Advanced Commercial Litigation

ADVANCED COMMERCIAL LITIGATION EXAM NOTES
5 MCQ’s (15%)

(1) CONFLICT OF LAWS
ROME I REGULATION – CONTRACT
*Application – all EU member states except Denmark

MATERIAL SCOPE (Article 1)

1. Is the court faced with a conflict of laws?
2. Does it relate to a contractual obligation?
3. Is it a civil & commercial matter which is not excluded under Article 1?

All three questions need to be satisfied for Rome I to apply subject to the TEMPORAL SCOPE (Article 28)


Have the parties agreed an express choice or law or is a choice Implied?
‘clearly demonstrated by the terms of the contract or the - Previous contracts
circumstances of the case”? - Sense of error
- Jurisdiction Clause (Recital 12)
- Standard form contract
YES: Article 3 NO: Article 4

The contract will be Does the contract relate to Possible exceptions to
governed by the law one of the cases specified Articles 3 and/or 4
chosen by the parties. in Art.4(1)(a) to (h)?
Consumer Contracts –
Limitations: Article 6(2) plus Recitals
- Art.3(3) NO: Art.4(2) 24 & 25
- Art.3(4)
Law of the country where Individual employment
*Special Rules: Art.6 & 8 the “characteristic contracts – Article 8(1)
performer has its habitual plus Recital 36
residence (Art.19)


Art.4(3) – answer from
either Art.4(1) or 4(2) does
not appear to be correct.
Look at “manifestly more
Applicable law will be closely connected” with
subject to: another country (Recital
20)
Art.9 – overriding
mandatory provisions of Art.4(4) – fall back
law of the forum provision “most closely
connected”
Art.21 – public policy of -currency
the forum -intention
-language
-performance

, ROME II REGULATION – TORT
*do SGS 2 MCQ questions
MATERIAL SCOPE (Article 1)

1. Is the court faced with a conflict of laws?
2. Does it relate to a contractual obligation?
3. Is it a civil & commercial matter which is not excluded under Article 1?

All three questions need to be satisfied for Rome I to apply subject to the TEMPORAL SCOPE (Arts 31&32)


Have the parties agreed an express choice or law or is a choice
‘clearly demonstrated by the terms of the contract or the
circumstances of the case”?



YES: Article 14 NO: Article 4 Possible Exceptions to Art 4

If agreement AFTER Art.4(2) – C&D habitually Product Liability – Art 5
dispute arose choice is reside in same country? *subject to Art4(2)
valid and will apply - Yes – That country’s -if not then 3 things under Art.5(1)
laws apply Person hurt needs to satisfy one of
If agreement BEFORE the options ‘marketed’ in the territory
dispute arose parties No: see Art 4(1)
must be pursuing a Environmental Damage – Art 7 with Recital
commercial activity 24
and the choice must Art 4(1) General Rule -Follow Art.4(1) or based claim of the
be freely negotiated country in which the event giving rise to
else choice invalid and Law of country in which damage occurred
will not apply damage occurs (Recital 17) -Genuine choice – the client has a choice
between country A & B based on the facts

Art 4(3) Tort “manifestly
more closely connected”
with another country?
- Get out provision



Applicable law will be subject to:

Art.16 – overriding mandatory provisions of law of
the forum

Art. 17 – rules of safety & conduct in country
where event giving rise to liability arose

Art.26 – public police of the forum

,COMMON LAW RULES
Application:
1. Defamation claims falling within the scope of s.13; and
2. Any tortious act or omission occurring before 1 May 1996

The Common Law rules can be summarised as followed: there is a general rule of double actionability:
there must be actionability under both the law of the forum hearing the dispute and the law of the place of
the tort, but there is a flexible exception to this rule which is based on the concept of “the most significant
relationship”

Two limb test:
1. The claimant must show that the tort is actionable
Double under the law of the forum
PHILLIPS V EYRE
actionability 2. The claimant must also show that the tort is “not
justifiable” under the law of the place of the tort
Exception to Limb Phillips could be departed from if there were “clear and
BOYS V CHAPLIN satisfactory grounds” for doing so
2
A case may be governed by the law of the country which
RED SEA has the most significant relationship with the occurrence
Exception to limb 1
INSURANCE and the parties

Defamation Cases
 As a consequence of s.13, the double actionability rule continues to apply to defamation claim
 The claimant must show that the tort is actionable under the law of the forum, as well as showing
that it is “not justifiable” under the law of the place of the tort

, (2) INTERNATIONAL ASPECTS OF DISPUTE RESOLUTION

Proof of Foreign Law
 Once the English court has decided that a foreign county’s laws will apply to a tortious dispute, the
relevant laws must be proved as a matter of fact
 The evidence can only be presented by witnesses who possess the requisite degree of expertise in
the foreign law. Pursuant to s.4 CEA1972, evidence of such foreign laws must be provided by:
o “…a person who is suitably qualified to do so on account of his knowledge or experience…
irrespective of whether he has acted or is entitled to act as a legal practitioner”
 Art.25 of Regulation 1215/2012: if the parties choose the jurisdiction to settle potential disputes –
that chosen jurisdiction is followed unless the agreement is null and void as to its substantive
validity under the law of that Member State
 Bumper Development:
o Foreign law in English courts is treated as a question of fact which must be proved in
evidence
o In the absence of satisfactory evidence of foreign law, the court will apply English law
o An English court will not conduct its own research into foreign law
o If the evidence of several expert witnesses’ conflicts as to the effect of foreign sources, the
court is entitled & bound to look at those sources in order itself to decide between the
conflicts. Look at agreement between the experts & at whose evidence is more compelling
o The judge is not entitled to construe a foreign code or written law itself
 Concurrent evidence: - CPR 35 PD 11
o Practice of expert witnesses from the same discipline being in the witness box and available
to give evidence at the same time
o The relevant experts are sworn at the same time and are simultaneously available for the
judge to question. Judge can order ‘hot-tubbing’ at any stage
o The costs incurred in providing the foreign law will be seen as costs of the proceedings and
will accordingly fall to be paid by the unsuccessful party (CPR 44.3(2))
o +ve: assists the court when it does not have the requisite technical or speciality knowledge
& helps with fact finding
 Expert immunity:
o Abolished in respect for claims for negligence in Jones v Kaney
o Experts now at risk of proceedings for negligence brought by the party instructing them in
respect of advice given prior to proceedings being issued
o An expert who is negligent, biased or irrational might be reported to any relevant
professional body
o If an expert’s report lacks objectivity or common sense, a party can apply for the expert to
be joined to the substantive proceedings and for the court to make a wasted costs order
against the expert personally in respect of the costs incurred in dealing with the expert’s
evidence and matters arising from it
 Vasiliou v Hajigeorgioiu
o Court made an order (CPR 35.4) giving both parties permission to ‘instruct 1 expert each’
o D instructed an expert who drafted an interim report  D did not want to rely on report 1
o D therefore instructed a second expert and sought court permission to rely on his evidence
o Judge granted permission but said needed disclosure of report 1
o D appealed:
 Fact that expert 1 had been instructed did not mean that the order had been carried
into effect and did not require D to seek court’s permission to rely on expert 2
o Clients will require permission from the court to adduce expert evidence from any expert
other than the expert named in the court’s directions