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Part IV Commencing and Preventing Proceedings, 11 Declining Jurisdiction: »
From: International Commercial Litigation (2nd Edition)Richard Fentiman
11.01 The grounds on which jurisdiction may be asserted under the Brussels I and Brussels I bis Regulations and the Lugano Convention have been considered.1 The present chapter is concerned with those circumstances in which an English court may (or must) decline to exercise jurisdiction conferred by the Regulations or Convention. It is concerned with a number of defences to jurisdiction which do not involve a challenge to the ground of jurisdiction relied upon by the claimant, but instead address why jurisdiction on that ground should not be exercised. One such...
Part IV Commencing and Preventing Proceedings, 12 Declining Jurisdiction: »
From: International Commercial Litigation (2nd Edition)Richard Fentiman
12.01 Neither the 1968 Brussels Convention, nor Regulation 44/2001, dealt explicitly with the possibility of declining jurisdiction conferred by those instruments in favour of proceedings in a non-Member State, and nor does the Lugano Convention. They provide neither rules conferring exclusive jurisdiction on third-state courts, nor rules governing parallel proceedings in such courts. In Owusu v Jackson1 the CJEU ruled that an English court cannot stay its proceedings on forum conveniens grounds in favour of a third-state court in which proceedings have not...
Part IV Commencing and Preventing Proceedings, 13 Declining Jurisdiction: »
From: International Commercial Litigation (2nd Edition)Richard Fentiman
13.01 English courts have a residual power to determine whether to exercise jurisdiction on the facts of a case. That power has two elements: the power to decline to exercise jurisdiction on forum conveniens grounds; and the court’s residual discretion in the exercise of jurisdiction. Both elements derive from the court’s adjudicatory discretion, although strictly the determination of the forum conveniens is not a matter of discretion but of evaluation.2 Indeed, to speak of the court’s discretion to decline jurisdiction on forum conveniens grounds is merely to...
Part III Liability and Recovery in Multistate Litigation, 4 The Dynamics of Choice of Law »
From: International Commercial Litigation (2nd Edition)Richard Fentiman
4.01 The principal operations in multistate litigation, forum selection, and engineering settlement, are dictated in part by the law applicable in any given forum to issues of liability and recovery. Moreover, whatever the practical importance of disputes concerning jurisdiction and injunctive relief, neither a claim nor a defence can be formulated without considering issues of liability. In cross-border litigation this inevitably exposes issues concerning the law (or laws) governing the substance of a dispute. In contractual disputes, the starting point (and the...
Part V Effective Enforcement, 18 Enforcing Judgment Debts »
From: International Commercial Litigation (2nd Edition)Richard Fentiman
18.01 Many cases end in settlement, but not all. Even those that eventually settle do so partly in the light of the enforceability of any judgment that might be obtained. More importantly, a claimant will not proceed at all unless effective enforcement is likely. Nor will a claimant proceed in a given court unless the judgments of that court are likely to be enforced where the defendant’s assets are located. In that sense the enforcement of judgments makes disputes viable. Disputes, whether concerning jurisdiction or the merits, only arise because enforcement risk...
Part IV Commencing and Preventing Proceedings, 9 Establishing and Challenging Jurisdiction »
From: International Commercial Litigation (2nd Edition)Richard Fentiman
9.01 Venue risk—the risk of litigation in an unfavourable forum—is often avoidable. In many cases the jurisdiction of one court is assured, and proceedings elsewhere prevented, by the presence of an exclusive jurisdiction agreement, but the ubiquity of jurisdiction agreements in commercial contracts does not make the general law of jurisdiction redundant. Not all jurisdiction agreements are exclusive in effect, leaving open the possibility of proceedings in any court of competent jurisdiction. Nor do all such agreements embrace every dispute arising between the...
Part IV Commencing and Preventing Proceedings, 10 Excluded Claims »
From: International Commercial Litigation (2nd Edition)Richard Fentiman
10.01 Exceptionally, an English court will not exercise jurisdiction although in principle a ground of personal or subject-matter jurisdiction is present. A claim (or defence) may be excluded for one of four distinct reasons: where a foreign court has paramount jurisdiction; where the law relied upon, if foreign, is non-justiciable; where the defendant’s conduct is non-justiciable; and where the defendant is immune from suit. The first category embraces, for example, claims concerning immovable property in a foreign country, or rights established by entry on a...
Foreword to the First Edition »
From: International Commercial Litigation (2nd Edition)Richard Fentiman
Part IV Commencing and Preventing Proceedings, 8 The Framework of Jurisdiction »
From: International Commercial Litigation (2nd Edition)Richard Fentiman
8.01 The civil jurisdiction of the English courts depends on two exclusive regimes, residing respectively in the rules of national law and those provided by the applicable international instruments. The European regime comprises three exclusive components. Regulation 44/2001 (Brussels I) regulates proceedings instituted in EU states before 10 January 2015.1 Regulation 1215/2012 (Brussels I bis) regulates proceedings instituted in EU states after 10 January 2015.2 The 2007 Lugano Convention regulates proceedings initiated in EFTA states.3 Although the rules of...
Part I Introduction, 1 Introduction »
From: International Commercial Litigation (2nd Edition)Richard Fentiman
1.01 Commercial activity depends on the assessment and management of risk. Risk determines transaction costs, and the willingness of the parties to contract. Some risks are financial, concerning a counterparty’s credit-worthiness or solvency. Others are legal, concerning the effectiveness of a transaction, the nature of the remedies for default, and the enforcement of those remedies. This is true of domestic transactions as much of multistate transactions—those involving a foreign counterparty or performance abroad. But the legal risks involved in multistate...
Part III Liability and Recovery in Multistate Litigation, 5 The Laws Governing Multistate Transactions »
From: International Commercial Litigation (2nd Edition)Richard Fentiman
5.01 An effective transaction is one founded upon a contract which satisfies three requirements: it is valid; its terms embody the transaction’s purpose; and it is enforceable by appropriate remedies in the event of non-performance. In English law the validity, construction, and enforcement of a contract depend upon the law applicable to the contract by virtue of the rules for choice of law in contract. Where the purpose of a contract is to transfer rights in property, the effectiveness of the transaction may in addition depend upon the law applicable to the...
Part III Liability and Recovery in Multistate Litigation, 6 The Laws Governing Recovery »
From: International Commercial Litigation (2nd Edition)Richard Fentiman
6.01 Any transaction is exposed to the risk that it is ineffective to create enforceable obligations or transfer property, risks considered in Chapter 3. A distinct, if no less important, matter is whether the resulting loss can be recovered. The loss sustained in the event of a failed transaction may take several forms. It may flow directly from the obligor’s failure to perform a primary obligation under the contract, and may be remedied by seeking contractual damages. Again, such loss may flow from the breach of a collateral obligation, of a non-contractual...
Part II Legal Risk and Multistate Litigation, 2 Managing Litigation Risk »
From: International Commercial Litigation (2nd Edition)Richard Fentiman
2.01 This chapter is concerned with the contractual management of litigation risk. At its simplest, litigation risk is the risk to a contracting party that it will be required to enforce its rights by litigation, or defend proceedings brought by a counterparty. But it has a more nuanced meaning in multistate transactions. Two particular risks arise: venue risk, and enforcement risk. Venue risk is the risk that a party is required to initiate or defend proceedings in an unfavourable forum. It exists because the optimal forum may be legally or practically...
Part II Legal Risk and Multistate Litigation, 3 Managing Transaction Risk »
From: International Commercial Litigation (2nd Edition)Richard Fentiman
3.01 Litigation presents a financial and reputational risk to businesses irrespective of the substantive outcome. Importantly, however, litigation is a threat to any transaction, and in that sense is an aspect of transaction risk. Through litigation a counterparty may challenge the enforceability of its obligations and defeat the transaction’s commercial purpose. Conversely, litigation, and the associated risks, only occurs because the parties’ substantive rights and liabilities may be disputed. In that sense, the extent to which enforcement of a contract may be...
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