PRIVATE INTERNATIONAL LAW
PRIVATE INTERNATIONAL LAW
Abstract and Keywords
Private international law has two limbs. It determines when an English court has jurisdiction to adjudicate where one or more of the parties, or some component of the analysis, is not English, and it decides whether to give effect to the result of adjudication in a foreign jurisdiction: this amounts to the conflict of jurisdictions. It also determines whether an English court, hearing a case with some foreign element, will apply English or foreign law to the dispute: the conflict of laws. This chapter first looks at the rules governing the jurisdiction of an English court, then at the treatment of foreign judgments, and then at choice of law for the various substantive areas of law.
(1) Conflict of Jurisdictions; Conflict of Laws
20.01 Private international law has two limbs. It determines when an English court has jurisdiction to adjudicate where one or more of the parties, or some component of the analysis, is not English, and it decides whether to give effect to the result of adjudication in a foreign jurisdiction: this amounts to the conflict of jurisdictions. And it determines whether an English court, hearing a case with some foreign element, will apply English or foreign law to the dispute: the conflict of laws. Its traditional source is the common law, and its historical focus was the development of choice of law rules. One textbook1 has long had a dominating influence over the subject.
20.02 Twice recently this emphasis has changed. As a matter of common law technique, a change of focus from conflict of laws to conflict of jurisdictions took place in the last quarter of the twentieth century, as the judiciary came to accept that, as venue is often critical to the outcome of a case, a more considered and less crude approach to jurisdiction was required, for once parties have fought on the issue of jurisdiction a case may well settle, with a consequent saving of time and money. But membership of the European Union also led to increased harmonization of rules of jurisdiction and choice of law, to such a degree that the law on jurisdiction and judgments, choice of law for obligations, insolvency, and increasing amounts of (p.1184) family law is now essentially statutory and European, rather than common law and English. This transition has put some strain on the overall coherence of the law.
20.03 An English court applies English domestic law: common law, equity, and statute. It will not apply foreign law to an issue unless (1) English choice of law rules provide that a foreign law is in principle applicable, (2) English legislation does not preclude its doing so, (3) the party relying on foreign law pleads its application, and (4) the party proposing to rely on foreign law proves its content, by expert testimony, to the satisfaction of the court. No party to litigation is obliged to invoke foreign law, not even where a European Regulation or international convention stipulates that a particular law shall be applied. The judge has no inherent power to investigate or apply foreign law: neither ex officio nor on the basis that curia novit jus (the court knows the law, and therefore does not need to have it proved by the parties). In an English court foreign law is a matter of fact to be pleaded and proved like any other fact requiring proof by expert testimony.2 A supposed explanation, that foreign law is presumed to be the same as English law unless and until proved to be different, is not now generally favoured.3 In some cases the failure to plead and prove foreign law will not lead to the default application of English law, particularly when the rule of English law relied on is a statutory rule which, on its true construction, will not apply to the issue. In such a case the claim may simply fail.4
(2) Common Law Methodology of Choice of Law
(a) Characterization of issues5
20.04 A choice of law rule is formulated by reference to connecting factors: capacity to marry is governed by the law of the domicile; liability in tort is governed by the lex delicti, and so on. This requires the facts to be accommodated within one or more legal categories to which a choice of law rule applies, by the characterization of the issue(s) in dispute. Where the regime for choice of law is still that of the common law and Parliamentary legislation, that is, where the regime for choice of law is not imposed by the European Union, the exercise is conducted within the conceptual structures of English domestic law, always bearing in mind that a flexible use of analogy may be needed to yield a workable solution. So a claim might have been6 characterized as contractual despite the absence of consideration for the promise;7 a claim might have been8 tortious even though there was nothing quite like it in English law;9 an issue may still be one of (in)capacity even though English law recognizes no such impediment.10 New characterization categories may be developed as the need arises. But where the question is whether to apply a rule contained in English legislation, a court may consider that the question is one of statutory construction, not one preceded by a question of characterization.11 And, most importantly of all, where the question is whether to apply (p.1185) a rule contained in European legislation, the court is bound to approach the question as one of interpretation and application of rules of European law. It is not helpful to consider this exercise as one of characterization.
20.05 Where foreign law is to be applied, this may mean the domestic law of the foreign system, or the law, including the rules of the conflict of laws, which would be applied by that foreign judge, hearing the case himself. Such reference to a third law13 is a renvoi. Notwithstanding the plausible case for interpreting foreign law as meaning those rules which a foreign judge would actually apply, English14 courts15 display little enthusiasm for renvoi, preferring where possible to interpret a reference to foreign law as to the domestic rules of the system chosen. Where status or the ownership of property is concerned, a court may be more prepared to accept the invitation, if the parties make it, to look beyond the domestic lex causae and to decide the case as the foreign judge would, by ‘impersonating’ him so far as the evidence of foreign law, and rules of procedure, permits it.16 That said, if the English judge tries to decide as the foreign judge would, only to find on proof of foreign law that the foreign judge would be behaving in the very same way, the doctrine may appear rather too clever for its own good and be better ignored.
(c) Connecting factors
20.06 Choice of law rules are usually expressed in terms of a connection between an individual, or an event, and a system of law. These ‘connecting factors’ are the building blocks for the choice of law, and they are almost all defined by English, not foreign, law. For example, if X is domiciled in France, this conclusion is unaffected by the possibility that French law might not agree.17 If English law considers the law applicable to a contract to be Swiss, it is irrelevant that a Swiss court might have taken a different view.
20.07 The connection needs to be with a territory having a system of law, rather than with a larger political unit having many or none. For example, an individual may be domiciled in England, but not in the United Kingdom; in Florida, but not in the United States. But in cases where a foreign federal state is a single unit for certain legal purposes, the connection will depend on the context. So he may be domiciled in Australia (self-defined as a single law district for the law of marriage) for the purposes of capacity to marry, but in Queensland for the purpose of making a will.
(i) Personal connecting factors
20.08 The basic personal connecting factor of the common law is domicile. Everyone has one; noone can have more than one at the same time; and this law—the lex domicilii—has a prominent role in family and inheritance law. At a general level domicile may connote a person’s permanent home, but the rules may ascribe a domicile which is remote from the reality of the individual’s life. There are three genera of the species. The domicile of origin is the domicile of one’s father (or mother, when born out of wedlock or after the father’s death). Though it (p.1186) may be overlaid by the acquisition of a domicile of a different type, it is never eradicated. A domicile of choice is acquired by becoming resident in a particular country, intending to reside there permanently or indefinitely.18 So intention to reside in the United States, but not in a particular state, will not establish a domicile of choice in an American state, and neither will an intention to reside somewhere just so long as it indulges tax avoidance and is not England.19 An intention to remain for a fixed period, or until the occurrence of a certain event, such as retirement, does not suffice either.20 It may be lost by abandonment (ceasing both to reside and to intend to reside), or displaced by acquiring a new domicile of choice. If abandonment is not contemporaneous with the acquisition of a new domicile of choice, the domicile of origin will reassert itself to prevent any domiciliary hiatus.21 A child’s domicile of dependency is that, from time to time, of the parent upon whom, until the age of sixteen or lawful younger marriage, the child is dependent.
20.09 The rules of domicile can produce a capricious answer in a given case, especially in Europe as political states and boundaries move and change.22 But proposals for reform have foundered. One particular consequence was that the common law conception of domicile was especially unsuitable to identify a court in which a person was liable to be sued in civil or commercial proceedings. For this reason the term ‘domicile’ in the Brussels I Regulation23 is statutorily defined as separate and distinct from its common law homonym.24
20.10 ‘Habitual residence’, or ‘ordinary residence’, more usually encountered in European Regulations and laws deriving from international conventions, indicate a person’s usual residence, but without the technical complications of the common law of domicile. In the context of the law of obligations, the habitual residence of a company or corporation is its central administration; and that of a natural person acting in the course of a business activity is his principal place of business.25
20.11 Nationality, as a connecting factor, is rare in the English conflict of laws. The reasons are pragmatic. Nationality is ascribed by the law of the proposed state: no rule of English law can say whether someone is a French national. It is therefore insulated from the judicial control applicable to other connecting factors. Moreover, dual nationality, or nationality in a federal or complex state such as the United States or the United Kingdom, would cause formidable difficulties. Nationality is rarely used in English law, but is preferred in civilian systems.
(ii) Causal connecting factors
20.12 Expressions which describe a connection between an event and a law are also defined by reference to English law. They include the law of the court in which the trial is taking place (lex fori); the law applicable to a contract (lex contractus); the law applicable to the tort (lex delicti); the law of the place of the tort (lex loci delicti); the law of the place where a thing is (lex situs); the law of the place where a transaction took place (lex loci actus); the law of the place of celebration of marriage (lex loci celebrationis); the law of the place of incorporation (lex incorporationis); and in general the law applicable to the dispute (lex causae). No educated person considers that these Latinate forms—elegant, economic, and in universal use—are improved by a clunking English paraphrase.
20.13 The common law conflict of laws is not at its best when handling English statutes. A court will only apply a foreign statutory rule if the foreign law is the lex causae. The reverse is not true: an English court may apply an English statute even though the rules for choice of law otherwise point to the application of a foreign law. All depends on the true construction of the statute, on whether Parliament has directed the judges to apply it without regard to, or despite, foreign components in the overall dispute.26 Some, such as the Human Rights Act 1998, can be seen to override all contrary rules for choice of foreign law and jurisdiction. It is sometimes said that there is a presumption that the legislature makes laws which are territorially limited. But even if that is so, it is only a point of departure. When Parliament legislates without making any clear statement of the international reach or ‘legislative grasp’ of its laws, the courts have to do the best they can.27
20.14 The question whether ‘comity’ has any discernible role in private international law is controversial, with some writers taking the view that its lack of clear definition renders it unusable. But other writers, and courts,28 make reference to comity rather more often than this would suggest. If comity is understood as a rather woolly principle of judicial self-restraint, it would not be useful. However, the principle may be formulated as one which asserts positively that the exercise of jurisdiction and legislative power is territorial, so that exercises of sovereign power within the sovereign’s own territory are entitled to be respected, but which also accepts passively that parties may assume obligations which either may ask a court to enforce against the other outside the constraint of such territoriality. On that basis it is capable of explaining the law on jurisdiction and foreign judgments, the interpretation and application of statutes, and certain elements of choice of law. It has been observed by leading civilian commentators that comity plays a characteristic role in the common law of private international law, and there is no reason for an English lawyer to deny it.29
(f) The Europeanization of private international law
20.15 The methodology outlined above is that of the common law of private international law. However, choice of law rules legislated by the European Union and effective by grace of the European Communities Act 1972 operate independently, and with an altogether different aim. These rules for choice of law (as well as of jurisdiction) are made to harmonize law throughout the member states. To this end, they define their own sphere of operation, and are not designed to be passed through the filter of the common law. Where an issue falls within the domain of a European statute, the material question is one of statutory interpretation, and nothing else.
(g) The exclusive domain of the lex fori
20.16 Rules for choice of law will sometimes select the lex fori for the issue in question, but sometimes the lex fori supervenes to contradict the choice of law otherwise applicable. In three (p.1188) areas in particular English courts will simply apply the lex fori without further regard to choice of law.
(i) Procedural matters30
20.17 Procedural issues are governed by English law. The question whether an intending litigant is competent to sue in an English court, the nature of the trial process, the admissibility of evidence, and so on, are governed by English law, albeit that this may be applied with a measure of flexibility. It does not follow that juristic persons unfamiliar to English law may not litigate: although the curator of a disappeared person has been denied locus standi,31 a Hindu temple was recognized as competent to sue.32 Nor does any rule prevent the tendering of evidence acquired by means unknown to English law, so the product of oral discovery under US procedure is admissible at trial.33 But the broad content of the trial process is governed by English law. The common law considered the assessment or quantification of damages, as distinct from the determination of heads or recoverable damage, as a matter of procedure, governed by English law, even when the substantive liability for a head of damages was governed by a foreign law.34
20.18 An important sub-category of procedure is interim relief, which is ordered by an English court according to English law and represents one of the main prizes at stake when issues of jurisdiction are fought. An English court cannot make orders unknown to English procedural law. That said, specific limitations on the power of the court may be imposed by international agreement or by considerations of comity.35 For example, an injunction freezing a defendant’s worldwide assets, which an English court may order, should not be made over property within the territorial jurisdiction of another EU member state unless the English court is seised of the substantive proceedings.36 An injunction ordering a person to discontinue proceedings in a foreign court, explicable as an exercise of the power to make procedural orders against someone subject to the jurisdiction, will be made with restraint, to reflect the concurrent interest of the foreign court in the matter.37 But in all cases the relief is governed by English procedural law. Likewise, when it comes to the making of orders by way of enforcement, or to assist enforcement, of an English or a foreign judgment, an English court simply applies English law.38
20.19 Until 1985, the limitation periods of English domestic law applied to all actions brought in the English courts; those of the lex causae were, if characterized as substantive, applied as well, but were disregarded if characterized as procedural. Since the Foreign Limitation Periods Act 1984 the limitation or prescription periods of the lex causae have applied in place of those of English law, subject only to English public policy where the application of the foreign period causes undue hardship; and only when this happens will the English period be applied by default.39
20.20 An English court will not enforce a foreign penal law or liability for taxes due under a foreign law.40 So proceedings by a foreign state to enforce a bail bond41 or collect taxes,42 will be dismissed. In this context, ‘penal’ means ‘criminal’, and does not extend to exemplary damages or indemnity costs.43 It is generally accepted that there is a third category, of ‘other public laws’.44 The same principle is sometimes expressed as refusal to enforce a claim founded on, or which asks an English court to give extra-territorial effect to, foreign sovereign powers or rights,45 for sovereign power is strictly territorial in nature and operation. If the claim is one which ‘only a state may bring’, or for relief which ‘only a state may seek’, it will tend to be seen as an assertion of foreign sovereign power, and will not be one which the English court may enforce.46 The prohibition extends to indirect enforcement, so proceedings to enforce a foreign judgment given against a defaulting taxpayer will likewise fail.
20.21 The line which separates indirect enforcement from recognition may be fine, but is critical. An application for evidence to be taken to assist a foreign revenue to collect taxes within its own jurisdiction will not be refused:47 the state is not asserting a right to collect taxes in England, and there is no rule which requires the non-recognition of foreign tax laws as the foundation for relief which the court may otherwise order. A contention that civil or commercial proceedings against a commercial debtor or wrongdoer48 may be dismissed if any recovery of damages will enure to the ultimate benefit of a foreign revenue is impertinent, but has not always been rejected with the scorn which it merits.49 If a state acquires the shares in a company organized under its own law, it may cause the company to bring proceedings in England in which the state has a direct interest, but there is no impediment to its doing so, for all the English court is called upon to do is to recognize the title to shares perfected within the foreign jurisdiction, the motivation behind the company’s claim being immaterial.50 In this context, the foreign law only requires recognition, which will not be withheld unless it is so deplorable that it should be treated as though it had never been made.51
(iii) Public policy
20.22 A rule of the lex causae will not be applied if repugnant to English public policy, or if the result of its application would be contrary to public policy. ‘Public policy’ in this sense refers to the fundamental values of English law, and though this bears a restrictive meaning, it makes a distinctive contribution to the English conflict of laws. History offers some repellent illustrations. A law depriving a racial group of its property,52 or invalidating inter-racial marriage, should be regarded as so offensive to public policy that it will be utterly ignored, no matter the context; so also a law which purported to dissolve a state and expropriate its property.53 But a law giving a husband a unilateral right to divorce his wife while giving her (p.1190) no right to object may offend public policy when applied to a wife who is habitually resident in England,54 yet be regarded differently when applied as between parties who have no connection with England. Much confusion is reduced when the two senses of public policy—the first absolute, the second contextual—are separated. By contrast, the common law does not apply the law or public policy of a foreign country other than the lex causae, though where a provision of the lex causae is also said to articulate a rule of public policy, there is no reason for an English court to decline to give it effect. From time to time it is suggested that there is such a thing as ‘European public policy’, but the idea has not gained traction, and if the answer to a question of choice of law or the recognition of judgments is resisted on grounds of public policy, it is English public policy, and nothing else, which supplies the doctrine.
20.23 The role of public policy is almost always one which grounds a refusal to reach an answer which the rules of private international law would otherwise mandate: it leads to the nonrecognition of a judgment which otherwise qualifies for recognition, to the non-application of a rule of foreign law which would otherwise be applicable, and so forth. It is much less clear that it can operate in a positive way: to recognize as valid a marriage which rules for choice of law would otherwise not validate,55 or to recognize a marriage as dissolved where a law refuses to allow dissolution, or to recognize as effective an acquisition of title which orthodox choice of law would not recognize.56 Authorities are meagre and ambivalent; the issues are not easy.
20.25 In principle, if it is to adjudicate a court must have jurisdiction over the subject matter of the claim, and over the defendant to it.
20.26 So far as subject matter jurisdiction is concerned, there are few instances in which an English court lacks jurisdiction over the subject matter of a claim so that no purported submission by the parties—which only establishes personal jurisdiction—can remedy the deficiency. A court has no jurisdiction to try the validity of a foreign act of state,58 or to adjudicate claims principally concerned with title to foreign land,59 or to adjudicate the validity of foreign patents.60 Where the court has personal jurisdiction over the defendant by reason of the Brussels I (p.1191) Regulation it is uncertain whether these common law exclusions of jurisdiction may still be invoked.61
20.27 The principles of state and diplomatic immunity restrict jurisdiction over claims brought against states62 and diplomats; in relation to international organizations the instrument establishing the organization as a juridical person for the purposes of English law will usually define the extent of any immunity from the processes of the court.63
20.28 A court has personal jurisdiction over a defendant when process is served on him, and rules as to jurisdiction in personam are principally rules which delineate the right to serve process on the defendant. The common law provides that any defendant present within the territorial jurisdiction of the court is liable to be served with process, but a defendant outside England is not so liable. Civil Procedure Rules, made under statutory authority, permit a claimant to apply for permission to serve process on a defendant out of the jurisdiction: the circumstances in which this may be done are examined below. For convenience these are together referred to as ‘traditional’ rules of jurisdiction, even though some are recent.
20.29 Since 1982 the adoption into English law of a series of European instruments, operating alongside the traditional rules, has radically altered the jurisdiction of English courts in civil and commercial matters. A claimant must first consider whether these instruments confer jurisdiction on, or withhold it from, an English court. If they do neither the traditional rules by which a court may have jurisdiction may be invoked.
20.30 This chapter therefore treats these ‘European’ statutory rules as forming the core of the subject, and the traditional rules as applying only residually, in the gaps left within, and in cases falling outside, the domain of these instruments. It will be seen that the co-existence of these two systems of personal jurisdiction, each complex to begin with, leaves many loose ends.
20.31 Jurisdiction in family matters, in the administration of estates, bankruptcy and insolvency, and so on is examined in those sections of this chapter which deal with those as substantive topics. In summary, where the dispute raises a civil or commercial matter, the rules set out in this section will determine the jurisdiction of an English court.
(2) Jurisdiction in Civil and Commercial Matters
(a) The Brussels I Regulation: scheme and domain
20.32 Since 2002 the Brussels I Regulation,64 superseding the Brussels Convention,65 has regulated jurisdiction in civil and commercial matters and has also served as the basic jurisdictional law of the 27 member states of the European Union.66 National courts may make references to the Court of Justice of the European Union for a preliminary ruling on the interpretation of (p.1192) the Regulation.67 The Brussels Convention had two expert reports as authorized aids to its interpretation,68 but the Regulation has none. The Lugano Convention,69 practically identical to the Brussels I Regulation, operates in relation to Iceland, Norway, and Switzerland. Where these instruments confer jurisdiction on an English court, process may be served on the defendant as of right, whether within or (with the appropriate certification)70 outside the jurisdiction.71 References to the Brussels I Regulation may be taken to include the Lugano Convention unless the contrary is stated.
20.33 Where the Brussels I Regulation confers international jurisdiction upon the courts of a member state, it indicates the courts of the United Kingdom which is (rather than England, which is not) a member state. To respond to this, rules largely reflecting those of the Regulation sub-attribute national jurisdiction to the courts of England and Wales, Scotland, or Northern Ireland.72 These rules of United Kingdom law, which are not rules of European law,73 apply where the Regulation gives jurisdiction to the courts of the United Kingdom, such as under Articles 2 (domicile), 9 and 12 (certain insurance claims), 16 (consumer contracts), 19 and 20 (employment contracts) and 22 (exclusive jurisdiction regardless of domicile). But where the Regulation confers jurisdiction directly upon a particular court, or upon the courts for a place, no further attribution of national jurisdiction is required.
20.34 Practically all the definitional terms of the Brussels I Regulation bear ‘autonomous’ meanings, which may be quite distinct from the meanings of similar terms in English law. They are formulated by the European Court of Justice. As the basic principle is that a defendant shall be sued in the courts of the member state of his domicile, a provision of the Regulation derogating from this will tend to receive a restrictive interpretation.74 As the Regulation aims to make judgments obtained in one member state freely enforceable in all others, rules which would result in the non-recognition of judgments will tend to receive a restrictive construction, while those preventing parallel litigation will be construed amply.75 Finally, as the courts of member states have equal competence to interpret the Regulation, it is almost always inadmissible for the courts of one state to consider whether the courts of another erred in concluding that they had jurisdiction, and even less admissible for them to act on any such conclusion by asserting jurisdiction on the basis that the other court has made a jurisdictional error.76
(i) Civil and commercial matters
20.35 Where a claim falls within the domain of the Brussels I Regulation, the Regulation determines the jurisdiction of an English court. The practical hierarchy of these rules is reflected in the order in which they are examined here. ‘Civil or commercial matters’, for the purpose of Article 1, are defined by the underlying legal relation in issue before the court. It may include claims made by public authorities, or by other public law entities, where the claims—attention is paid to the claim, not to the defence77—invoke rules, or rights and obligations, (p.1193) forming part of the general law, as distinct from legal rights peculiar to public law. So a claim for the repayment or recovery of welfare payments is civil or commercial if founded on the general law of restitution or subrogation, but otherwise where it is founded on a special statutory right given to the claimant as a matter of public law.78 Where a public body has power to require a trader to remove unfair terms from consumer contracts, the obligation enforced against him is still civil or commercial.79 It has even been held that a fine ordered for noncompliance with a judicial order is recoverable as ordered in civil or commercial proceedings.80 By contrast, a claim for reparation for damage done by a foreign state in times of war does not arise in a civil or commercial matter, for the waging of war, and making reparation for wartime property damage, is a matter of public law.81
20.36 Article 1 excludes a claim which principally concerns customs, revenue or administrative matters, or status, marriage, matrimonial property or succession, or bankruptcy and insolvency, or social security, from the domain of the Regulation: the key question is the nature of the legal right or duty underpinning the proceedings. For example, a claim to retrieve property from a liquidator is not within the bankruptcy exception, as it relies on the ordinary civil law of ownership,82 but where the right relied on is peculiar to insolvency, such as the right to reverse preferences, the exception applies.83 Arbitration as a means of dispute resolution, and judicial measures to regulate it, lies outside the Regulation;84 but the enforcement of judgments obtained in breach of an agreement to arbitrate is probably within it if the underlying subject matter of the claim was civil or commercial.85 Proceedings to enforce a judgment from a non-member state are not within the Regulation.86 In all cases falling outside the domain of the Regulation, the jurisdiction of the English courts over the defendant is a matter for the traditional rules.
20.37 Many of the rules of the Regulation depend upon whether the defendant is domiciled in the United Kingdom or in another member state. For an individual, domicile in the United Kingdom is legislatively defined87 rather than left to the common law: he is domiciled in the United Kingdom if resident in the United Kingdom and this residence indicates a substantial connection with the United Kingdom: a fact which may be presumed from three months’ residence.88 Corresponding sub-rules determine whether an individual is domiciled in a part of the United Kingdom. For a company, domicile is generally89 determined by a uniform definition given in the Regulation itself: it is domiciled where (wherever) it has its statutory seat, or its central administration, or its principal place of business.90 A trust is domiciled in England if English is the law with which it has its closest and most real connection.91
(p.1194) 20.38 Whether an individual is domiciled in another member state is stated by Article 59 to be determined by the law of that state: whether he is domiciled in France is a matter for French law, and so on. An individual may therefore have a domicile in more than one member state. It is different for a company: whether a corporation is domiciled in another member state is determined by the definition given in Article 60 itself.
(b) Jurisdictional provisions of the Brussels I Regulation
(i) Exclusive jurisdiction, regardless of domicile
20.39 Article 22 of the Regulation gives exclusive jurisdiction, regardless of domicile, to the courts of a member state, in five areas: in the rare case where it confers exclusive jurisdiction on the courts of two member states, Article 29 provides that only the first court seised has jurisdiction. Where Article 22 confers exclusive jurisdiction on a court, no other court has jurisdiction: not even if the parties agree or wish to submit to it. In all cases the connection must lie with a member state; if the material connection points to a non-member state the relevant question is whether a court with personal jurisdiction over the defendant may decline to exercise it.92
20.40 Immoveables. Article 22.1(a) applies if proceedings have as their principal object rights in rem in, or tenancies of, immoveable property in a member state, vesting exclusive jurisdiction in the state where the immoveable is; Article 6.4 permits a contractual action to be combined with the action in rem. Proceedings in which the tenancy is only part of the background to, or a minor part of, the overall dispute, such as in holiday packages93 or claims which concern obligations contained in but not peculiar to tenancies,94 are outside this provision; but challenges to the existence of the tenancy do not dis-apply the Article.95 Proceedings have as their object rights in rem where the claimant asserts that he is legal owner of the land and seeks to have determined the extent, content, ownership or possession96 of the land in question. It does not apply where he claims (eg, as contractual purchaser) to be entitled to become legal owner, or claims (eg, as beneficiary) to be equitable owner of the land under a trust, even if this is a right good against third parties;97 and it may not apply where he seeks damages for trespass to land when title is not in dispute.98 It is arguable that Article 22.1 is inapplicable where the relevant substantive law is not specifically land law or tenancy law.99 Where the proceedings have as their object a private letting for six months or fewer, and landlord and tenant are domiciled in the same member state, the courts of this state have concurrent exclusive jurisdiction under Article 22.1(b).
20.41 Companies. Article 22.2 applies if proceedings have as their object (rather than raising by way of defence)100 the validity of the constitution, the dissolution or winding-up, of companies, or the decisions of their organs, vesting exclusive jurisdiction in the member state of the company’s seat. So when a company defends a contractual claim by asserting that its officer lacked legal power to bind it, such a defence does not implicate Article 22.2. Claims that an organ of the company acted without authority fall under Article 22.2, at least where this is (p.1195) the principal element of the claim, but allegations of misuse of a given authority probably do not.101 Claims which involve a challenge to the manner in which a company exercised its powers are not within the exclusive jurisdiction of the seat.102
20.42 Registers. Article 22.3 gives exclusive jurisdiction to the member state in which a public register is kept if the proceedings have as their object the validity of an entry in that register. An action to rectify an entry on a land register on the basis of a pre-existing right will be covered.103
20.43 Patents, etc. Article 22.4 gives exclusive jurisdiction to the member state in which a patent or trade mark is registered or deposited where the proceedings have as their object the registration or validity of that right. Actions for infringement fall outside the Article,104 but if invalidity is asserted as a defence, Article 22.4 requires validity to be determined in the member state of registration. It is unclear whether the raising of such defence permits or requires the court seised with the infringement claim to cede jurisdiction to the court with exclusive jurisdiction to rule on the validity issue.105
20.44 Judgments. Article 22.5 gives exclusive jurisdiction to the member state in which a judgment from another member state is being executed if the proceedings are concerned with the execution of the judgment. But there must be a judgment: proceedings which pave the way for enforcement of a prospective judgment are not included.106
(ii) Jurisdiction by appearance
20.45 Article 22 apart, Article 24 provides that a court before which the defendant enters an appearance has jurisdiction. Appearance which departs from a prior agreement on jurisdiction will override the latter.107 Appearance solely to contest the jurisdiction of the court108 will not confer jurisdiction, for the scheme of the Regulation encourages the defendant to appear without prejudice before the court seised to argue about the proper application of the Regulation. As long as the challenge is made at the first available opportunity he will not forfeit his jurisdictional defence if he is in practice required to advance his substantive defence at the same time.109
(iii) Jurisdictional privilege: insurance, consumer, and employment contracts
20.46 In relation to disputes arising out of insurance contracts, certain consumer contracts, and contracts of individual employment, where the insurer, supplier or employer is domiciled (or was not, but made the contract from a local branch or agency which was itself domiciled) in a member state, there risks being such inequality between the parties that the insured, consumer, or employee needs jurisdictional privileges lest an arguable claim go unheard. Articles 8–14 (insurance contracts), 15–17 (certain consumer contracts), and 18–21 (contracts of individual employment) enact leges specialis in which the weaker party has the privilege of suing, in ‘his’ courts,110 the stronger party may sue only where the other is domiciled, and jurisdiction agreements are generally binding only if entered into after the dispute arose, or (p.1196) if they widen the choice given to the weaker party.111 Where the defendant insurer, supplier, or employer is not domiciled in a member state, Article 4 will apply.112
20.47 Insurance. The privileged jurisdictional provisions for insurance contracts do not apply to reinsurance,113 or to disputes between professional insurers,114 where the parties can look after themselves. They do apply to direct actions by the injured party against the insurer.115 The insured may have a further choice to sue where the harmful event occurred (in liability insurance) or where the land is (property insurance).
20.48 Consumers. Consumer contracts secure the needs of an individual in terms of private consumption116 in which the consumer deals with a professional. But the privileged jurisdictional rules are confined to such contracts for the sale of goods on instalment credit terms, or for a loan repayable by instalments to finance the purchase of goods, or those concluded with a person who pursues commercial or professional activities in the state of the consumer’s domicile, or who directs his activities to such a state, most typically by advertising, or electronic means. In the case of a website, a complex analysis is required to determine whether there was ‘directing’ rather than non-directed accessibility.117 Contracts for mixed purposes count as consumer contracts only if the business element is negligible;118 and if the rights of the consumer have been assigned to a non-consumer, the jurisdictional privilege is lost.119
20.49 Employment. For proceedings concerning (based on) contracts of individual employment,120 the employee’s ‘home’ court, the jurisdictional privilege of which he is entitled to claim, is that of the member state in which he habitually carries out his duties;121 and if these are undertaken in more than one member state, this will be understood to indicate the principal place, or place where the duties have their centre of gravity.122
(iv) Agreements on jurisdiction
20.50 Apart from the cases examined above, where their effect is restricted, a jurisdiction agreement for the courts of a member state is given effect by Article 23. Such an agreement prorogates the court chosen, and derogates from the jurisdiction of all others; but there is neither requirement, understanding nor reason that the agreement on jurisdiction must be made in contractual form: common sense confirms a party may agree to a jurisdiction without needing to do so by a contract. If no party is domiciled in a member state, the agreement may be overridden if the nominated court has declined jurisdiction. There is otherwise no discretion to override a (p.1197) jurisdiction agreement, say on grounds of overall trial convenience.123 An agreement providing for non-exclusive jurisdiction will be effective according to its terms. Agreement for the courts of the United Kingdom is effective so far as the Regulation is concerned, but raises some practical difficulties: it probably prorogates the courts of any part of the United Kingdom unless it can be construed as being more precise than first appears.124 An agreement for the courts of a non-member state is unaffected by Article 23, for the courts of a non-member state cannot be bound by the Regulation. The relevant question is whether a court otherwise having jurisdiction under the Regulation may on this ground decline it.125
20.51 Form of agreement. To ensure that the defendant’s agreement to the jurisdiction for the proceedings in question was genuine—there is no question whether the claimant agreed, as he has issued the writ—Article 23 requires it to be in writing or evidenced in writing, or in a form which accords with the parties’ established practice, or in a form which accords with international trade usages of which the parties were or should have been aware. So the mere existence of a small-printed term in one party’s standard conditions of business will be ineffective unless the party against whom it is asserted has written his agreement to those conditions.126 There is tension between the expectation that strict adherence to the formality rules will ensure genuine agreement, and awareness that it may, on occasion, license sharp practice. The European Court has generally insisted on a strict application of the formalities,127 though it has understandably been more flexible in the context of international trade128 and when allowing a point to be taken on formal invalidity would reward bad faith.129 Likewise, where a non-party succeeds as a matter of law to the obligations of the substantive contract, there is no separate requirement that his individual consent to the jurisdiction agreement be given.130 More creatively, a shareholder was held bound by a jurisdiction agreement contained in the company’s constitution, on the ground that he knew or should have known of it, and assented to be bound by acquiring and holding the shares.131 The width of the reasoning in this case remains to be tested.
20.52 Substance. An agreement to jurisdiction which complies with the formalities may not be impeached on the ground that it fails to comply with some provision of national law which would otherwise invalidate it.132 The submission that the substantive contract is ineffective is jurisdictionally irrelevant, not only as a matter of common sense, but also because the advance acceptance of jurisdiction by a person who may become a defendant is not dependent on establishing the validity of any contract associated with that agreement on jurisdiction.133 Of course, where written ‘consent’ was procured by wrongdoing, it will be bad faith to insist that the defendant has agreed to the jurisdiction of the designated court.
20.53 If none of the foregoing determines jurisdiction, the rule in Article 2, that general jurisdiction exists where the defendant is domiciled, will next apply. It is striking that though this is the fundamental jurisdictional principle of the Regulation, its place in the hierarchy of rules is not prominent; but if a defendant is sued where he is domiciled, this fact may provide a basis for jurisdiction over other defendants who would not otherwise be amenable to it.
(vi) Special jurisdiction over defendants domiciled in another member state
20.54 If none of the foregoing confers jurisdiction, Articles 5 and 6 provide for ‘special jurisdiction’ over defendants domiciled in another member state. Article 5 loosely reflects the idea of a forum conveniens, but its application is not dependent on showing that the court is, in the instant case, a forum conveniens.134 It may not be used as the anchor for claims against defendants over which the court would not otherwise have had jurisdiction: such general jurisdiction is conferred by Article 2, and this practical disincentive to invoke Article 5 is evidently deliberate. Article 6 deals with multipartite litigation.
20.55 Matters relating to a contract. Article 5.1 gives special jurisdiction to the courts for the place of performance of the obligation in question. A matter does not relate to a contract unless it involves obligations freely entered into with another, but if it does it is not material that it would be regarded as non-contractual by national law.135 So a claim to enforce the rules of an association,136 or the mutual obligations of company and member,137 is contractual even though a national law may understand the law of associations to be distinct from the law of contract; a warranty claim by a sub-buyer against a manufacturer is excluded, even if contractual under national law.138 Where the validity of the substantive contract is disputed the rule is not excluded from application,139 and this is so even if the claimant asserts that an alleged contract is ineffective.140 But if it is accepted that the supposed contract was void ab initio,141 or the complaint is that a contract was (wrongfully) not concluded, the matter does not relate to a contract.142
20.56 The obligation in question means the performance obligation,143 or the principal obligation if there is more than one,144 upon which the claim is founded. If the contract does not clearly specify this place, it is to be discerned by interpretation, with reference to the lex contractus if necessary.145 However, in the case of contracts for the sale of goods and for the supply of services, the rule operates in a special way: the obligation in question is no longer that on the basis of which the claimant brings his claim. Instead, in contracts for the sale of goods, special jurisdiction lies at the place where delivery under the contract took place or was due; in contracts for the supply of services, it is the contractual place of supply. In any case in which (p.1199) this place is not apparent on the face of the contract, or as a matter of fact, it is not located by recourse to the lex contractus: the question is instead where, under the contract, final delivery to the control of the buyer was to be made.146 If the obligations of delivery or supply were to be performed in several jurisdictions, the search is for the place of main provision.147 This is all designed to avoid an analysis which is or would be dependent on identifying the law which governed the contract, and locating the place in the light of that law. But in cases which are neither sale nor supply, the general rule requiring the place of performance of the obligation on which the claim is brought to be ascertained from the terms of the contract remains in force.148
20.57 Matters relating to tort. Article 5.3 gives special jurisdiction to the courts for the place where the harmful event occurred or may occur. This has been held to point to the place where the damage occurred or of the event giving rise to that damage: the claimant149 may elect between them.150 Damage occurs where it first materializes, rather than where it is subsequently felt. So if property is taken, the damage occurs where the taking happens rather than where the financial records are kept;151 where contamination of goods is alleged, it is where the initial damage caused by normal use of the goods occurred.152 Where the damage is pure financial loss, its location may be harder to determine, but is probably where the money passed out of the control of the victim, or where the anticipated profit was not made.153 The same principle applies to reputational, or ‘moral’, damage, but in a slightly modified way. Where lies are published in a newspaper, the damage occurs where the defamatory information is read,154 but where privacy is violated by Internet publication, the damage occurs in the place where the claimant has his centre of interests, because the Internet is ubiquitous, and any other solution is impractical.155 The relevant damage is that done to the immediate victim:156 the killing of the deceased, rather than the shock or bereavement sustained by a relative, eg. Moreover, in specifying and locating the damage and the event giving rise to it, an autonomous or notional formulation of the cause of action is taken.157 For defamation by print media, the event giving rise to the damage is the production of the newspaper rather than its sale to readers;158 for negligent misrepresentation, the making of the statement rather than its reception:159 in short, the relevant event is generally that which marks the beginning of the tort. In the case of product liability, it is not clear whether it is the faulty design, the manufacture, the failure to test, or the marketing without adequate warning, which gives rise to the damage.
20.58 A tort means any action which seeks to establish the liability of a defendant and which is not a matter relating to a contract within Article 5.1:160 the special jurisdictional provisions (p.1200) are to be understood as being mutually exclusive. Despite the width of this formulation, it is probably limited to claims founded on recompense for wrongdoing, and probably does not extend to claims for pure restitution where it is alleged to be unjust to retain the enriching profit rather than unlawful to have inflicted the wrongful loss.161 How the mutual exclusivity principle relates to claims founded on pre-contractual fault, such as rescission for misrepresentation or non-disclosure, or damages for misrepresentation, is harder to say. At first sight, proceedings seeking (confirmation of the right to) rescission of a contract would appear to be within Article 5.1, and therefore not Article 5.3. However, the Rome I162 and Rome II163 Regulations, which deal with choice of law for obligations in civil and commercial matters, treat obligations arising from pre-contractual fault as non-contractual.164 In the context of choice of law this matters little, as the law applicable to such claims will be the lex contractus, but in the context of special jurisdiction this does not assist. It is thought that proceedings designed to declare the voidability of an otherwise-valid contract, whether formulated as claims for damages or rescission, fall within Article 5.1 of the Brussels I Regulation,165 but this conclusion is certainly not free from doubt.
20.59 Claims arising from branches and agencies. Under Article 5.5, claims arising from the operations of a branch, agency, or other establishment may be brought where it is situated. A branch, as an entity, has to be sufficiently dependent, and sufficiently independent;166 a useful criterion is whether it has power on its own account to make contracts which will bind its principal.167
20.60 Others. Article 5.4 allows a court hearing a criminal claim to order damages or restitution to a claimant who has intervened as a ‘civil party’. This has little practical relevance in England. Article 5.6 gives special jurisdiction over a settlor, trustee or beneficiary of a written or statutory trust, who is sued as such, to the place where the trust is domiciled.168 Article 5.7 gives special jurisdiction in salvage claims to the place where the ship was or could have been arrested to secure payment.
20.61 Connected claims. The Regulation does not permit jurisdiction to be taken over a claim simply because the court has jurisdiction over a related matter and the two should be tried together to avoid the risk of irreconcilable judgments.169 Article 6 makes partial amends, but the limits upon its operation are restrictive, and at this point the Regulation is inefficient.
20.62 Claims against several defendants. Where a claim is brought against several defendants Article 6.1 allows them to be joined in the one action only if it is brought where one of them is domiciled and it is necessary to join the defendants so as to avoid the risk of irreconcilable judgments resulting from separate proceedings: on the degree of flexibility in the assessment of this condition, and on whether it is legitimate to go on to ask whether the claim is brought against one defendant for the purpose of removing the other defendant from his domiciliary jurisdiction (the question is unwarranted, but that has not always stopped the court), in circumstances in which necessity of joinder has already been demonstrated, the European Court (p.1201) has been maddeningly inconsistent.170 But there is no analogous right to join co-defendants into proceedings in a court exercising special jurisdiction under Article 5, or jurisdiction by consent under Articles 23 or 24; and still less jurisdiction under Article 4: in the case of Articles 23 and 24 this borders on the ridiculous.
20.63 Third party claims. Article 6.2 allows a claim against a third party for a contribution or indemnity, or in some other third party proceeding, to be brought in the court seised of the original action unless this was instituted with the sole object of establishing jurisdiction over the third party. The jurisdictional basis of the original action is irrelevant. The court may refuse joinder of the third party so long as this is not done for reasons which would, in effect, contradict the general scheme of the Regulation.171 But if there is a choice of court agreement between defendant and third party, Article 23 will preclude reliance on Article 6.2, no matter how inconvenient the overall result.172
20.64 Counterclaims. Article 6.3 allows a counterclaim to be brought in the court in which the original action is pending. The provision is limited to claims which arise out of the same relationship or other essential facts; but it will not extend to a counterclaim against a party other than the original claimant.173
(vii) Residual jurisdiction: defendant not domiciled in any member state
20.65 If nothing else implicates him, the Regulation does not further prescribe the detail of when or whether jurisdiction may be taken over a defendant whose only jurisdictional connection is with a non-member state. Article 4 instead authorizes the claimant to invoke the traditional jurisdictional rules of the court in which he wishes to sue: service by right on a defendant present in England, service out of the jurisdiction with permission, and so on. But as Article 4 is part of the Regulation scheme, incorporating by reference and for its own purposes the national rules of jurisdiction referred to, and resulting in judgments enforceable under the Regulation, Articles 27 and 28, which regulate parallel litigation, will obviously apply to jurisdiction taken under it.174 The extent to which Article 4 allows a court to decline jurisdiction is considered below.175
(viii) Removal of jurisdiction: lis pendens and related actions
20.66 The principle that judgments should be freely enforceable in other member states cannot countenance the concurrent litigation of disputes. Articles 27 and 28 provide the solution.
20.67 Lis pendens. Where the same parties litigate the same action before the courts of two member states, Article 27 requires the second court to dismiss the action once the court seised first has determined that it does have jurisdiction. The rule is simple and chronological, taking no account of comparative appropriateness: all courts with jurisdiction are equally appropriate, and all jurisdictional rules under the Regulation, including Article 4, are equally proper. The second court may not rule that the first court erred in accepting jurisdiction, even where it was seised in flagrant breach of a jurisdiction agreement for the second court:176 all courts (p.1202) are equally competent and bound to apply the Regulation,177 and where the competences are equal the first in time prevails. An exception may yet be admitted where the second court has exclusive jurisdiction under Article 22.178 Only if the defendant in the first court is contesting its jurisdiction may the second court stay, rather than dismiss, its proceedings; but once the first court has confirmed its jurisdiction the second court must dismiss the action. This can produce a tactical rush to commence litigation and seise a party’s preferred court; it may be a calamity to threaten the opposite party that proceedings will be commenced after a stated period, so pointing out the window of jurisdictional opportunity. Carpe curiam! (seise the court!) is the watchword.
20.68 Article 27 requires three ‘identities’: of parties (though procedural differences between the formulation of the claimants and defendants may not be decisive);179 of object (the two actions must have the same end in view); and of cause (they must be based on the same facts and rules of law).180 So an action for damages for breach of contract shares identity with an action for a declaration that the contract was lawfully rescinded;181 an action for damage to cargo is identical to one against the cargo-owner for a declaration of non-liability.182 But a claim for damages for breach of warranty of quality is not identical with an action for the price of goods delivered.
20.69 Article 30 of the Regulation provides a uniform rule for the date of seisin as the date of issue in systems, like England, where issue precedes service, and the date of service in those jurisdictions where a summons is served and then filed at court. This clarifies the basic rule, but it does not eliminate the race to commence proceedings.
20.70 Related actions. Article 28 may apply if the actions183 are related: ie, so closely connected that it is expedient to hear them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. If this condition is fulfilled the second court may dismiss its action for consolidation with the proceedings pending in the first court, or it may stay its action to await the outcome in the first court. Article 28 therefore allows consolidation if the first court has jurisdiction over the second action as well, but it does not create a new jurisdiction based on the bare fact of connexity. A preference for dismissal184 is appropriate if the two actions involve different parties: binding all concerned into the one hearing is sensible. But if the same parties are litigating different causes of action it may be more efficient to stay the second action and apply rules of judgment recognition to limit the scope of the second action.
(ix) Judicial discretion
20.71 A remaining question is the extent to which an English court may supplement or modify the jurisdictional scheme of the Regulation by rules on forum conveniens, anti-suit injunctions, and so forth. The fundamental problem is that judicial discretion, which permeates the common law on jurisdiction, is alien to the civilian tradition. Three issues must be examined.
(p.1203) 20.72 Disputing jurisdiction. When challenging jurisdiction in limine a defendant may deny that the court has the jurisdiction asserted by the claimant. The claimant must demonstrate a good arguable case that the ground on which he relies is satisfied on the facts: in the context, this means that he has the better of the argument on the material available.185 However, this involves an exercise in judgment, not discretion.
20.73 Forum non conveniens . If the court has jurisdiction under any of the rules of the Regulation aside from Article 4, there is no power to stay proceedings on the broad and simple ground of forum non conveniens, even in respect of a non-member state, for such relief would damage legal certainty.186 Whether the Regulation really should have prevented a defendant, sued in the courts of his domicile, seeking a stay of English proceedings in favour of the courts of Jamaica, as was held in the leading case, is debatable. That said, the idea of a discretionary stay of proceedings, which would have required a victim of a holiday accident, rendered quadriplegic, to throw away all the costs incurred to date and start all over again in a third world court, several thousand miles from home, may have struck the judges of the European Court as incomprehensible, as it surely was.187 Still, the damage was done and is neither to be lamented nor repaired. However, where jurisdiction is founded on Article 4, a court may consider forum conveniens in determining whether to grant or set aside permission to serve out, and also on an application to stay proceedings on grounds of forum conveniens, as forum non conveniens is indissociable from the rules of jurisdiction authorized for use by Article 4. It has even been held that this is permitted in favour of the courts of another member state. As this implicates another member state it is controversial, though the contrary answer would widen Article 4 jurisdiction yet further, which would be hard to justify.188
20.74 A principle of reflexive effect? If the connection to a non-member state is that the proceedings concern title to land there, or the validity of patents granted under its law; or where there is a jurisdiction agreement for the courts of that non-member state; or where there is a lis alibi pendens in that non-member state,189 it makes perfect sense for a court to be able to grant relief according to common law principles.190 This may be because Articles 22, 23, 27 and 28 may be applied by analogy, though the relief which the court may order will be discretionary, and may take account of the nature and quality of the foreign court, whereas the corresponding provision in the Regulation would have been mandatory.191
20.75 Anti-suit injunctions. As a court seised second has no right to assess the jurisdiction of a court seised first, it would have no right to order a party to discontinue his foreign action if this would involve ruling on the foreign court’s jurisdiction and ordering relief in consequence of its conclusion. The English courts were prepared to grant such relief, in particular to reinforce the rights created by a jurisdiction agreement,192 though this was certainly not done on the basis that the foreign court had no jurisdiction, probably because the question whether a foreign judge has jurisdiction under his own law is subject matter over which an (p.1204) English court has no jurisdiction. But despite the understanding that such an injunction involves no assessment of the behaviour of the judge or of the jurisdiction of the foreign court, but only an assessment of the conduct of individual who is invoking or who proposed to invoke the foreign court’s jurisdiction, the European Court held that grant of anti-suit injunctions was wholly incompatible with the ‘mutual trust’ inherent in the Regulation scheme of jurisdiction over civil and commercial matters.193 It is therefore unconditionally forbidden to grant them to prevent a respondent from bringing civil or proceedings before the courts of another member state, even if the English court was seised first, and even if the English proceedings are themselves wholly concerned with arbitration and hence outside the Regulation.194 Though an injunction to reinforce a jurisdiction agreement is forbidden, there is the possibility, untested in the European context, of suing for damages for breach of contract.
(x) Applications for provisional or protective measures
20.76 Where a claim falls within the domain of the Regulation, it is necessary to distinguish two cases in which provisional and protective measures may be applied for. If the court has jurisdiction on the merits the Regulation places no restriction upon the form of provisional relief which it may order. If it does not, application may be made under Article 31, and the only jurisdictional requirements are those which national law places upon the applicant. But the Regulation imposes two further limitations: the measure must be one which is truly provisional, in that it is guaranteed to be reversible, not a final determination of rights, as well as protective; and its scope may not extend to assets within the territorial jurisdiction of another member state.195
(3) Common Law and Rules of Court
(a) Domain of the traditional rules
20.77 If the dispute is not in a civil or commercial matter the traditional rules of English law govern the jurisdiction of the court. The Brussels I Regulation will have no application, and the judgment will not qualify for recognition under it. It bears repeating that in a civil or commercial matter, where Article 4 of the Regulation directs the English court to apply its traditional rules of jurisdiction, it is wrong to contend that the Regulation is inapplicable, not least because the control of parallel litigation in the courts of member states, and the recognition of judgments within them, will still be governed by the Regulation. We proceed to examine the traditional approach to the jurisdiction of an English court.
(b) Jurisdiction based on service of process within England
(i) Jurisdiction by service
20.78 An individual who is present in England can be served with process as of right; and this service establishes the jurisdiction of the court over him. The manner of service is prescribed by the Civil Procedure Rules and is examined in the chapter on civil procedure. Service on a partnership firm is also regulated by the CPR.196 Service on a company or other corporation is examined below.197
20.79 A defendant who considers that the court lacks jurisdiction over him or over the subject matter of the claim, or who contends that service was irregular, or on some other ground seeks to have service set aside, must acknowledge service but may then apply under CPR Part 11 for a declaration that the court has no jurisdiction. If he acknowledges service but does not apply, or takes a step in the action otherwise than application under Part 11, he submits to the jurisdiction. But a defendant who has no basis to argue that the court lacks jurisdiction may apply, also under Part 11, to stay the proceedings198 on the ground that the claimant should sue in the courts of another country instead. If the application succeeds, the English action remains pending but in abeyance: the claimant will be left to go to the foreign court. A stay may be lifted if unforeseen difficulty arises, or if an undertaking given by the defendant to the court is not adhered to. Two broad grounds exist for seeking a stay of proceedings commenced by service within the jurisdiction.
20.80 Forum non conveniens . If the defendant can show that there is another court which is clearly more appropriate than England and available to the claimant for the trial of the action, a stay will generally be ordered unless the claimant can establish that it would be unjust to require him to sue there.199 The limbs of the test are distinct, with separate burdens of proof, but the overarching question is what the interests of justice require.
20.81 ‘Appropriateness’ looks to the location of the events and the witnesses, the law which will be applied to decide the issues in dispute, the convenience of trial, the relative strengths of connection with England and with the alternative forum, and so on: in principle, though not always in practice, the assessment is meant to be one for evaluation at first instance with appeals being rare. The fact that the claimant lacks the resources to sue in the foreign court does not make that court unavailable, though it may be relevant under the second limb,200 as the interests of justice will not be served by requiring a claimant to sue in a country in which he is unable to fund the litigation.201
20.82 If the natural forum is overseas, the claimant may contend that it is unjust to leave him to proceed in the foreign court. Objecting that damages will be lower, or civil procedure less favourable, will generally be unpersuasive so long as substantial justice will be done there, but if there is cogent evidence that there may not be a fair trial it will be unjust to stay proceedings:202 it is plain that this may draw the English court into territory where the issues are delicate or controversial.203 If the claimant will lose in the foreign court, because the claim advanced in England will not be open to him in the foreign court, some authority holds that a stay may be refused, but such a partial approach, institutionally favouring claimant over defendant, is unprincipled.
20.83 Suing in England in breach of contract. Alternatively, if the claimant bound himself by contract to sue in a foreign court, a stay will be ordered unless strong reasons are shown not to do so.204 The court must test the alleged agreement on jurisdiction for validity and (p.1206) effectiveness by reference to its governing law (usually the law of the contract containing it),205 and find that on a true construction the bringing of proceedings breaches it: this is frequently expressed as requiring that the clause be ‘exclusive’, but it may be possible to breach a non-exclusive jurisdiction clause, depending on exactly how it is drafted.206 Where the agreement is governed by English law, its validity will be unaffected by a credible challenge to the validity of the contract with which it is associated, and it will be construed as wide in material scope.207 A stay of proceedings is the usual remedy, but is not inevitable. If England is the natural forum, and if there are further and powerful reasons why the claimant should be permitted to depart from this term of his contract, the action may be allowed to continue. For example, if there are third parties implicated in the dispute but not bound by the agreement, it may be inappropriate for the litigation to be fragmented, whatever the contract said.208 If the action is allowed to proceed in England it is unclear whether the defendant may counterclaim for damages for loss flowing from the breach. Damages have been awarded for breach of contract in bringing proceedings before a foreign court which ordered their dismissal but did not award costs,209 and it has been judicially suggested that they may be available more generally for breach of a jurisdiction agreement,210 but it remains to be seen how much further the principle will actually extend.
(c) Jurisdiction established by service outside England
20.84 If the defendant is not present in England to be served, process must be served on him overseas in order to establish the jurisdiction of the court. The provisions are set out in CPR Part 6. The claimant applies, without notice, for permission to serve the defendant. He must identify the jurisdictional ground relied on,211 though he may be allowed to add new claims to supplement or amend those advanced when permission was sought;212 and must be full and frank in making the application. Once service has been made, the defendant is required to acknowledge it but may apply under CPR Part 11 for a declaration that the court has no jurisdiction. On the hearing of such application the claimant bears the burden of proof on those issues which determine whether the permission should have been granted in the first place.
20.85 The claimant is required to show that his claim or claims are properly within213 of one or more of the grounds set out in the Practice Direction. He must also show that England is the proper place in which to bring the claim;214 and he must give written evidence of his belief that his claim has a reasonable prospect of success.215 These elements are distinct and must be separately satisfied.
20.86 Paragraph 3.1 of Practice Direction 6B identifies the claims for which the court may grant permission to serve out. Dispute over any fact required to bring the claim within the ground relied on requires the claimant to make out a good arguable case, which means having the better of the argument on the point, that it is satisfied.216 Each claim raised must fall within one of the grounds; any not doing so will be deleted, though earlier terminology which required the claim to fall ‘within the letter and spirit’ of the rule is less common today. The grounds may be summarized as follows.
20.87 Contracts. Three grounds deal with contractual claims. Under paragraph 3.1(6), service out may be permitted where a claim is made in respect of a contract which was made within the jurisdiction, or was made through an agent trading or residing within the jurisdiction, or is governed by English law, or contains a term to the effect that the court shall have jurisdiction to determine any claim in respect of it. Under sub-paragraph (7), service may be permitted when a claim is made in respect of a breach of contract committed within the jurisdiction; and sub-paragraph (8) provides for service where a claim is made for a declaration that no contract exists where, if the contract were found to exist, it would have fallen within sub-paragraph (6). If it is not admitted, the contract must be proved according to rules of English private international law,217 but the place of its making is determined by reference to English domestic law.218 Though the paragraphs are drawn widely the contract must be one by which the claimant and defendant are alleged to be party: it is insufficient that a contract inter alios forms the background to the claim.219 For the purposes of sub-paragraph (7), breach by repudiatory act occurs where the act was done, breach by non-performance where the required act should have been performed.
20.88 Torts. Under paragraph 3.1(9), where a claim is made in tort service out may be authorized where the damage was sustained within the jurisdiction, or where the damage sustained resulted from an act committed within the jurisdiction. The previous rule, which had required that the claim be ‘founded on a tort’, had been held to require there to be an actual tort, ascertained if necessary by reference to rules of English private international law.220 Omission of the indefinite article makes it less certain that this is the correct interpretation of sub-paragraph (9), for if the rule now only requires that the pleaded claim be formulated in the language of tort, or be characterized as tortious, there will be no need to show a good arguable case upon liability before service out may be authorized.
20.89 Damage is sustained in England if some significant damage is sustained in England: it need not be all, nor even most, of it.221 It is unclear whether ‘sustained’ is intended to reflect the interpretation of where damage ‘occurred’ within Article 5.3 of the Brussels I Regulation; in the case of purely economic losses, or damage to reputation, ‘location’ is somewhat artificial. An act is committed within the jurisdiction if there were substantial and efficacious acts committed within the jurisdiction, even if other substantial acts were committed elsewhere.222 Though it must be the act of the defendant, the act of one joint tortfeasor is the act of all.223
(p.1208) 20.90 Constructive trusteeship and restitution. Paragraph 3.1(15) allows service to be authorized where a claim is made against the defendant as constructive trustee and his alleged liability arises out of acts committed within the jurisdiction. The former rule made it explicit that the acts committed within the jurisdiction were not required to be those of the defendant. Only some of the acts, not necessarily the receipt of the assets, must take place within the jurisdiction.224 Subparagraph (16) allows service to be authorized where a claim is made for restitution where the defendant’s alleged liability arises out of substantial and efficacious225 acts committed within the jurisdiction. It is not yet clear whether the acts relied on must be those of the defendant. On the footing that restitutionary claims are not necessarily based on wrongdoing by the defendant, but may be based upon his relationship to acts done by the claimant, it is less likely that the acts of the defendant are those which must take place within the jurisdiction.
20.91 Property and trusts. Claims concerning property in England fall under paragraph 3.1(11); claims to execute English trusts under sub-paragraph (12); claims in the administration of the estate of an English domiciliary under sub-paragraph (13); and probate actions under sub-paragraph (14).
20.92 Other claims. Paragraph 3.1(1) applies if the defendant is domiciled within the jurisdiction.226 Sub-paragraph (2) applies if the claim is made for an injunction ordering the defendant to do or not to do something within the jurisdiction. The injunction must be a substantial element of the relief sought, and must be an injunction in respect of substantive rights: an application for a freezing order, or other relief not predicated on the existence of substantive rights, is not within the sub-paragraph, but is specifically provided for by subparagraph (5) instead.227 Sub-paragraph (3) applies if the defendant is a necessary or proper party to a claim against someone who has been or will be served: this departs from the former rule which required service on the other party to have been made before permission could be sought to serve out. Sub-paragraph (10) applies if the proceedings seek the enforcement of any judgment or arbitral award.228 And sub-paragraph (18) applies when a party seeks an order that costs be awarded to or against a non-party to the proceedings.229 Sub-paragraph (20) applies where an enactment allows proceedings to be brought in England.230
(iii) Discretion to authorize service
20.93 There are two distinct components to the discretion to authorize service where the Practice Direction allows it. Rule 6.37(3) requires that England be the proper place to bring the claim. This substantially re-enacts, but perhaps with a slight change in emphasis, the earlier requirement that England must be shown, clearly and distinctly, to be the most appropriate forum for the trial of the action;231 and the factors which are relevant when a stay is sought of English proceedings apply, mutatis mutandis. Secondly, service out will not be authorized unless the claimant gives evidence that the substantive claim has a reasonable prospect of success. If the defendant considers that the claim falls below even this low standard he may (p.1209) challenge the obtaining of permission on the ground; and if he succeeds on this point the court will set aside the permission and the service of process.232
(d) Anti-suit injunctions
20.94 A court with personal jurisdiction over a respondent may restrain him by injunction from bringing or continuing proceedings in a foreign court. This potent remedy gives the English court international clout to control wrongful recourse to a foreign court: wrongful in this sense primarily means that the person invoking the jurisdiction of the foreign court is committing a private wrong, notwithstanding that the foreign court had jurisdiction according to its own law, though if the foreign proceedings are have been brought in order to interfere with or undermine a properly-instituted English arbitration,233 or the jurisdiction234 or judgment235 of an English court, an injunction may be sought on this arguably distinct basis. Well known to common law systems, the remedy is mostly unknown in civilian systems. Though an injunction is not a direction to a foreign court, but to a respondent who has been made subject to the personal jurisdiction of the English court, the foreign judge may not appreciate the subtlety of the distinction, and for this reason the matter is approached with caution.236 However, where the foreign proceedings are brought in breach of a contractual agreement to sue only in England, an injunction to restrain the breach will usually be granted.237
20.95 There must be personal jurisdiction over the respondent, who must be served with process in respect of the claim or application for an injunction. As an injunction is granted as final relief in relation to legal or equitable rights, process must be served in accordance with the Regulation or the common law, as the case may be. No paragraph of the Practice Direction provides specifically for applications for an anti-suit injunction, but if it is needed, permission may be applied for under any available paragraph, such as for breach of a contract giving jurisdiction to the High Court.238 Where the respondent is domiciled in another member state, he may be brought before the English court only in accordance with the Regulation, but where the wrongful foreign proceedings are before the courts of a non-member state, the prohibition upon injunctions in respect of proceedings in the courts of member states239 is irrelevant to the exercise of the court’s discretion.
20.96 An injunction will generally not be ordered unless England is the natural forum for litigation of the dispute; but if it is, comity is not infringed by the intervention of the court.240 Subject to this condition the applicant must in principle241 show the respondent to be acting wrongly—‘vexatiously or oppressively’—in bringing the foreign action. The absence of any real link between the acts complained of and the foreign court may indicate oppression; if it is otherwise unconscionable to bring the action it may be restrained.242 According to (p.1210) Australian authority the foreign action is unobjectionable if it seeks relief not available from an Australian court,243 but this is not the English view.244 According to Canadian authority the application must be preceded by an application to the foreign court,245 but while this has sometimes been supported in England, it is peculiarly offensive to grant the application after the foreign court has expressed its opposite view;246 and reiteration of the requirement that England be the natural forum makes this an unnecessary and inappropriate condition in England.
20.97 The claim to an injunction may instead be founded on a contractual right not to be sued in the foreign court. Where England is the chosen court, there will be no difficulty:247 an injunction in support of a legal right will be granted unless there is good reason not to do so;248 and if the court exercises its discretion against the specific enforcement of such a contractual promise, there is no reason to suppose that other remedies for breach, such as a claim for damages for breach of contract, are prohibited.
(e) Jurisdiction to obtain interim relief
20.98 Interim relief, which includes provisional and protective measures, may be ordered in support of actions in the English courts, or of civil or commercial claims in the courts in another member state (Article 31 cases), or in support of other proceedings in those courts or elsewhere.249 If the respondent is within the jurisdiction of the court he may be served with the application as of right: Article 31 makes it irrelevant that he may be domiciled in another member state and so not subject to the general jurisdiction of the English courts. If he is outside the jurisdiction, permission to serve the claim form out of the jurisdiction must be applied for under paragraph 3.1(5) of the Practice Direction; this is so even in relation to applications falling within Article 31 of the Regulation. But the fact that the court may not have jurisdiction to try the substantive case is a material factor in determining whether to grant the relief;250 and it will also be relevant in deciding whether the court should grant permission to serve out, where this is needed, as CPR, rule 6.37(3) also applies to applications under sub-paragraph (5).
C. Foreign Judgments
20.99 Adjudication is an act of sovereign power. It follows, and it has never been doubted, that the judgments of foreign courts have no direct effect in England. They may, however, be given indirect effect by the common law or direct effect by statutory registration in accordance with the schemes examined in the following paragraphs. An important distinction must be drawn at the outset. Recognition of a judgment means treating the claim which was adjudicated as finally determined, whether in favour of claimant or defendant. The matter is then held to be (p.1211) res judicata, and the losing party may be estopped from contradicting it. This status depends on certain conditions devised by English law which specify the connection between the foreign court and the party said to be bound by its judgment, and which determine the nature of the judgment to which this status will be accorded. There may be res judicata in relation to entire causes of action (‘cause of action estoppel’) as well as on discrete issues which arose and were required to be determined in the course of a trial (‘issue estoppel’).251 If the issue is, as a matter of English law, res judicata, a party bringing proceedings in England for a ruling which contradicts this foreign judgment may be met with the plea of estoppel by res judicata, and the argument stopped in its tracks.
20.100 Recognition is frequently a defensive measure. But the successful party may wish to go further, and enforce the judgment, eg by collecting money which the foreign court ordered to be paid. To be enforced, a foreign judgment must first qualify for recognition; for enforcement the judgment must meet further limiting conditions. Once enforcement is ordered, the judgment may be executed as though it had been given by an English court: this is either because the registration statute so provides, or because the English judgment (founded on the foreign judgment, but an English judgment all the same) can be enforced in the ordinary way.
20.101 We first examine judgments in civil or commercial matters from the courts of EU member states252 which, though the most recent, are subject to the most effective scheme for recognition and enforcement. We will then look at the procedure for recognition and indirect enforcement of judgments at common law, which is restricted neither by geography nor by subject matter. Finally we will examine statutory registration schemes which were developed in order to allow enforcement by registration, but on grounds which correspond to the common law, and which apply to specific courts in specified countries. The recognition of judgments in family law, the administration of estates, and insolvency, are dealt with within those substantive sections of this chapter.
(2) Judgments from Member States
(a) Judgments within the Brussels I Regulation
20.102 For a judgment to be recognized under the Brussels I Regulation,253 it must be from a court in a member state in a civil or commercial matter; impeachable neither for specified jurisdictional error; nor for specified procedural or substantive reasons; and not excluded from recognition by bilateral treaty. According to Article 33 of the Regulation, recognition itself requires no form of action or procedure, though there is no objection to bringing proceedings if this would serve a useful purpose.254 A judgment from a member state which falls outside the scope of the Brussels I Regulation may be enforced by action at common law, or conceivably by registration under the Foreign Judgments (Reciprocal Enforcement) Act 1933, but the number of cases in which this will be possible will be very small.
(i) Judgments in civil or commercial matters
20.103 A judgment means an original adjudication by a court in a member state.255 It therefore excludes a judgment from a non-member state, even after being declared enforceable in (p.1212) a member state,256 and a judicial order giving effect to an arbitral award, but it includes an interlocutory judgment and judgments by consent,257 and also a judgment dismissing proceedings on the ground that there is a jurisdiction agreement for another member state (which must be recognized in particular on the validity of the jurisdiction agreement, even if this is not embodied in the dispositive part of the ruling).258 Settlements approved by courts in the course of proceedings, and authentic instruments (unknown to English law, these are documents authenticated by a public authority or a notary, and which may be enforceable without prior legal proceedings)259 are enforceable under Articles 57 and 58 under similar conditions.260
20.104 The judgment must obviously be in a civil or commercial matter.261 The recognizing court will determine whether the judgment was given in a civil or commercial matter: it is not bound on this point by the conclusion of the adjudicating court, not least because this court may not have needed to address and decide the issue for itself.262 It follows that a judgment must not be in a matter excluded by Article 1 from the domain of the Regulation. Where a single judgment deals with included and excluded matter it may be possible to sever it; where it is not, the substantial presence of excluded matter in an indivisible judgment may preclude recognition under the Regulation.263 Where the judgment was obtained in breach of an agreement to arbitrate it is arguable that recognition is not required, as to do otherwise would oblige a court to contradict its law on arbitration, a matter lying outside the domain of the Regulation.264 But if the effect of Article 1.2(d) is simply that the adjudicating court lacked jurisdiction over the merits of a civil or commercial claim,265 and as jurisdictional error furnishes no general basis for denying recognition,266 recognition of the judgment may be held to be required.267
(ii) Jurisdictional review
20.105 The adjudicating court may have erred by accepting jurisdiction, but save in the exceptional cases mentioned below, this is irrelevant to the recognition of its judgment.268 Superficially the reason is clear: the defendant should have made this argument to the adjudicating court, and having had one chance to make it once there is no reason to give him a second: indeed, there is every reason not to, for it would greatly impede the enforcement of judgments. Though reasonable for European domiciliaries whose jurisdictional exposure is limited by the Regulation, this is an unprincipled way to treat those sued on the basis of Article 4, who may complain about the width of the jurisdictional rules asserted against them neither at trial nor at recognition. Such discrimination on grounds of nationality surely cannot be necessary to complete the internal market and create an ever-closer Union.
(p.1213) 20.106 Exceptions apply only where jurisdictional error violated the provisions on insurance contracts, consumer contracts, and exclusive jurisdiction regardless of domicile:269 in these cases the jurisdictional rules enshrine policies which are so strong that they require reinforcement by the recognizing court. Otherwise, the plea that the adjudicating court had no jurisdiction is inadmissible. The divergence from the approach of the common law reflects the fact that the Regulation imposes a statutory scheme which directs courts to honour judicial decisions of courts given within the framework of the Union, whereas the common law is mostly270 concerned with whether, in terms of private law, the party proposed to be bound by the judgment assumed a personal obligation to his opponent to abide by the decision of the foreign court.
(iii) Admissible grounds of objection
20.107 If the judgment is within the material scope of the Regulation, Article 34 allows four permissible defences to recognition which are, in principle, given a restrictive construction and not supposed to overlap.271 It is absolutely forbidden to review the merits of the judgment.272
20.108 Public policy. If recognition would be manifestly contrary to public policy it will be denied: Article 34.1. What amounts to public policy is for English law to decide, though operating within outer limits defined by the Regulation.273 The contention that the judgment was obtained by fraud will not prevent recognition if the state of origin has its own procedures for admitting such a plea.274 But a judgment given in proceedings which failed to respect fundamental human rights,275 or which was based on a law which in its application is manifestly objectionable may meet the standard required.
20.109 Judgments given in default of appearance. If judgment was given in default of appearance and if either the document instituting the proceedings was not served in accordance with the law of the adjudicating state, or was not served, according to the assessment of the recognizing state, in time to allow for the defence to be arranged,276 recognition must be denied: the essential question is whether the defendant was given a right to be represented or heard.277 However, if the defendant failed to challenge the judgment when he discovered it had been entered, he risks losing his shield: Article 34.2; and if he did so challenge, but lost after a proper hearing, the defence is no longer available.278 This provision gives effect to the principle that the defendant must have had a right to be notified and heard, but also places some obligations on him once he is notified.
20.110 Irreconcilability with English judgment. If the judgment produces consequences which are legally incompatible with an English judgment, whether earlier or later than the foreign (p.1214) one, recognition will be denied: Article 34.3.279 In principle Article 27, or the rules of res judicata if the English judgment came after the foreign judgment, should have forestalled this, but when it occurs a court is bound to prefer its own judgment. A judgment that a contract was lawfully rescinded is irreconcilable with an order that damages be paid for its breach;280 but a finding that A is liable to C for negligence may not be irreconcilable with a judgment that B was not so liable, or that A was not liable to D.281
20.111 Irreconcilability with prior foreign judgment. If a judgment was given in proceedings between the same parties and involving the same cause of action, which satisfied the criteria for recognition in the state of recognition, and which was handed down earlier in time, a later member state judgment will not be recognized: Article 34.4.
(iv) Bilateral treaty requiring non-recognition
20.112 Member states may have bilateral treaties to provide for non-recognition of judgments from other member states, founded on Article 4 of the Regulation and given against nationals or domiciliaries of the treaty state. The United Kingdom has treaties with Australia282 and Canada.283 They remain in force, but Article 71 of the Regulation means that no more bilateral treaties will be made.
(v) Effect of finding a judgment entitled to recognition
20.113 There is no other ground to impeach the judgment and deny it recognition. Article 35 precludes any further review of the jurisdiction of the foreign court, and explicitly provides that public policy may not be invoked to attack the jurisdiction of the adjudicating court; and Articles 36 and 45 doubly prohibit any review of the merits of the judgment. However, a court called on to recognize an order made under Article 31 must ascertain that the order fell within the scope of Article 31, and may review the adjudication for that purpose.284 If an ordinary appeal is pending against the judgment in the state of origin Article 37 permits, though does not oblige, the recognizing court to stay proceedings in which the issue of recognition arises.
20.114 In principle, recognition of a judgment means giving it the effect it has under the law of the state in which it was given.285 So a provisional order, which would not be taken as binding in subsequent proceedings in the adjudicating court, should be given no greater an effect in England. In certain cases a judgment may be regarded by the foreign law as conclusive against third parties to the action,286 but whether this must be respected by an English court, which may consider that the third party has had insufficient opportunity to defend its interest, is unclear.
(b) Enforcement under the Regulation
20.115 A judgment entitled to recognition and enforceable in the state in which it was given may, in principle, be enforced under Articles 38–56. In England, an application is made for an order that the judgment be registered in the High Court,287 producing a certified copy of the (p.1215) judgment and proof that it is enforceable under the law of the state in which it was given.288 Once registered, the judgment has the same force and effect for the purposes of enforcement as if it were a judgment of the High Court. The documents are produced to a High Court Master,289 without notice to the respondent. If the paperwork is in order, Article 41 prevents the court finding that the judgment should not be registered. Registration is followed by notifying the respondent of the registration in accordance with Article 42.
20.116 Article 43 allows either party to appeal against the decision given on the first application; only in rare cases will the applicant need to, though. If the first application was granted, the respondent has one month (if domiciled in the enforcing state) or two (if domiciled in another member state), to appeal290 the order for registration. This marks the point at which the arguments concerning recognition will be raised. Article 44 allows the order made on the hearing of the appeal to be appealed once, on a point of law.
20.117 Once an order for registration has been made Article 47 permits the court to grant protective measures against the property of the respondent. The court hearing an appeal, or further appeal, against registration appeal may order conditional enforcement on the provision of security against the subsequent setting aside of the order; if the original judgment is under appeal it may stay the hearing of the enforcement appeal: it is all a matter of balance.
(c) Accelerated enforcement: the European Enforcement Order
20.118 A judgment from the High Court in Leeds is not scrutinized before being enforced in London; and the drive to reduce the member states (or to upgrade the European Union) to a borderless legal area stretching from Lisbon to Latvia, led to the adoption of Regulation 805/2004/EC.291 This permits a court in a member state, hearing a claim within the material scope of the Regulation, to issue a ‘European Enforcement Order’ if it considers the claim to have been uncontested and the rights of the defendant not overridden.292 The recognizing court is given practically no right to refuse recognition and enforcement, though it may be that the certificate may not always be conclusive.293
(3) Recognition and Enforcement at Common Law
20.119 The scheme of the common law is that if the foreign court was considered competent in English eyes to give a judgment by which the losing party was bound this may, and in the absence of a defence to the contention, will, be recognized as making the cause of action, or the issue, res judicata. It is sufficient to plead the res judicata effect of the foreign judgment, but if the judgment creditor wishes to enforce the judgment in assertive fashion he may bring a common law debt action upon it. In this case the judgment must satisfy further criteria which determine its enforceability in the English courts; but enforcement means obtaining an English judgment, and it is this which is actually enforced.
(a) Recognition of judgments as res judicata
20.120 A judgment will be recognized if it was a final judgment from a court which had ‘international jurisdiction’ according to the English conflict of laws, and unless there is a defence to recognition. There is no requirement that it be from a superior court, but the decision of an (p.1216) arbitral tribunal or an administrative body is not sufficient. Only final orders are recognized, but an order on an interlocutory matter may be recognized if it represents the final decision of the court on the point, such as an order dismissing an action on the ground that it was covered by a jurisdiction agreement for a specific court elsewhere.294
(i) International jurisdiction
20.121 A court has jurisdiction ‘in the international sense’ if the party against whom the judgment was given was present within or submitted to the jurisdiction of the court when the proceedings were instituted. The grounds stated are exhaustive: English law does not admit jurisdictional competence on the basis, eg, that the foreign court exercised a jurisdiction which an English court would exercise itself.295 In effect, the question is whether the losing party, by conduct or words, bound himself to accept the adjudication of the court. Any suggestion that the nationality of the defendant is sufficient for this purpose296 is discredited today. But it is important to observe that the law does not look for an objective connection between the cause of action, or the dispute, and the court.
20.122 Presence. If the defendant was physically present within the jurisdiction of the foreign court when the court proceedings were commenced he is subject to its international jurisdiction.297 This reflects the fundamental principle of private international law that all jurisdiction is properly territorial, that those who are present within it naturally subject themselves to the jurisdiction of the court. Comity requires respect for such exercises of sovereignty both in relation to things298 and to persons within the territory of the foreign sovereign. It is doubtful whether residence unaccompanied by presence would suffice.299 Even if the presence rule acknowledges a foreign jurisdictional competence wider than English law currently claims for itself, as it is irrelevant that the foreign court may have been a forum non conveniens, it proceeds from the fundamental principle of territoriality.
20.123 Physical presence for an individual defendant is simple to ascertain. For a corporation it requires a fixed place of business maintained by it, from which its business is done.300 A peripatetic representative does not count, even though the foreign court may find it sufficient for its own jurisdictional purposes, as is a local representative who merely acts as a conduit for those wishing to transact business with the defendant out of the jurisdiction.301 But if the local representative may make contracts binding the defendant, it is probable that presence is established.302 Though a company may therefore be present if another company is doing its business as well as its own, there is no broader English doctrine which allows all the members of an economic group to be regarded as present where any one member is.303
20.124 Submission. If a person submits to the jurisdiction of a court it is rational that the judgment bind him. So someone who submits is subject to the international jurisdiction of the foreign court.304 A claimant or counter-claimant clearly submits to the jurisdiction, as does (p.1217) a defendant who makes a voluntary appearance to the summons. But if the latter appears for the purpose of contesting the jurisdiction of the court, or for seeking a stay in favour of another court or for arbitration, or to protect property threatened with seizure, the appearance is not, without more, a submission;305 and this remains true even though he is required, strictly or as a matter of good practice, to plead to the merits at the same time, or is compelled to submit to interim procedures, or even to appeal, to keep his jurisdictional challenge alive.306 It is plausible that the challenge has to be to the international jurisdiction, rather than the local or internal jurisdiction of the court, as the existence or non-existence of internal jurisdiction is of no general relevance to the English law on recognition.307
20.125 Submission may also be made by contract. The dispute must fall within the four corners of the contractual provision, which must remain valid and enforceable at the date of the foreign proceedings.308 It is said that an implied agreement to submit will not suffice, but the better view is that an implied agreement may be sufficient but will be found only in the clearest of cases.309 The result of submission is that each party assumes in relation to the other a privately-binding obligation to accept the judgment of the court, and this provides a proper basis for the successful party to hold the losing party to the decision as res judicata.
(ii) Defences to recognition
20.126 A judgment will be denied recognition as res judicata, and denied enforcement, if any of the defences established by English law is made out. The merits of the judgment are not otherwise reviewable. The allegation that the foreign court erred is no defence to the recognition of the judgment, neither is it relevant that the foreign court manifestly went wrong in its attempt to apply English law.310 Were it otherwise, almost every judgment would be re-examinable and the advantage of the rule would be lost. Where the foreign court lacked jurisdiction under its own law, the authorities are old and inconclusive. In principle, if the foreign judgment is a complete nullity, and not just voidable, under that law, it would be odd if it were recognized in England, particularly if the defendant had been well advised to ignore the proceedings. Otherwise this should not be material to recognition.
20.127 Adjudication in breach of arbitration or choice of court agreement. If the foreign court took jurisdiction in breach of such an agreement, its judgment will be refused recognition, even if it decided for itself that there was no breach. But if the other party acquiesced or submitted to the jurisdiction the defence is lost.311
20.128 Fraud. Though the merits of the judgment may not be re-examined, a different approach prevails if there is a credible allegation that it was procured by fraud.312 Fraud encompasses (p.1218) any duping of the foreign court, such as false pleading or fabrication of evidence. If, having particular regard to the court of decision and the nature of its procedures, the allegation is credible, it will be investigated,313 even if it had been specifically rejected by the foreign court. The defendant need show no new discovery of evidence: he may even recycle the evidence rejected by the foreign court. The apparent suggestion that the foreign court is less skilled than the English court at the detection of fraud is delicate: if a new discovery of evidence is required to impeach an English judgment for fraud,314 should it be any different for a foreign judgment?315 But the English rule is soundly based. It is unprincipled to require a defendant to make his allegations only in a court chosen by the claimant. Moreover, finding fraud means only that the judgment will not be recognized in England; it does not purport to set it aside and prevent its enforcement elsewhere. It is less dramatic than setting aside an English judgment in toto and for all international purposes, and the justification for intervention may properly be rather more modest. However, if the allegation has already had an independent hearing in a court of the defendant’s own choosing, it may thereafter be an abuse of the process of the English court to advance it all over again.316 The abuse of process doctrine has the potential to negate much of the fraud defence, and the extent to which disquiet over the fraud rule will mean that it does remains to be seen.317
20.129 Natural or substantial justice. If the foreign court departed from the standards of natural justice such as the right to be notified, represented, and heard; or if its procedure violated substantial justice such as by lack of impartiality,318 or by a non-judicial assessment of damages,319 the judgment will be denied recognition. A distinct issue concerns the impact of the Human Rights Act 1998, which obliges English courts to give effect to the European Convention. Where a foreign court has given a judgment in circumstances which would have violated the Convention if replicated by a court in a contracting state,320 there is a powerful argument that an English court is precluded by statute from recognizing the judgment. But the House of Lords has taken a different view, which is most perplexing.321
20.130 Public policy. Recognition of the judgment is prohibited where this would offend English public policy. Judgments based on laws repellent to human rights, eg, should be denied recognition. Those obtained in defiance of an English injunction should be treated likewise.322
20.131 Res judicata . If the judgment is inconsistent with an English judgment, or with an earlier foreign one which is entitled to recognition in England, it will not be recognized.323
(iii) Effect of recognition
20.132 If the party against whom the judgment was given was subject to the international jurisdiction of the foreign court, and no defence applies, the cause of action or the issue will be (p.1219) regarded as against him as res judicata and immune from contradiction in later English proceedings.324 If the party in whose favour it was given wishes to enforce it, he may bring an action to enforce the judgment, subject to the further limitations examined below. But if the party in whose favour it was given, against whom there is no res judicata, had been hoping for more than he received, section 34 of the 1982 Act generally325 precludes him from suing for a second time on the same326 underlying cause of action in the hope of a better result.327
(b) Proceedings to ‘enforce’ the judgment
20.133 As a matter of theory, a recognized foreign judgment creates a distinct obligation which the judgment creditor may sue to enforce at common law. As the only available action is one for debt, only final judgments for fixed sums of money can be ‘enforced’, though, of course, it is the consequential English judgment which is actually enforced. Though foreign judgments ordering injunctions may not be enforced in quite the same way, they may be recognized as res judicata as to the substance of liability, and proceedings brought on the original cause of action, the English court being asked to order a remedy corresponding to that given by the foreign court. In this respect the difference between the ‘enforcement’ of money judgments and the ‘non-enforcement’ of non-money judgments is less than sometimes appears.
20.134 A judgment can only be ‘enforced’ in this sense if it is ‘final and conclusive’. If it may be reviewed or revised by the court which gave it, it is not final,328 though its being subject to appeal to a higher court is irrelevant. If the judgment was a money judgment, then as a debt claim must be based on a judgment for a specific sum, if the sum may still be varied by the court which awarded it, it cannot be enforced as a debt. If the judgment was final as to liability but reviewable as to damages, the finding of liability may be recognized as res judicata when a second action is brought on the underlying cause of action. But there is no jurisdiction to enforce a foreign penal, revenue or analogous law; and if the action would have this effect it will be dismissed. So if a foreign revenue authority has obtained a judgment in its favour, enforcement of the judgment by action in England will fail.329 Neither may an action be brought to enforce foreign judgment for multiple damages, not even the unmultiplied base figure,330 though it appears that judgments for exemplary damages do not generally offend the rule as long as the figure has not been calculated by multiplication of the sum fixed as compensation.331
20.135 The claimant will plead the judgment debt as due and owing, and may apply under CPR, rule 24.2 for summary judgment on the ground that the defendant has no real prospect of defending the claim. If the application succeeds judgment will be given forthwith; but if it is shown that the defendant has a plausible defence the claim the court will dismiss the application and the action will proceed in the usual way.
(4) Enforcement by Registration
20.136 Certain statutes provide a procedure for the direct enforcement of foreign judgments. They apply to specific courts in certain countries, and provide for an application to be made to (p.1220) register the foreign judgment for enforcement. Once registered, the judgment has the same effect for the purposes of execution as if originally given by an English court, though the judgment debtor may apply to have registration set aside. The substantive grounds on which registration may be set aside closely reflect those of the common law.
(a) Administration of Justice Act 1920
20.137 Part II of the 1920 Act applies to many colonial and commonwealth, territories, though of the larger jurisdictions the Act does not apply to Australia, Canada, Hong Kong, or South Africa.332 It applies to judgments from ‘superior courts’ which may be registered within twelve months of delivery.333 The grounds of jurisdiction, and the defences to recognition, differ from those of the common law only in minor detail, but a judgment still subject to appeal may not be registered.334
(b) Foreign Judgments (Reciprocal Enforcement) Act 1933
20.138 Leaving aside those countries to which the Brussels I Regulation or Lugano Convention now applies, the Act extends to judgments from Guernsey, Jersey, and the Isle of Man; Australia and Canada;335 India and Pakistan; Israel, Surinam, and Tonga. But it applies only to courts identified by name in the Order made in relation to the particular country; judgments from other courts may still be enforced by action at common law. The grounds of jurisdiction, and the defences to recognition,336 differ from those of the common law only in minor detail; if the judgment is subject to appeal the application for registration may be stayed.337
(c) Civil Jurisdiction and Judgments Act 1982
20.139 The 1982 Act now provides for judgments from Scotland and Northern Ireland, and Gibraltar. Judgments from other parts of the United Kingdom, whether for money or otherwise, may be registered for enforcement subject to only minor restrictions.338 Judgments from Gibraltar are recognized and enforced by reference to provisions which are materially identical to Articles 25–49 of the Brussels Convention.339
D. Contractual Obligations
20.140 Choice of law for contractual obligations in civil and commercial matters is now governed by the Rome I Regulation,341 which supersedes the 1980 Rome Convention,342 and which itself superseded the common law rules. The overriding objective of the Regulation, which applies to contracts made after 17 December 2009, is to harmonize contractual choice of law rules throughout the EU. This makes it misguided to interpret its provisions by the twilight (p.1221) of jurisprudence on the common law. The Giuliano and Lagarde Report343 had been the authorized aid to interpretation of the Rome Convention, which remains of some relevance, for the Regulation will be taken to be the successor in title to the Rome Convention, building upon it rather than casting it aside. Though matters excluded from the Regulation (and the Rome Convention) continue to be governed by the common law, these matters are rather few and mostly minor, and require mention of the rules of the common law only where they have a residual role.
20.141 The basic approach of the Rome I Regulation is that parties to a contract are entitled to choose the law by which their contract will be governed, so long as they choose the domestic344 law of a country rather than the ‘rules’ of some other value system,345 and that the lex contractus will govern practically all of the issues which arise in contractual litigation. It is possible that during the lifetime of this edition the Regulation will be amended to permit the parties to choose a ‘common European code’ instead of the law of a country, but at the time of writing the choice is restricted to the laws of countries. In some contexts, the law chosen may be encroached upon, in order to protect other important interests, but generally a choice of law will be decisive. Where not expressly chosen, the lex contractus is discoverable by means of a two-prong mechanism of general provision and rule of exception; and the balance between these is bound to be somewhat fact-sensitive. The relationship between contractual and noncontractual obligations, frequently a cause of difficulty at common law, is solved rather successfully by ensuring that the choice of law rules provided by the Rome II Regulation for non-contractual obligations give the lex contractus a dominant role in those areas in which the material scope of the Regulations tends to overlap. The result is that the Rome I Regulation is a significant improvement on its predecessor and that, when read alongside the Rome II Regulation, produces a pretty coherent scheme for choice of law for obligations in civil and commercial matters. It also means that rules for choice of law in relation to contractual obligations can be stated succinctly.
(2) Choice of Law
(a) Domain of the Rome I Regulation
20.142 The Rome I Regulation applies to contractual obligations in civil and commercial matters, except for the cases specifically excluded by it. It applies in principle to all such cases litigated before an English court: it is irrelevant that no party has any connection with the European Union, or that the law which it makes applicable is that of a non-member state.346 It is in force throughout the European Union, and it is to be construed with a view to securing uniformity of interpretation and application.347 It follows that most of its definitional terms will receive an independent or autonomous interpretation, and will not be read as though contained in domestic English legislation. The European Court has competence to give preliminary rulings on interpretation. The material scope of the Regulation is defined inclusively and exclusively.
(b) Contractual obligations
20.143 ‘Contractual obligations’ will encompass obligations regarded as contractual in English law; after the partial abolition of the doctrine of privity, agreements enforceable by third parties (p.1222) will be included.348 It is also arguable that other obligations, functionally close to contract, will be included within and governed by the Regulation.349 Gifts are included where they give rise to obligations which are contractual:350 a curious proposition for an English lawyer not accustomed to seeing gifts as a source of obligation.351 Equitable obligations arising between contracting parties, such as the fiduciary obligations of an agent to his principal, will certainly be included, for the idiosyncratic distinction between equity and the common law has no relevance to a pan-European instrument designed to harmonize choice of law; and certain obligations to exercise care in making representations which are non-contractual only by reason of the absence of consideration, may also be ‘contractual obligations’.352 Claims alleging breach of warranty of authority may also be.353 Cross-reference to the Brussels I Regulation354 may mean that an ‘obligation freely entered into in relation to another’355 is the point of departure in identifying a contractual obligation. Where it is contractual in this sense, the liability alleged to arise will be governed by the choice of law rules of the Rome I Regulation.
(c) Concurrent liability
20.144 In some cases—eg, in the context of employment356 and professional services357—English common law permits a claim to be framed concurrently in or electively between contract and tort. It is uncertain whether this approach is consistent with the scheme of the Rome I Regulation, for the framing in tort of a claim which would otherwise fall within the four corners of the Rome I Regulation might suggest that a claim between contracting parties could be subjected to a law other than that specified by the Rome I Regulation. However, proceedings based on a non-contractual obligation governed by the Rome II Regulation,358 are very likely to be subjected to the law which governs or would govern the contract between the parties, and it may therefore make little practical difference whether the claim in such a case comes within the material scope of the Rome I or Rome II Regulations.
(d) Excluded issues
20.145 The Regulation eschews any claim to govern matters set out in Articles 1.2 and 1.3. Few among these were understood as contractual issues as a matter of English private international law, so Article 1.2 does not have a dramatic impact. It excludes the Regulation from the status and capacity of natural persons;359 obligations arising out family relationships;360 wills and succession and matrimonial property rights;361 obligations arising from bills of exchange and promissory notes and other negotiable instruments where these arise from their negotiable (p.1223) character;362 questions governed by the law of companies;363 the power of an agent to bind a principal to a third party;364 the constitution and internal relationships of trusts;365 evidence and procedure;366 and from certain (but limited) insurance.367 For these matters, other conflict of law rules, mostly from the common law, will continue to apply. Article 1.2(e) also excludes agreements on arbitration and choice of court, contrary to the general approach of English law that these are governed by the law of the larger contract in which they were contained.368 But the Regulation poses no obstacle to English private international law deciding, on its own authority, to subject jurisdiction and arbitration agreements to the law which the Rome I Regulation makes applicable to the rest of the contract, and this therefore remains the position in England. And because obligations arising out of dealings prior to the conclusion of a contract are dealt with by Article 12 of the Rome II Regulation, they are excluded from the Rome I Regulation.369
20.146 Contractual capacity is governed by the common law conflict of laws, according to which an individual would be capable who had capacity either by the law of the country with which the contract was most closely connected, or by the law of his domicile.370 Article 13 makes an inroad only where two individuals make a contract in the same country, and one later relies on an incapacity arising under some other law: this reliance is forbidden unless the other was, or should have been, aware of it. For corporations, the existence and extent of contractual capacity is a matter for the lex incorporationis. But the legal effect of a contract made by a corporation without capacity to do so is a matter for the law which governs the contract.
(f) The governing law
(i) Governing law chosen by the parties
20.147 Article 3 provides that a contract is governed by the law chosen by the parties provided that their choice is expressed or demonstrable with reasonable certainty by the terms of the contract or the circumstances of the case. The parties may choose different laws for separate parts of a contract. They may alter the lex contractus at any time: it appears that their freedom to do so is not liable to be fettered by any rule to the contrary in the law which had governed the contract up to the point of change. A choice of governing law which is expressed is straightforward unless the choice is incoherent, such as the law of the United Kingdom, or is identified by a definition which cannot be made to yield an answer, such as ‘the law of the carrier’s principal place of business’ in circumstances where potentially applicable laws differ on which party is to be seen as the carrier, or on what constitutes a principal place of business. It is not permitted to choose the law of something other than a country, whether secular, such as the lex mercatoria, or religious. However, if the law of a country then refers particular contracts to a set of rules derived from commerce or inspired by religion, to which it gives the force of national law, there is no reason in principle why these rules will not apply as part of the national law of the country whose law was chosen.371 Alternatively, contracting parties who (p.1224) wish their obligations to be determined wholly in accordance with such non-legal principles are free to provide for dispute resolution by arbitration before a tribunal which has familiarity with such material.
20.148 At common law, selection of a choice of court or arbitration clause was presumed to point to the domestic law of the country of dispute resolution. It is sometimes said that there is no reason why this presumption will not still work, at least before an English court, and allow it to be said that the parties’ choice of law can be demonstrated with reasonable certainty from the terms of the contract, for though the Regulation does not govern the validity of agreements on jurisdiction, there is no objection to taking account of them in determining the governing law.372 But it remains controversial whether an express choice of court or arbitral tribunal should be considered to demonstrate a choice of law. The weakness in the common law approach was that if the parties were willing to express a choice of court but make no mention of a law, it was not easy to infer any positive common intention as to, still less an actual choice of, governing law. The Rome I Regulation makes opaque reference to the issue, reciting that an exclusive choice of court (not arbitration) agreement may be taken into account in determining whether a choice of law has been clearly demonstrated. The unhelpfulness of that proposition is, given the importance of the point, regrettable. However, until the contrary is established, it is predictable that the former common law approach will prevail.
(ii) Governing law in absence of expressed or demonstrable choice: general
20.149 Save for contracts for carriage, consumer contracts, insurance contracts, and contracts of individual employment, for which specific provision is made, Article 4 provides that, if not expressly chosen, the lex contractus is to be identified by recourse to a number of default rules established for particular types of contract. So eg, contracts of sale, supply of services, franchise and distribution will be governed by the law of the country in which the seller, supplier, franchisee and distributor has his habitual residence: all these references to the law of country further confirm that it is only the law of a country which may govern a contract. But where the contract is more complex and would fall within two of these special rules, or where it falls within none of these rules, the next possibility is that it will be governed by law of the country in which the person whose performance is characteristic of the contract is habitually resident. There are then two escape clauses, which deal with the case where these rules yield the ‘wrong’ answer, and where they yield no answer. If the contract is manifestly more closely connected to a country other than that identified by the rules just described, the law of that other country shall apply; and where the law which governs the contract cannot be ascertained from the rules just described, the contract shall be governed by the law of the country with which it is most closely connected.373 In considering these escape clauses, a court may properly examine whether the contract in question has a close relationship with another contract, the law of which may exercise a gravitational pull over the question of choice of law.374 Despite this last point, the framework within which the governing law is identified in the absence of an express choice is firmly based on the identification of connections and points of contact to countries, rather than on connections to laws.
(iii) Governing law: lex specialis for particular contracts
20.150 Articles 5–8 provide modified, and somewhat complex, choice of law regimes for contracts of carriage, consumer contracts, insurance contracts, and contracts of individual employment: (p.1225) their complex detail can only be described in simplified form. In all cases an express choice of law will be respected, but otherwise there are basic departures from the general scheme established by Articles 3 and 4. In a contract of carriage of passengers, to which Article 5 applies, the menu of laws which are available to be chosen is restricted. In the absence of choice of law, a contract for the carriage of goods is likely to be governed by the country of habitual residence of the carrier, and a contract for the sale of goods by law of the country of habitual residence of the passenger. A consumer contract falling within Article 6 means one in which a natural person acting outside his trade or profession deals with another person acting within his trade or profession, provided that the professional has directed his activities to the country in which the consumer is habitually resident or has pursued his activities in that country. The law may be chosen, but the contract will still be subject to protective laws which cannot be derogated from by agreement and which are contained in the law which would otherwise have governed the contract in the absence of choice: that law will generally be the law of the country in which the consumer has his habitual residence. Article 8, which applies to individual contracts of employment, likewise allows the governing law to be expressly chosen, but subjects it to the supervening application of protective rules, of a kind not liable to be derogated from by agreement and which would have applied to the contract if there had been no choice of law. If there is no express choice of law, the contract will generally be governed by the law of the country in or from which the employee habitually carries out his work in performance of the contract.375 Article 7, which applies to contracts of insurance reflects the fact that the range of contracts of insurance is very wide and the provisions for choice of law are correspondingly complex.
(iv) Partial overriding of governing law
20.151 As has just been shown, in certain specific categories of contract, the governing law will be overlaid by particular rules of domestic law taken from a system other than that of the governing law. More generally, there are four instances in which the hegemony of the governing law, however identified, is also limited.
20.152 First, an express choice of law is still subject to those laws of another country which may not be derogated from by contractual agreement (an English example would be the requirement of consideration), but only if all the relevant elements at the time of choice are connected with that country.376 It is rare that the conditions necessary to trigger the application of this rule will be met.
20.153 Second, the Regulation identifies as ‘overriding mandatory laws’ laws which it defines as ‘provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any contract falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation’. Such a mandatory law of the forum may be applied by the court without restriction. Examples might include provisions of the Unfair Contract Terms Act 1977 which prevent limitation or exclusion of liability without regard to choice of law,377 the Carriage of Goods by Sea Act 1971, giving the force of law to the Hague-Visby Rules,378 or of the Financial Services and Markets Act 2000379 which invalidate an investment agreement made through an unauthorized person.
20.154 Third, where there is such a mandatory law in the law of the country in which the contract has to be performed, and that provision would render the performance of the contract illegal, (p.1226) that provision may, though need not, be applied by the court: presumably the effect of its application will be to provide a justification for non-performance. The common law probably held that illegality according to the law of the place of performance rendered the contract unenforceable, in the sense that an English court could not be seen to enforce a contract to commit a crime. But the exact status of the argument was controversial, for in almost every case in which the issue arose the contract was governed by English law in any event, even though the language of the judgments was more sweeping than this limitation might imply.380 Insofar as there was such a common law rule, it was probable that its application depended on the nature and quality of the illegality, and on the awareness of the party prepared to commit it;381 and it would not be unreasonable to interpret Article 9.3 in the same light.
20.155 Finally, a provision of the governing law will not apply where its application would be manifestly contrary to public policy.382 This provision applies where a foreign rule would otherwise have been applicable but would have resulted in an outcome offensive to English values. It is to be distinguished from the case of English mandatory laws, in which case the effect is to superimpose a rule of domestic English law on a contract otherwise governed by another law, the content of which would not otherwise have been problematic.
(g) Domain of the governing law
20.156 Subject to those points, the governing law as just ascertained applies to the interpretation and performance of the contract; also to the consequences of breach, including the assessment of damages so far as this is governed by rules of law (the precise implication of this limitation is not completely clear), to the extinction of obligations, and to the consequences of nullity of the contract.383 So far as formal validity is concerned, compliance with the governing law is sufficient; otherwise compliance with the law of the place(s) where the parties were when they made the contract is also sufficient.384 The effect is that, subject to the next paragraph, almost all points of construction, interpretation and discharge (by performance, frustration and breach) are within the domain of the governing law as is, in principle at least,385 the nature and availability of interim remedies386 and remedies upon breach.
20.157 The position in relation to original or subsequent contractual invalidity is rather more complex: it is notorious that all possible answers are open to objection. One may take the legendary example of a Danish boat-builder who sends a letter to an English yachtsman, offering to build a yacht for a stated price and stating in the letter that the contract will be governed by the law of Denmark. As a matter of English law, be it assumed, such facts would not give rise to a contractual obligation; as a matter of Danish law, be it also assumed, the answer is otherwise. How should the law proceed? To begin with, an argument as to whether there was a binding contract is to be resolved by reference to the law which would govern the contract were it is assumed to be valid.387 Accordingly, the failure of offer and acceptance, (p.1227) absence of consideration, or the effects of misrepresentation, mistake or duress, and other arguments alleged to lead to the invalidity of the contract will be referred to and assessed by the provisionally governing law. But this is obviously open to some degree of objection; and in the cases stated the objection is obvious. For if one party contends that there never was a binding contract, there are objections to evaluating his contention by assuming, even if only hypothetically, that he is wrong; and it may be worse to use for this purpose a ‘governing law’ derived from the very contract which he denies being party to. Accordingly Article 10.2 permits a party who denies that he consented to be contractually bound to rely on the law of his habitual residence, to show that he did not consent to be bound if it would be unreasonable to determine the effect of his conduct by reference to the governing law identified by the Regulation. But if he has dealt by reference to the foreign law before, or maybe simply because he was prepared to make an international contract, he may deny himself this protection.388 Despite the fact that other factual objections may be thought to support the contention that there was no consent, such as misrepresentation, duress, undue influence, and some forms of mistake, it is probable that the protective provision in Article 10.2 is confined to cases of failure of offer and acceptance; it is as good as any other solution to the problem, and better than most.
E. Non-contractual Obligations
20.158 Where a court is concerned with obligations in civil and commercial matters which are not contractual in the sense of the Rome I Regulation, and which arise out of events which occur after 11 January 2009, the choice of law rule will be, subject to limited exceptions, provided by the Rome II Regulation. It is the occurrence of the event or events which gave rise to the damage, rather than the occurrence of the damage itself, which determines the temporal application of the Regulation. The instrument applies to torts and delicts, and to non-contractual obligations which are not torts, which is to say, to obligations arising from unjust enrichment, negotiorum gestio, and from pre-contractual fault. The principal practical exceptions to this scheme are claims arising out of non-contractual obligations where the events which give rise to damage occur before 12 January 2009, and (at least for the time being) defamation and violation of privacy. The scheme of this section is therefore to examine the Rome II Regulation, and after that to deal with those non-contractual obligations which fall outside the material and the temporal scope of the Rome II Regulation.
20.159 The Rome I and Rome II Regulations are designed to make a seamless whole, to make a complete statement of the choice of law rules for obligations arising in civil and commercial matters. This is largely achieved by the technique of channelling the choice of law for those issues which lie in the area of overlap between the Regulations into the lex contractus as identified by the Rome I Regulation. This does not mean that in every case in which the litigants in a tort case are parties to a contract, the law governing the tort claim will be the law which governs the contract—eg, where the claimant is an employee run down by his employer while crossing the road outside the factory it is unlikely that the tort will be governed by the law which governed the employment contract—but in those cases in which the tort is in some sense associated with the contract, there will be little incentive to seek to formulate the claim by reference to the one Regulation or the other, for they are designed to be complementary and coherent. But compared with the common law, the methodology is refreshingly clear. (p.1228) One asks whether the matter raised before the court is civil or commercial. If it is, one asks whether it is based on the law of obligations. If it is,389 one asks whether the obligation is contractual or non-contractual, there being no tertium quid. These questions are asked, and answered, without regard to national law, but by reference to the autonomous definition of terms used in the Regulation.
(2) Rome II Regulation
20.160 The Rome II Regulation applies to non-contractual obligations in civil or commercial matters. It does not apply to non-contractual obligations arising out of family relationships,390 matrimonial property regimes,391 or of bills of exchange, cheques and promissory notes, and other negotiable instruments where these arise from their negotiable character.392 It does not apply to non-contractual obligations arising out of the law of companies,393 or out of the relations between settlors, trustees and beneficiaries of a trust created voluntarily.394 It does not apply to evidence and procedure;395 and it does not currently apply to non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation.396
20.161 As explained above, the Regulation does not apply if the events which gave rise to the damage occurred before 12 January 2009.397 The manner in which the Regulation deals with claims arising from a case in which the events which gave rise to the damage took place over a period spanning this date remains to be decided.
20.162 Where the Regulation applies to a non-contractual obligation, the law which it identifies applies very broadly:398 there are very few issues which may arise at trial to which it will not apply. According to Article 15, it extends to the basis and extent of liability, including the determination of persons who may be held liable for acts performed by them, to the grounds for exemption from liability and to any limitation and division of liability, to the existence, nature, and assessment of damage or the remedy claimed, to the measures which a court may take to prevent or terminate injury or damage, to the transmissibility of a right to claim damages, to the persons entitled to compensation for damage caused personally, to liability for the acts of another person, and to the manner in which an obligation may be extinguished, including by limitation or prescription. It may be seen that where the matter falls within the scope of the Regulation, the applicable law will apply to practically every issue which may arise in the dispute.
20.163 According to Article 14, the parties may agree to submit non-contractual obligations to the law of their choice if they make the agreement after the event giving rise to the damage occurred, or where the parties were pursuing a commercial activity and freely negotiated the agreement before the event giving rise to the damage occurred. Where the agreement is contained in a contractual term, any question of construction of the scope of that agreement will, no doubt, be answered by giving the choice of law as broad a construction as reasonably (p.1229) possible, the better to achieve uniformity of governing law. In cases which are not within the framework of Article 14, it is still possible for the non-contractual obligation to be governed by the law which governs a contract between the parties, not on the basis that the choice of law ties the hands of the court, but on the basis that it still indicates a manifestly closer connection to the obligation than the law otherwise identified by the general rule.
20.164 The Regulation does not restrict the application of laws of the forum which are mandatory.399 The Regulation does not define mandatory laws, though it is probable that it will reflect the definition given in the Rome I Regulation.400 And the application of any foreign law may be refused where its application would be manifestly incompatible with public policy.401
20.165 The reference to ‘law’ in the Regulation is to the domestic law of a country. Renvoi is excluded from operation, even if it is clear that a court in the country whose law is held to be applicable would apply the law of another country.402 It is improbable, if not wholly inconceivable, that demonstration of such a fact would allow the ‘other country’ to be seen as manifestly more closely connected to the obligation than the country identified by the application of the general rule.403
(a) Torts and delicts
20.166 The general approach of the Regulation is to establish a general rule for choice of law, and special rules for particular kinds of tort for which the general rule is not sufficient. It applies to torts which have occurred and to those which are likely to occur.404 Given the wide variety of torts, and the correspondingly wide variety of geographical connections displayed by some tort cases, it is unsurprising that the choice of law regime is sometimes complex. It seems practically certain that it will apply to wrongs which are, as a matter of English domestic law, equitable wrongs, such as breach of confidence and dishonest assistance of another’s equitable wrongdoing, for these are, for the purposes of the Regulation, wrongs in the nature of torts.
(i) General rule
20.167 Article 4 establishes a general rule in alternate form. If the defendant and victim were habitually resident in the same country when the damage occured, the law of that country will apply. Where this is not so, the applicable law will be that of the country in which the damage occurs, irrespective of the country in which the event giving rise to it occurred, and further irrespective of the country in which the indirect consequences of it occur: in this respect the rule will probably reflect the distinction drawn in the context of the Brussels I Regulation between the place where damage occurs, and the place where it is suffered or felt. No matter which version of the general rule applies, if the tort is manifestly more closely connected with another country, the law of that other country shall apply instead: it is clear that this exception applies only if the tort as a whole is manifestly more closely connected to another country; it does not permit a specific issue within the broad framework of the claim to be segregated from the law which applies to the rest of the claim and subjected to a different law. It is also provided that the requisite connection may be seen in a pre-existing relationship between the parties, such as a contract. Where the contract is governed by a law which the parties have chosen and expressed, it would be rational for the tort to be governed by the same law, though whether this can be explained as a connection linking the tort to a country, as distinct from a law, is unclear.
20.168 In five cases, the Regulation provides a special rule for choice of law, which is tailored to meet the particular needs of the tort. Unfortunately, the drafting of these leaves much to be desired. Article 5 deals with product liability. In place of Article 4.1, the applicable law is the law of the country in which the victim was habitually resident when the damage occurred, provided that the product was marketed there; failing that, the law of the country in which the product was acquired if the product was marketed there; failing that, the law of the country in which the damage occurred if the product was marketed there; but the law of the country in which the tortfeasor is habitually resident if he could not reasonably foresee marketing the product, or a product of the same type, in the law of the country otherwise applicable by reason of the provisions described. None of the definitional terms in this Article is defined: it is not clear if it matters who did the marketing; it is unclear whether the product marketed means the actual article which did the damage, or things bearing the same model number, or something more generic, eg. The incomplete coverage of this special rule—not all cases will fall within Article 5.1, after all—makes the mapping of choice of law for product liability particularly challenging.
20.169 Article 6 deals with unfair competition and restriction of competition. It excludes Article 4 altogether, except for the single case in which unfair competition affects the interests of a single competitor. Otherwise, for unfair competition, the basic choice of law is instead to apply the law of the country in which competitive relations or the collective interests of consumers are likely to be affected; it is not said how this rule is to work where the tort has this effect in more countries than one. For cases of restriction of competition, the basic orientation of the rule is to apply the law of the country where the market is to be affected, though if the restriction affected more than one market, the victim may choose to confine his claim to the market for the country in which he has sued. No choice of law is permitted for torts falling within Article 6.405 For environmental damage, including damage sustained by persons or property as a result of such damage, Article 7 specifies the law of the country in which the damage occurs unless the victim opts to found his claim on the law of the country in which the event giving rise to the damage occurred. For infringement of intellectual property rights, Article 8 specifies the law of the country for which protection is claimed, and prohibits an agreement to subject the obligation to any agreed law. Industrial action is covered by Article 9, which substitutes for Article 4.1 the law of the country in which the action is to be or has been taken.
(b) Non-contractual obligations which are not torts
20.170 The Regulation sets out the choice of law rules for what it defines as other non-contractual obligations. According to Article 10, if an unjust enrichment, including obligations arising from a payment wrongfully received, concerns a relationship between the parties, such as a contract or a tort, the obligation will be governed by the law which governs that prior relationship. Where there is no such relationship, if the parties have a common habitual residence when the enrichment occurs, the law of that country will apply. Where neither of these rules yields the answer, the obligation will be governed by the law of the country in which the enrichment took place; and in any event, if the obligation is manifestly more closely connected to another country, the law of that country shall apply instead. The common law was to much the same effect. One particular result is that unjust enrichment resulting from a failed contract will be governed by the lex contractus, and that the question whether such a claim is properly seen as contractual or non-contractual is irrelevant; but another is that cases (p.1231) of knowing receipt are hard to analyse as torts or as other non-contractual obligations. The rule for obligations arising from acts performed without due authority in connection with the affairs of another (negotiorum gestio) is, according to Article 11, framed in the same way, with the default rule being the law of the country where the act was performed.
20.171 The Regulation also deals with non-contractual obligations arising from dealings prior to the conclusion of a contract, regardless of whether the contract was concluded. The Regulation labels this culpa in contrahendo, though pre-contractual fault, which will include misrepresentation and non-disclosure, would be more familiar to English eyes. The principal rule enacted by Article 12 is that the obligation in such cases is governed by the law which applies to the contract or would have applied to it had it been entered. Once again, it follows that there is no need to address the question, which had been of importance prior to the two Regulations, whether such cases involved contractual or non-contractual obligations. If the approach described by Article 12 does not produce an answer, presumably because it is not possible to say what law would have applied to the contract, the default answer which the Article goes on to provide reflects the pattern established in Article 4. If this process results in a choice of law which seems unfair to the individual who claims he was completely tricked, and never intended to contract at all, public policy serves as the final resort.
(3) Non-contractual Obligations Outside the Rome II Regulation
20.172 The principal material exclusion from the Rome II Regulation is that it applies neither to defamation, nor to violation of privacy nor to rights relating to personality. As defamation was excluded from the scope of the Private International Law (Miscellaneous Provisions) Act 1995,406 choice of law is left to the rules of the common law, according to which choice of law depends on whether the tort was committed in England or overseas. A tort, including defamation, committed in England is governed by English law alone; but a tort committed overseas is, in general, actionable in England only if it would have amounted to a tort if it had taken place in England and the facts and matters complained of amount to a civil wrong in the country in which the cause of action arose, though in an appropriate case, satisfaction of one or the other prong of this dual rule may be dispensed with.407 To begin with, therefore, everything therefore turns on a point of geography. If the elements of the claim are not concentrated in one place the initial question is ‘where in substance, and as a matter of English law, did the cause of action arise?’408 For example, if a libellous statement was transmitted to places where it was digested and the reputation of the victim injured, the places of reading are taken to be where the cause of action arose, even though the statement originated elsewhere.409 However, it is mostly the privilege of the claimant to define the facts and matters upon which he relies: if, as frequently happens, he sues only in respect of publication, which means communication to readers, in England, England is where the cause of action arose, and English law will alone apply.410 If the complaint extends to multi-national publication, it is probable that each substantial national publication must be taken, and the law chosen, separately, for as a matter of English law, and in fact, each publication is a separate and distinct tort, and this principle has been relied on in the context of the conflict (p.1232) of laws.411 Violation of privacy, by contrast, probably falls within the scope of the 1995 Act. Claims in respect of it will be governed by the law of the place where the most significant elements of the events comprising the pleaded tort occur.412 The Rome II Regulation may yet be expanded to cover such cases. The need to ensure that rules for choice of law respect important national interests in freedom of speech and rights to privacy and personality will be met by the rule which allows the law designated by the Regulation to be refused application on grounds of public policy.
20.173 For causes of action which fall outside the temporal scope of the Regulation, that is to say, where the events giving rise to the damage occur before 12 January 2009, reference should be made to the previous edition of this work.
20.174 The private international law of property includes transactions inter vivos and dispositions on death. It is a large topic, which raises tricky questions about the relationship between jurisdiction and choice of law, and about the relationship between property and the law of obligations. As in most cases a court is asked to adjudicate title and make an order good and reliable against the world, and not just as between the parties to the action, a court will generally be entitled to apply foreign law with reference to any renvoi which the chosen law would make, that is to determine the matter as it would be by a judge sitting in the foreign country and hearing the case himself.413 However, while this remains uncontroversial where the property is land, a number of first-instance authorities have declined to interpret ‘law’, in the choice of law rules for moveable property, as meaning anything other than the domestic law of the chosen system.
20.175 Property divides into immoveables and moveables. Immoveables obviously includes land, but the common law also regarded intellectual property rights as though they were immoveable414 and until very recently415 applied the jurisdiction and choice of law rules for immoveables to them. Moveables sub-divides into tangible and intangible property. Whether a thing is an immoveable is determined by the law of the place where it is, the lex situs.416
(2) Dealing with Property
(a) Immoveable property
20.176 At common law a court lacks jurisdiction to determine questions of title to foreign immoveable property and tort claims in which such an issue would arise.417 The law was amended to confer jurisdiction over tort claims where the issue of title is not a principal one418 but otherwise the jurisdictional preclusion prevails,419 even where the defendant is willing to submit. (p.1233) By parity of reasoning, foreign judgments purporting to adjudicate title to English immoveables are unlikely to be recognized.420 The same rule may still apply to patents, but it no longer applies to foreign copyright.421 Where the land is in an EU member state, Article 22.1 of the Brussels I Regulation denies jurisdiction where the proceedings have as their object rights in rem in, or tenancies of, that land.422
20.177 However, if the claim may be formulated as one to enforce a personal obligation, albeit one assumed by the parties in relation to a foreign immoveable, there is no jurisdictional impediment. This common law exception derives from Penn v Baltimore,423 and the principle is plain enough. If the claim is to enforce a contract, or an equitable obligation, between the parties, the court does not lack jurisdiction even if the obligation derives from or reflects a transaction relating to land.424 So if the claim is that the defendant has breached a contract for sale of land, or as bare trustee should convey title to the claimant beneficiary, the court may enforce the obligation so long as it has personal jurisdiction over the defendant.
20.178 For choice of law, when the court has jurisdiction it determines title by applying the lex situs as this would be applied in a court at the situs, the justification for which is the alleged pointlessness of doing otherwise than a local judge would do. As justification this is scarcely convincing, for the true question is whether the foreign judge would give effect to an English (to him, foreign) judgment, not whether he would have arrived at the same result himself. That said, it is hard to maintain a rational argument for the application of anything other than the lex situs in a manner most faithful to what a local judge would have done.425 Where the court enforces a contract or other obligation, it applies the proper law of that obligation, which may, though need not, be the lex situs.
(b) Moveable property
(i) Tangible moveables
20.179 The category of tangible moveable property needs little explanation, though it includes negotiable instruments,426 and bearer shares, which are tangibles because transfer of the instrument serves to transfer all rights or property inherent in it. Disputes concerning title to tangible moveable property are governed by the lex situs at the date of the event in question.427 So the question whether A obtained good title to a car he bought in Ruritania is governed by Ruritanian law; whether B loses title to his painting stolen from England and auctioned to a buyer in Italy is governed by Italian law;428 whether C reserved and succeeded in retaining title to materials after their use or on-sale by D is governed by the lex situs at the time of D’s dealing with them;429 whether E obtained title to property which he found is governed by the lex situs at the date of finding; and the question who owns the property of F and G which has become mixed is governed by the lex situs at the date of mixing.430 Though in principle the law might trace the history of title from the (p.1234) beginning, the critical question is usually, and most conveniently, the legal effect of the final transaction, with anterior questions being answered by looking through the eyes of the eventual lex situs, and leaving the law of obligations to remedy wrongs committed along the way.
20.180 The rule allows for exceptions. If the goods are in transit and their situs is casual or unknown there is a case for applying instead the proper law of the transaction alleged to have affected title.431 By contrast, the fact that a disposition of goods is effected by document probably does not serve to by-pass the lex situs of the goods.
(ii) Intangible moveables
20.181 Intangible property raises issues of greater complexity. It is sometimes difficult to see why it is correct to see some intangibles, at least, as being property rather than the contractual or analogous rights which they almost always are: the question of who is entitled to an intangible will often be the same as asking who now stands in a relationship of privity with the debtor or obliged party. This would suggest that the entire question is often indistinguishable from the law of contract, albeit with a gloss supplied by laws regulating security and insolvency, got up to look like something else. But not all intangibles are contractual in nature, and the range of intangibles may be too diverse for a single, indiscriminate, choice of law rule to apply to them all.
20.182 Article 14 of the Rome I Regulation432 provides, in relation to questions falling within its domain, that the mutual obligations of assignor and assignee are governed by the law applicable to the contract between them, but that the law governing the right assigned determines its assignability, the relationship between assignee and debtor, the conditions for invoking the assignment against the debtor, and the discharge of the debtor. In other words, issues involving the debtor and his liability are governed by the proper law of the debt; issues between the creditors or would-be creditors are governed by the proper law of their relationship. This displaces any answer which the common law might have given, because if the issue falls within the domain of the Regulation in general and Article 14 in particular, Article 14 applies to all questions within its scope.433 That is all one needs to say. But even if it were admissible, to ascribe a situs to intangible moveable property is always artificial, and the advantages of a lex situs analysis would be very hard to see. It remains true that this statutory rule is inconvenient for those engaged in the financing of business by the assignment of the benefit of contracts yet to come (‘receivables financing’), for it may be impracticable to identify the individual governing laws of contracts made, and impossible to do it for contracts yet to be made. It is very hard to see that the Regulation allows any useful escape from this difficulty; and the proposition that the market will price the legal uncertainty into the transaction is not very satisfactory. Further reform may be expected.
20.183 Shares. Transfers434 of registered shares are governed by the lex incorporationis for the unassailable reason that any solution which diverges from that law is effectively unenforceable. In such cases, the general rule in Article 14 of the Rome I Regulation is held to be inapplicable.435
(p.1235) 20.184 Intellectual property. To the extent that the question is not governed by international convention or statute, and is within the jurisdiction of an English court, choice of law for issues concerned with title or right to patents, copyright and trade mark rights must be governed by the law of the place of the right (lex protectionis), which law will determine whether and on what terms they are assignable.436
(c) State seizure of property
20.185 Most questions arising out of the seizure of property by governments require little more than an application of the lex situs rule set out above. If the property is within the territorial jurisdiction of the state, the lex situs rule results in recognition of title acquired by reference to local law.437 There is no question of an English court being called upon to ‘enforce’ the foreign law: once that law has, in the eye of the English conflict of laws, done what it set out to do there is nothing in it left to be enforced; and there is no objection to recognition.438 Only if the law under which the seizure was made is utterly abhorrent to English standards will it be possible to deny recognition to the law and hence to the title acquired under it.439 But there is no rule of English private international law or of public policy which generally denies recognition unless or until compensation is paid.440 By contrast, if the property was outside the territory of the seizing state, the lex situs rule will refer to the law of this third country the question whether title was altered by such legislative or governmental act; if the property was in England, no change in title can be brought about by reference to a law which is, ex hypothesi, not the lex situs.441
20.186 It may be more complicated if the property is removed from the territory of the state before it has been taken into the possession of the authorities. Where the lex situs requires seizure as a pre-condition to the acquisition of title under it, this is uncontroversial.442 Where the lex situs makes no stipulation to this effect, it appears that title will be recognized as good if the property was previously ownerless but vested in the state, but not if the foreign law purported to divest a private owner, for proceedings to obtain the property in such a case will require the English court to enforce a foreign public law, which it will not generally do.443 An action to recover the property will usually be characterized as a claim in tort, and a claim to recover the property or obtain other relief will be governed by the choice of law rules for torts. The issue of title may be a dominant element within the tort analysis, but that is all it is.
20.187 The rule applies to immoveable property, and to tangible property. In relation to intangible property it plainly applies to shares situated where the company is incorporated.444 It is less clear how it applies to simple contractual intangibles, but the situs of a debt is in general the place of residence of the debtor,445 for it is there that he may be sued as a matter of right. The Rome I Regulation will have no application to such a non-voluntary assignment.
(p.1236) (d) Trusts446
20.188 The private international law of trusts is substantially contained in the Hague Convention on the Recognition of Trusts, given force in England by the Recognition of Trusts Act 1987.447 The Convention, however, has more to do with the identification of the governing law than with the recognition of foreign trusts. It defines a trust as the legal relationship, created inter vivos or on death, voluntarily and evidenced in writing, when the settlor places assets under the control of a trustee for the benefit of a beneficiary or for a specified purpose.448 However, the 1987 Act extends this to include trusts of property arising under the law of any part of the United Kingdom, and to trusts created by judicial decision;449 and applies it to trusts falling within its definition whatever the date of their creation.450 Its application to implied, resulting and constructive trusts is therefore clear. The trust arising from the joint purchase of property will fall within the scope of the Act; but where a constructive trust is sought against or imposed upon a defendant found answerable in an equitable claim, the matter is probably within the material scope of the law of obligations, and the relevant choice of law rules will be those in section E of this chapter.
20.189 A trust is governed by the law chosen by the settlor; in default of demonstrable choice it is governed by the law with which it is most closely connected.451 In identifying the latter regard is to be had to the place of administration of the trust, the situs of the assets of the trust,452 the place of residence of the trustee, and the objects of the trust and the places where they are to be fulfilled. The governing law regulates the trust, its construction, effect, and administration;453 it can be altered,454 but it gives way to mandatory and conflicts rules of the lex fori, and to public policy.455
(e) Marriage and property rights456
20.190 The impact of marriage on property rights is part of a larger picture. Where a marriage terminates inter vivos many systems of law allow a court which dissolves or annuls it to make orders in relation to spousal property which override property rights created or existing prior to the marriage.457 Where a marriage is terminated by death some systems have recourse only to rules of succession, whereas under others the rules of a matrimonial property regime, often one of community of property, deal with the rights of the quick and the dead. But within these limitations it is expedient to examine the private international law of marriage and its effect on property rights.
20.191 Where the parties make a matrimonial contract, the proper law of that contract governs its creation, validity, interpretation, and effect.458 The proper law may be chosen but will otherwise be that with which the marriage has its closest and most real connection:459 the earlier preference for the law of the husband’s domicile has been indefensible at least since the abolition of (p.1237) the wife’s dependent domicile in 1974. Capacity to make a marriage contract is governed by the spouse’s domicile at the date of marriage.460 Principle suggests that once a matrimonial contract has been made, a change in matrimonial domicile cannot alter the rights created under it;461 but there is nothing to prevent the parties varying their contract by common consent. It is to be noted, though, that where an English court is exercising its statutory power to make financial provision, it will regard a pre- or post-matrimonial agreement as highly significant, but not as a decisive element, in the assessment of what the law requires.462
20.192 Where the parties do not make a matrimonial contract it was once thought that a distinct set of answers was applicable: that the law by reference to which they married (the matrimonial domicile) applied to determine the proprietary consequences of marriage,463 but that this original regime did not necessarily survive a change of matrimonial domicile. The better view, however, is that the system which the parties opt into and which is imposed by the law of the matrimonial domicile, which may be a system of separation of property, and whether or not conceptualized as a tacit contract or default provision, continues to apply after a change in domicile for the same reasons as where there is an express contract.464
(f) Death and property rights
(i) Administration of estates465
20.193 An order of the English court is required to empower a person to deal with the assets of a deceased, whether by proving a will to appoint a named and willing executor or by obtaining a grant of letters of administration.466 Though the court may make a grant of representation of any deceased person, it will be rarely that it does so unless the deceased left property in England.467 The making of a grant confirms or vests, as the case may be, the property of the deceased in the grantee. Where the deceased died domiciled in a foreign country, the court will usually make a grant to the person who, under the law of the domicile, has been or is entitled to be appointed to administer the estate.468 The representative may take all steps to get in all property, wherever situated, of the deceased.469 The substance of the administration is governed by the law of the country under which the grant of representation was made.470 As a matter of English law, in the paying of the deceased’s debts foreign creditors and English creditors are treated alike;471 the admissibility and priority between claims is governed by English law as lex fori.472
20.194 A foreign grant of representation has, in principle, no effect in England, and the person appointed must obtain an English grant of representation. This contrasts oddly with the fact that a foreign-appointed trustee in bankruptcy may be recognized without further ado.473 European Union legislation designed to provide uniform private international law rules for administration and succession will not extend to the United Kingdom.474
(p.1238) (ii) Succession to property475
20.195 If a duly appointed representative is before it, an English court has jurisdiction to determine a question of succession.476 A foreign court has jurisdiction to determine succession to the property, wherever situated, of a deceased dying domiciled in that country, and its decision will be recognized in England;477 it also has jurisdiction to determine succession to all property within its territorial jurisdiction, regardless of the domicile of the deceased.
20.196 For testate succession, the capacity of a testator to make a will is governed by his domicile at the date of making the will,478 and the capacity of a legatee to take is conferred by the law of either his own or of the testator’s domicile.479 Formal validity is satisfied if the will is formally valid according to the law of the place when and where it was executed, or the law of the place (at either the time of execution or death) where the deceased died domiciled or habitually resident, or of which he was a national.480 The same laws govern the formal validity or the revocation of a will.481 Wills of immoveables are formally valid if they conform to the lex situs.482 Material validity is governed by the law of the testator’s domicile at death,483 except for immoveables, where essential validity is governed by the lex situs.484 The interpretation of the will is governed by the law of the domicile at the date of its making.485 The validity of an act of revocation is governed by the domicile of the testator at the date of revocation.486
20.197 Intestate succession is governed by the domiciliary law of the deceased at the date of death, except that succession to immoveables is governed by the lex situs.487 The rule is one about succession, so does not extend to cases where a state assumes title to ownerless property as bona vacantia which is instead governed in all cases by the lex situs. When the application of the law of the domicile would vest the property of the deceased in the state, the process of characterization determines whether the right invoked by the state operates by way of succession; this is a question concerning the substance and mechanism of the legal rule, not merely an examination of its form.488
G. Family Law
20.198 Family law, by which a person’s status is determined, is the last redoubt of the law of the domicile, though not every issue is answered by recourse to that law, and statutory reform has made considerable inroads into its hegemony. In this context, the law usually indicates the law including its conflicts rules which would be applied by a judge hearing the case in his own court: the principle of renvoi still operates in family law issues which are not (p.1239) governed by legislation which specifically excludes it and in cases in which it is pleaded and proved.489
20.199 The plan of this section is to examine marriage, then matrimonial causes, financial provision, and a final brief summary of the highly complex law of children.
(2) Adult Relationships
(i) Formal validity
20.200 The forms of a marriage ceremony are governed by the law of the place of celebration, the lex loci celebrationis.490 The need for a public, civil or religious ceremony,491 for either party to be present in person,492 or for parental or other third party consent to be given,493 is governed by this law. A marriage formally invalid may be validated if compliant with the law to which a judge at the locus celebrationis would look if he were dealing with the issue.494 But where it was impossible for the parties to comply with local forms, or if the place of celebration was under belligerent occupation,495 it suffices for the marriage to satisfy the rudimentary requirements of the ancient common law: a marital declaration in the presence of witnesses with no need for a registrar, still less a priest.496 Statutory provision is made for members of HM Forces to marry while serving abroad, and for consular marriages.497
(ii) Essential validity
20.201 Several issues usually accommodated under the heading of essential validity.
20.202 Capacity. Each party must have capacity to marry the other according to the law of his or her ante-nuptial domicile.498 Some authorities have questioned whether the law of the intended matrimonial home might be a more appropriate test for some issues of capacity, but none has so decided. The age of matrimonial capacity499 and the degrees of prohibited relationship500 fall within this rule, though the distinct issue of the effect of a previous marriage dissolved or annulled by decree is examined below. Whether lex loci celebrationis also has a role is complex. If they marry overseas it is probable, though not certain, that they do not need to have capacity under the local law.501 If they marry in England it is probable that the parties must also satisfy the capacity requirements of English law;502 though if one party is domiciled in England it suffices for the other to have capacity according to English domestic law.503
(p.1240) 20.203 Consent and consummation. Each party must consent to marry the other, this being governed by the lex domicilii.504 It would be rational to refer physical impediments to marriage to the law of the allegedly incapable party,505 but the law is uncertain.
20.204 Previous marriage. According to section 50 of the Family Law Act 1986, if a marriage has been dissolved or annulled by a decree accorded recognition by English law, subsequent remarriage is unaffected by the refusal of another system of law to recognize the decree.506 So if a Ruritanian domiciliary is divorced by a decree recognized by English legislation but denied recognition under Ruritanian law, the remarriage may be valid even though his domiciliary law would regard him as still married. The reverse position, where a lex domicilii recognizes a decree which English legislation does not, is ungoverned by English authority, but if the lex domicilii regards an individual as capable of marriage it is hard to see why English law should contradict it.507 However, where the recognition falls under the Brussels II Regulation,508 section 50 has no application,509 and it remains undecided whether a remarriage is adversely affected by another law’s non-recognition of such a decree.
20.205 Polygamous marriage. A marriage is polygamous510 if celebrated in polygamous form511 and the husband’s lex domicilii gives him capacity for polygamy.512 The first condition means that a marriage celebrated in England is inevitably monogamous; the second that a marriage celebrated overseas by an Englishman (though not woman) is not polygamous. While a woman domiciled in a polygamous country may contract a polygamous marriage, and an Englishwoman has no personal capacity for actual polygamy,513 it has been held that her personal capacity to contract a polygamous marriage is actually governed by the law of her intended matrimonial home.514
20.206 Public policy. There is an opportunity for public policy to intervene at the point when a rule of the lex causae, even after making allowance for different cultural and social traditions, offends the current English conception of marriage as a consensual monogamous union of a man and a woman of the age of discretion,515 and as an institution which they are entitled to enter into without the impediment of capricious, religious, discriminatory, or penal516 restriction. Polygamy contracted abroad was accepted as marriage a century ago; and the marriage of uncle and niece has been held to be tolerable.517
20.207 Marriage, for the purposes of the English conflict of laws, does not currently include samesex unions. Eligible518 persons of the same sex may in England enter into civil partnerships. Persons who enter into civil partnerships overseas, or who marry in those countries which permit persons of the same sex to marry, may have their union recognized as a civil partnership but not as a marriage.519 It remains to be authoritatively decided whether the statutory refusal to accept as married persons of the same sex who have contracted a marriage valid in the place of its celebration, is compatible with the European Convention on Human Rights and its respect for private and family life.
(c) Matrimonial causes
(i) Decrees from English courts
20.208 No broad principle underpins the jurisdiction of the English courts. The pragmatic aim of the law is to bring the divorce and annulment jurisdictions of the EU member states into harmony. To achieve this, some complication was inescapable. The jurisdiction of an English court to grant a decree of divorce, separation, or annulment is governed by the Brussels II Regulation,520 and is stated521 in terms of habitual residence or domicile.522 As to habitual residence in England,523 it suffices that the spouses are habitually resident there, or were last habitually resident there, one of them still being so; or that the respondent is habitually resident there, or (where the parties make a joint application) that either party is; or if the applicant was resident for a year (or if domiciled in England, six months) immediately prior to the application. As to domicile, the court has jurisdiction if both parties are domiciled in England. If a spouse is habitually resident in a member state, or is a national of a member state other than the United Kingdom or Ireland, or is domiciled within the United Kingdom or Ireland, he or she may be sued only in the courts identified in Article 3. Where no member state court has jurisdiction under Article 3,524 the ‘residual jurisdiction’ of the English courts is available if either party was domiciled in England on the date proceedings were instituted.525 In situations of lis pendens the court seised first has jurisdiction.526 There is provision in the Regulation for lis pendens, giving priority to the member state court first seised, but there no obvious basis for a power to stay in favour of a non-member state on the basis of forum non conveniens.527 By contrast, where a court is exercising jurisdiction under the Regulation in a matter of parental responsibility, there is—in a novel proposition—a power to transfer the proceedings to a court in a member state which is better placed to deal with the matter.528
(p.1242) 20.209 As to choice of law, in proceedings for a divorce an English court529 applies English domestic law. In the case of nullity, the applicable law may be deduced from the grounds of invalidity examined in relation to the original validity of marriage. If the marriage is plainly a nullity, there is no need to obtain a decree to this effect, but where the alleged defect is in substance one unknown, neither precisely nor by analogy, to English law, no reported authority exists to confer the power to dissolve the marriage.530
(ii) Decrees from member states531
20.210 The effect of decrees obtained in other member states is governed by Brussels II Regulation. The decree need not come from a court, as long as it emanates from the authority empowered to make such decrees.532 Chapter III of the Regulation provides for recognition to be automatic unless on proceedings for a declaration of enforceability it is found that recognition is manifestly contrary to public policy, was given without the respondent having been served in time to arrange the defence (the shield is lost if the respondent has unequivocally accepted the decree), is irreconcilable with an English decision in proceedings between the same parties, or is irreconcilable with a foreign judgment which qualified for recognition:533 in other words, the rules closely and consciously reflect Chapter III of the Brussels I Regulation.534 It is unsurprising that, therefore, neither the jurisdiction of the court,535 nor the substance,536 may be reviewed. Whether the Brussels I regime for civil and commercial judgments was altogether suitable as the template for judgments on personal status is debatable.
(iii) Decrees from non-member states
20.211 Decrees obtained outside the EU are recognized or not according to whether they were obtained by means of proceedings (whether judicial or otherwise) or not:537 a peculiarly witless distinction. Problems arise with decrees obtained by proceedings whose integral elements span two or more countries. It has been held that if any significant element took place in England, the decree cannot be seen as an overseas one, with the apparent conclusion that it is denied recognition under either regime;538 and the same reasoning may prevent its recognition if the elements took place in two overseas countries. Yet it would be absurd to withhold recognition from an Australian judicial divorce simply because the petition was served on the respondent in England, or to deny that a divorce obtained from a judge in London was not obtained there just because the petition had to be served in France. The problem stems from the ba?ing assumption of the legislator that all proceedings and decrees are wholly confined within a single country; and any attempt to make sense of the statute risks stumbling on this piece of ineptitude.
20.212 A decree is obtained by proceedings if obtained by judicial or other proceedings,539 ie, with the involvement of an agency of or recognized by the state, whose role is more than merely probative.540 So a so-called ‘religious’ divorce obtained under the procedures of the (Pakistani) Muslim Family Law Ordinance 1961 would be obtained by proceedings,541 so (p.1243) too, if less clearly, a Jewish religious divorce by ‘ghet’542 and also a purely consensual Japanese kyogi rikon, divorce;543 but a Muslim ‘talaq’ divorce, simply effected by unilateral words of repudiation of the wife, will not.544
20.213 A decree obtained by means of proceedings must be obtained where either party was domiciled (either according to English law, or under the law of the place of obtaining),545 or was habitually resident, or was a national; and it must be effective under that law to dissolve the marriage.546 Where domicile or habitual residence are relied on this requires effectiveness in the relevant law district, such as Arizona; with nationality, it must be effective throughout the entire national territory such as the United States.547 Recognition may be denied548 on grounds of lack of notice or right to be heard, or if the matter is already res judicata. It may also be denied on grounds of public policy, and although the grounds upon which the decree was obtained are not stated as a ground of objection, in an extreme case they may be relevant.
20.214 If the decree is obtained without proceedings, it must be obtained where both parties were domiciled when it was obtained, or where one was domiciled, the country of domicile of the other party recognizing the decree. And it may not be recognized if either party had been habitually resident in the United Kingdom throughout the year prior to the obtaining.549 The grounds of non-recognition include those applicable to decrees obtained by proceedings550 but recognition may also be denied if there is no official document certifying the effectiveness of the decree in the foreign country.551
(iv) Civil partnership
20.215 The jurisdiction of an English court to dissolve a civil partnership exists if both partners are habitually resident in England, or were last so resident and one still is, or the respondent is habitually resident, or the petitioner is and has been for a year (or six months if he is also domiciled in England) immediately prior to the institution of proceedings.552 The grounds for dissolution and annulment resemble those for the dissolution and annulment of marriages.
20.216 Whether or not the Brussels II Regulation applies to decrees dissolving or annulling a civil partnership, English law has taken it as the template for the rules for recognition of decrees from member states.553 Much more surprising, perhaps is the fact that recognition of decrees from non-member states copies the law on dissolution and annulment of marriages, including the making of separate provision for decrees obtained by and not by proceedings.
20.217 Jurisdiction in relation to maintenance obligations arising from a family relationship is now governed by the Maintenance Regulation.554 In essence, jurisdiction exists if either the creditor or the defendant is habitually resident in England, or if the English court has jurisdiction over proceedings concerning status or parental responsibility and the matter relating to maintenance is ancillary to those proceedings. There is a restricted right to choose a court, the choice being required to be in writing, though there is no power to make a choice of court if the maintenance obligation is towards a child under 18. Jurisdiction may also be based on voluntary appearance. Where those provisions do not give jurisdiction to the courts of any member state, the courts of the member state of common nationality have jurisdiction. And where none of these provisions gives jurisdiction to the courts of any member state, there is a limited power to take jurisdiction as a matter of necessity.555 An English court applies English law applies to substantive claims for financial provision.556
20.218 A foreign divorce, even if recognized in England, does not automatically terminate an English maintenance order.557 A foreign maintenance order which is final and conclusive may be recognized and enforced in England at common law and under statute,558 for it is a civil judgment in personam. The provisions for recognition are largely reciprocal with the grounds of jurisdiction exercised by English courts. Otherwise, orders from EU member states may be enforced under Chapter IV of the Maintenance Regulation; the registration is made in the magistrates’ court for the place where the respondent is resident for the purposes of this instrument, or where assets against which enforcement may be made are situated. The permissible objections to registration are few.
(a) Guardianship and custody
20.219 The jurisdictional rules applicable in an English court are, in their detail, so complex that it is almost impossible to meet the twin aims of being concise and being accurate. But the starting point is that the English courts had (and to some extent still have) an inherent jurisdiction to make any order in respect of a child who is a British national, or was ordinarily resident or present in England. In relation to such children, that inherent jurisdiction was modified by statute to define jurisdiction to make guardianship, contact, residence and other orders. But the jurisdictional scheme of the common law is now overridden by legislation. According to the Brussels II Regulation, general jurisdiction is given to the courts of the member state of the child’s habitual residence;559 and where the child moves lawfully or is taken unlawfully to another member state, and to varying extents, that general jurisdiction remains.560 Jurisdiction also exists where a court is exercising matrimonial jurisdiction under Article 3 and an issue of parental responsibility is connected to the matrimonial proceedings.561 There (p.1245) are two default jurisdictional rules: if the habitual residence of the child cannot be established, presence will give jurisdiction;562 and if no member state has jurisdiction under the Regulation, a court will, residually, apply its own law on jurisdiction.563 As to that, though, if the child is habitually resident in a non-member state, jurisdiction will now be regulated by the 1996 Hague Convention on the Protection of Children,564 which is similar in effect to the Brussels II Regulation. A guardianship order made by a court of a country of which the child was a national or in which it was present will usually be recognized at common law;565 but the power of the guardian will extend no further than the powers of a foreign parent, and a foreign custody order does not prevent an English court making such order as it thinks fit in relation to the welfare of the child.566 But where the order has been made by a court of a member state, its recognition is governed by the more recognition-friendly provisions of Chapter III of the Regulation. The bases of recognition, and the grounds admitted for non-recognition of foreign orders, are derived from those of the Brussels I Regulation; the recognition provisions of the 1996 Hague Convention are to similar effect.
(b) Abduction and removal567
20.220 The power to order the return of a child who has been abducted is a particular example of orders generally made in the interests of the welfare of the child.568 But the law is now largely derived from two international conventions: the Luxembourg Convention on Recognition and Enforcement of Decisions Concerning Custody of Children;569 and the Hague Convention on the Civil Aspects of Child Abduction.570 The starting point is that a child, wrongfully removed,571 should be restored to custody in the country of its habitual residence, whether or not a prior court order has been made. These Conventions prescribe defences to the claim for restoration, such as acquiescence in the removal, or the grave risk of harm to the child if restoration be ordered.572 In relation to non-Convention countries the courts will accord predominant weight to their assessment of the welfare of the child, and do not immediately follow the principles of the Convention.573 Though these are international instruments, their principal effect is to establish rules of domestic law, rather than rules of private international law; their detail is most appropriately examined in chapter 2 (Family Law).
20.221 The provisions of the Brussels II Regulation are not radically different from the rules established by these Conventions.574 However, this instrument also seeks to ensure that orders made by courts in member states in relation to custody or the return of children are recognized, and enforced speedily and without second-guessing of the merits by the court called upon to recognize them. This has still produced case law of no little complexity, especially where the court called upon to recognize the judgment has reservations about the judgment or the procedure which led up to it, a perception which may be at its most acute in cases of (p.1246) orders for provisional measures relating to the custody of children.575 The European Court’s insistence that the Regulation requires such orders to be accepted without question, and that any argument that the material facts have changed must be made to the original court, and may not be taken before the court whose duty is to recognize the earlier judgment, is not always easy to swallow.
20.222 The jurisdiction of a court to order maintenance in favour of a child is governed by the Maintenance Regulation.576 The jurisdictional rules are the same as for spousal maintenance, save for the fact that an agreement on choice of court is not permitted.577 English law will apply to the substance of the claim; and orders from other member states will be liable to be recognized under Chapter IV of the Regulation.
(d) Adoption and legitimacy
20.223 The court has jurisdiction to make an adoption order if at least one of the applicants is domiciled, or has been for the past year habitually resident in, a part of the United Kingdom, and the child is unmarried and under the age of 19.578 Foreign adoptions are dealt with in section 87 of the Adoption and Children Act 2002; it is examined in more detail in chapter 2. Legitimacy, practically insignificant in English law, is not examined here.
H. Corporations and Bankruptcy
(a) Corporations and corporate status
20.224 A corporation is an artificial creation. The question whether, and with what powers, it was created is governed by the law under which it was created, the lex incorporationis. Likewise, the question who is empowered to act on its behalf is for the lex incorporationis (though the consequences in law of an act which an officer or organ was not fully entitled to do may also be referred to another law),579 as is the liability of an individual for the acts of the corporation; and in principle, all issues having to do with the internal government and management of a corporation are referred to that law.580
20.225 English law recognizes the legal personality of corporations, and the dissolution of corporations, under the lex incorporationis. It extends this to entities created under the ordinances of a semi-state, like Taiwan, and a non-state, such as the soi-disant ‘Turkish Republic of Northern Cyprus’.581 Although English law does not recognize the legal personality of an (p.1247) international organization in the absence of domestic legislation to confer such status, where a foreign state has enacted such a law its result will be recognized in England.582
20.226 What a law creates it can also destroy, so the question whether a corporation has been dissolved is a matter for its lex incorporationis.583 A combination of the rules for creation and dissolution means that the amalgamation of corporations, the recognition of the new corporation, and whether it succeeds to the rights and liabilities of the dissolved corporation, are in principle for the lex incorporationis to answer,584 though the question whether this event discharges the liabilities of the old corporation is a distinct question, governed by the law applicable to those obligations.585 But the court may conclude that the process is not a true succession or amalgamation notwithstanding the language used by the foreign legislator.586
20.227 A corporation is domiciled at the place of its incorporation,587 though for certain purposes, mainly jurisdictional, the law may consider it to have a seat at the place where its central management and control are exercised.588
20.228 A corporation with capacity to enter into the contract causes no particular problem; where this is lacking, the contract is ultra vires. Even so, the corporation may in a proper case be estopped by its own conduct from relying on its own incapacity.589 Where the corporation had capacity but it is alleged that the person purporting to act on its behalf lacked personal authority, the effect of the contract so made is a matter for the law applicable to that contract.590 If a corporation has been dissolved and amalgamated with another the question whether that dissolution terminates the contract as a source of obligation is a matter for the law of the contract. So if the amalgamation provides for the vesting of all liabilities in the new corporation it cannot discharge those liabilities, then or later, unless it is also the law applicable to them.591
(b) Jurisdiction over corporations
20.229 A corporation is amenable to the jurisdiction of an English court when process can be served on it in accordance with law; but service is more complex than with individual defendants. Service on a company is principally governed by legislation,592 which distinguishes between companies incorporated in the United Kingdom, and overseas companies. In addition to statutory service under the Companies Acts a company may be served in accordance with CPR Part 6.593
(p.1248) 20.230 English companies may be served at the registered office594 (if in liquidation, upon the liquidator and not without the leave of the court);595 a company registered in Scotland with a place of business in England may be served at its principal place of business in England.596
20.231 An ‘overseas company’ is one incorporated outside the United Kingdom.597 It is598 required to register certain particulars with the Registrar of Companies, which include provisions for the service of process,599 and the individuals authorized to accept service of process.600 But if these particulars are not supplied, or those nominated refuse to accept service, service may be made at any place of business established by the company in the United Kingdom.601 In this context a place of business connotes somewhere fixed and definite and from which the business of the company (usually the making of contracts) is carried on: where there is such a place of business, jurisdictional competence over the company is not limited to claims arising from the activities of the place of business.602
20.232 Where the company is domiciled in an EU member state, Article 22.2 gives exclusive jurisdiction to the courts of the seat of the corporation in proceedings having as their object the validity of the constitution, the nullity or dissolution of companies or decisions of their organs.603
20.233 Corporations falling outside the Companies Acts may be served by leaving process with a person holding a senior position within the corporation.604
20.234 According to the Brussels I Regulation, the English court may not wind up a solvent company if it has its seat only in another member state.606 Subject to that reservation, the traditional approach of English law is that the court may wind up a company registered in England,607 and may wind up an unregistered company having a sufficient connection with England if it is insolvent and it is not otherwise inappropriate.608 ‘Sufficient connection’ exists if persons in England could benefit from a winding-up order and there is enough connection with England to justify making the order.609 Indeed, an insolvent company which has been dissolved under the lex incorporationis may be revived for the purpose of its being wound (p.1249) up.610 On making the order, the assets of the company are subjected to a trust for the benefit of those interested in the winding-up. The liquidator must get in all the assets to which the company appears to be entitled, and is obliged to use them to discharge English and foreign liabilities. If there is also a foreign liquidation he is obliged to seek to secure equal treatment for all claimants, not just for English creditors.611 Many of the provisions of the Insolvency Act 1986 dealing with orders which may be made in the course of liquidation are silent as to their international scope, but they will probably be interpreted as requiring a ‘sufficient connection’ with England, which is otherwise hard to define more precisely.612
20.235 The private international law of insolvency is now partially governed by European legislation. The Insolvency Regulation613 deals with jurisdiction, applicable law, and the recognition of judgments. The Regulation draws a basic distinction between main and secondary insolvency proceedings. In relation to jurisdiction, the primary question is to locate the debtor’s ‘centre of main interests’. Where that is in a member state,614 jurisdiction to open collective insolvency proceedings, whether in relation to an individual or a corporate entity, is governed by the Insolvency Regulation; where that condition is not satisfied, the Regulation has no application. Main proceedings, which in England means winding up by or under the supervision of the court, creditors’ voluntary winding up (with confirmation by the court), administration, and voluntary arrangements under insolvency legislation,615 may be opened in the member state in which the debtor has its centre of main interests, and only there. Subsequent secondary proceedings, which in England means winding up proceedings,616 may be opened in another member state if the debtor has an establishment there, and only in relation to assets there.617 Territorial proceedings need not be winding up proceedings. Some difficulty surrounds the particularization of the concept of ‘centre of main interests’. The starting point in the case of a company is that the place of the registered office shall be presumed to be centre of the company’s main interests, but the contrary may be established. The recitals to the Regulation explain that it ‘should correspond to the place where the debtor conducts the administration of his interests on a regular basis and is therefore ascertainable by third parties’.618 In the case of a subsidiary, it will not automatically follow that, just because its economic choices can be controlled by a parent, registered elsewhere, it does not have its centre of main interest at the place where it is registered. There is a suspicion that the looseness in the definition of ‘centre of main interests’ will allow for a degree of forum shopping, or concursus choosing, as national laws on bankruptcy and insolvency differ sufficiently to provide an incentive to shop around.
20.236 The relationship between the Brussels I and Insolvency Regulations is defined by asking whether the proceedings which have been brought are peculiar to and part of the insolvency. So proceedings to set aside a disadvantageous transaction or to recover a preference will fall within the jurisdictional scheme of the Insolvency Regulation,619 whereas those to retrieve property to which title had been reserved will not.620
(p.1250) 20.237 No matter the basis on which jurisdiction is taken, the rule for choice of law is to apply the lex fori except where the court is given statutory power to apply the insolvency law of another country.621 It has been contended that one way to apply foreign law, in circumstances where there is a power to do this, is to remit the assets to the foreign country in which the main proceedings are taking place; it has also been denied, on the footing that to transfer the assets out of England means that the English court will not apply any law to their distribution.622
20.238 At common law, a liquidator appointed under the lex incorporationis will be recognized,623 but there appears to be no authority on the recognition of a liquidator appointed under the law of a third country. By contrast, under the Insolvency Regulation,624 an order from a court in a member state opening insolvency proceedings must be accorded the same effect as it has under the law of the country in which it was made. The status of a liquidator appointed in those proceedings will also, naturally, be recognized.
20.239 The courts of the United Kingdom have a statutory obligation to assist each other in a wind-ing-up;625 in relation to countries outside the United Kingdom the Secretary of State may designate states whose courts (but not liquidators acting on their own authority)626 may request co-operation from an English court;627 the court will assist unless there is some good reason for not doing so.628 In recent years, however, the perception that there is a strong public interest in increasing the coordination of judicial activity in corporate insolvency has been acknowledged. Some courts have accepted that there is a broader power to respond to requests for assistance from courts in other jurisdictions which are supervising various forms of corporate reconstruction.629 The precise common law legal basis for this is not completely mapped,630 but it is plain that the giving of assistance is not now restricted to requests made within the statutory scheme. However, this cooperation does not extend to the recognition and enforcement of judicial orders made in the foreign insolvency: the ordinary rules on the recognition of foreign judgments apply to judgments given in insolvency proceedings, though a creditor who has sought to prove in the insolvency may be taken thereby to have submitted to the jurisdiction of the supervising court in respect of any orders which it may make in the course of the administration.631
20.240 Separate from all of this, a Model Law on Cross-Border Insolvency was adopted at the 30th session of the UNCITRAL and given force in England by regulations made under the Insolvency Act 2000.632 It has the broad effect of allowing and requiring an English court to improve the cooperation and efficiency of cross-border insolvencies, though in some respects, in particular in relation to forms of cooperation requested by a foreign court which are of a (p.1251) kind not mentioned in the Model Law or listed in the Regulations, in particular the enforcement of judgments imposing liability which are made in foreign insolvency proceedings, it is being outstripped by the development of the common law.
(a) English bankruptcy
20.241 As a matter of common law and statute, the English courts have jurisdiction to declare bankrupt any debtor who is domiciled or present in England on the day of presentation of the petition.634 They also have jurisdiction if he was ordinarily resident, or had a place of residence, or carried on business (or was a member of a partnership firm which carried on business) in England at any time within the three years prior to the presentation.635 A debtor who has subjected himself to a voluntary arrangement submits to the jurisdiction by doing so.636 In deciding whether to exercise their discretion to make the order the courts will consider the location of assets, any foreign bankruptcy, and other issues of general convenience.637 The bankrupt may be examined by order of the court, but the private examination of any other person is probably limited to those who are present within the jurisdiction to be served with the summons.638 But the Insolvency Regulation applies to individual bankruptcy as it applies to corporate insolvency, and the jurisdictional limitations imposed by that instrument apply to bankruptcies.639
20.242 An English court applies English law to the bankruptcy.640 The making of the order operates as a statutory assignment of all the debtor’s property, wherever situated, to his trustee;641 the bankrupt may be ordered to assist the trustee in recovering property outside the control of the court. A creditor subject to the personal jurisdiction of the court may be restrained from taking proceedings overseas, in order to safeguard the principle of equal division.642 Foreign debts must be proved under the law under which they arise, but the court will use its own rules to secure, as best it may, equality between creditors of the same class.643 The power of the court to set aside an antecedent transaction is not subject to express limitation, but the defendant against whom reversal of the transaction is sought must be (or by service out with leave of the court, be made) subject to the jurisdiction of the court, and the test is whether it is just and convenient in all the circumstances of the case to make the order.644
20.243 An English discharge operates in relation to all the debts provable in the bankruptcy, irrespective of the law which governed the debt;645 and a discharge under the law which governed the debt will be effective in England.646
20.244 As a matter of common law, a foreign bankruptcy will be recognized if the debtor was domiciled647 in or submitted648 to, the jurisdiction of the court; and the bankruptcy will vest English moveables (but not land) in the assignee if this is the effect it has under the foreign law.649 The result may be that the debtor no longer has property in England, and this will tell strongly against making an English order. A discharge from a foreign bankruptcy is effective in England only if it is effective under the law which governed the debt.650 A court may not question the bankruptcy jurisdiction of a Scottish or Northern Irish court; and the effect of such an order extends to all property in England, not excluding land.651 But the duty to recognize orders made under the Insolvency Regulation applies to bankruptcies as it applies to corporate insolvencies.
(1) LA Collins (ed) Dicey, Morris & Collins, The Conflict of Laws (15th edn, 2012); hereafter Dicey.
(2) But for trenchant criticism of this approach, see Bodum USA Inc v La Cafetière Inc 621 F 3d 624 (7th Cir, 2010).
(3) Neilson v Overseas Projects Corp of Victoria Ltd  HCA 54, (2005) 223 CLR 331.
(4) Shaker v Al-Bedrawi  EWCA Civ 1452,  Ch 350.
(5) Dicey, ch 2.
(6) But because choice of law for contracts made after 17 December 2009 is governed by European legislation, this approach will cease to be applicable.
(7) Re Bonacina  2 Ch 394.
(8) But because choice of law for torts arising from events occurring after 11 January 2009 is governed by European legislation, this approach will cease to be applicable.
(9) Private International Law (Miscellaneous Provisions) Act 1995, s 9.
(10) Sottomayor v De Barros (No 1) (1877) 3 PD 1, CA.
(11) Raiffeisen Zentralbank Österreich AG v Five Star General Trading LLC  EWCA Civ 68,  QB 825. See 20.182.
(12) Dicey, ch 4. From the French ‘to (re-)send’.
(13) Or back to the first law.
(14) eg, Blue Sky One Ltd v Mahan Air  EWHC 631 (Comm), and cases there discussed. The common law of Australia is different, at least in relation to torts: Neilson v Overseas Projects Corp of Victoria Ltd, n 3. However, renvoi was applied in the context of succession in Re Haji-Ioannou  EWHC 2310 (QB),  1 All ER (Comm) 303.
(15) Legislation commonly excludes it: Regulation (EC) 593/2008 (Rome I: see further section D), Art 20; Regulation (EC) 864/2007 (Rome II: see further section E), Art 24.
(16) O Kahn-Freund, General Problems of Private International Law (1976) 285.
(17) Re Annesley  Ch 692.
(18) Bell v Kennedy (1868) LR 1 Sc & Div 307.
(19) Henwood v Barlow Clowes International Ltd  EWCA Civ 577,  BPIR 778.
(20) IRC v Bullock  1 WLR 1178, CA.
(21) Udny v Udny (1869) LR 1 Sc & Div 441.
(22) Re O’Keefe  Ch 124. Yugoslav domicile, eg, would be a rather awkward connecting factor.
(23) Council Regulation (EC) 44/2001, as to which see 20.32ff. The definition of domicile is in Civil Jurisdiction and Judgments Order 2001, SI 2001/3929, Sch 1.
(24) See 20.37.
(25) Rome I Regulation, Art 19; Rome II Regulation, Art 23.
(26) eg, Unfair Contract Terms Act 1977, s 27.
(27) On Employment Rights Act 1996, s 94, eg, see Serco Ltd v Lawson  UKHL 3,  ICR 250; Ravat v Halliburton Manufacturing Services Ltd  UKSC 1,  ICR 389. On Senior Courts Act 1981, s 36 (service of writ of subpoena), see Masri v Consolidated Contractors International Co SAL (No 4)  UKHL 43,  1 AC 90.
(28) For a recent example, see Joujou v Masri  EWCA Civ 746,  2 CLC 566. It should be noted that US courts make much more frequent reference to the principle.
(29) See further A Briggs, ‘The Principle of Comity in Private International Law’ (2012) 354 Recueil des cours 69.
(30) Dicey, chs 7 and 8.
(31) Kamouh v Associated Electrical Industries International Ltd  QB 199.
(32) Bumper Development Corp v Commissioner of Police of the Metropolis  1 WLR 1362, CA.
(33) South Carolina Insurance Co v Assurantie Maatschappij ‘De Zeven Provincien’ NV  1 AC 24.
(34) Harding v Wealands  UKHL 32,  2 AC 1.
(35) Motorola Credit Corp v Uzan  EWCA Civ 752,  1 WLR 113.
(36) Case C-391/95 Van Uden Maritime BV v Deco-Line  ECR I-7091. As to the Brussels I Regulation, see 20.32.
(37) Airbus Industrie GIE v Patel  1 AC 119. No such order may be made in respect of civil or commercial proceedings before the courts of an EU member state: Case C-159/02 Turner v Grovit  ECR I-3565.
(38) Masri v Consolidated Contractors International Co SAL (No 2)  EWCA Civ 303,  QB 450.
(39) Arab Monetary Fund v Hashim  1 Lloyd’s Rep 589, 599–600, CA.
(40) Dicey, Rule 3.
(41) USA v Inkley  QB 255, CA.
(42) Government of India v Taylor  AC 491.
(43) SA Consortium General Textiles v Sun and Sand Agencies Ltd  QB 279, CA.
(44) A-G (UK) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30.
(45) Equatorial Guinea v Royal Bank of Scotland International  UKPC 7; Mbasogo v Logo Ltd  EWCA Civ 1370,  QB 846.
(46) Iran v Barakat Galleries Ltd  EWCA Civ 1374,  QB 22.
(47) Re State of Norway’s Application (Nos 1 and 2)  1 AC 723.
(48) QRS 1 ApS v Fransden  1 WLR 2169.
(49) QRS 1 ApS v Fransden  1 WLR 2169.
(50) cf Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd  AC 368, 440–441.
(51) eg, Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5)  UKHL 19,  2 AC 883.
(52) Oppenheimer v Cattermole  AC 249.
(53) Kuwait Airways Corp v Iraq Airways Co (Nos 4 and 5)  UKHL 19,  2 AC 883.
(54) Cf Chaudhary v Chaudhary  Fam 19, CA.
(55) Scott v Att-Gen (1886) LR 11 PD 128, but which could be explained as an orthodox refusal, on grounds of public policy, to recognize an impediment to marriage in the personal law of one of the parties.
(56) Lorentzen v Lydden  2 KB 202, but which was overruled in Peer International Corp v Termidor Music Publishers Ltd  EWCA Civ 1156,  Ch 212.
(57) Dicey, ch 11.
(58) Buttes Gas & Oil Co v Hammer (Nos 2 and 3)  AC 888.
(59) British South Africa Co v Companhia de Moçambique  AC 602; cf Civil Jurisdiction and Judgments Act 1982, s 30.
(60) Lucasfilm Ltd v Ainsworth  UKSC 39,  1 AC 208 (denying the lack of jurisdiction to try a claim based on foreign copyright, but not questioning the rule as to patents). The Defamation Act 2013 will remove subject matter jurisdiction, where the defendant is not domiciled in a member state, from cases of defamation in which England is not—in the light of the totality of publication—the most appropriate forum. This seems to be an excessive reaction.
(61) Lucasfilm Ltd v Ainsworth  UKSC 39,  1 AC 208.
(62) State Immunity Act 1978.
(63) International Organizations Act 1968.
(64) Regulation (EC) 44/2001,  OJ L12/1, as amended.
(65) Civil Jurisdiction and Judgments Act 1982, Sch 1. The European Court has said repeatedly that there is continuity of interpretation between Convention and Regulation: see Case C-533/07 Falco Privatstiftung v Weller-Lindhorst  ECR I-3327.
(66) The Brussels Convention was in force in England from 1987. With effect from 10 January 2015 the Brussels I Regulation will be amended by Regulation (EU) 1215/2012,  OJ L351/1, which will make a number of changes. The most significant of these are to the way the Regulation deals with the exclusion of arbitration from its scope, to the substantive validity of jurisdiction agreements, to the effect of lis pendens when a court designated with jurisdiction by agreement is seised second in time, and to lis pendens when there are proceedings in the courts of a non-member state. Other changes are of marginal importance.
(67) Treaty on the Functioning of the European Union (TFEU), Art 267.
(68) Jenard Report  OJ C59/1; Schlosser Report  OJ C59/71; 1982 Act, s 3(3).
(69)  OJ L339/1, which supersedes the original (1988) Lugano Convention.
(70) CPR, r 6.34.
(71) CPR, r 6.33.
(72) 1982 Act, Sch 4.
(73) Case C-364/93 Kleinwort Benson Ltd v City of Glasgow DC  ECR I-415.
(74) The cases are innumerable.
(75) Case 144/86 Gubisch Maschinenfabrik KG v Palumbo  ECR 4861.
(76) Case C-351/89 Overseas Union Insurance Ltd v New Hampshire Insurance Co  ECR I-3317; Case C-116/02 Erich Gasser GmbH v MISAT srl  ECR I-14692.
(77) Case C-266/01 Préservatrice Foncière TIARD v Netherlands  ECR I-4867.
(78) Case C-271/00 Gemeente Steenbergen v Baten  ECR I-10489; Case C-433/01 Freistaat Bayern v Blijdenstein  ECR I-981.
(79) Case C-167/00 VfK v Henkel  ECR I-8111.
(80) Case C-406/09 Realchemie Nederland BV v Bayer CropScience AG  Bus LR 1825.
(81) Case C-292/05 Lechouritou v Germany  ECR I-1519.
(82) Case C-292/08 German Graphics Graphische Maschinen GmbH v van der Schee  ECR I-8421.
(83) Case C-111/08 SCT Industri AB (in liq) v Alpenblume AB  ECR I-5655; cf Case C-213/10 F-Tex SIA v Lietuvos-Anglijos UAB ‘Jadecloud-Vilma’  ECR I-(19 April),  ILPr 523.
(84) Case C-190/89 Marc Rich & Co AG v Società Italiana Impianti PA  ECR I-3855; Case C-185/07 Allianz SpA v West Tankers Inc  ECR I-663.
(85) Case C-391/95 Van Uden Maritime BV v Deco Line  ECR I-7091.
(86) Case C-129/92 Owens Bank Ltd v Bracco  ECR I-117.
(87) Civil Jurisdiction and Judgments Order 2001, Sch 1,
(88) Civil Jurisdiction and Judgments Order 2001, Sch 1, para 9.
(89) Though for the purposes of Art 22.2 of the Regulation (on which see 20.41), the definition of a company’s seat is given by SI 2001/3929, Sch 1, para 10.
(90) Article 60.
(91) Civil Jurisdiction and Judgments Act 1982, s 45.
(92) See 20.74.
(93) Case C-280/90 Hacker v Euro-Relais GmbH  ECR I-1111; Case C-8/98 Dansommer A/S v Götz  ECR I-393; Case C-73/04 Klein v Rhodos Management Ltd  ECR I-8667.
(94) Case 73/77 Sanders v Van der Putte  ECR 2383 (business goodwill in shop lease). For the meaning of tenancy, see Case C-73/04 Klein v Rhodos Management Ltd  ECR I-8667 (timeshare).
(95) Case 158/87 Scherrens v Maenhout  ECR 3791.
(96) Case C-343/04 Land Oberösterreich v ČEZ as  ECR I-4557.
(97) Case C-294/92 Webb v Webb  ECR I-1717.
(98) Case C-343/04 Land Oberösterreich v ČEZ as  ECR I-4557.
(99) Case C-343/04 Land Oberösterreich v ČEZ as  ECR I-4557.
(100) Case C-144/10 BVG v JP Morgan Chase Bank NA  ECR I-3961.
(101) Grupo Torras SA v Sheikh Fahad Mohammed al Sabah  1 Lloyd’s Rep 7, CA.
(102) Case C-372/07 Hassett v South Eastern Health Board  ECR I-7403.
(103) Re Hayward  Ch 45.
(104) Case 288/82 Duijnstee v Goderbauer  ECR 3663.
(105) Case C-4/03 GAT v LuK  ECR I-6509.
(106) Case C-261/90 Reichert v Dresdner Bank (No 2)  ECR I-2149.
(107) Case 150/80 Elefanten Schuh GmbH v Jacqmain  ECR 1671.
(108) CPR Part 11.
(109) Case 27/81 Rohr v Ossberger  ECR 2431.
(110) Domicile, in the case of insurance and consumer contracts; the place of work in employment contracts.
(111) Which can actually disadvantage the weaker party: Sherdley v Nordea Life & Pension SA  EWCA Civ 88,  Lloyd’s Rep IR 437; it may validate jurisdiction agreements for a non-member state: Case C-154/11 Mahamdia v Algeria  ECR I-(July 19),  ILPr 779.
(112) See 20.65.
(113) Case C-412/98 Universal General Insurance Co v Groupe Josi Reinsurance Co SA  ECR I-5925.
(114) Case C-77/04 GIE Réunion Européenne v Soc Zurich España  ECR I-4509.
(115) Case C-463/06 FBTO Schaderverzekeringen NV v Odenbreit  ECR I-11321.
(116) Case C-269/95 Benincasa v Dentalkit Srl  ECR I-3767; see also Case C-99/96 Mietz v Intership Yachting Sneek BV  ECR I-2277. On investment contracts entered into by private individuals, see Case C-89/91 Shearson Lehmann Hutton v TVB  ECR I-139; Case C-318/93 Brenner v Dean Witter Reynolds Inc  ECR I-4275.
(117) Case C-585/08 Pammer v Reederei Karl Schlüter GmbH & Co KG, Case C-144/09 Hotel Alpenhof GmbH v Heller (joined cases)  ECR I-12527.
(118) Case C-464/01 Gruber v Bay Wa AG  ECR I-439.
(119) Case C-89/91 Shearson Lehmann Hutton v TVB  ECR I-139.
(120) See Benatti v WPP Holdings Italy  EWCA Civ 263.
(121) Article 19.
(122) Case C-125/92 Mulox IBC v Geels  ECR I-4075; Case C-383/95 Rutten v Cross Medical Ltd  ECR I-57; Case C-37/00 Weber v Universal Ogden Services Ltd  ECR I-2013.
(123) Hough v P & O Containers Ltd  QB 834.
(124) cf Hellenic Steel Co v Svolmar Shipping Co (The Komninos S)  1 Lloyd’s Rep 370, CA.
(125) See 20.74.
(126) Case 24/76 Estasis Salotti v RUWA  ECR 1831; Case C-159/97 Trasporti Castelletti Spedizioni Internazionali SpA v Hugo Trumpy SpA  ECR I-1597.
(127) Case C-105/95 MSG v Les Gravières Rhénanes SARL  ECR I-911.
(128) Case C-105/95 MSG v Les Gravières Rhénanes SARL  ECR I-911.
(129) Case 221/84 Berghöfer v ASA SA  ECR 2699.
(130) Case 71/83 The Tilly Russ  ECR 2417; Case C-387/98 Coreck Maritime GmbH v Handelsveem BV  ECR I-9337. Otherwise if the third party is said to be bound otherwise than by means of legal succession: Case C-112/03 Soc financière et industrielle de Peloux v AXA Belgium  ECR I-3707; Case C-543/10 Refcomp SpA v Axa Corporate Solutions Assurance SA  ECR I-(Feb 7),  1 Lloyd’s Rep 449.
(131) Case C-214/89 Powell Duffryn plc v Petereit  ECR I-1745.
(132) Case 25/79 Sanicentral GmbH v Collin  ECR 3423; Case 150/80 Elefanten Schuh GmbH v Jacqmain  ECR 1671; Case C-159/97 Trasporti Castelletti Spedizioni Internazionali SpA v Hugo Trumpy SpA  ECR I-1597.
(133) Case C-269/95 Benincasa v Dentalkit Srl  ECR I-3767.
(134) Case C-228/92 Custom Made Commercial Ltd v Stawa Metallbau GmbH  ECR I-2913.
(135) Case 34/82 Peters v ZNAV  ECR 987.
(136) Case 34/82 Peters v ZNAV  ECR 987.
(137) Case C-214/89 Powell Duffryn plc v Petereit  ECR I-1745.
(138) Case C-26/91 Jakob Handte GmbH v Traitements Mécano-chimiques des Surfaces  ECR I-3967.
(139) Case 38/81 Effer SpA v Kantner  ECR 825.
(140) Boss Group Ltd v Boss France SA  1 WLR 351, CA.
(141) Kleinwort Benson Ltd v Glasgow City Council  1 AC 153 (on the intra-UK provisions of Sch 4 to the 1982 Act). The authority of this case is restricted to such rare cases.
(142) Case C-334/00 Fonderie Officine Mecchaniche Tacconi SpA v HWS Maschinenfabrik GmbH  ECR I-7357.
(143) Case 14/76 De Bloos Sprl v Bouyer SA  ECR 1497. It may be difficult to determine whether an obligation to pay a sum of money on the occurrence of a certain event is a performance, or a secondary, obligation.
(144) Case 266/85 Shenavai v Kreischer  ECR 239.
(145) Case 12/76 Industrie Tessili Italiana Como v Dunlop AG  ECR 1473.
(146) Case C-381/08 Car Trim GmbH v KeySafety Systems srl  ECR I-1255.
(147) Case C-386/05 Color Drack GmbH v Lexx International Vertriebs GmbH  ECR I-3699; Case C-19/09 Wood Floor Solutions Andreas Domberger GmbH v Silva Trade SA  ECR I-2121.
(148) Case C-533/07 Falco Privatstiftung v Weller-Lindhorst  ECR I-3327.
(149) Who need not necessarily be the victim: Case C-133/11 Folien Fischer AG v Ritrama SpA  ECR I-(Oct 25),  2 WLR 353.
(150) Case 21/76 Handelskwekerij GJ Bier BV v Mines de Potasse d’Alsace  ECR 1875.
(151) Case 364/93 Marinari v Lloyds Bank plc  ECR I-2719.
(152) Case C-189/09 Zuid-Chemie BV v Phillipo’s Mineralenfabriek NV/SA  ECR I-6917.
(153) Case C-168/02 Kronhofer v Maier  ECR I-6009.
(154) Case C-68/93 Shevill v Presse Alliance SA  ECR I-415.
(155) Case C-509/09 eDate Advertising GmbH v X, Case C-161/10 Martinez v MGN Ltd (joined cases)  ECR I-(Oct 25),  QB 654.
(156) Case C-220/88 Dumez France SA v Hessische Landesbank  ECR I-49.
(157) Case C-364/93 Marinari v Lloyds Bank plc  ECR I-2719.
(158) Case C-68/93 Shevill v Presse Alliance SA  ECR I-415.
(159) Domicrest Ltd v Swiss Bank Corporation  QB 548.
(160) Case 189/87 Kalfelis v Bankhaus Schröder Munchmeyer Hengst & Co  ECR 5565.
(161) Kleinwort Benson Ltd v Glasgow City Council  1 AC 153.
(162) Section D.
(163) Section E.
(164) See 20.171.
(165) Agnew v Länsförsäkringsbolagens AB  1 AC 223.
(166) Case 218/86 SAR Schotte GmbH v Parfums Rothschild Sarl  ECR 4905.
(167) Case C-89/91 Shearson Lehmann Hutton v TVB  ECR I-139, 169.
(168) Gómez v Gómez Monche-Vives  EWCA Civ 1065,  Ch 245.
(169) The possibility is explicitly rejected by Case 189/87 Kalfelis v Bankhaus Schröder Munchmeyer Hengst & Co  ECR 5565.
(170) Case C-103/05 Reisch Montage AG v Kiesel Baumaschinen Handels GmbH  ECR I-6827; Case C-98/06 Freeport plc v Arnoldsson  ECR I-839; Case C-145/10 Painer v Standard Verlags GmbH  ECR I-(Dec 1); Case C-616/10 Solvay SA v Honeywell Fluorine Products Europe BV  ECR I-(July 12).
(171) Case C-365/88 Kongress Agentur Hagen GmbH v Zeehaghe BV  ECR I-1845.
(172) Hough v P & O Containers Ltd  QB 834.
(173) cf Jordan Grand Prix Ltd v Baltic Insurance Group  2 AC 127.
(174) Case C-351/89 Overseas Union Insurance Ltd v New Hampshire Insurance Co  ECR I-3317.
(175) See 20.74.
(176) Case C-116/02 Erich Gasser GmbH v MISAT srl  ECR I-14693. Regulation (EU) 1215/2012, in effect from 10 January 2015, will reverse this, and the court designated with exclusive jurisdiction will be permitted to pre-empt another court seised earlier.
(179) Case C-406/92 The Tatry  ECR I-5439. See also Case C-351/96 Drouot Assurances SA v CMI  ECR I-3075 (insurers and insureds); Kolden Holdings Ltd v Rodette Commerce Ltd  EWCA Civ 10,  Bus LR 1051 (assignees).
(181) Case 144/86 Gubisch Maschinenfabrik KG v Palumbo  ECR 4861.
(183) Stribog Ltd v FKI Engineering Ltd  EWCA Civ 622,  Bus LR 1410.
(184) Sarrio SA v Kuwait Investment Authority  1 AC 32.
(185) Canada Trust Co v Stolzenberg (No 2)  1 AC 1; Bols Distilleries v Superior Yacht Services  UKPC 45,  1 WLR 12.
(186) Case C-281/02 Owusu v Jackson  ECR I-1383.
(187) In making the reference the Court of Appeal acted unwisely.
(188) Haji-Ioannou v Frangos  2 Lloyd’s Rep 337, CA.
(189) Case 387/98 Coreck Maritime GmbH v Handelsveem BV  ECR I-9337.
(190) Ferrexpo AG v Gilson Investments Ltd  EWHC 721 (Comm),  1 Lloyd’s Rep 588, applying Art 22.2 by analogy, and not following Catalyst Investment Group Ltd v Lewinsohn  EWHC 1964 (Ch),  Ch 218.
(191) The changes to be made by Regulation (EU) 1215/2012, in force from 10 January 2015, will address this only partially, by allowing the court to decline jurisdiction only where the proceedings in the nonmember state were commenced first in time.
(192) Continental Bank NA v Aeakos Compania Naviera SA  1 WLR 588, CA.
(193) Case C-159/02 Turner v Grovit  ECR I-3565.
(194) Case C-185/07 Allianz SpA v West Tankers Inc  ECR I-663.
(195) Case C-220/95 Van Uden Maritime BV v Deco-Line  ECR I-7091.
(196) CPR 7 PD paras 5A and 5B.
(197) See 20.229.
(198) Texan Management Ltd v Pacific Electric Wire & Cable Co Ltd  UKPC 46.
(199) The leading cases are Spiliada Maritime Corp v Cansulex Ltd  AC 460, and Connelly v RTZ Corp plc  AC 854.
(200) Connelly v RTZ Corp plc  AC 854.
(201) Connelly v RTZ Corp plc  AC 854; Lubbe v Cape plc  1 WLR 1545, HL. The Human Rights Act 1998 would direct the same outcome.
(202) The Abidin Daver  AC 398; Spiliada Maritime Corp v Cansulex Ltd  AC 460, 478.
(203) Cherney v Deripaska  EWCA Civ 849,  2 All ER (Comm) 456; Altimo Holdings & Investment Ltd v Kyrgyz Mobil Tel Ltd  UKPC 7,  1 WLR 1804.
(204) Donohue v Armco Inc  UKHL 64;  1 Lloyd’s Rep 425.
(205) Hoerter v Hanover Telegraph Works (1893) 10 TLR 103, CA.
(206) Sabah Shipyard (Pakistan) Ltd v Pakistan  EWCA Civ 1643,  2 Lloyd’s Rep 571. A clause governed by English law will tend to be construed as exclusive (Sohio Supply Co v Gatoil (USA) Inc  1 Lloyd’s Rep 588, CA).
(207) Fiona Trust & Holding Corp v Privalov  UKHL 40,  Bus LR 1719.
(208) Donohue v Armco Inc  UKHL 64,  1 Lloyd’s Rep 425.
(209) Union Discount Co v Zoller  EWCA Civ 1755,  1 WLR 1517.
(211) CPR, r 6.37(1). The grounds are stated in para 3(1) of Practice Direction 6B to CPR Part 6.
(212) NML Capital Ltd v Argentina  UKSC 31,  2 AC 495.
(213) The Hagen  P 189, CA; Johnson v Taylor Bros  AC 144, 153; Mercedes Benz AG v Leiduck  1 AC 284, 289, PC.
(214) CPR, r 6.37(3).
(215) CPR, r 6.37(1)(b).
(216) Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran  1 AC 438; Altimo Holdings & Investment Ltd v Kyrgyz Mobil Tel Ltd  UKPC 7,  1 WLR 1804.
(217) Amin Rasheed Shipping Corp v Kuwait Insurance Co  AC 50.
(218) Chevron International Oil Co v A/S Sea Team  2 Lloyd’s Rep 356.
(219) Global 5000 Ltd v Wadhawan  EWCA Civ 13 (though the claim need not be founded on the contract).
(220) RSC Order 11, r 1(1)(f), as interpreted in Metall und RohstoffAG v Donaldson Lufkin & Jenrette Inc  QB 391, CA.
(221) Metall und RohstoffAG v Donaldson Lufkin & Jenrette Inc  QB 391, CA.
(222) Metall und RohstoffAG v Donaldson Lufkin & Jenrette Inc  QB 391, CA.
(223) Unilever plc v Gillette (UK) Ltd  RPC 583, CA.
(224) ISC Technologies Ltd v Guerin  2 Lloyd’s Rep 430; Polly Peck International plc v Nadir (CA, 17 March 1993) interpreting RSC Order 11, r 1(1)(t).
(225) Cecil v Bayat  EWHC 641 (Comm) (the point was not considered on appeal).
(226) Within the meaning of the Civil Jurisdiction and Judgments Order 2001: CPR, r 6.31(i).
(227) Mercedes Benz AG v Leiduck  1 AC 284, PC.
(228) The judgment or award must have been given by the time permission is sought: Mercedes Benz AG v Leiduck  1 AC 284, PC.
(229) Senior Courts Act 1981, s 51.
(230) But CPR, r 6.33(3) appears to allow service in such cases to be made without permission. The rules are not coherent.
(231) Spiliada Maritime Corp v Cansulex Ltd  AC 460, interpreting RSC Order 11, r 4(2); VTB Capital plc v Nutritek International Corp  UKSC 5,  2 WLR 398.
(232) cf Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran  1 AC 438.
(233) Joint Stock Asset Management Co Ingosstrakh-Investments v BNP Paribas SA  EWCA Civ 644,  1 Lloyd’s Rep 649.
(234) CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; Carlyle Capital Corp Ltd v Conway (27 April 2012, Guernsey CA); cf Star Reefers Pool Inc v JFC Group Co Ltd  EWCA Civ 14,  1 Lloyd’s Rep 376.
(235) Masri v Consolidated Contractors International Co SAL (No 3)  EWCA Civ 625,  QB 450.
(236) Airbus Industrie GIE v Patel  1 AC 119.
(237) Donohue v Armco Inc  UKHL 64,  1 Lloyd’s Rep 425.
(238) Practice Direction 6B, para 3.1(6)(d).
(239) Case C-159/02 Turner v Grovit  ECR I-3565.
(240) Société Nationale Industrielle Aérospatiale v Lee Kui Jak  AC 871, PC; Airbus Industrie GIE v Patel  1 AC 119.
(241) Though an injunction to protect the jurisdiction of the English court may not require proof of such wrongfulness.
(242) Midland Bank plc v Laker Airways Ltd  QB 689, CA.
(243) CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345.
(244) Midland Bank plc v Laker Airways Ltd  QB 689, CA.
(245) Amchem Products Ltd v British Columbia (Workers’ Compensation Board)  1 SCR 897.
(246) The Angelic Grace  1 Lloyd’s Rep 87, 95, CA.
(247) Continental Bank NA v Aeakos Compania Naviera SA  1 WLR 588, CA; The Angelic Grace  1 Lloyd’s Rep 87, 95, CA.
(248) Donohue v Armco Inc  UKHL 64,  1 Lloyd’s Rep 425; Royal Bank of Scotland plc v Highland Financial Partners LP  EWHC 1278 (Comm).
(249) 1982 Act, s 25 (as amended).
(250) 1982 Act, s 25(2) (as amended); Motorola Credit Corp v Uzan  EWCA Civ 752,  1 WLR 1113.
(251) Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2)  1 AC 853.
(252) Under the Brussels I Regulation. The Lugano Convention, applicable to Iceland, Norway and Switzerland, is practically identical.
(253) The rules for recognition and enforcement of judgments from Iceland, Norway and Switzerland, under the Lugano Convention, are practically identical to those of the Regulation, and do not require separate treatment.
(254) CPR, r 74.10.
(255) Article 32.
(256) Case C-129/92 Owens Bank Ltd v Bracco  ECR I-117.
(257) Landhurst Leasing plc v Marcq  ILPr 822, CA.
(258) Case C-456/11 Gothaer Allgemeine Versicherung AG v Samskip GmbH  ECR I-(Nov 15),  2 WLR 520.
(259) Case C-260/97 Unibank A/S v Christensen  ECR I-3715.
(260) For the differences, see Case C-414/92 Solo Kleinmotoren GmbH v Boch  ECR I-2237.
(261) See 20.35.
(262) Case 29/76 LTU GmbH & Co v Eurocontrol  ECR 1541; Case 145/86 Hoffmann v Krieg  ECR 645.
(263) Case C-220/95 Van den Boogaard v Laumen  ECR I-1147; and see Art 48.
(264) cf Case 145/86 Hoffmann v Krieg  ECR 645.
(265) Case C-391/95 Van Uden Maritime BV v Deco-Line  ECR I-7091.
(266) See 20.107.
(267) National Navigation Co v Endesa Generacion SA  EWCA Civ 1397,  1 Lloyd’s Rep 193.
(268) Article 28.
(269) Article 35, first paragraph. Breach of a jurisdiction clause is not included; nor is violation of the provisions on employment contracts.
(270) Except where the defendant was present within the territory of the adjudicating court: see further 20.124.
(271) At least where Art 34.1 is concerned: Case C-78/95 Hendrickman v Magenta Druck & Verlag GmbH  ECR I-4943. No others are permitted, even that the judgment has been paid in the state of origin: Case C-139/10 Prism Investments BV v Van der Meer  ECR I-(Oct 13),  ILPr 239 (but the objection may be taken at execution).
(272) Articles 36 and 45.
(273) Case C-394/07 Gambazzi v Daimler Chrysler Canada Inc  ECR I-2563.
(274) Interdesco SA v Nullifire Ltd  1 Lloyd’s Rep 180.
(275) Case C-7/98 Krombach v Bamberski  ECR I-1935.
(276) Case 228/81 Pendy Plastic Products v Pluspunkt  ECR 2723; Case 49/84 Debaecker and Plouvier v Bouwman  ECR 1779.
(277) Case C-78/95 Hendrickman v Magenta Druck und Verlag GmbH  ECR I-4943.
(278) Case C-420/07 Apostolides v Orams  ECR I-3571.
(279) Case 145/86 Hoffmann v Krieg  ECR 645.
(280) Case 144/86 Gubisch Maschinenfabrik KG v Palumbo  ECR 4861.
(282) Reciprocal Enforcement of Foreign Judgments (Australia) Order 1994, SI 1994/1901, Sch, art 3.
(283) Reciprocal Enforcement of Foreign Judgments (Canada) Order 1987, SI 1987/468, Sch, art IX.
(284) Case C-99/96 Mietz v Intership Yachting Sneek BV  ECR I-2277.
(285) Case C-145/86 Hoffmann v Krieg  ECR 645.
(286) cf Schlosser  OJ C59/71, 127–8.
(287) Civil Jurisdiction and Judgments Order 2001, Sch 1, para 2. Regulation (EU) 1215/2012, in force from 10 January 2015, will alter the procedure. Registration will be purely administrative, and it will be for the judgment debtor to bear the burden of making application for an order for the refusal of enforcement. The substantive grounds will, however, remain substantially the same.
(288) Article 53 of the Regulation and CPR, r 74.4.
(289) CPR, r 74.3.
(290) An English lawyer would more naturally read this as ‘apply to set aside’.
(291)  OJ L143/15.
(292) See Case C-292/10 G v De Visser  ECR I-(Mar 15),  QB 168.
(293) cf Case C-619/10 Trade Agency Ltd v Seramico Investments Ltd  ECR I-(Sept 6).
(294) The Sennar (No 2)  1 WLR 490, HL; cf Desert Sun Loan Corp v Hill  2 All ER 847, CA.
(295) Schibsby v Westenholz (1870) LR 6 QB 155.
(296) Emanuel v Symon  1 KB 302, CA.
(297) Adams v Cape Industries plc  Ch 433, CA. If sued in a federal court he must be present within the federation; if in a state court, in the state: at 557.
(298) cf the application of the lex situs in relation to property; section F.
(299) State Bank of India v Murjani Marketing Group Ltd (CA, 27 March 1991); JSC Aeroflot-Russian Airlines v Berezovsky  EWHC 3017 (Ch).
(300) Adams v Cape Industries plc  Ch 433, CA.
(301) cf Littauer Glove Corp v Millington (FW) (1920) Ltd (1928) 44 TLR 746.
(302) Adams v Cape Industries plc  Ch 433, 531, CA.
(303) Adams v Cape Industries plc  Ch 433, 532–539, CA.
(304) On submission and additional claims, see Murthy v Sivajothi  1 WLR 467, CA.
(305) 1982 Act, s 33(1), effectively reversing the effect of Henry v Geoprosco International  QB 726, CA.
(306) AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC  EWCA Civ 647,  1 WLR 920; cf Marc Rich & Co AG v Soc Italiana Impianti PA (No 2)  1 Lloyd’s Rep 624, CA.
(307) Pemberton v Hughes  1 Ch 781. Whether a challenge to the validity of a power of attorney to accept service constitutes a challenge to the jurisdiction protected by s 33, arose in Desert Sun Loan Corp v Hill  2 All ER 847, CA.
(308) SA Consortium General Textiles v Sun and Sand Agencies Ltd  QB 279, CA.
(309) Vogel v RA Kohnstamm Ltd  1 QB 133.
(310) Godard v Gray (1870) LR 6 QB 139.
(311) 1982 Act, s 32; Marc Rich & Co AG v Società Italiana Impianti PA  2 Lloyd’s Rep 624, CA; though cf AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC  EWCA Civ 647,  1 WLR 920.
(312) Abouloffv Oppenheimer (1882) 10 QBD 295, CA; Syal v Heyward  2 KB 443, CA; Owens Bank Ltd v Bracco  2 AC 443; Altimo Holdings & Investment Ltd v Kyrgyz Mobil Tel Ltd  UKPC 7,  1 WLR 1804.
(313) Jet Holdings Inc v Patel  1 QB 335, CA.
(314) Hunter v Chief Constable of the West Midlands  QB 283, CA.
(315) cf Keele v Findley (1991) 21 NSWLR 444.
(316) House of Spring Gardens Ltd v Waite  1 QB 241, CA. Though there is no reason in principle why the findings against the judgment debtor in the second action should not give rise to an estoppel.
(317) Owens Bank Ltd v Etoile Commerciale SA  1 WLR 44, PC; Desert Sun Loan Corp v Hill  2 All ER 847, CA.
(318) Yukos Capital sarl v OJSC Rosneft Oil Co  EWCA Civ 855,  1 All ER 223.
(319) Adams v Cape Industries plc  Ch 433, CA.
(320) Merchant International Co Ltd v NAK Naftogaz Ukrainiy  EWCA Civ 196,  1 WLR 3036; JSC Aeroflot-Russian Airlines v Berezovsky  EWHC 3017 (Ch) (breach of principle of finality).
(321) Government of the USA v Montgomery (No 2)  UKHL 37,  1 WLR 2241, purporting to distinguish Pellegrini v Italy (2001) 35 EHRR 2 (ECtHR).
(322) cf Golubovich v Golubovich  EWCA Civ 810,  Fam 88.
(323) Showlag v Mansour  1 AC 431, PC.
(324) Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2)  1 AC 853.
(325) The defence may yield to an estoppel.
(326) cf Black v Yates  QB 526.
(327) Republic of India v India Steamship Co Ltd, (The Indian Grace)  AC 410; Republic of India v India Steamship Co Ltd (The Indian Grace) (No 2)  AC 878.
(328) Nouvion v Freeman (1889) 15 App Cas 1.
(329) United States of America v Harden  SCR 366.
(330) Lewis v Eliades  EWCA Civ 1758,  1 WLR 692 (though if there are two distinct causes of action, and damages for the one were not multiplied, that one may be enforced).
(331) Protection of Trading Interests Act 1980, s 5.
(332) Reciprocal Enforcement of Judgments (Administration of Justice Act 1920, Part II) (Consolidation) Order 1984, SI 1984/129, as amended by SI 1985/1994, SI 1994/1901, SI 1997/2601.
(333) Administration of Justice Act 1920, s 9.
(334) Administration of Justice Act 1920, s 9(2)(e).
(335) Excluding Québec.
(336) Foreign Judgments (Reciprocal Enforcement) Act 1933, s 4.
(337) Foreign Judgments (Reciprocal Enforcement) Act 1933, s 5.
(338) 1982 Act, s 18; Schs 6, 7.
(339) 1982 Act, s 39; Civil Jurisdiction and Judgments Act 1982 (Gibraltar) Order 1997, SI 1997/2602.
(340) See generally Dicey, ch 32. On the interpretation of the Rome Convention, see the Report of Giuliano and Lagarde  OJ C282/1.
(341) Regulation (EC) 593/2008,  OJ L177/6.
(342) Which continues to apply to contracts made before 17 December 2009.
(343)  OJ C282/1.
(344) The possibility of renvoi to the law of another country is excluded by Art 20.
(345) Such as religious ‘law’: Halpern v Halpern  EWCA Civ 291,  QB 195.
(346) Article 2.
(347) Recital (6).
(348) Contracts (Rights of Third Parties) Act 1999.
(349) Having regard to the likely autonomous definition of ‘contractual obligations’. A claim for breach of warranty of authority is included: Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd  EWCA Civ 265,  1 Lloyd’s Rep 542 (probably governed by same law as principal contract would have been).
(350) Gorjat v Gorjat  EWHC 1537 (Ch),
(351) cf  OJ C282/1, 10.
(352) cf Hedley Byrne & Co v Heller Bros  AC 465.
(353) Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd  EWCA Civ 265,  1 Lloyd’s Rep 542.
(354) Regulation (EC) 44/2001.
(355) Case C-26/91 Jakob Handte GmbH v Traitements Mécano-chimiques des Surfaces  ECR I-3967.
(356) cf Coupland v Arabian Gulf Oil Co  1 WLR 1151, CA.
(357) Henderson v Merrett Syndicates Ltd  2 AC 145.
(358) Regulation (EC) 864/2007,  OJ L199/40.
(359) Article 1.2(a).
(360) Article 1.2(b)
(361) Article 1.2(c).
(362) Article 1.2(d).
(363) Article 1.2(f).
(364) Article 1.2(g). But insofar as contractual, relations between principal and agent, and agent and third party, are not excluded.
(365) Article 1.2(h).
(366) Article 1.3.
(367) Article 1.2(j).
(368) See 20.83. See also Egon Oldendorffv Libera Corp  2 Lloyd’s Rep 64.
(369) Article 1.2(i).
(370) Charron v Montreal Trust Co (1958) 15 DLR (2d) 240, Ont CA.
(371) This will not fall foul of the rule against renvoi, for it does not involve reference to the laws of another country: Dallah Real Estate & Tourism Holding Co v Pakistan  UKSC 46,  AC 763.
(372)  OJ C282/1, 12; see also Egon Oldendorffv Libera Corp  2 Lloyd’s Rep 64; Egon Oldendorff v Libera Corp (No 2)  1 Lloyd’s Rep 380.
(373) Case C-133/08 Intercontainer Interfrigo SC v Balkenende Oosthuizen BV  ECR I-9687.
(374) Recital (20) to the Regulation; British Arab Commercial Bank plc v Bank of Communications  EWHC 281 (Comm),  1 Lloyd’s Rep 664.
(375) Case C-29/10 Koelzsch v Luxembourg  ECR I-1595,  QB 210.
(376) Article 3.3.
(377) Unfair Contract Terms Act 1977, s 27(2).
(378) cf The Hollandia  1 AC 565.
(379) Sections 26, 27.
(380) Ralli Bros v Compania Naviera Sota y Aznar  2 KB 287, CA; Foster v Driscoll  1 KB 470, CA; Regazzoni v KC Sethia (1944) Ltd  AC 301; Lemenda Trading Co Ltd v African Middle East Petroleum Co Ltd  QB 728; Euro-Diam Ltd v Bathurst  1 QB 30.
(381) Royal Boskalis Westminster NV v Mountain  QB 674, CA.
(382) Article 21.
(383) Article 12.
(384) Article 11.
(385) Remedies unknown to English law cannot be granted: Art 1.3. It is uncertain whether specific performance must be ordered in a case in which it would be available under the lex contractus but not, in these circumstances, under English domestic law.
(386) OJSC TNK-BP v Lazurenko  EWHC 2781 (Ch).
(387) Article 10.1.
(388) cf Egon Oldendorffv Libera Corp  2 Lloyd’s Rep 64.
(389) And assuming that is it not an obligation specifically excluded from the material scope of the Regulation under which it would otherwise have fallen.
(390) Article 1.2(a).
(391) Article 1.2(b).
(392) Article 1.2(c).
(393) Article 1.2(d).
(394) Article 1.2(e).
(395) Article 1.3.
(396) Article 1.2(g). There is an ongoing project to reconsider this exception.
(397) Case C-412/10 Homawoo v GMF Assurances SA  ECR I-(Nov 17),  ILPr 49.
(398) The matters in this list are set out in Art 15.
(399) Article 16.
(401) Article 26.
(402) Article 24.
(403) Article 4.3.
(404) Article 2.2.
(405) Article 6.3.
(406) Section 13 of the 1995 Act.
(407) Red Sea Insurance Co Ltd v Bouygues SA  1 AC 190.
(408) Metall und RohstoffAG v Donaldson Lufkin & Jenrette Inc  QB 391, CA.
(409) Bata v Bata  WN 366, CA; cf Shevill v Presse Alliance SA  2 WLR 1, CA, and as Case C-68/93 Shevill v Presse Alliance SA  ECR I-415.
(410) Schapira v Ahronson  ILPr 587, CA; Berezovsky v Michaels  1 WLR 1004, HL. The same principle has been applied to defamation by Internet publication: Dow Jones Inc v Gutnick (2003) 210 CLR 575. See also, however, Defamation Act 2013 which limits the jurisdiction of the court.
(411) Berezovsky v Michaels  1 WLR 1004, HL.
(412) Section 11 of the 1995 Act.
(413) See 20.05.
(414) Potter v Broken Hill Pty Co Ltd (1906) 3 CLR 459.
(415) Lucasfilm Ltd v Ainsworth  UKSC 39,  1 AC 208.
(416) Dicey, ch 22; Re Hoyles  1 Ch 179, 185.
(417) British South Africa Co v Companhia de Moçambique  AC 602; Hesperides Hotels Ltd v Aegean Turkish Holidays Ltd  AC 508.
(418) Re Polly Peck International plc (in administration) (No 2)  2 All ER 812, 828, CA.
(419) Civil Jurisdiction and Judgments Act 1982, s 30.
(420) Authority hardly exists. See Duke v Andler  SCR 734; cf Shami v Shami  EWHC 664 (Ch) (appeal dismissed without reference to this point:  EWCA Civ 227).
(421) Lucasfilm Ltd v Ainsworth  UKSC 39,  1 AC 208.
(422) See 20.41; and also Griggs Group Ltd v Evans  Ch 153.
(423) (1750) 1 Ves Sen 444.
(424) cf Case C-294/92 Webb v Webb  ECR I-1717 (a case on what is now Art 22.1 of the Brussels I Regulation).
(425) Bank of Africa v Cohen  2 Ch 129, CA.
(426) Whether the thing is negotiable is determined by its situs at the time of its purported negotiation.
(427) Cammell v Sewell (1860) 5 H & n 728.
(428) Winkworth v Christie, Manson & Woods Ltd  Ch 496.
(429) Armour v Thyssen Edelstahlwerke AG  2 AC 339.
(430) Glencore International AG v Metro Trading Inc  1 Lloyd’s Rep 283.
(431) Dicey, Rule 133, Exception.
(432) Contracts (Applicable Law) Act 1990, Sch 1.
(433) Raiffeisen Zentralbank Österreich AG v Five Star Trading LLC  EWCA Civ 68,  QB 825; Cox v Ergo Versicherung AG  EWCA Civ 1001.
(434) Assuming that shares are assigned, though the proper analysis is surrender and re-issue, rather than assignment by the original shareholder.
(435) Macmillan Inc v Bishopsgate Investment Trust plc (No 3)  1 WLR 378, CA.
(436) Peer International Corp v Termidor Music Publishers Ltd  EWCA Civ 1156,  1 WLR 849.
(437) Luther v Sagor  3 KB 532, CA; Princess Paley Olga v Weisz  1 KB 718, CA.
(438) Williams & Humbert v W & H Trade Marks (Jersey) Ltd  AC 368.
(439) Oppenheimer v Cattermole  AC 276; Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5)  UKHL 19,  2 AC 883.
(440) Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd  AC 368.
(441) Re Russian Bank for Foreign Trade  Ch 745.
(442) A-G for New Zealand v Ortiz  AC 1, 41.
(443) Iran v Barakat Galleries Ltd  EWCA Civ 1374,  QB 22.
(444) Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd  AC 368.
(445) Soc Eram Shipping Co Ltd v Hong Kong and Shanghai Banking Corp  UKHL 30,  1 AC 260 (applying this rule to third party debt orders).
(446) Dicey, ch 2.
(447) Hereafter the 1987 Act, Sch 1.
(448) Article 2.
(449) 1987 Act, s 1(2).
(450) Article 22.
(451) Articles 6, 7.
(452) Martin v Secretary of State for Work & Pensions  EWCA Civ 1289.
(453) Article 8.
(454) Oakley v Osiris Trustees  UKPC 2.
(455) Article 18.
(456) Dicey, ch 28.
(457) eg Matrimonial Causes Act 1973, s 24(1)(c).
(458) Re Fitzgerald  1 Ch 573, CA.
(459) Duke of Marlborough v A-G  Ch 78, CA.
(460) Re Cooke’s Trusts (1887) 56 LT 737; Cooper v Cooper (1888) 13 App Cas 88.
(461) De Nicols v Curlier  AC 21.
(462) Radmacher v Granatino  UKSC 42,  1 AC 534.
(463) Re Egerton’s Will Trusts  Ch 593.
(464) cf Murakami v Wiryadi (2010) 268 ALR 377 (NSW CA).
(465) Dicey, ch 26.
(466) New York Breweries Co v A-G  AC 62.
(467) Probate Registrar’s Direction, 30 November 1932; Aldrich v A-G  P 281.
(468) Senior Courts Act 1981, s 25(1).
(469) Re Scott  2 Ch 268, CA.
(470) Re Kloebe (1884) 28 Ch D 175; Re Lorillard  2 Ch 638, CA.
(471) Re Kloebe (1884) 28 Ch D 175.
(472) Re Kloebe (1884) 28 Ch D 175.
(473) New York Breweries v A-G  AC 62.
(474) Regulation (EU) 650/2012,  OJ L201/107, is therefore not discussed here.
(475) Dicey, ch 27.
(476) Re Lorillard  2 Ch 638, CA.
(477) Re Trufort (1887) 36 Ch D 600; Ewing v Orr-Ewing (1883) 9 App Cas 34; Ewing v Orr-Ewing (1885) 10 App Cas 5.
(478) In the Estate of Fuld (No 3)  P 675.
(479) Re Hellmann’s Will (1866) LR 2 Eq 363.
(480) Wills Act 1963, s 1.
(481) Wills Act 1963, s 2(1)(c).
(482) Wills Act 1963, s 2(1)(c).
(483) Whicker v Hume (1858) 7 HLC 124; Re Groos  Ch 572; Re Ross  1 Ch 377.
(484) Nelson v Bridport (1846) 8 Beav 547; Freke v Carbery (1873) LR 16 Eq 461.
(485) Ewing v Orr-Ewing (1883) 9 App Cas 34; Curati v Perdoni  EWCA Civ 1381.
(486) In bonis Reid (1866) LR 1 P & D 74.
(487) Balfour v Scott (1793) 6 Bro PC 550.
(488) Re Maldonado’s Estate  P 233, CA.
(489) See 20.05.
(490) Simonin v Mallac (1860) 2 Sw & Tr 67, Berthiaume v Dastous  AC 79, PC.
(491) Taczanowska v Taczanowski  P 301, CA.
(492) Apt v Apt  P 83, CA; McCabe v McCabe  1 FCR 257, CA.
(493) Simonin v Mallac; Ogden v Ogden  P 46, CA.
(496) Wolfenden v Wolfenden  P 61; Penhas v Tan Soo Eng  AC 304, PC.
(497) Foreign Marriage Act 1892, ss 22 (as amended) and 1, respectively.
(498) Brook v Brook (1861) 9 HLC 193; Sottomayor v De Barros (No 2) (1879) 5 PD 94.
(499) Marriage Act 1949, s 2, applies to any marriage in England and requires each party to be 16 or over.
(501) Breen v Breen  P 144 holds that there is such a requirement. If the law which gives the celebrant power to change the parties’ status concludes that the celebrant has not married the parties, it has a powerful claim to be listened to, even though it will tend to increase the incidence of invalidity of marriages.
(502) There is no authority to this effect, however.
(503) Sottomayor v De Barros (No 2) (1879) 5 PD 94; Ogden v Ogden (alternative ratio).
(504) Szechter v Szechter  P 286, but cf Vervaeke v Smith  1 AC 145.
(505) Ponticelli v Ponticelli  P 204. Authority equally supports the lex fori, by presumed analogy with divorce.
(506) Family Law Act 1986, s 50.
(507) Schwebel v Ungar (1963) 42 DLR (2d) 622, Ont CA, supports the application of the lex domicilii over the non-recognition of the lex fori. This is hard to reconcile with the Family Law Act 1986, s 45.
(508) Regulation (EC) 2201/2003, as to which, see 20.210.
(509) European Communities (Matrimonial Jurisdiction and Judgments) Regulations 2001, SI 2001/310 (as amended by SI 2005/265), reg 9.
(510) Subject to the Private International Law (Miscellaneous Provisions) Act 1995, s 5, a marriage is polyga mous if actually or potentially so.
(511) Lee v Lau  P 14.
(512) Hussain v Hussain  Fam 26, CA.
(513) Private International Law (Miscellaneous Provisions) Act 1995, s 5, removed any incapacity of an English domiciliary to celebrate a potentially polygamous, but actually monogamous, marriage.
(514) Radwan v Radwan (No 2)  Fam 35.
(515) Mohamed v Knot  1 QB 1.
(516) Scott v A-G (1886) 11 PD 128.
(517) Cheni v Cheni  P 85.
(518) Civil Partnership Act 2004, s 3 requires them to be 16 or older, not married or in a registered partnership, and not within the prohibited degrees.
(519) Civil Partnership Act 2004, ss 212–215, Sch 20. The Marriage (Same Sex Couples) Bill 2013, if enacted, will allow same sex marriage in the UK, and will recognize overseas same sex marriages as marriage.
(520) Regulation (EC) 2201/2003,  OJ L338/1, superseding Regulation 1347/2000, which was the original ‘Brussels II’.
(521) Article 3 contains the principal grounds. Article 4 deals with counterclaims; Article 5 with the conversion of separation into divorce.
(522) For countries other than the United Kingdom and Ireland this provision is in terms of nationality, on which see Case C-168/08 Hadadi v Hadadi  ECR I-6871.
(523) Article 66 makes England, rather than the United Kingdom, the relevant territory for the determination of connecting factors.
(524) Case C-68/07 Lopez v Lizazo  ECR I-10403.
(525) Article 7 of the Brussels II bis Regulation.
(526) Article 19.
(527) cf Case C-281/02 Owusu v Jackson  ECR I-1383, though this conclusion was severely doubted in JKN v JCN  EWHC 843 (Fam),  1 FLR 826.
(528) Article 15.
(529) All English divorces must be obtained from a court: Family Law Act 1986, s 44.
(530) cf Vervaeke v Smith  1 AC 145.
(531) Except Denmark, which opted out of the Regulation: Art 2.3.
(532) Article 2.1.
(533) Article 22.
(534) As to which, see 20.108.
(535) Article 24.
(536) Article 26.
(537) Family Law Act 1986, s 46.
(538) Berkovits v Grinberg  Fam 142, effectively following R v Secretary of State for the Home Department, ex p Fatima  AC 527 (a case on the previous legislation).
(539) 1986 Act, s 54(1).
(540) Chaudhary v Chaudhary  Fam 19, CA.
(541) Quazi v Quazi  AC 744.
(542) Berkovits v Grinberg  Fam 142.
(543) H v H (Validity of Japanese Divorce)  EWHC 2989,  1 FLR 1318.
(544) Chaudhary v Chaudhary  Fam 19, CA.
(545) 1986 Act, s 46(5).
(546) 1986 Act, s 46(1); though not necessarily to reattribute marital capacity: s 50.
(547) 1986 Act, s 49(3)(a).
(548) 1986 Act, s 51.
(549) 1986 Act, s 46(2).
(550) It is challenging to see how it might be consistent with English public policy, still less with the Human Rights Act 1998, to recognize a form of divorce which allows a husband to repudiate his wife in much the same way as one might dispose of a chattel, but the issue has not yet been properly faced. The fact that it may be ‘justified’ by religion is surely immaterial.
(551) 1986 Act, s 51(4). This requirement was read minimally in Wicken v Wicken  Fam 224.
(552) Civil Partnership (Jurisdiction and Recognition of Judgments) Regulations 2005, SI 2005/3334; the grounds for annulment are similar. There are further grounds of jurisdiction which will be of limited application. It is irrelevant whether the partnership was one registered in England or overseas.
(553) Civil Partnership (Jurisdiction and Recognition of Judgments) Regulations 2005, SI 2005/3334.
(554) Regulation (EC) 4/2009,  OJ L7/1; SI 2011/1484, both in effect from 18 June 2011. The previous jurisdictional rules are not considered here.
(555) Articles 3-7. Lis alibi pendens is regulated by Art 12.
(556) Sealey v Callan  P 135, CA. In exercising its statutory powers a court may give dominant effect to a pre- or post-nuptial agreement, and no principle of private international law appears to be involved: Radmacher v Granatino  UKSC 42,  1 AC 534.
(557) Macaulay v Macaulay  1 WLR 179.
(558) Maintenance Orders Act 1950, Part II, Maintenance Orders (Facilities for Enforcement) Act 1920, Maintenance Orders (Reciprocal Enforcement) Act 1972, Civil Jurisdiction and Judgments Act 1982.
(559) Article 8.
(560) Article 9 (lawful movement); Art 10 (abduction).
(561) Article 12.
(562) Article 13.
(563) Article 14.
(564) In effect in England from 1 November 2012; see SI 2010/1898 for the implementation legislation.
(565) Re P (GE) (An Infant)  Ch 568, CA.
(566) McKee v McKee  AC 352, PC.
(567) Dicey, ch 19.
(568) J v C  AC 688, PC; Re H (Child Abduction: Rights of Custody)  2 AC 291.
(569) Child Abduction and Custody Act 1985, Sch 2.
(570) Child Abduction and Custody Act 1985, Sch 1.
(571) Re D (A Child) (Abduction: Rights of Custody)  UKHL 51,  1 AC 619.
(572) Re E (Children: Custody Appeal)  UKSC 27,  1 AC 144; Re S (A Child)  UKSC 10 (including harm to the child resulting from harm to the parent who has to return as well).
(573) Re J (A Child) (Custody Rights: Jurisdiction)  UKHL 40,  1 AC 80.
(574) Article 11.
(575) Case C-256/09 Purrucker v Vallés Pérez  ECR I-7349; Case C-296/10 Purrucker v Vallés Pérez (No 2)  ECR I-11163; Case C-195/08 PPU Rinau v Rinau  ECR I-5271; Case C-211/10 PPU Povse v Alpago  ECR I-6669; Case C-491/10 PPU Aguirre Zarraga v Pelz  ECR I-14247; Case C-497/10 PPU Mercredi v Chaffe  ECR I-14309.
(576) Regulation (EC) 4/2009,  OJ L7/1.
(577) Article 4.
(578) Adoption and Children Act 2002, ss 47–51.
(579) Janred Properties Ltd v ENIT  2 All ER 444, CA.
(580) Risdon Iron and Locomotive Works v Furness  1 KB 49, CA; Bonanza Creek Gold Mining Co v R  1 AC 566, PC; Lazard Bros v Midland Bank  AC 289; National Bank of Greece and Athens SA v Metliss  AC 509; Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2)  1 AC 853; JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry  2 AC 418.
(581) Foreign Corporations Act 1991, s 1.
(582) Arab Monetary Fund v Hashim (No 3)  2 AC 114.
(583) Lazard Bros v Midland Bank  AC 289; Russian and English Bank v Baring Bros  1 Ch 435 (if there is a branch in England it cannot sue after the corporation has been dissolved, and should be wound up).
(584) National Bank of Greece and Athens SA v Metliss  AC 509; if the two corporations are incorporated in different countries the lex incorporationis of each must rationally recognize the amalgamation. See also Adams v National Bank of Greece and Athens SA  AC 255 for cases where there may not be a full succession to the rights and liabilities of the former companies.
(585) Adams v National Bank of Greece and Athens SA  AC 225.
(586) The Kommunar (No 2)  1 Lloyd’s Rep 8.
(587) Gasque v Inland Revenue Commissioners  KB 80.
(588) See 20.37.
(589) Janred Properties Ltd v ENIT  2 All ER 444, CA.
(590) Chatenay v Brazilian Submarine Telegraph Co  1 QB 279; Maspons v Mildred (1882) 9 QBD 530, CA; Ruby SS Corporation v Commercial Union Assurance Co Ltd (1933) 150 LT 38, CA. See also Haugesund Kommune v Depfa ACS Bank  EWCA Civ 579,  QB 549.
(591) Adams v National Bank of Greece and Athens SA  AC 255.
(592) Companies Act 2006.
(593) CPR 6.2(2); Saab v Saudi American Bank  4 All ER 321, CA; Sea Assets Ltd v PT Garuda International  4 All ER 371.
(594) Companies Act 2006, s 1139. In addition, personal service may be made on a director or secretary (s 1140), or by leaving process with a person holding a senior position: CPR, r 6.5(3).
(595) Insolvency Act 1986, s 130. If in administration, not without the consent of the administrators or the leave of the court: Insolvency Act 1986, s 11(3)(d).
(596) Companies Act 2006, s 1139(4).
(597) Companies Act 2006, s 1044.
(598) Companies Act 2006, s 1046(2). For companies incorporated in Gibraltar the requirement is permis sive, not mandatory.
(599) Companies Act 2006, s 1046.
(600) Companies Act 2006, s 1056.
(601) Companies Act 2006, s 1139(2)(b). Service under CPR, r 6.5(3) is not permissible if the company does not carry on business in England: SSL International plc v TTK LIG Ltd  EWCA Civ 1170,  1 Lloyd’s Rep 107.
(602) Okura & Co Ltd v Forsbacka Jernverks AB  1 KB 715; cf Adams v Cape Industries plc  Ch 433, CA.
(603) See 20.41.
(604) CPR, r 6.5(3); for the definition of ‘senior position’, see CPR PD 6A, para 6.2(2).
(605) See generally, I Fletcher, Insolvency in Private International Law (2nd edn, 2005).
(606) Article 22.2.
(607) Insolvency Act 1986, s 117.
(608) Insolvency Act 1986, ss 220, 221; Re A Company (No 00359 of 1987)  Ch 210; Re Paramount Airways Ltd  Ch 223, CA.
(609) Re A Company (No 00359 of 1987)  Ch 210; Re A Company (No 003102 of 1991), ex p Nyckeln Finance Co Ltd  BCLC 539.
(610) Insolvency Act 1986, s 225.
(611) Re Bank of Credit and Commerce International SA  BCLC 570.
(612) Re Paramount Airways Ltd  Ch 223, CA; cf Re Seagull Manufacturing Co Ltd (No 2)  Ch 91 (notice under Company Directors Disqualification Act 1986).
(613) Regulation (EC) 1346/2000,  OJ L160/1.
(614) The relevant time is the lodging of the request: Case C-1/04 Staubitz-Schreiber  ECR I-701.
(615) Annex A to the Insolvency Regulation.
(616) And which are further defined in Annex B to the Insolvency Regulation.
(617) For the general scheme, see Art 3. On ‘centre of main interests’, see in particular Case C-341/04 Eurofood IFSC Ltd  ECR I-3813.
(618) Recital (13) to the Regulation.
(619) Case C-339/07 Seagon v Deko Marty Belgium NV  ECR I-767.
(620) Case C-292/08 German Graphics Graphische Maschinen GmbH v Van der Schee  ECR I-8421.
(621) Insolvency Act 1986, s 426(10).
(622) Re HIH Casualty and General Insurance Ltd  UKHL 21,  1 WLR 852.
(623) Bank of Ethiopia v National Bank of Egypt and Ligouri  Ch 513.
(624) Under Chapter II of the Regulation.
(625) Insolvency Act 1986, s 426(4).
(626) Re Bank of Credit and Commerce International SA (No 9)  3 All ER 764.
(627) Insolvency Act 1986, s 426(4), (11); Co-operation of Insolvency Courts (Designation of Relevant Countries and Territories) Order 1986, SI 1986/2123. And see Re HIH Casualty & General Ltd, n 622.
(628) Hughes v Hannover Ruckversicherungs AG  1 BCLC 497, CA.
(629) Cambridge Gas Transport Corp v Official Committee of Unsecured Creditors of Navigator Holdings plc  UKPC 26,  1 AC 508 was held to be wrong in Rubin v Eurofinance SA  UKSC 46,  3 WLR 1019, but the desire to find a way to assist the foreign insolvency court which it manifests will remain. It is not possible to override substantive provisions of law even when the principal administration is overseas: Re BCCI SA  Ch 213.
(631) Rubin v Eurofinance SA  UKSC 46,  1 AC 236.
(632) Cross Border Insolvency Regulations 2006, SI 2006/1030.
(633) See I Fletcher, Insolvency in Private International Law (2nd edn, 2005).
(634) Insolvency Act 1986, s 265.
(635) Insolvency Act 1986, s 265.
(636) Insolvency Act 1986, s 264.
(637) Re Behrends (1865) 12 LT 149; Re Robinson, ex p Robinson (1883) 22 Ch D 816, CA.
(638) cf Re Seagull Manufacturing Co Ltd  Ch 345, CA.
(639) See 20.235.
(640) Re Kloebe (1884) 28 Ch D 175; Re Doetsch  2 Ch 836.
(641) Insolvency Act 1986, ss 283, 306, 436.
(642) Barclays Bank plc v Homan  BCLC 680, CA.
(643) Re Scheibler (1874) 9 Ch App 722.
(644) Re Paramount Airways Ltd  Ch 223, CA.
(645) Insolvency Act 1986, s 281.
(646) Gibbs and Sons v Soc Industrielle et Commerciale des Métaux (1890) 25 QBD 399, CA.
(647) Re Hayward  1 Ch 905.
(648) Re Anderson  1 KB 896.
(649) Re Craig (1916) 86 LJCh 62.
(650) Gibbs and Sons v Soc Industrielle et Commerciale des Métaux (1890) 25 QBD 399, CA.
(651) Insolvency Act 1986, s 426.