Commercial Conflict of Laws and International Litigation

Learning Outcomes

Knowledge and Understanding

Having successfully completed this module, you will be able to demonstrate knowledge and understanding of:

• The impact of EU law on domestic English private international law.
• A comparison of the major Conventions/Regulations and other supranational legislation and case law as well as selected provisions of national laws dealing with commercial conflict of laws;
• The various techniques for dealing with international commercial problems involving conflict of laws, the national and regional theoretical and legal framework of private international law and its relevance to international commercial relationships and disputes ;
• The main legal rules and principles governing where a transnational commercial dispute can be heard, which law should be applied and whether a foreign judgement will or will not be enforced or recognised;
• The various techniques for dealing with international civil procedural problems in commercial litigation;

Transferable and Generic Skills

Having successfully completed this module you will be able to:

• Competently undertake research tasks with minimum guidance;
• Be an independent and self-critical learner, managing your own requirements for continuing professional development;
• Construct reasoned arguments based on premises drawn from various theoretical, legal and political sources, demonstrating a competence in problem solving in the conflict of laws.
• Deploy legal arguments in writing and/or orally;
• Engage confidently in academic and professional communication with others, reporting on action clearly, autonomously and competently;
• Use the full range of learning resources to analyse complex written texts and evaluate different types of arguments;

Subject Specific Intellectual and Research Skills

Having successfully completed this module you will be able to:

• Explain similarities and differences in national approaches, outcomes, policies and underlying philosophies;
• Identify, evaluate and apply key legal principles in solving transnational commercial disputes;
• Identify and critically evaluate key legal and policy issues in their social and economic contexts arising out of transnational law;
• Independently research, interpret and analyse relevant legal materials, including, where appropriate, international conventions, statutes, case law and standard form contracts;
• Form your own independent and personal view on the desirability and viability of harmonisation of private international law in Europe affecting businesses, and

The content of the module allows for the identification and examination of the conflict of laws issues that arise in relation to commercial disputes which have significant international elements. We begin by introducing the topic and its ever-increasing significance to commercial lawyers, situating the module in our increasingly globalised world. We begin by examining the first of the three sets of issues that frame the module, introducing the concepts of forum and jurisdiction and the notion of rules of special jurisdiction applicable in civil and commercial claims, with a focus on contractual and non-contractual disputes. Thereafter, we evaluate critically the application of the rules on lis pendens and related actions, as well as the English procedural law instruments of forum non conveniens and anti-suit injunctions, procedural institutions that aim to avoid multiple proceedings and irreconcilable judgments. We then go on to examine a fundamentally important and complex issue of jurisdiction, namely the relationship between international commercial arbitration and litigation. With a focus on claims arising in contract and tort, we proceed to examine the second pillar of the module, the determination of the law applicable to the substantive dispute. We begin with an introduction to the methodological principles of choice of law, then examine two sets of choice of law rules, those of English law and those harmonised rules established in EU Regulations and their implementation into domestic law post-Brexit. Finally, moving onto the third pillar of the module, we assess the application of the rules governing the recognition and enforcement of a judgment rendered by a court of one legal system before the court of another legal system.

Proposed Lecture Outline

1.Introduction to the Conflict of Law and International Litigation: The Europeanisation and Globalisation Agenda

2.Foundations of Jurisdiction

3.Special Jurisdiction: Contractual Claims

4.Special Jurisdiction: Non-Contractual Claims

5.Dealing with Multiple Proceedings

6.Arbitration

7.Principles of Applicable Law: Choice of Law Methodology

8.Applicable Law and Matters of Contract

9.Applicable Law and Matters of Tort

10.Recognition and Enforcement of Judgments

• Classroom discussion.

The module is taught by 10 two hour weekly lectures and five one hour fortnightly tutorials.

Lectures will introduce the main principles and structure of the subject. You are expected to provide the main input to the tutorials, where the main issues are discussed. E-learning facilities are provided through Blackboard. Lectures will be recorded in case any part of a lecture is missed, and for revision. Computer-based quizzes will be used alongside the lectures and tutorials to help provide a direction for your study.

The most important part of learning is your own independent study. This will, however, be closely guided, and firmly tied into the lectures, seminars and assessment. Most of the discussion will revolve around the main legal decisions, and the arguments that have been advanced, and accepted or rejected in the cases. In tutorials you will have the opportunity to present arguments orally to a group of peers and defend your position under challenge.

Preparation for and participation in lectures and tutorials will develop:

• Knowledge of the substantive principles and rules on commercial conflict of laws through directed reading as per distributed reading lists;
• Preparation for seminars including preparing answers to set questions and identifying own questions to ask in the seminars;
• Class discussion and presentation;
• Ability to manage and access a diverse range of legal and political sources of law, including English and European Court of Justice case law, EU Regulations and international conventions;
• Ability to critically evaluate those sources and to participate constructively in oral discussions concerning their content and application;
• Ability to assess reform proposals and comment critically on them;
• Problem solving and analysis skills;
• Time management and research skills.

Formative

This is how we’ll give you feedback as you are learning. It is not a formal test or exam.

Essay

• Assessment Type: Formative
• Feedback:
• Final Assessment: No
• Group Work: No

Summative

This is how we’ll formally assess what you have learned in this module.

Referral

This is how we’ll assess you if you don’t meet the criteria to pass this module.