International Commercial Litigation (LAWS0253)

This module examines the rules and principles which apply to resolve questions of private international law or the conflict of laws in international commercial litigation before the English courts.

London is the leading centre for international commercial dispute resolution. Most of the cases brought before the English commercial courts involve one or more foreign parties, and many of these have little or no connection with the United Kingdom. Parties from around the world are drawn to litigate in England, seeking to take advantage of the expertise of English law, lawyers and courts. In the (somewhat provocative and controversial) words of the well-known English judge Lord Denning, “You may call this ‘forum-shopping’ if you please, but if the forum is England, it is a good place to shop in, both for the quality of the goods and the speed of service.” (The Atlantic Star [1973] QB 364, 382).

Many of the international commercial claims being brought in the English courts raise complex issues regarding whether, and if so how, the English courts should resolve such cases. Any time that proceedings are commenced which have connections with more than one legal system, questions of private international law or the conflict of laws must be considered. This module examines the rules and principles which apply to resolve these questions as they arise in international commercial litigation before the English courts. The three main questions which arise are:

1. Jurisdiction – whether the English courts will hear a dispute (including how the courts take into account connections that the dispute may have with foreign legal systems, or the existence of parallel proceedings in a foreign court);
2. Applicable law – which law or laws will be applied to resolve the dispute (perhaps counterintuitively, courts will often apply foreign substantive law if the case has its most significant connections with a foreign legal order); and
3. The recognition and enforcement of foreign judgments – whether the courts will give effect to a foreign judgment which has already sought to determine the issues between the parties.

This module also examines some of the key ancillary orders which the courts may make in dealing with such disputes, including anti-suit injunctions (which seek to protect English jurisdiction by restraining a party from bringing foreign proceedings) and asset freezing orders (which seek to protect English jurisdiction or assist foreign courts by preserving assets against which a judgment might ultimately be enforced).

The module also features four ‘problem-focused’ classes, which examine some of the key contemporary issues in commercial litigation, drawing on the research interests of the teaching team. For example, one of these examines the increasing number of claims before the English courts against multinational companies, seeking to hold English parent companies responsible for the conduct of their foreign subsidiaries. Another looks at the impact of the internet on problems of private international law, including the complexities of dealing with online defamation.

In examining these different issues, the module draws on a range of sources – the law which applies in England is (at least presently) a mixture of common law and European Union elements, and it is also influenced by international conventions. (The UK has committed to continuing to apply some EU rules after Brexit unilaterally; the continued application of other EU rules will depend on the outcome of the Brexit negotiations. The module will of course take into account any such changes as necessary.) At appropriate points, comparisons will also be drawn with the approaches taken in other legal systems, particularly the United States, Australia and Canada.

While this module focuses on the approach to international commercial litigation in English courts, it is of relevance to those seeking to practice commercial law in any jurisdiction. It is not just litigation lawyers who need to understand these issues – transactional lawyers also need to understand and advise on litigation risk when drafting and negotiating contracts. For foreign lawyers, the course serves both as an introduction and explanation of the key issues they will face in dealing with cross-border transactions or disputes, and also more directly will assist if they are required to advise parties on the approach to these issues in England or (at least in certain respects) or in Member States of the European Union.

Module syllabus

1. Introduction
2. Jurisdiction under the Brussels I Regulation
3. Jurisdiction under the common law
4. Parallel proceedings and lis pendens
5. Stays of proceedings under the Brussels I Regulation
6. Anti-suit injunctions
7. Recognition and enforcement of judgments under the common law
8. Recognition and enforcement of judgments under the Brussels I Regulation
9. Freezing injunctions
10. Introduction to choice of law
11. Choice of law in contract
12. Choice of law in tort
13. Substance and procedure
14. Public policy and mandatory rules
15. Problem focus 1: Claims against transnational corporations
16. Problem focus 2: Unjust enrichment
17. Problem focus 3: Party autonomy
18. Problem focus 4: The impact of the internet
19. The pleading and proof of foreign law
20. Revision and consolidation

Recommended materials

Statute books

• E. Maganaris, ‘Core Statutes on Conflict of Laws’ (2018, Palgrave/Macmillan), or
• M. George and A. Dickinson (eds), ‘Statutes on the Conflict of Laws’ (2015, Hart)

Text books

• ‘Cheshire, North and Fawcett’s Private International Law’ (15th edn, 2017, Oxford University Press)
• 'Clarkson & Hill's Conflict of Laws’ (5th edn, 2016, Oxford University Press)

Further reading

• 'Dicey, Morris & Collins on the Conflict of Laws’ (15th edn, 2012, Sweet and Maxwell)
• Hartley, ‘International Commercial Litigation: Text, Cases and Materials on Private International Law’ (2nd edn, 2015, Cambridge University Press)
• Rogerson, ‘Collier’s Conflict of Laws’ (4th edn, 2013, Cambridge University Press)

Preliminary reading

• Cheshire, North and Fawcett’s Private International Law’ (15th edn, 2017, Oxford University Press), chapter 1
• Clarkson & Hill, ‘The Conflict of Laws’ (5th edn, 2016, OUP), chapter 1

Key information