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Handy Client Guide to Jurisdiction Under Recast Brussels Regulation, July 2015

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Handy Client Guide to Jurisdiction Under Recast Brussels Regulation, July 2015 HANDY CLIENT GUIDE TO JURISDICTION UNDER RECAST BRUSSELS REGULATION LEGAL GUIDE ENGLAND AND SECOND EDITION WALES July 2015 02 HANDY CLIENT GUIDE TO JURISDICTION UNDER RECAST BRUSSELS REGULATION HERBERT SMITH FREEHILLS DOES THE ENGLISH COURT HAVE JURISDICTION? A DECISION TREE FOR PROCEEDINGS COMMENCED FROM 10 JANUARY 2015 N Y N N Y Y N N N Y Y Y Y N N Y Y N N Y N N N Y N Y Y HERBERT SMITH FREEHILLS DOES THE ENGLISH COURT HAVE JURISDICTION? 03 This decision tree has been prepared as a quick reference guide to help determine whether the ASSUMPTIONS IN BRIEF: English court has jurisdiction over proceedings i. The matter in question is a civil or commercial matter for the purposes of article 1. commenced on or after 10 January 2015 under the ii. There is no arbitration agreement under which an arbitral recast Brussels Regulation (Regulation (EU) No tribunal has jurisdiction to determine the issues in dispute. 1215/2012). iii. The matter in question does not fall within the grounds of exclusive jurisdiction under article 24. For proceedings commenced before that date, the iv. The defendant has not entered an appearance before the original Brussels Regulation (Regulation (EU) No English court (other than to contest jurisdiction). v. The matter in question is not a matter relating to insurance, 44/2001) continues to apply and so the decision tree consumer contracts or individual contracts of employment. is not applicable. vi. The matter in question is not an application for provisional or protective measures falling within article 35. The decision tree is necessarily a simplification of complex issues vii. The matter in question is not a claim for damages or and should be read subject to the assumptions listed to the right and restitution based on an act giving rise to criminal with reference to the detailed notes which can be accessed by proceedings, or the ownership of a cultural object, or for clicking on the relevant box. remuneration in respect of the salvage of cargo or freight. viii. The matter in question is not a third party claim or As jurisdiction questions are resolved by the English court at an counterclaim. interim stage of the proceedings, the claimant is not required to establish on the balance of probabilities that the test for jurisdiction is ix. Denmark will have put in place the necessary legislation to met. The general rule is that the claimant must show a "good arguable implement the Recast Brussels Regulation. case" for any fact or matter on which the court's jurisdiction depends. x. There is no exclusive jurisdiction clause in favour of Norway, Switzerland or Iceland, the defendant is not domiciled in any of those states and there are no parallel proceedings in any of those states. xi. There is no relevant connection with Scotland or Northern Ireland that would give jurisdiction to those courts. xii. The matter in question does not fall within the agreement between certain EU Member States dated 19 February 2013 establishing the Unified Patent Court. xiii. There is no exclusive jurisdiction agreement in favour of Mexico. Click on Box E for more detail on each of these assumptions. CONTACTS Adam Johnson Maura McIntosh Partner, advocacy group Professional support consultant, litigation T +44 20 7466 2064 T +44 20 7466 2608 [email protected] [email protected] Nick Peacock Vanessa Naish Partner, arbitration Professional support consultant, arbitration T +44 20 7466 2803 T +44 20 7466 2112 [email protected] [email protected] Anna Pertoldi Hannah Ambrose Partner, litigation Professional support consultant, arbitration T +44 20 7466 2399 T +44 20 7466 7585 [email protected] [email protected] The contents of this publication are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication. 04 HANDY CLIENT GUIDE TO JURISDICTION HERBERT SMITH FREEHILLS DOES THE ENGLISH COURT HAVE JURISDICTION? A DECISION TREE FOR PROCEEDINGS COMMENCED FROM 10 JANUARY 2015 N Y N N Y Y N N N Y Y Y Y N N Y Y N N Y N N N Y N Y Y HERBERT SMITH FREEHILLS STEPS 1 AND 2: EXCLUSIVE JURISDICTION CLAUSE 05 STEPS 1 AND 2: EXCLUSIVE JURISDICTION CLAUSE Article 25 gives jurisdiction to the courts of the Where the parties have agreed to the exclusive jurisdiction of another Member State court, the English court may proceed (if it Member State chosen by the parties. Unlike under otherwise has jurisdiction under the recast Brussels Regulation or, if the original Brussels Regulation, there is no the defendant is not EU domiciled, the common law) unless and requirement that either party is domiciled within the until proceedings are commenced in the chosen court. At that point, under article 31(2), the English court must stay its proceedings and EU. So article 25 will apply even if the jurisdiction may only proceed if the chosen court declares it has no jurisdiction clause is in an agreement between, for example, an under the agreement (see Box A). American company and a Japanese company. The agreement conferring jurisdiction must be in writing or Conversely, article 25 will not apply if the chosen evidenced in writing, or in a form that accords with practices court is not the court of a Member State. Where established between the parties or in the relevant international there is an exclusive jurisdiction clause in favour of trade or commerce. a non-Member State court, the English court may Problems sometimes arise in practice where transactions are have a discretion to stay its proceedings (see Boxes documented in a number of related agreements, which contain B and D). conflicting jurisdiction clauses. If the claim in question arises under a particular agreement, the court will give effect to the jurisdiction The rules relating to jurisdiction agreements take precedence over the clause in that agreement even if this results in a fragmentation of other rules in the recast Brussels Regulation with the exception of: proceedings: see Sebastian Holdings Inc v Deutsche Bank AG [2010] exclusive jurisdiction granted to a particular court under article 24 (eg EWCA Civ 998 considered here: Conflicting jurisdiction clauses in certain land disputes); submission to the jurisdiction under article 26; complex financial transactions – further guidance from the Court of and the special rules relating to employment, consumer contracts and Appeal. Where however the claim involves a number of agreements, insurance under articles 10 to 23 (for more on all these, see the court may look to the agreement "at the commercial centre of the Assumptions iii to v). transaction” to determine which jurisdiction clause should cover the dispute: see UBS Securities LLC v HSH Nordbank AG [2009] EWCA Civ Subject to those exceptions: 585 considered here: Synthetic CDOs in the English courts: Court of Where the parties have agreed to the exclusive jurisdiction of the Appeal upholds New York jurisdiction. English court, the English court will have jurisdiction under the recast Brussels Regulation. The English court may however have a discretion to stay its proceedings in some circumstances, for example to await the outcome of a related action pending in another Member State court (see Box D). NOTES This decision tree has been prepared as a quick reference guide to help In the decision tree and notes: determine whether the English court has jurisdiction over proceedings References to a Member State are to Member States of the European commenced on or after 10 January 2015 under the recast Brussels Union (EU). Regulation (Regulation (EU) No 1215/2012). For proceedings commenced before that date, the original Brussels Regulation (Regulation (EU) No References to article numbers are to articles of the recast Brussels 44/2001) continues to apply and so the decision tree is not applicable. Regulation. The decision tree is necessarily a simplification of complex issues and should be read subject to the assumptions and with reference to the detailed notes which can be accessed by clicking on the relevant box. 06 HANDY CLIENT GUIDE TO JURISDICTION HERBERT SMITH FREEHILLS DOES THE ENGLISH COURT HAVE JURISDICTION? A DECISION TREE FOR PROCEEDINGS COMMENCED FROM 10 JANUARY 2015 N Y N N Y Y N N N Y Y Y Y N N Y Y N N Y N N N Y N Y Y HERBERT SMITH FREEHILLS STEP 3: PRIOR PROCEEDINGS IN ANOTHER MEMBER STATE COURT 07 STEP 3: PRIOR PROCEEDINGS IN ANOTHER MEMBER STATE COURT Article 29 determines priority where parallel To fall under article 29, the two sets of proceedings must involve "the same cause of action" and be "between the same parties". Both of proceedings (in the sense described below) are these phrases have an independent EU meaning: brought in the courts of different Member States. The same cause of action means that the actions must have the The rule is simple. The court "first seised", ie where same "cause", ie the same facts and rules of law as the basis of each proceedings are commenced first, has priority. Any action, and the same "objet", ie the same end in view (see Supreme other Member State's court must stay its proceedings Court interprets Articles 27 and 28 of Brussels Regulation, but many issues still require clarification from CJEU). This includes where the until the jurisdiction of the first court is established claimant brings identical proceedings in two Member States, or and, at that point, must decline jurisdiction. The rule where the claims are the mirror image of one another (for example a is designed to avoid the same matters being litigated claim for damages for breach of contract and a claim for a declaration that there has been no breach).
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