Jurisdictional Disputes – including anti-suit injunctions and conflict of laws

Jurisdictional disputes including
anti-suit injunctions and conflict of laws

The first topics to be considered in any dispute (contractual or otherwise) are:

• What law applies; and
• what forum, if any, has jurisdiction to deal with matters

Current judicial thinking and practice in England is that recourse to the Court is to be a matter of last resort.

In contractual disputes, the parties often expressly agree how differences are to be resolved.  Sometimes the dispute resolution clause imposes an obligation to negotiate and only if such negotiation fails to achieve a result, can a party proceed to arbitration or a nominated Court (for example the English Court).  Sometimes it is agreed that the dispute is to be decided by an independent expert.

Current English practice appears to treat any contract stated to be governed by the laws of England and Wales and subject to the jurisdiction of the Courts of England and Wales as giving exclusive jurisdiction to such Courts, even if the contract does not use the word “exclusive”.  The ramifications of the English Court having jurisdiction are considerable, not just from the costs perspective but also from the perspective of disclosure of documentation, evidence and trial.  Our common law procedure is different to the Court process in many other countries.

If the contract requires problems to be resolved by arbitration, then a party who ignores the relevant clause and simply seeks to involve the Court straightaway can soon find himself facing an application to stay or even strike out such proceedings with all the expense that can entail.  Any such application to stay must be made promptly and with full disclosure of fact, otherwise the Court will assume that objection to its jurisdiction has been waived.

Likewise if the parties have agreed that all proceedings are to be determined by the Courts of a country other than England and Wales, then if one party starts proceedings in say England, the other party should make an immediate application to the English Court for an anti-suit injunction and do so before taking any steps which would recognise the jurisdiction of the English Court as this will waive the contractual requirement.  Again full and frank disclosure will need to be provided.

The arguments can be complex; speed and efficiency critical.  The Court process and the evidence required can be mystifying, strategic analysis is all time critical but as we at GSC have dealt with many cases involving these jurisdictional issues, we can help you through.