Jonathan Hill, Adeline Chong

International Commercial Disputes (eBook, ePUB)

Commercial Conflict of Laws in English Courts

• Format: ePub

Produktbeschreibung

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.

This title is included in Bloomsbury Professional's International Arbitration online service.

Produktdetails

• Verlag: Bloomsbury UK eBooks
• Seitenzahl: 896
• Erscheinungstermin: 28. September 2010
• Englisch
• ISBN-13: 9781847317452
• Artikelnr.: 41510630

Autorenporträt

Jonathan Hill is a Professor of Law at the University of Bristol.

Inhaltsangabe

Chapter 1 - 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 - 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 - 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 -
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 - 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 - 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 - 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 - 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 - 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 - 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 - 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 - 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 - 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 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 -
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 - 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 - 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 - 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 - 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 - 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 - 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 - 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 - 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 - 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 - 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