Category: Jurisdiction

Article published – Brexit extension until 31 October 2019: what are the key points for disputes?

23 April, 2019

Now that the UK and the EU have agreed a further extension of Article 50 until 31 October 2019, parties have more time to consider, and in some cases reduce, the potential impact of a no deal Brexit on any… Read more

UK suspends accession to Hague Choice of Court Convention

1 April, 2019

On Friday last week (29 March 2019), the depositary for the 2005 Hague Convention on Choice of Court Agreements issued a notice communicating that the UK's accession to the Convention is suspended until 13 April or 23 May 2019, depending… Read more

Upcoming webinar – Cross Border Litigation Update

20 February, 2019

On Wednesday 27 February 2019 (1.00 - 2.00pm GMT), Anna Pertoldi and Gary Milner-Moore will deliver the latest in our series of webinars for Herbert Smith Freehills clients and contacts spotlighting legal and practical issues relevant to litigating cross-border disputes. This webinar will examine a… Read more

Draft Civil Procedure Rule changes in the event of a no deal Brexit

18 February, 2019

The government has published a draft statutory instrument, the Civil Procedure Rules 1998 (Amendment) (EU Exit) Regulations 2019, which makes amendments to the CPR that are consequential on the various other civil justice measures that are to be implemented in… Read more

Court of Appeal gives guidance on how to apply jurisdiction test laid down by Supreme Court

29 January, 2019

The Court of Appeal has considered how the test for establishing English jurisdiction should be applied where there is a dispute over the facts relevant to jurisdiction: Kaefer Aislamientos SA de CV v AMS Mexico SA de CV [2019] EWCA… Read more

Article published – No-deal Brexit and disputes: what do parties need to know?

22 January, 2019

If the UK leaves the EU without a deal on 29 March, what impact will that have on court proceedings? Different questions arise depending on the stage reached in the disputes process. Anna Pertoldi has published a post on Practical Law’s… Read more

Application of the Brussels regime post-Brexit

21 January, 2019

The government has published a draft statutory instrument addressing, among other things, the question of how the UK courts will, post-Brexit, treat questions of jurisdiction involving EU member states and the enforcement of judgments given by EU member state courts, assuming… Read more

UK deposits instrument of accession to Hague Convention on Choice of Court Agreements

4 January, 2019

On 28 December 2018, the UK deposited its instrument of accession to the Hague Convention on Choice of Court Agreements 2005. The Convention will therefore come into force for the UK on 1 April 2019, in accordance with article 31… Read more

Brexit, deal or no deal: a litigator’s perspective

29 November, 2018

Over the past couple of weeks, the government has published the final text of the draft Withdrawal Agreement setting out the arrangements for the UK’s withdrawal from the EU on 29 March 2019 and the draft Political Declaration on the future relationship between the… Read more

CJEU finds abuse of dominance claims may come within jurisdiction clause

16 November, 2018

The European Court of Justice (CJEU) has ruled that a jurisdiction clause could apply to claims alleging abuse of a dominant position, contrary to article 102 TFEU, even if the clause did not expressly refer to claims based on competition… Read more

High Court finds SFO can compel production of documents held by foreign company outside the jurisdiction

9 November, 2018

In a recent decision in the context of a judicial review, the High Court held that the SFO was able to compel a foreign company to produce documents located outside the jurisdiction, pursuant to s.2(3) of the Criminal Justice Act… Read more

Applying the Hague Choice of Court Convention post-Brexit

8 November, 2018

The government has set out how it plans, in the event of a "no deal" Brexit, to ensure that the UK will continue to apply the Hague Choice of Court Convention, which currently applies to the UK by virtue of its… Read more

High Court finds exclusive jurisdiction provisions in recast Brussels Regulation only apply to EU Domiciled defendants

1 November, 2018

The High Court has held that article 24(5) of the recast Brussels Regulation, which gives exclusive jurisdiction to the court where a judgment is to be enforced, does not apply where a defendant is domiciled outside of the EU: Integral… Read more

Court of Appeal holds no permission required to serve committal application on director out of the jurisdiction, where the court had jurisdiction to make the original order against him

4 October, 2018

The Court of Appeal has held that, where a court had jurisdiction to make an order for examination of a company director based on his presence in the jurisdiction, permission to serve out of the jurisdiction was not required for… Read more

Brexit “no deal” notice on jurisdiction and enforcement of judgments

13 September, 2018

As part of its second batch of "no deal" technical notices, the government has today published a guidance notice entitled: Handling civil legal cases that involve EU countries if there’s no Brexit deal. The notice contains little that was not… Read more

Article published – Choosing a jurisdiction clause with Brexit on the horizon

7 September, 2018

With the uncertainties surrounding Brexit, it can be difficult to know what dispute resolution clause to choose to govern commercial contracts that will continue in force once the UK leaves the EU next March, particularly where it may be necessary… Read more

New podcast – English governing law and jurisdiction clauses after Brexit

4 September, 2018

On the new Herbert Smith Freehills Podcast channel, Anna Pertoldi, Maura McIntosh and Tom Henderson discuss what businesses need to know about the impact of Brexit on their continued use of English governing law clauses and English jurisdiction clauses in their… Read more

Court of Appeal finds ISDA jurisdiction clause trumps ‘theoretically competing’ clause in separate agreement governing wider relationship

16 August, 2018

Consistent with recent authority, the Court of Appeal has given primacy to an English jurisdiction clause in an ISDA Master Agreement (overturning the first instance decision that had declined to do so), in circumstances where there was a "theoretically competing"… Read more

Court of Appeal re-opens gateway for service of claims against foreign parties in respect of transactions defrauding creditors

14 August, 2018

Disagreeing with the High Court, the Court of Appeal has ruled that a claim by a creditor under section 423 of the Insolvency Act 1986 falls within the jurisdictional gateway permitting service out of the jurisdiction at common law for… Read more

Court of Appeal gives wide interpretation to common law gateways for service out of the jurisdiction

7 August, 2018

The Court of Appeal has given a wide interpretation to the interaction between the "necessary or proper party" gateway and the relatively new gateway permitting claims against the same defendant arising out of the same or closely connected facts (gateway… Read more

High Court holds ISDA jurisdiction clause trumps competing jurisdiction clause in separate but related agreement

26 July, 2018

In a recent decision, the High Court found that the jurisdiction clause in a 1992 ISDA Master Agreement was effective over a 'competing' jurisdiction clause in a separate but related agreement between the same parties. This was despite a provision… Read more

Brexit White Paper reiterates aims for civil judicial cooperation

12 July, 2018

The UK government has today published its White Paper detailing its proposal for the future relationship between the UK and the EU. The short section on civil judicial cooperation echoes the aims set out in the government's Framework for the… Read more

Holding company liability for acts of a subsidiary: Court of Appeal finds English court lacks jurisdiction on basis no duty of care owed

10 July, 2018

In the latest in a line of jurisdiction rulings in cases of so-called "class action tourism", the Court of Appeal has held that the English court does not have jurisdiction to hear tortious claims against two companies in the Unilever… Read more

Anti-suit injunction refused for EU proceedings but granted for non-EU proceedings

22 June, 2018

In a recent decision, the High Court refused to grant an anti-suit injunction to restrain Cypriot court proceedings brought in breach of an arbitration clause, but granted an injunction in respect of Russian proceedings: Nori Holdings Limited et al v PJSC Bank Okritie… Read more

Agreement reached in principle on Brexit transitional provisions for jurisdiction and enforcement of judgments

21 June, 2018

On 19 June, the UK and EU negotiators published a joint statement outlining the progress made on the draft Withdrawal Agreement since it was last published in March 2018. The joint statement confirms that agreement has been reached in principle… Read more

UK publishes framework for UK-EU partnership on civil judicial cooperation

14 June, 2018

On 13 June, the UK government published a presentation setting out its proposals for continued judicial cooperation once the UK leaves the EU. The presentation is part of a series produced by the UK negotiating team for discussion with the… Read more

Denmark joins Hague Convention on Choice of Court Agreements

13 June, 2018

On 30 May 2018, Denmark deposited its instrument of accession to the Hague Convention on Choice of Court Agreements, which means that the Convention will apply to all EU member states from 1 September 2018, as well as to Mexico and Singapore. The… Read more

Cross-border litigation: international perspectives

31 May, 2018

We are pleased to release the third issue of our periodic publication "Cross-Border Litigation", designed to highlight legal and practical issues specific to litigation with an international aspect. Tapping into the expertise of the firm's leading commercial litigators across the… Read more

Dispute resolution clauses: Putting yourself in the best position

26 April, 2018

All too often, dispute resolution clauses may be treated as part of the boilerplate: the usual wording thrown in, with perhaps little thought for the particular circumstances. But the question of how a dispute will be resolved – whether by… Read more

Supreme Court holds English court has jurisdiction over tort claim where conspiracy hatched in England

22 March, 2018

The Supreme Court has held that the place of the event giving rise to damage in a claim alleging the tort of conspiracy to injure by unlawful means is where the conspiratorial agreement was made. As that was England, the… Read more

High Court finds there is no power to stay in favour of prior proceedings in non-EU court where there is an English non-exclusive jurisdiction agreement

13 March, 2018

The High Court has held that where there was a non-exclusive jurisdiction clause in favour of an EU member state (England), and proceedings were commenced first in a non-member state (the Isle of Man), the English court had no power… Read more

Choice of law, jurisdiction and enforcement of judgments post-Brexit: No surprises in EU’s draft withdrawal agreement

6 March, 2018

So far as choice of law, jurisdiction and enforcement of judgments are concerned, the EU's draft withdrawal agreement, published last week, is largely consistent with its previously declared negotiating position, as set out in its June 2017 position paper outlined… Read more

Court of Appeal confirms English Court lacks jurisdiction over claims against UK domiciled parent company in relation to acts of subsidiary abroad

19 February, 2018

The Court of Appeal has held that the English court does not have jurisdiction to hear claims against two companies in the Shell group (domiciled in the UK and Nigeria respectively) relating to alleged pollution in the Niger Delta in… Read more

Supreme Court considers that there is no requirement of direct damage in England for permission to serve tort claim outside the jurisdiction at common law

17 January, 2018

The Supreme Court has found, by a majority and in obiter comments, that direct damage in the jurisdiction is not required to come within the tort jurisdictional gateway in the CPR, disagreeing with the Court of Appeal: Lady Christine Brownlie… Read more

High Court decision may make it more difficult to bring claims against foreign parties under section 423 Insolvency Act (transactions defrauding creditors)

11 December, 2017

The High Court has held that a claim by a creditor under section 423 of the Insolvency Act 1986 does not fall within the jurisdictional gateway permitting service out of the jurisdiction at common law for claims "under an enactment… Read more

Supreme Court confirms that the situs of a debt due under a letter of credit is the location of the issuer

15 November, 2017

In a departure from previous authority, the Supreme Court has confirmed that the situs of a debt created by a letter of credit is the place of residence of the issuing bank: Taurus Petroleum Limited v State Oil Marketing Company… Read more

Article published – Don’t forget: the Recast Brussels Regulation can apply to non-EU defendants

14 November, 2017

It is easy to fall into the trap of thinking that the Brussels jurisdiction regime applies to EU domiciled defendants and the common law rules apply to everyone else, so that you need the court's permission to serve proceedings on… Read more

Court of Appeal clarifies approach to exclusive jurisdiction provisions of Brussels regime relating to validity of corporate decisions

9 November, 2017

The Court of Appeal has held that the English courts had exclusive jurisdiction to hear a claim brought by an English subsidiary company against Turkish domiciled defendants including its parent company: Koza Ltd & Anor v Akcil & Ors [2017]… Read more

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