Posted on Wednesday September 28, 2016
Internationally English law is attractive as it relies heavily on the principle of freedom of contract and as a result, attempts to hold parties to their contractual bargains or award damages where this is not possible. English Law being a common law system means that judges develop law in line with existing legal principles but as is necessary for application to business both domestically and internationally.
The English Courts are respected internationally not only for the expertise of the judges and specialist courts but also the procedural principals that are applied. There’s the principle of privilege concerning communications between client and lawyer or during litigation, the cards on the table approach to disclosure and efficient case management procedures accompanied by interim remedies and requests to be made by application. Interim remedies can be requested pre-emptively for example in the form of a freezing order thereby securing the worthiness of bringing a claim at all.
Utilising the advantages of the English Courts parties can contract to have England and Wales as the jurisdiction in which disputes are resolved but the law to be applied (often called governing law) be a foreign law.
The combination of law and procedure applied makes it attractive for a party to issue a claim in the English Courts but that does not necessarily mean it is the right forum to hear to the dispute. Set out below are some things to think about when deciding whether to challenge the jurisdiction of the English Courts:
Is there another jurisdiction which is more suitable for the proceedings?
Quite sensibly the defendant’s country of residence, location of witnesses and evidence as well as the countries in which the parties conducted business are often key considerations in determining if another jurisdiction is more suitable for the proceedings. Frequently the individual circumstances of the business transaction means that one of these aspects weighs more heavily than the others and equally it may be that substantial loss having occurred in England & Wales is sufficient to bring a claim within the jurisdiction.
Where proceedings are already ongoing in another jurisdiction the courts will be increasingly reluctant to interfere with this the longer the proceedings in the other jurisdiction have been ongoing.
Gravity of allegations and strength of case
There are also legal procedural hurdles that the court must consider satisfied to subject a foreigner to the jurisdiction; fundamentally there must be a serious issue to be tried and the claimant must have a good arguable case on either the facts or law. It is easy to see how this can be fertile ground for argument but it is (simply) for the claimant to satisfy the court that on the balance of probabilities they have a good arguable case.
It is inevitable that the question as to jurisdiction is most commonly asked when the contract(s) between the parties are silent as to jurisdiction thereby turning consideration to the business conducted or dispute ensued. Where there is a clause as to jurisdiction that will more often than not be recognised by the court to which the contract purports to give jurisdiction.
If you would like more information on challenging jurisdiction or jurisdiction clauses in favour of England and Wales within contracts then please contact Kirsty Wright at Mackrell Turner Garrett.