PROCEDURAL ISSUES IN INTERNATIONAL RESOURCES LITIGATION: THE ENGLISH LAW PERSPECTIVE
| Jurisdiction | United States |
(Apr 1999)
PROCEDURAL ISSUES IN INTERNATIONAL RESOURCES LITIGATION: THE ENGLISH LAW PERSPECTIVE
Herbert Smith
London, England
TABLE OF CONTENTS
1. INTRODUCTION
2. JURISDICTION OF THE ENGLISH COURTS WHERE THE DEFENDANT IS IN ENGLAND
3. JURISDICTION OF THE ENGLISH COURTS WHERE THE DEFENDANT IS NOT IN ENGLAND
4. OBTAINING AN INJUNCTION IN ENGLAND AGAINST AN ENGLISH PARTY TO RESTRAIN ACTION ABROAD
5. ANTI-SUIT INJUNCTIONS
6. LETTERS OF REQUEST
7. DISCOVERY/DISCLOSURE
8. JOINDER
9. ENFORCEMENT OF FOREIGN JUDGMENTS IN ENGLAND
10. ARBITRATION AND ALTERNATIVE DISPUTE RESOLUTION
APPENDICES
1. Summary of the new Civil Procedure Rules
2. Order 11 of the Rules of the Supreme Court
3. List of the signatories to the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters 1970
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BIBLIOGRAPHY
1. Cheshire and North's Private International Law, 12th Ed. 1992, North and Fawcett
2. Dicey and Morris on The Conflict of Laws, 12th Ed. 1993, Collins
3. International Arbitration and Dispute Resolution Directory 1998, Martindale-Hubbell
4. Commercial Litigation: Pre-emptive Remedies, 3rd Ed. 1997, Goldrein, Wilkinson and Kershaw
5. Injunctions and Specific Performance 1983, Sharpe
6. Snell's Equity, 29th Ed. 1990, Baker & Langan
7. Documentary Evidence, 6th Ed. 1997, Style & Hollander
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1. INTRODUCTION
This paper considers the English Common Law perspective of the contentious issues raised by the hypothetical case study on which the conference has been based, covering such topics as jurisdiction, injunctions, joinder/misjoinder, discovery, enforcement of judgments, arbitration and alternative dispute resolution.
The paper necessarily assumes that the multinational resources company, MRCO, is incorporated in England with its head office in London. Similarly, the host country where LCo is based is assumed to be Mexico with the cross-border pipeline reaching north into the United States.
Injunctive relief has already been sought against MRCO in England, and it is likely that the subsequent pipeline explosion will spawn further proceedings raising a myriad of English Law issues. These are considered below.
2. JURISDICTION OF THE ENGLISH COURTS WHERE THE DEFENDANT IS IN ENGLAND
A striking feature of the English Common Law rules relating to the competence of the English Courts in actions in personam is their purely procedural character. Anyone may invoke or become amenable to their jurisdiction, provided only that the defendant has been served within the jurisdiction with a writ of summons, or, rather, a claim form as it is to be known from 26 April 1999.1 There are two consequences of this. First, the mere service of a claim form will give the English Courts power to try actions which may be inappropriate for trial in England. Secondly, and conversely, if the defendant is not present within the jurisdiction, the English Courts are denied power to try actions in which it would be appropriate for the trial to be held in England. That said, the harsh effects of these consequences are mitigated in various ways, for example, by the English Courts' power to stay actions and by the power to permit service out of the jurisdiction.
The traditional rule, therefore, is that the jurisdiction of the English Courts is founded upon the service of a claim form. The mere service of a claim form will give the English Courts power to try an action regardless of the connection that the dispute has with England unless the dispute relates to a contract containing an exclusive jurisdiction clause in favour of another country. A claim form can be served on any entity which is "present" in England.
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This does not merely cover English companies. A foreign corporation which carries on business in England will also be deemed to be "present" in England and therefore amenable to the jurisdiction of the English Courts.
A different regime applies as between the English Courts and the Courts of most other European countries. The Civil Jurisdiction and Judgments Act 1982 ("the 1982 Act"), which came into force on 1 January 1987, incorporates into English Law the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 ("the Brussels Convention"). The original purpose of the Brussels Convention was to facilitate the enforcement of judgments between the Contracting States2 , but the Brussels Convention also provides a detailed set of rules dealing with the circumstances in which Courts in the individual Contracting States may exercise jurisdiction in matters within the scope of the Brussels Convention.
The primary basis of jurisdiction under the Brussels Convention is domicile3 . The Courts of a Contracting State will have jurisdiction over a defendant domiciled in that State. The Brussels Convention itself does not define domicile, save to state that a corporation is to be treated as domiciled in the country where it has its "seat". Determination of where a corporation has its seat is left to domestic law4 .
Under English Law, a company will have its seat in the United Kingdom if it was incorporated under the law of a part of the United Kingdom and has its registered office or some other official address in the United Kingdom; or if its central management and control is exercised in the United Kingdom5 .
Service of a claim form on a company incorporated in England or registered in England as an overseas company can be effected by leaving it at, or sending it by post to, the registered office of the company in England6 . Service of a claim form on a foreign company which is not registered as an overseas company, but which has established a place of business in England can be effected by serving it on the person whose name appears on the records at Companies House as the person authorised to accept service of process on behalf of the company7 . If the company has failed to register the name and address of a person authorised to accept service, the claim form should be served at the company's place of business in England8 . Service may be effected in this manner even though the dispute does not concern the activities of the English division of the company.
Despite the defendant being "present" or domiciled in England, the English Courts may not be the most appropriate jurisdiction in which to try the dispute, and the English Courts do have the power to stay any such proceedings commenced.
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A mechanical rule applies under the 1982 Act vis-à-vis Contracting States under the Brussels Convention whereby the jurisdiction first seised of the dispute holds sway9 . There is therefore no application of the forum non conveniens rule.
Where the competing jurisdiction is not a Contracting State under the Brussels Convention, the English Court of Appeal has held that the principle of forum non conveniens has a residual application10 .
3. JURISDICTION OF THE ENGLISH COURTS WHERE THE DEFENDANT IS NOT IN ENGLAND
Where the defendant is neither domiciled nor present in England, the Common Law rules on jurisdiction apply. As noted above, the English Court's jurisdiction is traditionally founded upon the service of a claim form, but this Common Law principle has been modified by statute.
Under Order 11 of the Rules of the Supreme Court, the English Court has a discretionary power to permit service of a claim form on a defendant who is not within the jurisdiction, irrespective of that defendant's nationality11 .
Order 11, rule 1(1) lists the circumstances in which a claim form may be served on a defendant who is outside England, but permission will only be given if the case is a proper one for service out of the jurisdiction12 .
The court has to be satisfied of three things:
(1) that the plaintiff can establish that there is a serious issue to be tried, namely that, there is a substantial question of fact or law, or both, arising on the facts disclosed by the affidavit evidence13 ,
(2) that there is a "good arguable case" that one of the heads of Order 11, rule 1(1) applies; and that
(3) the Court's discretion to allow service should be exercised.
The most common heads of Order 11, rule 1(1) put forward by a plaintiff to establish jurisdiction in the English Courts are as follows:
(1) An injunction is being sought ordering the defendant to do or refrain from doing something in England14 . However, in The Siskina,15 the House of Lords held that this cannot be used to found an action where the only claimed basis
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of jurisdiction is an interlocutory injunction to restrain a defendant from removing his assets out of the jurisdiction.16 The injunction sought in the action has to be part of the substantive relief to which the plaintiff's cause of action entitles him; for example, an injunction to restrain a threatened breach of contract.
(2) The Court may also assume jurisdiction against a person out of England if, the is a necessary or proper party to a claim brought against a person duly served (whether within or out of England)17 . The plaintiff must satisfy the Court his there is between the plaintiff and the person already served a real issue which he may reasonably ask the Court to try18 . Therefore, service of the claim form on the person out of the jurisdiction will not be permitted under this head where the sole purpose of the action against the defendant already served is to found jurisdiction against the person out of the jurisdiction.
(3) The claim relates to a contract which was either made in England, is governed by English law, or contains an English jurisdiction clause19 .
(4) The claim is founded on a tort and the damage was sustained, or resulted from an act committed, within the jurisdiction.20 Until the amendment of Order 11, rule 1(1) in 1987, jurisdiction could...
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