This chapter addresses the English court's jurisdiction other than in family law matters and excluding a few other kinds of proceedings. There are two types of claim which may be commenced in England: claims in personam and admiralty claims in rem. A claim inpersonam is one in which the claimant seeks a judgment requiring the defendant to pay money, deliver property or do, or refrain from doing, some other act. A claimant who wishes to commence proceedings in personam must be able to serve a claim form on the defendant — either in England or abroad. Admiralty proceedings in rem are directed against property, usually a ship. A typical case is where the claimant has a claim against a ship-owner in respect of his ship — for example, where the claimant's cargo has been damaged as a result of the negligent navigation of the vessel. The remainder of the chapter discusses the bases of jurisdiction in personam; declining jurisdiction and staying proceedings; provisional measure designed to maintain the status quo pending the outcome of the dispute between the parties; and restraining foreign proceedings.
Chapter
2. Civil jurisdiction
Jonathan Hill
Book
Jonathan Hill and Máire Ní Shúilleabháin
Clarkson & Hill's Conflict of Laws, now in its fifth edition, provides a clear and up-to-date account of private international law topics. Theoretical issues and fundamental principles are introduced in the first chapter and expanded upon in later chapters. Basic principles of the conflict of laws are presented, offering clarity on complex points and terminology. The fifth edition reflects the field's changing focus from case law to domestic and European legislation, incorporating the Brussels I Regulation and Brussels II Revised Regulation, as well as the more recent Rome Regulations and Brussels I Recast. Embracing this reorientation of the field and increased emphasis on the recognition and enforcement of judgments, the chapters provide detailed commentary on the most important commercial topics as well as the most relevant topics in family law.
Chapter
4. Contractual obligations
Jonathan Hill
This chapter deals with contract disputes which have foreign elements that come before the English court: one or both of the parties may be foreign; the making or performance of the contract may be connected with a number of foreign countries. In this type of case which law is the court to apply? The general principle is that every international contract has a governing law — known at common law as the ‘proper law’and under EU law as the ‘applicable law’. Subject to certain limitations, parties to a contract are free to choose the applicable law; if the parties fail to make a choice, the governing law is, as a general rule, the law of the country with which the contract is most closely connected. The remainder of the chapter focuses on the Rome I Regulation, including its scope and interpretation; determining the applicable law; the limits of the applicable law; articles 5 to 8; and choice of law aspects of various contractual issues.
Chapter
6. Domicile, nationality, and habitual residence
Jonathan Hill
The object of jurisdictional rules is to determine an appropriate forum and choice of law rules are designed to lead to the application of the most appropriate law, the law that generally the parties might reasonably expect to apply. The test for recognition of foreign judgments is not dissimilar. A judgment granted by an appropriate forum should normally be recognised. The problem is one of ascertaining the connecting factor (or factors) which would best satisfy the criterion of appropriateness. With regards to personal connecting factors, there is little international agreement as to the appropriate test of ‘belonging’. In England and most common law countries, the traditional personal connecting factor is domicile, which loosely translates as a person's permanent home. One of the problems here is that domicile is a connecting factor which is interpreted differently in various parts of the world. In contrast, most of continental Europe and other civil law countries have traditionally used nationality as the basic connecting factor, especially for choice of law purposes; the personal law is the law of the country of which the person is a citizen. In some countries, including England, another connecting factor, habitual residence, has emerged. This is increasingly being used for the purposes of jurisdiction rules and in the law relating to recognition of foreign judgments. This chapter examines each of these personal connecting factors. Primary emphasis is laid on domicile and habitual residence as the two main connecting factors employed by English law.
Chapter
3. Foreign judgments
Jonathan Hill
This chapter deals with the recognition of enforcement of foreign judgments by English courts. The crucial question is not whether foreign judgments should be recognised and enforced in England but which judgments should be recognised and enforced. There are, broadly speaking, two theories. The first is the theory of obligation, which is premised on the notion that if the original court assumed jurisdiction on a proper basis the court's judgment should prima facie be regarded as creating an obligation between the parties to the foreign proceedings which the English court ought to recognise and, where appropriate, enforce. The alternative theory is based on the idea of reciprocity: the courts of country X should recognise and enforce the judgments of country Y if, mutatis mutandis, the courts of country Y recognise and enforce the judgments of country X. Whichever theory is adopted, the recognition and enforcement of foreign judgments is limited by a range of defences which may be invoked by the party wishing to resist the judgment in question. It would be unrealistic to expect the English court to give effect to a foreign judgment which conflicts with fundamental notions of justice and fairness. So, the recognition and enforcement of foreign judgments is a two-stage process: Are the basic conditions for recognition or enforcement satisfied? If so, is there a defence by reason of which the foreign judgment should nevertheless not be recognised or enforced? The remainder of the chapter discusses the recognition and enforcement at common law; statutory regimes based on the common law; recognition and enforcement under the Brussels I Recast; and United Kingdom judgments.
Chapter
1. Introduction
Jonathan Hill
This introductory chapter begins by explaining the nature of the subject known as conflict of laws or private international law, which deals with cases before the English court which have connections with foreign countries. The foreign elements in the case may be events which have taken place in a foreign country or countries, or they may be the foreign domicile, residence, or place of business of the parties. In short, any case involving a foreign element raises potential conflict of laws issues. The conflict of laws is concerned with the following three questions: jurisdiction; choice of law; and the recognition and enforcement of foreign judgments. The remainder of the chapter discusses the various stages of proceedings which raise conflict of laws issues.
Chapter
7. Marriage
Jonathan Hill
When the English court has to decide whether a marriage is valid, foreign elements may be involved: one or both of the spouses may be of overseas origin, or the marriage may have been celebrated in a foreign country. This chapter considers which law applies to determine the validity of such marriages. For choice of law purposes, rules about the validity of marriage are divided into two classes: those concerned with formal validity and those concerned with essential validity or capacity to marry. Rules of formal validity lay down the way in which a marriage must be celebrated (for example, to ensure publicity and proof of marriage). Rules of essential validity or capacity are concerned with the permissibility of the marriage relationship itself — whether the parties ought to be allowed to marry each other (or at all). The chapter also discusses the application of the doctrine of renvoi and rules for same-sex marriages, civil partnerships, and polygamous marriages.
Chapter
8. Matrimonial causes
Jonathan Hill
This chapter examines the jurisdiction of the English court and the choice of law process in proceedings for divorce, judicial separation, and annulment of marriage, and the extent to which the decrees of foreign courts in such matrimonial cases are recognised in England. It discusses similar rules which have been introduced in relation to same-sex marriage and civil partnership. Finally, the chapter considers the powers of the English court to grant financial relief and to recognise foreign maintenance orders. The Domicile and Matrimonial Proceedings Act 1973 introduced new uniform grounds of jurisdiction for matrimonial proceedings. These grounds were based on the policy that at least one of the parties, whether husband or wife, applicant or respondent, should have a sufficient connection with England to make it reasonable for the English court to deal with the case and likely that the divorce would be recognised in other countries. The Brussels II bis Regulation imposes uniform jurisdictional rules throughout the European Union (except Denmark, which did not participate in the adoption of the Regulation) and provides for almost automatic recognition of divorces, annulments, and separations granted by the courts of the Member States.
Chapter
5. Non-contractual obligations
Jonathan Hill
Non-contractual obligations cover both tortious obligations and obligations which arise from unjust enrichment and analogous doctrines. Until relatively recently, choice of law rules formulated by the courts held sway in relation to both torts and restitution. However, the expanding role of the European Union in the field of private international law has led to Europe-wide legislation in the form of the Rome II Regulation. The Rome II Regulation lays down choice of law rules not only for tortious obligations, but also for other non-contractual obligations (arising from unjust enrichment, negotiorum gestio, and culpa in contrahendo). Because the material scope of the Regulation is limited in certain ways, the choice of law rules which preceded the entry into force of the European choice of law regime continue to apply to some common torts (in particular, defamation). This chapter discusses the Rome II Regulation, including its scope, tortious obligations, other non-contractual obligations, general provisions, non-contractual obligations excluded from the Rome II Regulation, and the interaction of non-contractual obligations and contractual obligations.
Chapter
9. Property
Jonathan Hill
This chapter considers the choice of law rules for the transfer of property. The rules are structured round a number of distinctions. First, a distinction has to be drawn between movables and immovables. Immovable property, which comprises land and things attached to or growing on the land, is subject to the control of the authorities where it is situated to a much greater extent than movable property, which can be physically removed from one country to another. As regards movables, a further distinction is drawn between tangibles and intangibles. Secondly, the law distinguishes between cases involving the transfer of property on death and cases where property is transferred inter vivos. Thirdly, transfers which arise as a result of marriage should be distinguished from other types of transfer.
