International Commercial Disputes
Subtitle: Commercial Conflict of Laws in English Courts
By: Jonathan Hill and Adeline Chong
Edition: 1st ed.
Publisher: Praeger
Published: 2018
Place of publication: Westport, CT
Language: eng
Number of pages: 896
ISBN-13: 9781849468558
Subjects: Law; Private international law & conflict of laws
Description: This is the fourth edition of this highly regarded work on the law of international commercial litigation as practised in the English courts. As such it is primarily concerned with how commercial disputes which have connections with more than one country are dealt with by the English courts. Much of the law which provides the framework for the resolution of such disputes is derived from international instruments, including recent Conventions and Regulations which have significantly re-shaped the law in the European Union. The scope and impact of these European instruments is fully explained and assessed in this new edition.   The work is organised in four parts. The first part considers the jurisdiction of the English courts and the recognition and enforcement in England of judgments granted by the courts of other countries. This part of the work, which involves analysis of both the Brussels I Regulation and the so-called traditional rules, includes chapters dealing with jurisdiction in personam and in rem, anti-suit injunctions and provisional measures. The work's second part focuses on the rules which determine whether English law or the law of another country is applicable to a given situation. The part includes a discussion of choice of law in contract and tort, with particular attention being devoted to the recent Rome I and Rome II Regulations. The third part of the work includes three new chapters on international aspects of insolvency (in particular, under the EC Insolvency Regulation) and the final part focuses on an analysis of legal aspects of international commercial arbitration. In particular, this part examines: the powers of the English courts to support or supervise an arbitration; the effect of an arbitration agreement on the jurisdiction of the English courts; the law which governs an arbitration agreement and the parties' dispute; and the recognition and enforcement of foreign arbitration awards.
Notes: Compliant with Level AA of the Web Content Accessibility Guidelines. Content is displayed as HTML full text which can easily be resized or read with assistive technology, with mark-up that allows screen readers and keyboard-only users to navigate easily
Table of contents: title: Chapter 1; title: Introduction  1.1 Preliminary Remarks  1.2 Jurisdiction and the Recognition and Enforcement of Foreign Judgments  Basic Concepts  The Traditional Regime  The Brussels I Regulation  Jurisdiction and the Recognition and Enforcements of Judgments with in the United Kingdom  Subsequent Developments  1.3 Choice of Law  Part I: Jurisdiction and the Recognition and Enforcement of Foreign Judgments  Chapter 2; title: Persons who Can and Cannot Sue or be Sued  2.1 Legal Capacity to Sue or Be Sued  Foreign Corporations  Other Foreign Juristic Entities  Corporations Established under the Laws of Territories which are not States  International Corporations  Foreign States  Foreign Governments  2.2 Persons who Cannot Sue and Non-justiciable Claims  Enemy Aliens  Non-justiciable Claims  2.3 State Immunity  Background  The Scope of Immunities  The Scheme of the Act  Immunity from Adjudicative Jurisdiction  Immunity from Enforcement Jurisdiction  Service of Process in Proceedings against States  Judgments in Default  2.4 Diplomatic Immunity  Diplomatic Officers  Consular Agents  2.5 International Organisations  Chapter 3; title: The Brussels I Regulation: General Considerations  3.1 Introduction  3.2 Interpretation of the Brussels I Regulation  References to the Court of Justice  Methods of Interpretation  Interpretation by National Courts  3.3 Scope of the Brussels I Regulation  Introductory Remarks  Civil and Commercial Matters  Exceptions  3.4 The Relationship between the Brussels I Regulation and Other International Conventions  Chapter 4; title: Jurisdiction in Personam under the Brussels I Regulation: Introduction  4.1 Domicile under the Brussels I Regulation  The Domicile of Individuals  The Domicile of Corporations  Multiple Domiciles  4.2 The Basic Structure of the Jurisdiction Rules  Bases of Jurisdiction Applicable to Defendants Domiciled in a Member State: Articles 2 and 3  Bases of Jurisdiction Applicable to Persons who are not Domiciled in a Member State: Article 4  Lis Pendens and Related Actions  The Standard of Proof  4.3 Service Abroad in Cases Falling within the Scope of the Brussels I Regulation  4.4 Procedural Safeguards  Chapter 5; title: Bases of Jurisdiction In Personam under the Brussels I Regulation 5.1 Exclusive Jurisdictions Paragraph (1)  Paragraph (2): Corporations  Paragraph (3): Public Registers  Paragraph (4): Intellectual Property  Paragraph (5): Enforcement Proceedings  Examination of Jurisdiction  5.2 Submission  5.3 Jurisdiction Agreements  Preliminary Considerations  Basic Conditions  Formal Requirements  Maternal Validity and Interpretation  Situation where Jurisdiction is not Exclusive  5.4 Provisional Measures  5.5 The Domicile Rule: Article 2  5.6 Alternative Fora I: Article 5  Introduction  Jurisdiction in Matters Relating to Contract and Tort: Introduction  Jurisdiction in Matters Relating to a Contract  Jurisdiction in Matters Relating to Tort  Branch, Agency or Other Establishment  Trusts  5.7 Alternative Fora II: Article 6  Introduction  Multiple Defendants  Third Party Proceedings  Counterclaims  Contractual Claims Involving Matters Relating to Rights in Rem in Immovable Property  Article 6 and Jurisdiction Agreements  5.8 Insurance, Consumer Contracts and Employment Contracts  Insurance  Consumer Contracts  Jurisdiction in Relation to Employment Contracts  Chapter 6; title: Bases of Jurisdiction in Personam under Schedule 4 to the Civil Jurisdiction and Judgments Act 1982  6.1 Jurisdiction in Civil and Commercial Matters: Schedule 4 to the 1982 Act  The Scope of Schedule 4  The Text of Schedule 4  Interpretation  6.2 Bases of Jurisdiction under Schedule 4  Exclusive Jurisdiction  Prorogation of Jurisdiction  Jurisdiction Agreements  Special Jurisdiction  Consumer Contracts and Individual Contracts of Employment  Procedural Matters and Provisional Measures  Chapter 7; title: Bases of Jurisdiction in Personam under Traditional Rules  7.1 Presence  Individuals  Companies  Partnerships  Staying Proceedings Founded on the Defendant's Presence  7.2 Submission  Jurisdiction Agreements  Agreements to Submit  Voluntary Appearance  7.3 Service out of the Jurisdiction under CPR 6.36  Introduction  A Serious Question to be Tried  The Heads of CPR PD 6B para 3.1  Forum Conveniens  The Test  Chapter 8; title: Bases of Jurisdiction in Admiralty Proceedings  8.1 Jurisdiction under the Supreme Court Act 1981  The Admiralty Jurisdiction of the High Court: Section 20  Jurisdiction in Rem: Section 21 (2)-(8)  Jurisdiction in Actions In Personam: Section 21(1) and Section 22  Commencing Admiralty Proceedings  8.2 The Impact of the Brussels I Regulation  Introduction  The Practical Effect of the Brussels I Regulation  Limitation and Salvage  Chapter 9; title: Declining Jurisdiction and Staying Proceedings  9.1 Declining Jurisdiction and Staying Proceedings under the Brussels I Regulation  General Considerations  Lis Pendens  Related Actions  Rival Exclusive Jurisdictions  Concurrent Proceedings within the United Kingdom  9.2 Staying Proceedings on the Basis of the Doctrine of Forum non Conveniens  Forum Shopping  The Development of English Law  The Test of Appropriateness  The Application of the Test: Factors to be Taken into Account  The Weighing of Factors  Appeals Against the Exercise of Discretion  9.3 The Impact of a Jurisdiction Clause  The Traditional Rules The Hague Choice of Court Convention  9.4 Jurisdiction in Cases Involving Foreign Land and Foreign Intellectual Property Rights  Cases Involving Foreign Land  Cases Involving Foreign Intellectual Property Rights  9.5 Staying Proceedings under the Court's Inherent Jurisdiction in Cases Involving the Brussels I Regulation Introduction  Cases where Jurisdiction is Founded on the Traditional Rules  Cases where Jurisdiction is Founded on Chapter II and the Alternative Forum is a Member State  Cases where Jurisdiction is Founded on Chapter II and the Alternative Forum is a Non-Member State  Cases Involving Schedule 4 to the 1982 Act  Chapter 10; title: Provisional Measures  10.1 Different Types of Provisional Measure  Introduction  Interlocutory Injunctions  Freezing Injunctions  Search Orders  10.2 Jurisdiction to Grant Provisional Measures: Proceedings in Rem  10.3 Jurisdiction to Grant Provisional Measures: Proceedings in Personam  Background: The Position at Common Law  Jurisdiction to Grant Provisional Measures in Support of Foreign Proceedings  Jurisdiction to Grant Provisional Measures in Support of Arbitration Proceedings  10.4 Extraterritorial Provisional Measures  Introduction  Extraterritorial Freezing Injunctions  10.5 Enforcement of Foreign Provisional Measures  Chapter 11; title: Anti-suit Injunctions  11.1 Preliminary Remarks  11.2 The Bases on Which an Anti-suit Injunction May Be Granted  Unconscionable Conduct  Infringement of a Legal or Equitable Right  11.3 The Brussels I Regulation  Chapter 12; title: Recognition and Enforcement of Foreign Judgments under the Common Law and under Related Statutory Regimes  12.1 Introduction  Why Recognise Foreign Judgments?  Which Foreign Judgments Should be Entitled to Recognition and Enforcement?  12.2 Conditions for Enforcement at Common Law  The Jurisdiction of the Original Court  Final and Conclusive  For a Fixed Sum  12.3 Conditions for Recognition at Common Law  Introduction  On the Merits  Identity of the Parties  Identity of the Cause of Action or Issue  12.4 Defences to Recognition and Enforcement at Common Law  Natural Justice  Fraud  Public Policy  Res Judicata  Civil Jurisdiction and Judgments Act 1982, Section 32  Multiple Damages  12.5 Recognition and Enforcement of Judgments in Rem  Jurisdiction of the Original Court  Defences  Enforcement  12.6 Recognition and Enforcement under Statutory Regimes Based on the Common Law  Enforcement under Part II of the Administration of Justice Act 1920  Recognition and Enforcement under the Foreign Judgments (Reciprocal Enforcement) Act 1933  Chapter 13; title: Recognition and Enforcement of Judgments under the Brussels I Regulation, Judgments against States and European Community Judgments  13.1 Basic Conditions for Recognition and Enforcement under the Brussels I Regulation  The Scope of the Brussels I Regulation  What is a 'Judgment'?  The Relationship between Chapter II and Chapter III  13.2 The Principle of Automatic Recognition under the Brussels I Regulation  13.3 Defences to Recognition under the Brussels I Regulation  No Review of the Merits  Limited Review of Jurisdiction  Public; title: Policy  Safeguarding the Rights of the Defendant  Irreconcilability  Appeals in the State of Origin  What is an 'Ordinary Appeal'?  13.4 Enforcement of Judgments under the Brussels I Regulation  Introduction  Application for Enforcement  The Decision  Appeals against Enforcement  Appeals Against a Refusal to Enforce  The Relationship between National Law and Chapter III  13.5 Authentic Instruments and Court Settlements under the Brussels I Regulation  Authentic Instruments  Court Settlements Grounds for Refusing Enforcement  13.6 Recognition and Enforcement of Judgments within the United Kingdom  Introduction  Recognition  Enforcement  13.7 Judgments against States and European Community Judgments  Recognition of Judgments Given against the United Kingdom  Recognition of Enforcement of Judgments Given against Other States  European Community Judgments  Part II: Choice of Law  Chapter 14; title: Choice of Law in Contract  14.1 Introduction  The Common Law  The Rome I Regulation  The Scope of the Rome I Regulation  Exclusion of the Doctrine of Renvoi  14.2 Determining the Applicable Law  The Applicable Law in Cases of Choice  The Applicable Law in the Absence of Choice  14.3 Mandatory Rules and Public Policy  Introduction  The Application of Mandatory Rules  The Application of Overriding Rules  Public Policy: Article 21  14.4 Particular Aspects of the Contract  Preliminary Remarks  Consent and Material Validity: Article 10  Formal Validity: Article 11  Capacity  Performance  Interpretation  Discharge  Nullity  Illegality  Remedies  14.5 Particular Contracts  Contracts of Carriage  Certain Consumer Contracts  Insurance Contracts  Individual Employment Contracts  14.6 Miscellaneous Provisions  Voluntary Assignment and Contractual Subrogation  Legal Subrogation  Multiple Liability  Set-off  Chapter 15; title: Choice of Law: Non-contractual Obligations  15.1 The Rome II Regulation  Background of Events Leading to the Rome II Regulation  General Overview of the Rome II Regulation  Choice of Law Rules for Tort  Choice of Law Rules for Other Non-contractual Obligations  Other Provisions  15.2 Choice of Law in Tort: Common Law Rules  Background to the English Choice of Law Rules  The Modern Common Law Position  15.3 Choice of Law under Part III of the Private International Law (Miscellaneous Provisions) Act 1995  Introduction  The General Rule  The Exception  The Scope of the Applicable Law: Substance and Procedure  Public Policy and Overriding Rules  15.4 Parallel Claims and the Potential Interaction of Contract and Tort Choice of Law Rules  Parallel Claims  The Potential Interaction of Contract and Choice of Law Rules  Chapter 16; title: Proof of Foreign Law  16.1 Foreign Law: A Question of Fact  16.2 Cases in which Foreign Law Does not Have to be Proved  16.3 Mode of Proof  The Requirement of Evidence  Uncontradicted Evidence  Conflicting Evidence  Who is an Expert?  Decision on Points of Foreign Law in Subsequent Cases  16.4 Appeals  Chapter 17; title: EC Regulation on Insolvency Proceedings  17.1 Scope of the Insolvency Regulation  General  Exclusions  Insolvency-related Proceedings  Intra-UK Insolvencies  17.2 Jurisdiction  Two Sets of Conflicting Doctrines  Main Proceedings  Territorial Proceedings  17.3 Choice of Law  General Rule  Exceptions  17.4 Recognition and Enforcement  General  Powers of the Liquidator  17.5 Miscellaneous  The 'Hotchpot' Rule  Publication of Insolvency Proceedings  Creditors' Right to Lodge Claims and to Receive Information  Chapter 18; title: International Insolvencies Falling Outside the EC Insolvency Regulation  18.1 Personal Insolvency/Bankruptcy  Jurisdiction  Choice of Law  Effects of an English Bankruptcy Order  Recognition  Concurrent Proceedings  18.2 Corporate Insolvency  Jurisdiction  Choice of Law  Effects of an English Winding-up Order  Recognition  Concurrent Liquidations  18.3 Judicial Co-operation  Re HIH Casualty and General Insurance Ltd  Chapter 19; title: The Cross-Border Insolvency Regulations 2006  19.1 Introduction  19.2 General  Scope  Allocation of Jurisdiction between Courts in Great Britain  Co-operation between Courts in Great Britain  Inter-relationship between the Model Law and other International Instruments  British Insolvency Officeholder Acting Abroad  19.3 Access of Foreign Representatives and Creditors to English Courts  19.4 Recognition of a Foreign Proceeding  Relief Available upon the Application for Recognition of a Foreign Proceeding  Effects of Recognition of a Foreign Main Proceeding  Relief Available upon the Recognition of a Foreign Proceeding  Protection of Creditors and Other Interested Persons  Avoidance  19.5 Co-operation with Foreign Courts and Foreign Representatives  19.6 Concurrent Proceedings  19.7 Conclusion and Overview  Part III: Arbitration  Chapter 20; title: Arbitration: Introduction  20.1 What is Arbitration Law?  20.2 Various Types of Arbitration  Domestic and International  Ad Hoc and Institutional  Specialised Arbitrations  20.3 Trends in International Commercial Arbitration  Encouragement  Harmonisation  20.4 Outline of English Arbitration Law  The Foundations of Arbitration: the Arbitration Agreement  The Powers of the Tribunal  The Powers of the Court  Chapter 21; title: The Agreement to Arbitrate  21.1 The Law Governing the Arbitration Agreement  21.2 Enforcement of the Agreement to Arbitrate  Introduction  Conditions for the Grant of a Stay under Section 9  The Effect of a Stay under Section 9  Inherent Jurisdiction  Chapter 22; title: The Law Governing the Conduct of an Arbitration and the Scope of the Court's Powers  22.1 Introduction  Preliminary Remarks  The 'Delocalisation' Theory  The Importance of the Seat of Abritration  22.2 The Scope of the Statutory Provisions: General Principles  22.3 The Scope of the Statutory Provisions: Cases where the Seat of Arbitration Is in England  Introduction  Internal Aspects of the Procedure  External Aspects of the Procedure  22.4 Scope of the Statutory Provisions: Cases where the Seat is Abroad or no Seat Has Been Designated or Determined  22.5 Jurisdiction in Proceedings Ancillary to an Arbitration  Chapter 23; title: The Law Applicable to the Merits of a Dispute Referred to Arbitration  23.1 Introduction  Types of Choice of Law Clause  Legal Background  23.2 The Position under the 1996 Act  Section 46 of the 1996 Act  The Exclusion of Section 46  The Three Circumstances Envisaged by Section 46  Cases where the Arbitrator Misapplies Section 46  The Impact of Mandatory Rules  Chapter 24; title: Recognition and Enforcement of Arbitration Awards  24.1 Preliminary Issues  The Relationship between Enforcement and Setting Aside  The Enforcement of Domestic Awards  The Enforcement of Foreign Aribtration Awards  24.2 Recognition and Enforcement of Foreign Awards under Part III of the Arbitration Act 1996  The Scope of Part III of the 1996 Act  Conditions for Obtaining Recognition or Enforcement  Grounds for Refusing Recognition or Enforcement  Discretion to Adjourn the Decision on Recognition or Enforcement  24.3 Recognition and Enforcement of Foreign Awards at Common Law  The Relationship between the Arbitration Act 1996 and the Common Law  Methods of Enforcement  Conditions for Recognition or Enforcement at Common Law  Defences at Common Law  24.4 Recognition and Enforcement of Foreign Awards under Part II of the Arbitration Act 1950  The Relationship between Part II of the 1950 Act and Other Regimes  Conditions for Recognition and Enforcement  Defences to Enforcement  24.5 Other Regimes for the Recognition and Enforcement of Foreign Arbitral Awards  Part II of the Civil Jurisdiction and Judgments Act 1982  Part II of the Administration of Justice Act 1920  Part I of the Foreign Judgments (Reciprocal Enforcement) Act 1933  Arbitration (International Investment Disputes) Act 1966  Recognition of Awards Made by the Iran-US Claims Tribunal  24.6 Awards, Judgments and the Cause of Action  Confl icting Judgments and Awards  The Effect of a Foreign Judgment on the Award  The Effect of a Foreign Arbitral Award on the Cause of Action