International commercial disputes : commercial conflict of laws in English courts / Jonathan Hill and Adeline Chong.
2010
KD7645 .H54 2010 (Map It)
Available at Cellar
Formats
| Format | |
|---|---|
| BibTeX | |
| MARCXML | |
| TextMARC | |
| MARC | |
| DublinCore | |
| EndNote | |
| NLM | |
| RefWorks | |
| RIS |
Items
Details
Author
Title
International commercial disputes : commercial conflict of laws in English courts / Jonathan Hill and Adeline Chong.
Published
Oxford ; Portland, Or. : Hart Pub., 2010.
Call Number
KD7645 .H54 2010
Edition
Fourth edition.
ISBN
9781841138510 (pbk.)
1841138517 (pbk.)
1841138517 (pbk.)
Description
cxxxiii, 895 pages ; 25 cm.
System Control No.
(OCoLC)620140158
Summary
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.
Note
Revised edition of: International commercial disputes in English courts. 3rd edition 2005.
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.
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.
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Table of Contents
Preface
v
Table of Cases
xix
Table of Statutes
lxxxi
Table of Conventions, etc
cxvii
Table of Statutory Instruments and Rules
cxxvii
ch. 1
Introduction
1
1.1.
Preliminary Remarks
1
1.2.
Jurisdiction and the Recognition and Enforcement of Foreign Judgments
3
Basic Concepts
3
The Traditional Regime
5
The Brussels I Regulation
6
Jurisdiction and the Recognition and Enforcements of Judgments with in the United Kingdom
7
Subsequent Developments
7
1.3.
Choice of Law
8
Part I: Jurisdiction and the Recognition and Enforcement of Foreign Judgments
11
ch. 2
Persons who Can and Cannot Sue or be Sued
13
2.1.
Legal Capacity to Sue or Be Sued
13
Foreign Corporations
13
Other Foreign Juristic Entities
13
Corporations Established under the Laws of Territories which are not States
14
International Corporations
15
Foreign States
21
Foreign Governments
23
2.2.
Persons who Cannot Sue and Non justiciable Claims
24
Enemy Aliens
24
Non-justiciable Claims
25
2.3.
State Immunity
28
Background
28
The Scope of Immunities
30
The Scheme of the Act
33
Immunity from Adjudicative Jurisdiction
33
Immunity from Enforcement Jurisdiction
42
Service of Process in Proceedings against States
49
Judgments in Default
51
2.4.
Diplomatic Immunity
51
Diplomatic Officers
51
Consular Agents
53
2.5.
International Organisations
54
ch. 3
The Brussels I Regulation: General Considerations
55
3.1.
Introduction
55
3.2.
Interpretation of the Brussels I Regulation
58
References to the Court of Justice
58
Methods of Interpretation
58
Interpretation by National Courts
60
3.3.
Scope of the Brussels I Regulation
61
Introductory Remarks
61
Civil and Commercial Matters
62
Exceptions
65
3.4.
The Relationship between the Brussels I Regulation and Other International Conventions
75
ch. 4
Jurisdiction in Personam under the Brussels I Regulation: Introduction
79
4.1.
Domicile under the Brussels I Regulation
79
The Domicile of Individuals
79
The Domicile of Corporations
81
Multiple Domiciles
83
4.2.
The Basic Structure of the Jurisdiction Rules
84
Bases of Jurisdiction Applicable to Defendants Domiciled in a Member State: Articles 2 and 3
84
Bases of Jurisdiction Applicable to Persons who are not Domiciled in a Member State: Article 4
85
Lis Pendens and Related Actions
86
The Standard of Proof
86
4.3.
Service Abroad in Cases Falling within the Scope of the Brussels I Regulation
89
4.4.
Procedural Safeguards
90
ch. 5
Bases of Jurisdiction In Personam under the Brussels I Regulation
93
5.1.
F:xclusive Jurisdiction
93
Paragraph (1)
94
Paragraph (2): Corporations
101
Paragraph (3): Public Registers
103
Paragraph (4): Intellectual Property
103
Paragraph (5): Enforcement Proceedings
105
Examination of Jurisdiction
106
5.2.
Submission
106
5.3.
Jurisdiction Agreements
108
Preliminary Considerations
108
Basic Conditions
109
Formal Requirements
113
Maternal Validity and Interpretation
123
Situation where Jurisdiction is not Exclusive
126
5.4.
Provisional Measures
128
5.5.
The Domicile Rule: Article 2
129
5.6.
Alternative Fora I: Article 5
130
Introduction
130
Jurisdiction in Matters Relating to Contract and Tort: Introduction
132
Jurisdiction in Matters Relating to a Contract
136
Jurisdiction in Matters Relating to Tort
158
Branch, Agency or Other Establishment
167
Trusts
171
5.7.
Alternative Fora II: Article 6
173
Introduction
173
Multiple Defendants
173
Third Party Proceedings
179
Counterclaims
181
Contractual Claims Involving Matters Relating to Rights in Rem in Immovable Property
182
Article 6 and Jurisdiction Agreements
182
5.8.
Insurance, Consumer Contracts and Employment Contracts
183
Insurance
183
Consumer Contracts
190
Jurisdiction in Relation to Employment Contracts
196
ch. 6
Bases of Jurisdiction in Personam under Schedule 4 to the Civil Jurisdiction and Judgments Act 1982
201
6.1.
Jurisdiction in Civil and Commercial Matters: Schedule 4 to the 1982 Act
201
The Scope of Schedule 4
201
The Text of Schedule 4
203
Interpretation
203
6.2.
Bases of Jurisdiction under Schedule 4
204
Exclusive Jurisdiction
204
Prorogation of Jurisdiction
205
Jurisdiction Agreements
205
Special Jurisdiction
206
Consumer Contracts and Individual Contracts of Employment
207
Procedural Matters and Provisional Measures
208
ch. 7
Bases of Jurisdiction in Personam under Traditional Rules
209
7.1.
Presence
209
Individuals
209
Companies
211
Partnerships
215
Staying Proceedings Founded on the Defendant's Presence
216
7.2.
Submission
216
Jurisdiction Agreements
216
Agreements to Submit
217
Voluntary Appearance
217
7.3.
Service out of the Jurisdiction under CPR 6.36
219
Introduction
219
A Serious Question to be Tried
221
The Heads of CPR PD 6B para 3.1
223
Forum Conveniens
237
The Test
237
ch. 8
Bases of Jurisdiction in Admiralty Proceedings
243
8.1.
Jurisdiction under the Supreme Court Act 1981
244
The Admiralty Jurisdiction of the High Court: Section 20
244
Jurisdiction in Rem: Section 21 (2)[—](8)
251
Jurisdiction in Actions In Personam: Section 21(1) and Section 22
257
Commencing Admiralty Proceedings
258
8.2.
The Impact of the Brussels I Regulation
260
Introduction
260
The Practical Effect of the Brussels I Regulation
262
Limitation and Salvage
265
ch. 9
Declining Jurisdiction and Staying Proceedings
267
9.1.
Declining Jurisdiction and Staying Proceedings under the Brussels I Regulation
268
General Considerations
268
Lis Pendens
274
Related Actions
287
Rival Exclusive Jurisdictions
291
Concurrent Proceedings within the United Kingdom
292
9.2.
Staying Proceedings on the Basis of the Doctrine of Forum non Conveniens
293
Forum Shopping
293
The Development of English Law
294
The Test of Appropriateness
296
The Application of the Test: Factors to be Taken into Account
301
The Weighing of Factors
314
Appeals Against the Exercise of Discretion
315
9.3.
The Impact of a Jurisdiction Clause
315
The Traditional Rules
316
The Hague Choice of Court Convention
320
9.4.
Jurisdiction in Cases Involving Foreign Land and Foreign Intellectual Property Rights
321
Cases Involving Foreign Land
321
Cases Involving Foreign Intellectual Property Rights
323
9.5.
Staying Proceedings under the Court's Inherent Jurisdiction in Cases Involving the Brussels I Regulation
324
Introduction
324
Cases where Jurisdiction is Founded on the Traditional Rules
325
Cases where Jurisdiction is Founded on Chapter II and the Alternative Forum is a Member State
326
Cases where Jurisdiction is Founded on Chapter II and the Alternative Forum is a Non-Member State
327
Cases Involving Schedule 4 to the 1982 Act
333
ch. 10
Provisional Measures
337
10.1.
Different Types of Provisional Measure
337
Introduction
337
Interlocutory Injunctions
339
Freezing Injunctions
340
Search Orders
347
10.2.
Jurisdiction to Grant Provisional Measures: Proceedings in Rem
348
10.3.
Jurisdiction to Grant Provisional Measures: Proceedings in Personam
351
Background: The Position at Common Law
351
Jurisdiction to Grant Provisional Measures in Support of Foreign Proceedings
353
Jurisdiction to Grant Provisional Measures in Support of Arbitration Proceedings
359
10.4.
Extraterritorial Provisional Measures
360
Introduction
360
Extraterritorial Freezing Injunctions
363
10.5.
Enforcement of Foreign Provisional Measures
374
ch. 11
Anti-suit Injunctions
375
11.1.
Preliminary Remarks
375
11.2.
The Bases on Which an Anti-suit Injunction May Be Granted
378
Unconscionable Conduct
378
Infringement of a Legal or Equitable Right
385
11.3.
The Brussels I Regulation
393
ch. 12
Recognition and Enforcement of Foreign Judgments under the Common Law and under Related Statutory Regimes
401
12.1.
Introduction
401
Why Recognise Foreign Judgments?
401
Which Foreign Judgments Should be Entitled to Recognition and Enforcement?
402
12.2.
Conditions for Enforcement at Common Law
402
The Jurisdiction of the Original Court
402
Final and Conclusive
412
For a Fixed Sum
412
12.3.
Conditions for Recognition at Common Law
416
Introduction
416
On the Merits
418
Identity of the Parties
420
Identity of the Cause of Action or Issue
423
12.4.
Defences to Recognition and Enforcement at Common Law
426
Natural Justice
427
Fraud
428
Public Policy
431
Res Judicata
433
Civil Jurisdiction and Judgments Act 1982, Section 32
433
Multiple Damages
435
12.5.
Recognition and Enforcement of Judgments in Rem
436
Jurisdiction of the Original Court
437
Defences
437
Enforcement
437
12.6.
Recognition and Enforcement under Statutory Regimes Based on the Common Law
438
Enforcement under Part II of the Administration of Justice Act 1920
438
Recognition and Enforcement under the Foreign Judgments (Reciprocal Enforcement) Act 1933
440
ch. 13
Recognition and Enforcement of Judgments under the Brussels I Regulation, Judgments against States and European Community Judgments
445
13.1.
Basic Conditions for Recognition and Enforcement under the Brussels I Regulation
446
The Scope of the Brussels I Regulation
446
What is a 'Judgment'?
446
The Relationship between Chapter II and Chapter III
450
13.2.
The Principle of Automatic Recognition under the Brussels I Regulation
451
13.3.
Defences to Recognition under the Brussels I Regulation
453
No Review of the Merits
453
Limited Review of Jurisdiction
454
Public Policy
457
Safeguarding the Rights of the Defendant
461
Irreconcilability
467
Appeals in the State of Origin
469
What is an 'Ordinary Appeal'?
470
13.4.
Enforcement of Judgments under the Brussels I Regulation
471
Introduction
471
Application for Enforcement
471
The Decision
475
Appeals against Enforcement
476
Appeals Against a Refusal to Enforce
482
The Relationship between National Law and Chapter III
483
13.5.
Authentic Instruments and Court Settlements under the Brussels I Regulation
484
Authentic Instruments
484
Court Settlements
485
Grounds for Refusing Enforcement
485
13.6.
Recognition and Enforcement of Judgments within the United Kingdom
486
Introduction
486
Recognition
487
Enforcement
488
13.7.
Judgments against States and European Union Judgments
490
Recognition of Judgments Given against the United Kingdom
490
Recognition and Enforcement of Judgments Given against Other States
491
European Union Judgments
491
Part II: Choice of Law
493
ch. 14
Choice of Law in Contract
495
14.1.
Introduction
496
The Common Law
496
The Rome I Regulation
498
The Scope of the Rome I Regulation
499
Exclusion of the Doctrine of Renvoi
504
14.2.
Determining the Applicable Law
505
The Applicable Law in Cases of Choice
505
The Applicable Law in the Absence of Choice
521
14.3.
Mandatory Rules and Public Policy
532
Introduction
532
The Application of Mandatory Rules
534
The Application of Overriding Rules
536
Public Policy: Article 21
541
14.4.
Particular Aspects of the Contract
543
Preliminary Remarks
543
Consent and Material Validity: Article 10
544
Formal Validity: Article 11
547
Capacity
549
Performance
552
Interpretation
556
Discharge
556
Nullity
557
Illegality
557
Remedies
559
14.5.
Particular Contracts
563
Contracts of Carriage
563
Certain Consumer Contracts
564
Insurance Contracts
570
Individual Employment Contracts
573
14.6.
Miscellaneous Provisions
580
Voluntary Assignment and Contractual Subrogation
580
Legal Subrogation
585
Multiple Liability
585
Set-off
585
ch. 15
Choice of Law: Non-contractual Obligations
587
15.1.
The Rome II Regulation
587
Background of Events Leading to the Rome II Regulation
587
General Overview of the Rome II Regulation
589
Choice of Law Rules for Tort
593
Choice of Law Rules for Other Non-contractual Obligations
608
Other Provisions
619
15.2.
Choice of Law in Tort: Common Law Rules
626
Background to the English Choice of Law Rules
626
The Modern Common Law Position
628
15.3.
Choice of Law under Part III of the Private International Law (Miscellaneous Provisions) Act 1995
632
Introduction
632
The General Rule
633
The Exception
635
The Scope of the Applicable Law: Substance and Procedure
636
Public Policy and Overriding Rules
637
15.4.
Parallel Claims and the Potential Interaction of Contract and Tort Choice of Law Rules
637
Parallel Claims
637
The Potential Interaction of Contract and Choice of Law Rules
640
ch. 16
Proof of Foreign Law
647
16.1.
Foreign Law: A Question of Fact
647
16.2.
Cases in which Foreign Law Does not Have to be Proved
648
16.3.
Mode of Proof
649
The Requirement of Evidence
649
Uncontradicted Evidence
650
Conflicting Evidence
650
Who is an Expert?
651
Decision on Points of Foreign Law in Subsequent Cases
651
16.4.
Appeals
652
Part III: International Insolvency
655
ch. 17
EC Regulation on Insolvency Proceedings
657
17.1.
Scope of the Insolvency Regulation
658
General
658
Exclusions
660
Insolvency-related Proceedings
661
Intra-UK Insolvencies
662
17.2.
Jurisdiction
662
Two Sets of Conflicting Doctrines
662
Main Proceedings
663
Territorial Proceedings
672
17.3.
Choice of Law
678
General Rule
678
Exceptions
679
17.4.
Recognition and Enforcement
685
General
685
Powers of the Liquidator
688
17.5.
Miscellaneous
689
The llotchpof Rule
689
Publication of Insolvency Proceedings
689
Provision of Information for Creditors and Lodgement of their Claims
690
ch. 18
International Insolvencies Falling Outside the EC Insolvency Regulation
691
18.1.
Personal Insolvency/Bankruptcy
692
Jurisdiction
692
Choice of Law
697
Effects of an English Bankruptcy Order
699
Recognition
702
Concurrent Proceedings
706
18.2.
Corporate Insolvency
706
Jurisdiction
707
Choice of Law
715
Effects of an English Winding-up Order
715
Recognition
719
Concurrent Liquidations
724
18.3.
Judicial Co-operation
725
Re HIH Casualty and General Insurance Ltd
728
ch. 19
The Cross-Border Insolvency Regulations 2006
733
19.1.
Introduction
733
19.2.
General
735
Scope
735
Allocation of Jurisdiction between Courts in Great Britain
737
Co-operation between Courts in Great Britain
737
Inter-relationship between the Model Law and other International Instruments
738
British Insolvency Officeholder Acting Abroad
738
19.3.
Access of Foreign Representatives and Creditors to English Courts
739
19.4.
Recognition of a Foreign Proceeding
740
Relief Available upon the Application for Recognition of a Foreign Proceeding
742
Effects of Recognition of a Foreign Main Proceeding
743
Relief Available upon the Recognition of a Foreign Proceeding
743
Protection of Creditors and Other Interested Persons
744
Avoidance
745
19.5.
Co-operation with Foreign Courts and Foreign Representatives
746
19.6.
Concurrent Proceedings
747
19.7.
Conclusion and Overview
749
Part IV: Arbitration
753
ch. 20
Arbitration: Introduction
755
20.1.
What is Arbitration Law?
755
20.2.
Various Types of Arbitration
756
Domestic and International
756
Ad Hoc and Institutional
757
Specialised Arbitrations
759
20.3.
Trends in International Commercial Arbitration
759
Encouragement
759
Harmonisation
759
20.4.
Outline of English Arbitration Law
764
The Foundations of Arbitration: the Arbitration Agreement
764
The Powers of the Tribunal
766
The Powers of the Court
769
ch. 21
The Agreement to Arbitrate
783
21.1.
The Law Governing the Arbitration Agreement
783
21.2.
Enforcement of the Agreement to Arbitrate
786
Introduction
786
Conditions for the Grant of a Stay under Section 9
787
The Effect of a Stay under Section 9
802
Inherent Jurisdiction
802
ch. 22
The Law Governing the Conduct of an Arbitration and the Scope of the Court's Powers
805
22.1.
Introduction
805
Preliminary Remarks
805
The 'Delocalisation' Theory
805
The Importance of the Seat of Abritration
807
22.2.
The Scope of the Statutory Provisions: General Principles
809
22.3.
The Scope of the Statutory Provisions: Cases where the Seat of Arbitration Is in England
811
Introduction
811
Internal Aspects of the Procedure
812
External Aspects of the Procedure
813
22.4.
Scope of the Statutory Provisions: Cases where the Seat is Abroad or no Seat Has Been Designated or Determined
815
22.5.
Jurisdiction in Proceedings Ancillary to an Arbitration
818
ch. 23
The Law Applicable to the Merits of a Dispute Referred to Arbitration
823
23.1.
Introduction
823
Types of Choice of Law Clause
823
Legal Background
823
23.2.
The Position under the 1996 Act
824
Section 46 of the 1996 Act
824
The Exclusion of Section 46
825
The Three Circumstances Envisaged by Section 46
826
Cases where the Arbitrator Misapplies Section 46
833
The Impact of Mandatory Rules
835
ch. 24
Recognition and Enforcement of Arbitration Awards
839
24.1.
Preliminary Issues
839
The Relationship between Enforcement and Setting Aside
839
The Enforcement of Domestic Awards
839
The Enforcement of Foreign Aribitration Awards
840
24.2.
Recognition and Enforcement of Foreign Awards under Part III of the Nitration Act 1996
842
The Scope of Part III of the 1996 Act
842
Conditions for Obtaining Recognition or Enforcement
845
Grounds for Refusing Recognition or Enforcement
847
Discretion to Adjourn the Decision on Recognition or Enforcement
863
24.3.
Recognition and Enforcement of Foreign Awards at Common Law
865
The Relationship between the Arbitration Act 1996 and the Common Law
865
Methods of Enforcement
866
Conditions for Recognition or Enforcement at Common Law
866
Defences at Common Law
868
24.4.
Recognition and Enforcement of Foreign Awards under Part II of the Nitration Act 1950
870
The Relationship between Part II of the 1950 Act and Other Regimes
870
Conditions for Recognition and Enforcement
870
Defences to Enforcement
871
24.5.
Other Regimes for the Recognition and Enforcement of Foreign Arbitral Awards
872
Part II of the Civil Jurisdiction and Judgments Act 1982
872
Part II of the Administration of Justice Act 1920
873
Part I of the Foreign Judgments (Reciprocal Enforcement) Act 1933
873
Arbitration (International Investment Disputes) Act 1966
873
Recognition of Awards Made by the Iran-US Claims Tribunal
874
24.6.
Awards, Judgments and the Cause of Action
875
Conflicting Judgments and Awards
875
The Effect of a Foreign Judgment on the Award
878
The Effect of a Foreign Arbitral Award on the Cause of Action
879
Index
881