CIVIL
JURISDICTION AND JUDGMENTS ACT 1991, SCHEDULE 1)
APPENDIX IV DATES OF ENTRY INTO FORCE 691
APPENDIX V EUROPEAN COURT DECISIONS ON THE REGULATION [BRUSSELS 693
CONVENTION]
APPENDIX VI FIGURES
6
"
APPENDIX VII DRAFTING AGREEMENTS ON CHOICE OF COURT AND CHOICE OF LAW
703
INDEX
713
XXV |
| adam_txt |
TABLE OF CONTENTS
PAGE
PREFACE TO THE FOURTH EDITION V
PREFACE TO THE FIRST EDITION IX
TABLE OF CASES XXVII
TABLE OF STATUTES IL
TABLE OF STATUTORY INSTRUMENTS LIII
CIVIL PROCEDURE RULES LV
EUROPEAN LEGISLATION LVII
PARA
1 INTRODUCTION
THE REASONS FOR, AND SCOPE OF, THIS BOOK
GENERAL INTRODUCTION 1.01
THE RELATIONSHIP BETWEEN EUROPEAN LAWS AND THE COMMON LAW
GENERAL 1.02
CONSEQUENCES 1.03
THE CONVENTIONS AND THE CONTRACTING STATES; THE COUNCIL REGULATION AND
THE
MEMBER STATES
THE CONVENTIONS 1.04
THE BRUSSELS CONVENTION 1.05
ACCESSION OF DENMARK, IRELAND AND THE UNITED KINGDOM 1.06
ACCESSION OF THE HELLENIC REPUBLIC 1.07
ACCESSION OF PORTUGAL AND SPAIN 1.08
ACCESSION OF AUSTRIA, FINLAND AND SWEDEN 1.09
THE LUGANO CONVENTION 1.10
THE JUDGMENTS REGULATION: COUNCIL REGULATION (EC) 44/2001 1.11
AMENDMENTS TO THE JUDGMENTS REGULATION 1.12
SECONDARY SOURCES OF THE LAW
GENERAL 1.13
OFFICIAL COMMENTARIES ON THE BRUSSELS AND LUGANO CONVENTIONS 1.14
REFERENCES TO THE COURT OF JUSTICE AND DECIDED CASES 1.15
XI
TABLE OF CONTENTS
ACADEMIC SOURCES ****"
GEOGRAPHICAL MATTERS
CIENERAL
L17
DISCRIMINATION AND HUMAN RIGHTS
EUROPEAN UNION LAW AND THE HUMAN RIGHTS ACT 1-18
THE EUROPEAN CONVENTION ON HUMAN RIGHTS T-19
ARTICLE 6 ECHR AND THE RIGHT TO A FAIR HEARING 1-20
2 JURISDICTION UNDER THE JUDGMENTS REGULATION
GENERAL 2.01
CIENERAL PRINCIPLES OF INTERPRETATION OF THE REGULATION 2.02
AN EQUAL AND UNIFORM INTERPRETATION 2.03
AUTONOMOUS INTERPRETATION 2.04
EXCEPTIONS TO THE DOMICILIARY RULE WILL BE NARROWLY CONSTRUED 2.05
THE RISK OF INCONSISTENT DECISIONS MUST BE KEPT TO A MINIMUM 2.06
EVALUATION 2.07
THE HIERARCHY OF JURISDICTIONAL RULES 2.08
CHALLENGING THE JURISDICTION OF THE ENGLISH COURT 2.09
THE NEED TO COMMENCE PROCEEDINGS FIRST 2.10
PROSPECTIVE CLAIMANT 2.11
PROSPECTIVE DEFENDANT 2.12
THE ABSENCE OF OTHER MEANS OF PREVENTING A COURT FROM EXERCISING
JURISDICTION 2.13
THE BRINGING OF SUBSTANTIVE PROCEEDINGS AND DISREGARDING THOSE IN
ANOTHER COURT 2.14
MAKING AN APPLICATION FOR AN INJUNCTION TO RESTRAIN THE PROCEEDINGS IN
THE OTHER
MEMBER STATES 2.15
THE TAKING OF PROCEEDINGS IN A NON-MEMBER STATE 2.16
WHAT A DEFENDANT SHOULD DO IF SERVED WITH PROCESS IN A CASE TO WHICH THE
REGULATION APPLIES 2.17
WHAT THE CLAIMANT MAY DO IF THE DEFENDANT DOES NOT ENTER AN APPEARANCE
2.18
(/) 77IT' DOMAIN OF THE REGULATION: ARTICLES 66 AND 1
CIENERAL 2.19
TEMPORAL, GEOGRAPHICAL AND PERSONAL SCOPE OF THE REGULATION: ARTICLES 66
AND 1 2.20
CIENERAL 2.21
MATERIAL SCOPE OF THE REGULATION: ARTICLE 1 2.22
GENERAL 2.23
CIVIL AND COMMERCIAL MATTERS 2.24
APPLYING ARTICLE 1 BY REFERENCE TO THE CLAIM, OR THE CLAIM AND DEFENCE
2.25
MATTERS SPECIFICALLY EXCLUDED FROM THE DOMAIN OF THE REGULATION BY
ARTICLE 1 2.26
THE STATUS OR LEGAL CAPACITY OF NATURAL PERSONS, RIGHTS IN PROPERTY
ARISING OUT OF A
MATRIMONIAL RELATIONSHIP, WILLS AND SUCCESSION: ARTICLE L(2)(A) 2.27
BANKRUPTCY, PROCEEDINGS RELATING TO THE WINDING-UP OF INSOLVENT
COMPANIES OR
OTHER LEGAL PERSONS, JUDICIAL ARRANGEMENTS, COMPOSITIONS AND ANALOGOUS
PROCEEDINGS: ARTICLE L(2)(B) 2.28
SOCIAL SECURITY: ARTICLE L(2)(C) 2.29
ARBITRATION: ARTICLE L(2)(D) 2.30
THE SUBJECT-MATTER OF THE REGULATION: GENERAL 2.31
XII
TABLE OF CONTENTS
SCOPE OF THE REGULATION: JURISDICTION FROM OTHER CONVENTIONS 2.32
SCOPE OF THE REGULATION: INTERNATIONAL JURISDICTION 2.33
(2) JURISDICTION UNDER ANOTHER INTERNATIONAL INSTRUMENT: ARTICLES 67 TO
71
GENERAL 2.34
CONVENTION ON PARTICULAR MATTERS 2.35
CO-EXISTENCE BETWEEN THE JUDGMENTS REGULATION AND THE PARTICULAR
CONVENTION 2.36
MARITIME AND OTHER CONVENTIONS 2.37
THE EUROPEAN CONVENTION ON HUMAN RIGHTS AS AN ARTICLE 71 CONVENTION 2.38
COMMUNITY LEGAL INSTRUMENTS 2.39
CONCLUSION 2.40
(3) EXCLUSIVE JURISDICTION, REGARDLESS OF DOMICILE: ARTICLE 22
GENERAL 2.41
TITLE TO, AND TENANCIES OF IMMOVABLE PROPERTY IN A MEMBER STATE: ARTICLE
22(1) 2.42
PROCEEDINGS HAVING AS THEIR OBJECT RIGHTS IN REM 2.43
MUST THE RULES RELIED ON BE RULES PECULIAR TO LAND LAW? 2.44
PROCEEDINGS HAVING AS THEIR OBJECT TENANCIES OF IMMOVABLE PROPERTY 2.45
PROCEEDINGS HAVING ONLY AS AN INCIDENTAL OBJECT A MATTER AS TO WHICH
ARTICLE
22(1) APPLIES 2.46
CONTRACTS FOR THE CONVEYANCE OF IMMOVABLE PROPERTY 2.47
SHORT PRIVATE LETTINGS: CONCURRENT EXCLUSIVE JURISDICTION 2.48
IMMOVABLE PROPERTY IN THE UNITED KINGDOM 2.49
IMMOVABLE PROPERTY IN A NON-MEMBER STATE 2.50
COMPANIES WITH THEIR SEAT IN A MEMBER STATE: ARTICLE 22(2) 2.51
GENERAL 2.52
COMPANY WITH SEAT IN THE UNITED KINGDOM 2.53
VALIDITY OF ENTRIES IN PUBLIC REGISTERS IN MEMBER STATES: ARTICLE 22(3)
2.54
PUBLIC REGISTER KEPT IN THE UNITED KINGDOM 2.55
INTELLECTUAL PROPERTY RIGHTS REGISTERED IN MEMBER STATES: ARTICLE 22(4)
2.56
GENERAL 2.57
DEPOSIT OR REGISTRATION IN THE UNITED KINGDOM 2.58
ENFORCEMENT OF JUDGMENTS FROM THE COURTS OF MEMBER STATES: ARTICLE 22(5)
2.59
GENERAL 2.60
JUDGMENTS FROM NON-MEMBER STATES 2.61
ENFORCEMENT OF JUDGMENTS FROM COURTS OF OTHER MEMBER STATES IN THE
UNITED
KINGDOM 2.62
ARTICLE 22 CONNECTIONS BY ANALOGY: LAND ETC, IN A NON-MEMBER STATE 2.63
CONCLUSION 2.64
(4) JURISDICTION BY ENTERING AN APPEARANCE: ARTICLE 24
GENERAL 2.65
SCHEME OF THE RULE 2.66
ENTERING AN APPEARANCE, OR SUBMISSION? 2.67
CONTESTING THE JURISDICTION OF THE COURT: PRINCIPLES 2.68
CONTESTING THE JURISDICTION OF THE COURT: PROCEDURE 2.69
CONCLUSION 2.70
(5) SPECIAL RULES CONCERNING INSURANCE CONTRACTS: ARTICLES 8 TO 14
GENERAL 2.71
XIII
TABLE OF CONTENTS
JURISDICTIONAL RULES: GENERAL: ARTICLES 8 TO 12 2.72
CHOICE OF COURT AGREEMENTS IN INSURANCE CONTRACTS: ARTICLES 13 AND 14
2.73
INTERNATIONAL JURISDICTION IN THE COURTS OF THE UNITED KINGDOM 2.74
? 7S
CONCLUSION '
(6) SPECIAL RULES CONCERNING CERTAIN CONSUMER CONTRACTS: ARTICLES 15 TO
17
GENERAL
2
-
76
CONSUMERS: ARTICLE 15 2.77
CONSUMERS' CONTRACTS: GENERAL CRITERIA 2.78
CONSUMERS' CONTRACTS: STATUTORY DEFINITION 2.79
JURISDICTIONAL RULES: ARTICLE 16 2.80
CHOICE OF COURT AGREEMENTS: ARTICLE 17 2.81
INTERNATIONAL JURISDICTION IN THE COURTS OF THE UNITED KINGDOM 2.82
CONCLUSION 2.83
(7) JURISDICTION OVER INDIVIDUAL CONTRACTS OF EMPLOYMENT: ARTICLES 18 TO
21
GENERAL 2.84
JURISDICTIONAL RULES: ARTICLES 18 TO 21 2.85
INTERNATIONAL JURISDICTION IN THE COURTS OF THE UNITED KINGDOM 2.86
CONCLUSION 2.87
(8) AGREEMENTS ON CHOICE OF COURT FOR A MEMBER STATE: ARTICLE 23
GENERAL 2.88
THE GENERAL EFFECT OF A CHOICE OF COURT AGREEMENT 2.89
DEALING WITH DISPUTES AS TO THE VALIDITY OF THE AGREEMENT 2.90
THE IMPACT OF PROCEEDINGS TAKEN IN OTHER COURTS TO DEFEAT THE
JURISDICTION
AGREEMENT 2.91
FORMAL REQUIREMENTS FOR A VALID AGREEMENT ON CHOICE OF COURT: GENERAL
2.92
IN WRITING, OR EVIDENCED IN WRITING 2.93
COMPLIANCE WITH PREVIOUS COURSE OF DEALING 2.94
COMPLIANCE WITH THE PRACTICES OF INTERNATIONAL TRADE 2.95
INCORPORATION OF AGREEMENTS ON JURISDICTION FROM ONE CONTRACT TO ANOTHER
2.96
FORMALITY REQUIREMENTS AND THIRD PARTIES TO THE AGREEMENT 2.97
FORMAL REQUIREMENTS AND LUXEMBOURG DOMICILIARIES 2.98
THE SUBSTANCE OF THE CLAUSE: COURTS OF TWO MEMBER STATES 2.99
THE SUBSTANCE OF THE CLAUSE: NON-GEOGRAPHICAL DESIGNATION 2.100
THE SUBSTANCE OF THE CLAUSE: THE COURTS OF THE UNITED KINGDOM 2.101
THE SUBSTANCE OF THE CLAUSE: THE COURTS OF A NON-MEMBER STATE 2.102
THE SUBSTANCE OF THE CLAUSE: CHOOSING A COURT AND CONFERRING
NON-EXCLUSIVE
JURISDICTION UPON IT 2.103
CHALLENGES TO THE VALIDITY OF THE CLAUSE UNDER NATIONAL LAW: FORMAL OR
PROCEDURAL
REQUIREMENTS 2.104
CHALLENGES TO THE VALIDITY OF THE CLAUSE UNDER NATIONAL LAW. ON
SUBSTANTIVE
GROUNDS 2.105
CLAUSES BENEFITING ONLY ONE PARTY 2.106
CHOICE OF COURT WITHIN TRUST INSTRUMENTS 2.107
JURISDICTION BY AGREEMENT DERIVED FROM OTHER CONTRACTUAL TERMS 2.108
INTERNATIONAL JURISDICTION IN THE ENGLISH OR UNITED KINGDOM COURTS 2.109
CONCLUSION 2.110
XIV
TABLE OF CONTENTS
(9) IS THE DEFENDANT DOMICILED IN THE UNITED KINGDOM? ARTICLE 2
GENERAL 2.111
THE DETERMINATION OF A DEFENDANT'S DOMICILE 2.112
DOMICILE IN THE UNITED KINGDOM: INDIVIDUALS 2.113
DOMICILE OF CORPORATIONS AND ASSOCIATIONS: SCHEME AND PURPOSE 2.114
DOMICILE OF COMPANIES OR ASSOCIATIONS FOR GENERAL PURPOSES 2.115
SEAT OF COMPANY OR ASSOCIATION FOR PURPOSE OF ARTICLE 22(2) 2.116
DEEMED DOMICILE OF NON-MEMBER STATE INSURERS, SUPPLIERS AND EMPLOYERS
2.117
DOMICILE OF TRUSTS 2.118
DOMICILE OF THE CROWN 2.119
CONCLUSIONS 2.120
(10) SPECIAL JURISDICTION OVER DEFENDANTS DOMICILED IN ANOTHER MEMBER
STATE:
ARTICLES 5 TO 7
GENERAL 2.121
SPECIAL JURISDICTION UNDER ARTICLE 5 2.122
SPECIAL JURISDICTION IN MATTERS RELATING TO A CONTRACT: ARTICLE 5(1)
2.123
MATTERS RELATING TO A CONTRACT: AN AUTONOMOUS DEFINITION 2.124
THE DECISION IN HANDTE 2.125
THE APPLICATION OF THE DECISION IN HANDTE: STRANGERS TO THE AGREEMENT
2.126
THE APPLICATION OF THE DECISION IN HANDTE: UNDERTAKINGS FREELY ENTERED
INTO 2.127
VOIDABLE CONTRACTS AND "VOID CONTRACTS" AS CONTRACTUAL OBLIGATIONS 2.128
NEGLIGENT PROFESSIONAL SERVICES 2.129
QUASI-CONTRACTUAL OR UNJUST ENRICHMENT CLAIMS 2.130
THE OBLIGATION IN QUESTION: GENERAL 2.131
THE OBLIGATION IN QUESTION AND DISPUTED CONTRACTS 2.132
THE OBLIGATION IN QUESTION: MULTIPLE BROKEN OBLIGATIONS 2.133
THE OBLIGATION IN QUESTION: AN OBLIGATION CALLING FOR PERFORMANCE IN
MORE THAN
ONE STATE 2.134
THE OBLIGATION IN QUESTION: PRIMARY OR SECONDARY OBLIGATIONS 2.135
THE OBLIGATION IN QUESTION: CONTRACTS OF DISTRIBUTORSHIP 2.136
THE PLACE OF PERFORMANCE OF THE OBLIGATION IN QUESTION 2.137
LOCATING THE PLACE OF PAYMENT OF MONEY 2.138
CONTRACTUAL AND NON-CONTRACTUAL CLAIMS IN THE SAME ACTION 2.139
DISPUTING THE VERY EXISTENCE OF A CONTRACT 2.140
CONTRACTS MADE WITH PERSONS DOMICILED IN LUXEMBOURG 2.141
INTERNATIONAL JURISDICTION IN THE UNITED KINGDOM 2.142
SPECIAL JURISDICTION IN MATTERS CONCERNING MAINTENANCE: ARTICLE 5(2)
2.143
SPECIAL JURISDICTION IN MATTERS RELATING TO TORT: ARTICLE 5(3) 2.144
MATTERS RELATING TO TORT, DELICT OR QUASI-DELICT 2.145
THE DECISION IN KALFELIS AND THE MEANING OF LIABILITY 2.146
LATER DECISIONS AND THE MEANING OF LIABILITY 2.147
CONCURRENT CAUSES OF ACTION AND THE RELATIONSHIP BETWEEN ARTICLES 5(1)
AND 5(3) 2.148
OBLIGATIONS BASED ON A DUTY OF CARE 2.149
CLAIMS AGAINST PROFESSIONAL PROVIDERS OF SERVICES 2.150
TORT CLAIMS WITH CONTRACTUAL DEFENCES 2.151
EQUITABLE OBLIGATIONS 2.152
UNJUST ENRICHMENT CLAIMS, OR OBLIGATIONS NOT BASED ON WRONGS 2.153
PRODUCT LIABILITY 2.154
ARTICLES 5(1) AND 5(3): SOME CONCLUSIONS 2.155
XV
TABLE OF CONTENTS
THE HARMFUL EVENT: GENERAL INTERPRETATION 2.156
THE LIRST LIMB OF BIER, THE DAMAGE WHICH SERVES TO LOCATE SPECIAL
JURISDICTION 2.157
THE FIRST LIMB OF BIER, IDENTIFYING WHERE THE DAMAGE OCCURRED 2.158
THE FIRST LIMB OF BIER, DAMAGE OCCURRING IN MORE THAN ONE MEMBER STATE
2.159
THE SECOND LIMB OF BIER, THE EVENT GIVING RISE TO THE DAMAGE 2.160
THE HARMFUL EVENT IN RELATION TO CLAIMS BASED ON UNJUST ENRICHMENT 2.161
NO "ACCESSORY" SPECIAL JURISDICTION OVER RELATED CLAIMS 2.162
SPECIAL JURISDICTION IN RESPECT OF THREATENED OR ANTICIPATED TORTS 2.163
INTERNATIONAL JURISDICTION IN THE ENGLISH COURT 2.164
SPECIAL JURISDICTION IN CIVIL CLAIMS RAISED IN CRIMINAL CASES: ARTICLE
5(4) 2.165
SPECIAL JURISDICTION OVER DEFENDANTS WHO DEAL THROUGH BRANCHES AND
AGENCIES:
ARTICLE 5(5) 2.166
BRANCH, AGENCY, OR OTHER ESTABLISHMENT 2.167
DISPUTE ARISING FROM THE OPERATIONS OF THE BRANCH 2.168
INTERNATIONAL JURISDICTION IN THE ENGLISH COURT 2.169
SPECIAL JURISDICTION OVER A TRUSTEE, BENEFICIARY OR SETTLOR SUED AS
SUCH: ARTICLE
5(6) 2.170
TRUSTS DOMICILED IN THE UNITED KINGDOM 2.171
JURISDICTION OVER PAYMENT IN RESPECT OF SALVAGE CLAIMS: ARTICLE 5(7)
2.172
SPECIAL JURISDICTION UNDER ARTICLE 6 2.173
SPECIAL JURISDICTION OVER CO-DEFENDANTS: ARTICLE 6(1) 2.174
THE CONNECTION BETWEEN THE CLAIMS AGAINST THE DEFENDANTS 2.175
IS THERE A DUTY TO ACCEPT JURISDICTION UNDER ARTICLE 6(1)? 2.176
INTERNATIONAL JURISDICTION IN THE COURTS OF THE UNITED KINGDOM 2.177
SPECIAL JURISDICTION OVER THIRD-PARTY PROCEEDINGS: ARTICLE 6(2) 2.178
THE TYPES OF PROCEEDINGS WITHIN THE ARTICLE 2.179
IS THERE A DUTY TO ACCEPT SPECIAL JURISDICTION UNDER ARTICLE 6(2)? 2.180
PROCEEDINGS IN THE ENGLISH COURT 2.181
SPECIAL JURISDICTION OVER COUNTERCLAIMS: ARTICLE 6(3) 2.182
PROCEEDINGS IN THE ENGLISH COURT 2.183
SPECIAL JURISDICTION IN CLAIMS CONCERNING CONTRACTS RELATING TO LAND:
ARTICLE 6(4) 2.184
LAND IN THE UNITED KINGDOM 2.185
SPECIAL JURISDICTION TO LIMIT LIABILITY: ARTICLE 7 2.186
CONCLUSION 2.187
111) DEFENDANTS NOT DOMICILED IN ANX MEMBER STATE: ARTICLE 4
GENERAL 2.188
CONSEQUENCES OF THE APPLICATION OF ARTICLE 4 2.189
ARTICLE 4 JURISDICTION AND US ALIBI PENDENS 2.190
SERVICE OF PROCESS ON THE DEFENDANT 2.191
112) \ 'ERIFIAITION OF JURISDICTION I ARTICLES 25 AND 26), AND THE
EFFECT OF A LIS ALIBI
PENDENS (ARTICLES 27 TO 30)
YERITIEATION OF JURISDICTION OVER THE DEFENDANT: ARTICLES 25 AND 26
2.192
I! THE DEFENDANT APPEARS, CHECKING FOR THE EXISTENCE OF EXCLUSIVE
JURISDICTION:
ARTICLE 25 2 193
IT THE DELENDANT DOES NOT APPEAR, CHECKING FOR THE EXISTENCE OF
JURISDICTION:
ARTICLE 2(T 2 194
CONCLUSION 2195
THE GENERAL SCHEME FOR DEALING WITH A LIS ALIBI PENDENS: ARTICLES 27 TO
30 2.196
XVI
TABLE OF CONTENTS
SAME CAUSE OF ACTION, BETWEEN SAME PARTIES, IN ANOTHER MEMBER STATE:
ARTICLE
27
2.197
GENERAL APPROACH TO ARTICLE 27 2 198
THE SAME CASE OF ACTION: IDENTITY OF OBJET AND IDENTITY OF CAUSE 2.199
THE SAME PARTIES: IDENTITY OF PARTIES 2.200
DATE ON WHICH A COURT IS SEISED: BACKGROUND 2.201
A UNIFORM DEFINITION OF WHEN A COURT BECOMES SEISED FOR THE PURPOSE OF
THE
REGULATION 2 202
THE DATE OF SEISIN: MULTIPLE DEFENDANTS 2.203
THE DATE OF SEISIN: AMENDMENT OF PLEADINGS 2.204
COURT CEASING TO BE SEISED OR STAYING ITS PROCEEDINGS 2.205
IF THE COURT SEISED SECOND BELIEVES THAT IT HAS JURISDICTION AND THAT
THE COURT
SEISED FIRST DOES NOT 2.206
IF THE COURT SEISED SECOND BELIEVES IT HAS EXCLUSIVE JURISDICTION AND
THE COURT
SEISED FIRST DOES NOT 2.207
COURT SEISED FIRST IN ANOTHER PART OF THE UNITED KINGDOM 2.208
RELATED ACTION IN ANOTHER MEMBER STATE: ARTICLE 28 2.209
THE MEANING OF "RELATED ACTIONS" 2.210
STAYING PROCEEDINGS WHILE THE ACTION IS PENDING IN THE COURT FIRST
SEISED: ARTICLE
28(1) 2.211
DISMISSAL FOR CONSOLIDATION WITH PROCEEDINGS PENDING IN COURT SEISED
FIRST:
ARTICLE 28(2) 2.212
ARTICLE 28: SELECTING BETWEEN THE POSSIBILITIES OFFERED TO THE COURT
2.213
CONCURRENT EXCLUSIVE JURISDICTIONS: ARTICLE 29 2.214
PROCEEDINGS IN DENMARK, ICELAND, NORWAY OR SWITZERLAND 2.215
PROCEEDINGS IN A NON-MEMBER, NON-CONTRACTING STATE 2.216
(13) THE ROLE OF JUDICIAL DISCRETION IN THE EXERCISE OF REGULATION
JURISDICTION
GENERAL 2.217
DISPUTES AS TO THE AVAILABILITY OR APPLICABILITY OF THE JURISDICTIONAL
RULE RELIED ON 2.218
JUDICIAL DISCRETION TO DECLINE TO EXERCISE JURISDICTION CONFERRED BY THE
REGULATION 2.219
ARGUMENTS FOR AND AGAINST THE EXISTENCE OF JURISDICTIONAL DISCRETION
2.220
THE ILLUSION OF A SINGLE BROAD, AND GENERAL ANSWER 2.221
(1) JURISDICTION BASED ON ARTICLE 2; MORE APPROPRIATE FORUM IN ANOTHER
MEMBER
STATE 2.222
(2) JURISDICTION BASED ON ARTICLE 2; MORE APPROPRIATE FORUM IN A
NON-MEMBER
STATE 2.223
(3) JURISDICTION BASED ON ARTICLE 2; AGREEMENT ON CHOICE OF COURT FOR A
NON-MEMBER STATE 2.224
(4) JURISDICTION BASED ON ARTICLE 2; DETERMINATION OF TITLE TO LAND IN A
NON-MEMBER STATE 2.225
(5) JURISDICTION BASED ON ARTICLE 2; PROCEEDINGS ALREADY PENDING IN
COURT OF
NON-MEMBER STATE 2.226
(6) JURISDICTION BASED ON ARTICLE 4; MATERIAL CONNECTION WITH NON-MEMBER
STATE 2.227
(7) JURISDICTION BASED ON ARTICLE 4; MORE APPROPRIATE FORUM IN ANOTHER
MEMBER
STATE 2.228
CONCLUSIONS ON THE EXERCISE OF DISCRETION IN RELATION TO JURISDICTION
2.229
FINAL CONCLUSIONS ON THE OPERATION OF THE REGULATION 2.230
(14) INTERNATIONAL JURISDICTION IN THE COURTS OF THE UNITED KINGDOM
INTERNATIONAL JURISDICTION AND THE ALLOCATION OF JURISDICTION WITHIN THE
UNITED
KINGDOM 2.231
XVII
TABLE OF CONTENTS
INTERNAL JURISDICTION IN NON-INTERNATIONAL CASES 2.151
SCHEDULE 4 TO THE 1982 ACT: GENERAL
2
-
233
SCHEDULE 4 TO THE 1982 ACT: DETAILED PROVISIONS
2
-
234
3 JURISDICTION UNDER THE BRUSSELS AND LUGANO
CONVENTIONS
GENERAL
3
-
01
INTERPRETATION OF THE BRUSSELS AND LUGANO CONVENTIONS 3.02
THE JURISDICTIONAL RULES OF THE BRUSSELS AND LUGANO CONVENTIONS 3.03
(01) DOMAIN OF THE CONVENTIONS: ARTICLES 1 AND 54 3.04
(02) JURISDICTION DERIVED FROM OTHER CONVENTIONS: ARTICLE 57 3.05
(03) EXCLUSIVE JURISDICTION REGARDLESS OF DOMICILE: ARTICLE 16 3.06
(04) JURISDICTION DERIVED FROM THE ENTERING OF AN APPEARANCE: ARTICLE 18
3.07
(05) SPECIAL JURISDICTIONAL RULES CONCERNING INSURANCE CONTRACTS:
ARTICLES 7 TO
12A 3.08
(OD) JURISDICTIONAL RULES CONCERNING CERTAIN CONSUMER CONTRACTS:
ARTICLES 13 TO
15 3.09
(07) JURISDICTION OVER INDIVIDUAL CONTRACTS OF EMPLOYMENT: ARTICLES 5(1)
AND 17(5) 3.10
(08) AGREEMENTS ON CHOICE OF COURT FOR A CONTRACTING STATE: ARTICLE 17
3.11
(09) DEFENDANT DOMICILED IN THE UNITED KINGDOM: ARTICLE 2 3.12
(OH)) SPECIAL JURISDICTION OVER DEFENDANTS DOMICILED IN ANOTHER
CONTRACTING
STATE: ARTICLES 5 TO 6A 3.13
(011) JURISDICTION OVER DEFENDANTS NOT DOMICILED IN ANY CONTRACTING
STATE:
ARTICLE 4 3.14
(012) EXAMINATION OF JURISDICTION AND US ALIBI PENDENS: ARTICLES 19 TO
23 3.15
(013) THE ROLE OF JUDICIAL DISCRETION IN RELATION TO JURISDICTION UNDER
THE
CONVENTION 3.16
(014) INTERNATIONAL JURISDICTION GIVEN BY THE CONVENTIONS TO THE COURTS
OF THE
UNITED KINGDOM 3.17
4 THE COMMON LAW RULES OF JURISDICTION
THE COMMON LAW RULES AND THEIR SPHERE OF APPLICATION
INTRODUCTION 4.01
THE COMMON LAW RULES OF JURISDICTION IN SUMMARY
GENERAL 4.02
SERVICE WITHIN THE JURISDICTION 4.03
SERVICE OUT OF THE JURISDICTION 4.04
CASES WHERE JURISDICTION AT COMMON LAW DOES NOT AND CANNOT EXIST 4.05
DETERMINATION OF TITLE TO FOREIGN LAND 4.06
FOREIGN INTELLECTUAL PROPERTY RIGHTS 4.07
FOREIGN PENAL, REVENUE AND ANALOGOUS PUBLIC LAWS 4.08
JURISDICTIONAL IMMUNITY DERIVED FROM PUBLIC INTERNATIONAL LAW 4.09
PROCEEDINGS COMMENCED BY SERVICE WITHIN THE JURISDICTION
GENERA! 4.10
STAYING PROCEEDINGS: STATUTORY LIMITATIONS ON THE GENERAL POWER 4.11
STAYING PROCEEDINGS: GENERAL 4.12
WHERE THERE IS NO CONTRACTUAL CHOICE OF COURT: THE GENERAL APPROACH 4.13
SPILIADA FIRST LIMB: THE **AVAILABILITY" OF THE FOREIGN FORUM 4,14
XVIII
TABLE OF CONTENTS
SPILIADA FIRST LIMB: THE AVAILABLE FOREIGN FORUM IS CLEARLY OR
DISTINCTLY MORE
APPROPRIATE 4.15
SPILIADA SECOND LIMB: IT IS (NOT) UNJUST TO CONFINE THE CLAIMANT TO THE
FOREIGN
COURT 4.16
THE RELEVANCE OF TIME BARS IN THE ASSESSMENT OF WHAT JUSTICE REQUIRES
4.17
THE IMPACT OF DIFFERENCES AS TO CHOICE OF LAW AND THE ENFORCEABILITY OF
JUDGMENTS 4.18
LIS ALIBI PENDENS AND THE STAYING OF ACTIONS 4.19
CRITICISM 4.20
TIME FOR APPLICATION 4.21
APPLICATIONS FOR A STAY WHERE THERE IS PRIOR AGREEMENT FOR A FOREIGN
COURT 4.22
THE POINT OF DEPARTURE: THE SCOPE AND CONSTRUCTION OF THE AGREEMENT 4.23
THE CLAIM MUST FALL WITHIN THE SCOPE OF THE AGREEMENT 4.24
THE AGREEMENT MUST BE AND MUST REMAIN VALID AND ENFORCEABLE AS BETWEEN
THE PARTIES 4.25
THE AGREEMENT MUST MAKE IT A BREACH OF CONTRACT FOR THE PROCEEDINGS TO
BE
BROUGHT IN ENGLAND 4.26
THE PRINCIPLES ON WHICH A STAY IS GRANTED IF BRINGING THE ENGLISH
PROCEEDINGS IS A
BREACH OF CONTRACT 4.27
THE POSSIBLE APPLICATION OF SPILIADA 4.28
ALTERNATIVE ENFORCEMENT OF THE AGREEMENT BY AN ACTION FOR DAMAGES 4.29
STAYS ON THE BASIS OF AGREEMENTS ON ARBITRATION 4.30
PROCEEDINGS COMMENCED BY SERVICE OUT OF THE JURISDICTION WITH THE
PERMISSION OF
THE COURT
GENERAL 4.31
JURISDICTION TO GRANT PERMISSION: PARAGRAPHS OF CPR R 6.20(1) 4.32
DEFENDANT DOMICILED IN ENGLAND: CPR R 6.20(1) 4.33
INJUNCTIONS: CPR R 6.20(2) 4.34
NECESSARY OR PROPER PARTY: CPR R 6.20(3) 4.35
PART 20 CLAIMS: CPR R 6.20(3A) 4.36
CLAIMS FOR INTERIM REMEDIES: CPR R 6.20(4) 4.37
CLAIMS IN RELATION TO CONTRACTS: CPR R 6.20(5)-(7) 4.38
PARAGRAPHS (5) AND (7): THE TYPE OF CONTRACT 4.39
BREACH OF CONTRACT CLAIMS: CPR R 6.20(6) 4.40
CLAIMS MADE IN TORT: CPR R 6.20(8) 4.41
CLAIMS "MADE IN TORT" 4.42
DAMAGE SUSTAINED WITHIN THE JURISDICTION: CPR R 6.20(8)(A) 4.43
ACT COMMITTED WITHIN THE JURISDICTION: CPR R 6.20(8)(B) 4.44
ENFORCEMENT OF JUDGMENTS AND AWARDS: CPR R 6.20(9) 4.45
PROPERTY LOCATED WITHIN THE JURISDICTION: CPR R 6.20(10) 4.46
TRUSTS: CPR R 6.20(11)
4
-
47
ADMINISTRATION OF ESTATES: CPR R 6.20(12) 4.48
PROBATE: CPR R 6.20(13)
4
-
49
CONSTRUCTIVE TRUSTEESHIP: CPR R 6.20(14) 4.50
CLAIMS FOR RESTITUTION: CPR R 6.20(15) 4.51
CLAIMS BY THE INLAND REVENUE: CPR R 6.20(16) 4.52
CLAIMS FOR COSTS ORDERS FOR OR AGAINST NON-PARTIES TO AN ACTION: CPR
6.20(17) 4.53
CERTAIN ADMIRALTY CLAIMS: CPR R 6.20(17A) 4.54
CLAIMS MADE UNDER SPECIFIC ENACTMENTS: CPR R 6.20(18) 4.55
THE STANDARD OF PROOF NEEDED TO SATISFY THE REQUIREMENTS PF CPR R 6.20
4.56
FURTHER REQUIREMENTS ONCE CPR R 6.20 HAS BEEN SATISFIED: CPR R 6.21 4.57
ENGLAND IS THE PROPER PLACE IN WHICH TO BRING THE CLAIM: CPR R 6.21 (2A)
4.58
XIX
TABLE OF CONTENTS
IT ENGLAND IS NOT THE NATURAL FORUM, IT MAY STILL BE THE PROPER PLACE
FOR THE CLAIM 4.59
IT MUST NOT BE UNJUST TO REQUIRE THE DEFENDANT TO COME TO ENGLAND 4.60
THE CLAIMANT RAISES A SERIOUS ISSUE TO BE TRIED ON THE MERITS 4.61
SPDUIDA AND SEACONSAR. EVALUATION 4.62
CHALLENMNG JURISDICTION AND THE EXERCISE OF JURISDICTION: CPR PART 11
4.63
5 PROCEDURAL LAW: SERVICE OF PROCESS,
CHALLENGING JURISDICTIONS AND THE ART OF
ASSERTIVE FORUM SHOPPING
SCOPE OF THIS CHAPTER 5.01
I A) SERVICE OF PROCESS
SERVICE WITHIN THE JURISDICTION: GENERAL 5.02
SERVICE WITHIN THE JURISDICTION: METHODS 5.03
PERIOD OF VALIDITY FOR SERVICE OF A CLAIM FORM 5.04
SERVICE HY PERSONAL SERVICE 5.05
THE PLACE OF SERVICE 5.06
SERVICE BY LIRST CLASS POST 5.07
SER\ ICE BY DELIVERING OF LEAVING AT A SPECIFIED PLACE 5.08
SERVICE THROUGH A DOCUMENT EXCHANGE 5.09
SERVICE BY FAX 5.10
SERVICE BY OTHER MEANS OF ELECTRONIC COMMUNICATION 5.11
SERVICE BY AN ALTERNATIVE METHOD 5.12
SERVICE OF CLAIM FORM BY AGREED METHOD 5.13
SERVICE OF CLAIM FORM ON LOCAL AGENT OF OVERSEAS PRINCIPAL 5.14
STATUTORY SERVICE ON COMPANIES 5.15
STATUTORY SERVICE UPON A UNITED KINGDOM COMPANY 5.16
STATUTORY SERVICE UPON AN OVERSEA COMPANY: GENERAL 5.17
SECTION 694A SERVICE UPON A SECTION 690A COMPANY: BRANCH REGISTRATION
5.18
SECTION 695 SERVICE UPON A SECTION 691 COMPANY 5.19
SERVICE IN CLAIMS AGAINST PARTNERSHIPS: SUMMARY 5.20
SERVICE OUT OF THE JURISDICTION: UNCERTAINTY AS TO THE NEED FOR
PERMISSION 5.21
SERVICE OUT OF THE JURISDICTION OUTSIDE THE TERRITORIES OF THE MEMBER
STATES 5.22
SERVICE OUT OF THE JURISDICTION WITHIN THE TERRITORY OF A MEMBER STATE
5.23
TIL) DISPUTING TIN' JURISDICTION OF THE COURT
GENERAL 5.24
IGNORING SERVICE OF IHE CLAIM FORM 5.25
DISPUTING THE JURISDICTION OF THE ENGLISH COURT 5.26
THE PROCEDURE OF THE CHALLENGE: CPR PART 11 5.27
GROUNDS LOR DISPUTING THE JURISDICTION 5.28
CONCURRENT APPLICATION FOR A STAY OF PROCEEDINGS 5.29
APPLICATION BY THE DEFENDANT TO HAVE THE CLAIM STRUCK OUT ON SUBSTANTIVE
GROUNDS 5.30
APPLICATION BY THE CLAIMANT FOR SUMMARY JUDGMENT 5.31
DISPUTING THE JURISDICTION: CONCLUSIONS 5.32
(C) SII/Y OF PROCEEDINGS
GENERAL 5 33
XX
TABLE OF CONTENTS
(D) ANTI-SUIT INJUNCTIONS
GENERAL 5.34
JURISDICTION IN PERSONAM OVER THE RESPONDENT 5.35
JURISDICTION IN PERSONAM AND THE JUDGMENTS REGULATION 5.36
JURISDICTION IN PERSONAM APART FROM THE REGULATION 5.37
THE PRINCIPLES UPON WHICH AN INJUNCTION IS ORDERED: GENERAL 5.38
BREACH OF A LEGAL RIGHT NOT TO BE SUED IN THE FOREIGN COURT 5.39
AN EQUITABLE RIGHT NOT TO BE SUED: VEXATIOUS OR OPPRESSIVE OR
UNCONSCIONABLE
FOREIGN PROCEEDINGS 5.40
VEXATIOUS OR OPPRESSIVE CONDUCT IN SUING IN THE FOREIGN COURT 5.41
THE PROBLEM VIEWED AS ONE TO BE SOLVED BY CREATIVE CASE MANAGEMENT 5.42
WHERE THE INJUNCTION PROTECTS THE JURISDICTION OF THE ENGLISH COURT 5.43
OTHER UNCONSCIONABLE ACTS 5.44
RESTRAINING CIVIL OR COMMERCIAL PROCEEDINGS BEFORE THE COURTS OF ANOTHER
MEMBER STATE 5.45
PUBLIC INTEREST FACTORS IN THE EXERCISE OF DISCRETION 5.46
WHERE THE RESPONDENT WILL LOSE IN ENGLAND 5.47
CANADIAN AND AUSTRALIAN AUTHORITY AND ITS RELEVANCE 5.48
THE TIMING OF THE APPLICATION 5.49
MEASURES ANCILLARY TO AN ANTI-SUIT INJUNCTION 5.50
BREACH OF AN ANTI-SUIT INJUNCTION 5.51
FURTHER DEVELOPMENT RELATING TO ENFORCEMENT OF FOREIGN JUDGMENTS 5.52
DAMAGES AS AN ALTERNATIVE TO AN ANTI-SUIT INJUNCTION 5.53
(E) DECLARATORY RELIEF
GENERAL 5.54
JURISDICTION IN PERSONAM OVER THE DEFENDANT 5.55
JURISDICTION IN PERSONAM AND THE JUDGMENTS REGULATION 5.56
JURISDICTION IN PERSONAM APART FROM THE REGULATION 5.57
MAKING THE DECLARATION: SUBSTANTIVE LAW 5.58
6 INTERIM REMEDIES AND PROTECTIVE MEASURES
GENERAL 6.01
INTERIM REMEDIES AVAILABLE FROM AN ENGLISH COURT 6.02
THE FREEZING INJUNCTION 6.03
SEARCH ORDERS 6.04
INTERIM INJUNCTIONS IN GENERAL 6.05
OBTAINING THE ORDER: GENERAL 6.06
JURISDICTION TO GRANT INTERIM REMEDIES 6-07
CIVIL OR COMMERCIAL MATTER; ENGLISH COURT HAS REGULATION-BASED
JURISDICTION
(CASE A) 6.08
CIVIL OR COMMERCIAL MATTER; ENGLISH COURT LACKS REGULATION-BASED
JURISDICTION
BUT ANOTHER MEMBER STATE HAS IT (CASE B) 6.09
CIVIL OR COMMERCIAL MATTER; ENGLISH AND OTHER MEMBER STATE COURT COULD
HAVE
REGULATION-BASED JURISDICTION OVER THE DEFENDANT TO THE SUBSTANTIVE
CLAIM,
BUT NEITHER HAS BEEN SEISED (CASE C) 6.10
CIVIL OR COMMERCIAL MATTER; NEITHER ENGLISH NOR OTHER MEMBER STATE COURT
HAS
REGULATION-BASED JURISDICTION OVER THE DEFENDANT TO THE SUBSTANTIVE
CLAIM
(CASED)
6N
NOT A CIVIL OR COMMERCIAL MATTER; ENGLISH COURT HAS JURISDICTION OVER
THE
DEFENDANT TO THE SUBSTANTIVE CLAIM (CASE E) 6.12
XXI
TABLE OF CONTENTS
NOT A CIVIL OR COMMERCIAL MATTER; ENGLISH COURT DOES NOT HAVE
JURISDICTION OVER
THE DEFENDANT TO THE SUBSTANTIVE CLAIM (CASE F) 6.13
INTERIM REMEDIES WHEN THE ACTION IS STAYED
6
-
14
FURTHER POINTS
POST-JUDGMENT ORDERS FOR INTERIM REMEDIES 6.16
RECOGNITION AND ENFORCEMENT OF ENGLISH ORDERS IN OTHER MEMBER STATES
6.17
INTERIM RELIEF FROM THE COURTS OF OTHER MEMBER STATES 6.18
ORDERS FOR INTERIM RELIEF FROM THE COURTS OF A NON-MEMBER STATE 6.19
7 THE RECOGNITION AND ENFORCEMENT OF FOREIGN
JUDGMENTS
SCHEMES FOR THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS
INTRODUCTION L.IIL
DETERMINING WHICH SCHEME OR SCHEMES OF RECOGNITION AND ENFORCEMENT
WILL APPLY 7.02
THE JUDGMENTS REGULATION: CIVIL AND COMMERCIAL JUDGMENTS FROM THE COURTS
OF
MEMBER STALES
GENERAL 7.03
THE POSITION OF DEFENDANTS NOT DOMICILED IN MEMBER STATES 7.04
RECOGNITION OF THE JUDGMENT: THE ORDER OF ENQUIRY: ARTICLES 32 TO 37
7.05
JUDGEMENT FROM A COURT IN A MEMBER STATE: ARTICLE 32 7.06
CIVIL OR COMMERCIAL MATTERS: ARTICLE 1 7.07
JUDGMENTS GIVEN IN THE CONTEXT OF ARBITRATION 7.08
PROCEEDINGS INSTITUTED AFTER THE REGULATION CAME INTO FORCE: ARTICLE
66(1) 7.09
JUDGMENTS GIVEN AFTER THE REGULATION CAME INTO FORCE: ARTICLE 66(2) 7.10
JURISDICTIONAL OBJECTIONS AS DEFENCES TO RECOGNITION: ARTICLES 35 AND 72
7.11
SUBSTANTIVE DEFENCES TO RECOGNITION: ARTICLE 34 7.12
RECOGNITION MANIFESTLY CONTRARY TO PUBLIC POLICY: ARTICLE 34(1) 7.13
CERTAIN JUDGMENTS IN DEFAULT OF APPEARANCE: ARTICLE 34(2) 7.14
JUDGMENT IRRECONCILABLE WITH LOCAL JUDGMENT: ARTICLE 34(3) 7.15
INCIDENTAL DECISION UPON QUESTION OF STATUS 7.16
JUDGMENT IRRECONCILABLE WITH PRIOR FOREIGN JUDGMENT: ARTICLE 34(4) 7.17
THE CONSEQUENCES OF RECOGNITION 7.18
RECOGNITION AS THE FOUNDATION FOR ISSUE ESTOPPEL 7.19
ENFORCING A JUDGMENT ENTITLED TO RECOGNITION: ARTICLES 38 TO 52 7.20
FIRST STAGE: OBTAINING AN ORDER FOR REGISTRATION FOR ENFORCEMENT:
ARTICLES 38 TO 42 7.21
SECOND STAGE: APPEALS BY THE DISAPPOINTED PARTY: ARTICLES 43 TO 47 7.22
MISCELLANEOUS FURTHER POINTS CONCERNING ENFORCEMENT 7.23
AUTHENTIC INSTRUMENTS AND COURT-APPROVED SETTLEMENTS 7.24
RECOGNITION AND ENFORCEMENT OF JUDGMENTS ON UNCONTESTED CLAIMS CERTIFIED
BY A
EUROPEAN ENFORCEMENT ORDER
GENERAL 7 25
I HE SCOPE OF THE EEO CERTIFICATION PROCEDURE 7.26
ISSUE OF AND OBJECTION TO THE EEO CERTIFICATE 7.27
ENFORCEMENT, AND CHALLENGES TO THE ENFORCEMENT OF THE EEO-CERTIFIED
JUDGMENT 7.28
XXII
TABLE OF CONTENTS
RECOGNITION AND ENFORCEMENT UNDER THE BRUSSELS AND LUGANO CONVENTIONS
GENERAL 7 29
DOMAIN OF THE CONVENTIONS: ARTICLES 1 AND 25 7.30
DATE OF JUDGMENT OR OF PROCEEDINGS: ARTICLE 54 7.31
JURISDICTIONAL OBJECTIONS: ARTICLE 28 7.32
SUBSTANTIVE OBJECTIONS: ARTICLE 27 7.33
ENFORCEMENT PROCEDURE: ARTICLE 31 TO 50 7.34
MISCELLANEOUS POINTS 7.35
FOREIGN JUDGMENTS AT COMMON LAW: RECOGNITION, AND ENFORCEMENT BY ACTION
GENERAL 7.36
RECOGNITION OF JUDGMENTS IN PERSONAM: THE JURISDICTIONAL COMPETENCE OF
THE
FOREIGN COURT 7.37
DEFENDANT PRESENT WITHIN THE JURISDICTION OF THE COURT 7.38
DEFENDANT SUBMITTED TO THE JURISDICTION OF THE FOREIGN COURT 7.39
SUBMISSION BY VOLUNTARY APPEARANCE 7.40
OTHER STEPS TAKEN IN THE FOREIGN PROCEEDINGS, AND SUBMISSION 7.41
SUBMISSION TO THE JURISDICTION OF THE FOREIGN COURT BY AGREEMENT 7.42
SUBMISSION TO A COUNTERCLAIM BY CLAIMANT 7.43
NO OTHER BASIS OF JURISDICTION IS ACCEPTED AS SUFFICIENT AT COMMON LAW
7.44
RECOGNITION OF JUDGMENTS AND ORDERS IN REM: JURISDICTIONAL COMPETENCE OF
THE
FOREIGN COURT 7.45
DEFENCES TO RECOGNITION OTHER THAN LACK OF JURISDICTION 7.46
JUDGMENT NOT FINAL AND CONCLUSIVE UPON THE MERITS 7.47
BREACH OF A VALID AND BINDING ARBITRATION AGREEMENT OR CHOICE OF COURT
CLAUSE 7.48
JUDGMENT OBTAINED BY FRAUD: THE BROAD DEFENCE 7.49
RESTRICTING THE FRAUD DEFENCE: THE DOCTRINE OF ABUSE OF PROCESS 7.50
JUDGMENT CONTRARY TO NATURAL (OR SUBSTANTIAL JUSTICE) 7.51
RECOGNITION CONTRARY TO PUBLIC POLICY 7.52
RECOGNITION PRECLUDED BY HUMAN RIGHTS ACT 1998 7.53
JUDGMENT INCONSISTENT WITH A PRIOR JUDGMENT 7.54
NO OTHER DEFENCES TO RECOGNITION 7-55
EFFECT AND CONSEQUENCES OF FOREIGN JUDGMENT ENTITLED TO RECOGNITION 7.56
RECOGNITION AS BASIS FOR ACTION BY CLAIMANT TO ENFORCE JUDGMENT 7.57
JUDGMENT TO BE ENFORCED MUST BE FOR A FIXED SUM OF MONEY 7.58
NO ENFORCEMENT OF A FOREIGN PENAL OR REVENUE OR OTHER PUBLIC LAW 7.59
NO ENFORCEMENT OF A JUDGMENT CONTRARY TO PROTECTION OF TRADING INTERESTS
ACT
1980 7.60
RECOGNITION OF JUDGMENTS SO AS TO PREVENT A SUCCESSFUL CLAIMANT FROM
SUING AGAIN 7.61
RECOGNITION AS PREVENTING AN UNSUCCESSFUL CLAIMANT FROM SUING AGAIN 7.62
FINDINGS MADE AGAINST THE CLAIMANT: ISSUE ESTOPPEL 7.63
FINDINGS MADE AGAINST THE DEFENDANT: ISSUE ESTOPPEL 7.64
ENFORCEMENT OF CERTAIN FOREIGN JUDGMENTS BY REGISTRATION UNDER THE 1920
AND 1933
ACTS
GENERAL 7.65
COUNTRIES AND JUDGMENTS COVERED BY THE 1920 ACT: GENERAL 7.66
REGISTRATION UNDER THE 1920 ACT: JURISDICTIONAL COMPETENCE OF THE
FOREIGN COURT 7.67
REGISTRATION UNDER THE 1920 ACT: SUBSTANTIVE DEFENCES TO REGISTRATION
7.68
REGISTRATION UNDER THE 1920 ACT: MISCELLANEOUS FURTHER POINTS 7.69
COUNTRIES AND JUDGMENTS COVERED BY THE 1933 ACT: GENERAL 7.70
XXIII
TABLE OF CONTENTS
REGISTRATION UNDER THE 1933 ACT: JURISDICTIONAL COMPETENCE OF THE
FOREIGN COURT 7.71
REGISTRATION UNDER THE 1933: SUBSTANTIVE DEFENCES TO REGISTRATION 7.72
REGISTRATION UNDER THE 1933 ACT: MISCELLANEOUS FURTHER POINTS 7.73
JUDGMENTS FROM SCOTLAND, NORTHERN IRELAND, AND GIBRALTAR
GENERAL
7J4
MISCELLANEOUS POINTS RELATING TO THE RECOGNITION OF FOREIGN JUDGMENTS
SOVEREIGN IMMUNITY '*'*'
COMMUNITY JUDGMENTS 7.76
JUDGMENTS GIVEN ON THE BASIS OF OTHER CONVENTIONS 7.77
S ADMIRALTY ACTIONS IN REM: AN OUTLINE
INTRODUCTION 8.01
ACTIONS IN PERSONAM AND ACTIONS IN REM 8.02
1 HE ACTION //; RENT IS BROUGHT AGAINST A RES 8-03
THE DETINITION OF A RES 8-04
THE MANNER OF SERVICE 8.05
SERVICE OF PROCESS IS SUFFICIENT TO FOUND JURISDICTION 8.06
ARRESTING THE RES 8.07
INTERNATIONAL MARITIME CONVENTIONS 8.08
THE 1952 ARREST CONVENTION 8.09
JURISDICTION BASED UPON ARREST 8.10
MARITIME CLAIMS 8.11
THE 1952 COLLISION CONVENTION 8.12
THE EFFECT OF THE JUDGEMENTS REGULATION AND THE BRUSSELS AND LUGANO
CONVENTIONS 8.13
THE REGULATION AND THE ADMIRALTY ACTION /// REM 8.14
A DEFENDANT DOMICILED IN A MEMBER STATE OT A CONTRACTING STATE 8.15
I.IS ALIBI PENDENS IN ANOTHER MEMBER STATE OR CONTRACTING STATE 8.16
THE MEANING OF "FIRST SEISED" 8.17
INTERIM RELIEF IF AN ACTION IS STAYED 8.18
THE EFFECT OF SECTION 34 OF THE 1982 ACT ON THE ADMIRALTY ACTION IN REM
8.19
9 ARBITRATION
GENERAL 9.01
ARBITRATIONS UNDER THE ARBITRATION ACT 1996
THE 19% ACT: GENERAL 9.02
THE L
L
% ACT: GENERAL PRINCIPLES OF INTERPRETATION 9.03
SCOPE OF THE ACT: TO WHICH ARBITRATIONS DOES THE ACT APPLY? 9.04
THE SEAT OF THE ARBITRATION 9,05
APPLICATION OF THE PROVISIONS OF PART I OF THE 1996: THE LAW WHICH
GOVERNS AN
ARBITRATION AGREEMENT 9.06
APPLICATION OF PART I OF THE 1996 ACT: MANDATORY AND NON-MANDATORY
PROVISIONS 9.07
FORMAL REQUIREMENTS OF AN ARBITRATION AGREEMENT FOR PART I TO APPLY 9.08
1 SXENTIAL VALIDITY, AND SCOPE, OF AN ARBITRATION AGREEMENT 9.09
STAYS OF LEGAL PROCEEDINGS: APPLICATION FOR A STAY 9.10
XXIV
TABLE OF CONTENTS
STAYS OF LEGAL PROCEEDINGS: GRANTING THE STAY 9.11
STAYS IN ADMIRALTY PROCEEDINGS 9.12
INJUNCTIONS IN RESPECT OF PROCEEDINGS IN FOREIGN COURTS 9.13
COMMENCEMENT OF ARBITRAL PROCEEDINGS AND ARBITRAL TRIBUNAL 9.14
JURISDICTION OF THE ARBITRAL TRIBUNAL 9.15
THE ARBITRAL PROCEEDINGS 9.16
POWERS OF THE COURT IN RELATION TO ARBITRAL PROCEEDINGS PRIOR TO THE
AWARD 9.17
THE AWARD 9.18
ENFORCEMENT OF, AND CHALLENGES TO, AWARDS TO WHICH PART I OF THE ACT
APPLIES 9.19
MISCELLANEOUS AND SUPPLEMENTARY MATTERS 9.20
DOMESTIC ARBITRATION AGREEMENTS 9.21
CONSUMER ARBITRATION AGREEMENTS 9.22
SMALL CLAIMS ARBITRATION IN THE COUNTY COURT 9.23
RECOGNITION AND ENFORCEMENT OF FOREIGN AWARDS UNDER PART 111 OF THE 1996
ACT
RECOGNITION AND ENFORCEMENT OF CERTAIN FOREIGN AWARDS PURSUANT TO
CONVENTION 9.24
OTHER BASES OF RECOGNITION OR ENFORCEMENT OF AWARDS 9.25
THE LAW PRIOR TO THE COMING INTO FORCE OF THE 1996 ACT
GENERAL 9.26
THE LAW GOVERNING THE AN ARBITRATION 9.27
THE LAW GOVERNING THE ARBITRATION PROCEEDINGS 9.28
STAYS OF ENGLISH PROCEEDINGS 9.29
ENFORCEMENT OF FOREIGN AWARDS AT COMMON LAW 9.30
ENFORCEMENT OF FOREIGN AWARDS UNDER THE ARBITRATION ACT 1950, PART II
9.31
ENFORCEMENT UNDER THE ARBITRATION ACT 1975 9.32
ENFORCEMENT UNDER CIVIL JURISDICTION AND JUDGMENTS ACT 1982 9.33
ENFORCEMENT UNDER THE ADMINISTRATION OF JUSTICE ACT 1920 OR THE FOREIGN
JUDGMENTS (RECIPROCAL ENFORCEMENT) ACT 1933 9.34
PAGE
APPENDIX I TEXT OF COUNCIL REGULATION (EC) 44/2001 631
APPENDIX II TEXT OF THE BRUSSELS CONVENTION, THE ANNEXED PROTOCOL, AND
655
THE PROTOCOL OF 3 JUNE 1971: CIVIL JURISDICTION AND JUDGMENTS
ACT 1982, SCHEDULES 1 AND 2 (AS AMENDED)
APPENDIX III TEXT OF THE LUGANO CONVENTION: CIVIL JURISDICTION AND 677
JUDGMENTS ACT 1982, SCHEDULE 3C (AS INSERTED BY CIVIL
JURISDICTION AND JUDGMENTS ACT 1991, SCHEDULE 1)
APPENDIX IV DATES OF ENTRY INTO FORCE 691
APPENDIX V EUROPEAN COURT DECISIONS ON THE REGULATION [BRUSSELS 693
CONVENTION]
APPENDIX VI FIGURES
6
"
APPENDIX VII DRAFTING AGREEMENTS ON CHOICE OF COURT AND CHOICE OF LAW
703
INDEX
713
XXV |
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| spelling | Briggs, Adrian Verfasser aut Civil jurisdiction and judgments by Adrian Briggs. Ed. by Peter Rees 4. ed. London [u.a.] LLP 2005 LXI, 743 S. txt rdacontent n rdamedia nc rdacarrier Lloyd's commercial law library Europäische Union (DE-588)5098525-5 gnd rswk-swf Civil law Europe Jurisdiction (International law) Privatrecht (DE-588)4047304-1 gnd rswk-swf Rechtsprechung (DE-588)4115710-2 gnd rswk-swf Internationales Privatrecht (DE-588)4027446-9 gnd rswk-swf Europa Europa (DE-588)4015701-5 gnd rswk-swf Großbritannien (DE-588)4022153-2 gnd rswk-swf Europäische Union (DE-588)5098525-5 b Privatrecht (DE-588)4047304-1 s Rechtsprechung (DE-588)4115710-2 s DE-604 Großbritannien (DE-588)4022153-2 g Europa (DE-588)4015701-5 g Internationales Privatrecht (DE-588)4027446-9 s 1\p DE-604 Rees, Peter Sonstige oth SWB Datenaustausch application/pdf http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&local_base=BVB01&doc_number=015644427&sequence=000001&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA Inhaltsverzeichnis 1\p cgwrk 20201028 DE-101 https://d-nb.info/provenance/plan#cgwrk |
| spellingShingle | Briggs, Adrian Civil jurisdiction and judgments Europäische Union (DE-588)5098525-5 gnd Civil law Europe Jurisdiction (International law) Privatrecht (DE-588)4047304-1 gnd Rechtsprechung (DE-588)4115710-2 gnd Internationales Privatrecht (DE-588)4027446-9 gnd |
| subject_GND | (DE-588)5098525-5 (DE-588)4047304-1 (DE-588)4115710-2 (DE-588)4027446-9 (DE-588)4015701-5 (DE-588)4022153-2 |
| title | Civil jurisdiction and judgments |
| title_auth | Civil jurisdiction and judgments |
| title_exact_search | Civil jurisdiction and judgments |
| title_exact_search_txtP | Civil jurisdiction and judgments |
| title_full | Civil jurisdiction and judgments by Adrian Briggs. Ed. by Peter Rees |
| title_fullStr | Civil jurisdiction and judgments by Adrian Briggs. Ed. by Peter Rees |
| title_full_unstemmed | Civil jurisdiction and judgments by Adrian Briggs. Ed. by Peter Rees |
| title_short | Civil jurisdiction and judgments |
| title_sort | civil jurisdiction and judgments |
| topic | Europäische Union (DE-588)5098525-5 gnd Civil law Europe Jurisdiction (International law) Privatrecht (DE-588)4047304-1 gnd Rechtsprechung (DE-588)4115710-2 gnd Internationales Privatrecht (DE-588)4027446-9 gnd |
| topic_facet | Europäische Union Civil law Europe Jurisdiction (International law) Privatrecht Rechtsprechung Internationales Privatrecht Europa Großbritannien |
| url | http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&local_base=BVB01&doc_number=015644427&sequence=000001&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA |
| work_keys_str_mv | AT briggsadrian civiljurisdictionandjudgments AT reespeter civiljurisdictionandjudgments |