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Lecture 4: International
Litigation

Adopting Luke Nottage and

Vivienne Bath in some parts
Intro and overview: what are three 2
main issues of international litigation
(and/or private international law)?

Cross-border litigation
Jurisdiction of courts and exercise of
jurisdiction (why important?)
Choice of law (why important?)
Enforcement of foreign judgments
Mostly domestic law (few
treaties)(why important??)
*Broadly discuss these three issues
today.
I. Forum (Jurisdiction) 3

 When will a court hear a case - what

is jurisdiction?
 Does the court have jurisdiction?
(How to decide?)
 Can more than one court have
jurisdiction?
 Can the parties choose the forum
(court)?
 Can the parties exclude a forum?
How?
Exercise of Jurisdiction 4
 Court cannot take jurisdiction if there is no basis for jurisdiction
 (Eg, Common law ) Courts may refuse to take jurisdiction -
forum non conveniens:
 Action breaches contract to submit to a foreign jurisdiction
 Otherwise ‘inappropriate’ for court to take case (say the location
of evidence? Connection with the case?)
 Courts will grant a stay of an action if there is an agreement to
arbitrate the dispute
 Courts will (rarely) order a litigant to cease litigating in a
foreign court – anti-suit injunction (but US and England? Legal
arrogance?)
Jurisdiction – in personam (over the
5
person)
 Presence within the jurisdiction to be served with the
originating process / writ
 Natural persons (on an airplane passed by the UK!?)
 Juridical persons – registered or carrying on business
 Service outside jurisdiction but inside Australia
 Submission to jurisdiction by defendant
 Agreement to submit
 Appearing and contesting case on the merits
 Extent of submission
 Service outside the jurisdiction?
Service outside the
jurisdiction
 May be limited to specified matters or proceeding the case
may be limited if defendant fails to appear
 E.g. NSW Uniform Civil Procedure Rules, Schedule 6 - examples
 cause of action arose in the State;
 contract was made in the State;
 contract is governed by law of the State;
 contract was breached in the State;
 tort committed in the State;
 damage suffered in the State.
*Philippines?

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Service under the Hague
Convention
 Hague Convention on the Service Abroad of
Judicial Extrajudicial Documents in Civil or
Commercial Proceedings 1965
 Simplifies rules governing service of court
documents in other countries
 Reduces difficulties in proving proper service
overseas in cases before Australian courts
 Australia acceded 15 March 2010; to become
effective 15 October 2010 in the absence of
objection from any other State
*The Philippines??

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Jurisdiction –In Rem (over the 8
object)
 Actions against ships or cargo of
ships physically present in the
jurisdiction – possible to
commence proceedings against
the ship or against the cargo
rather than against the owner
(can also exercise jurisdiction in
personam against owner)
Application of Procedure of 9
the Forum
 Basic rule: procedural matters are determined by law of
forum; substantive matters by proper law
 What are procedural matters?
- Reduced category – mainly rules of evidence
II. What is the law governing 10
the case?
 Different issue from jurisdiction
 Forum applies its own choice of law rules (including to choice
of law by parties)
 Parties may have selected the governing law
 May be different law for the contract and for formalities of
execution, etc.
 In Australia (or general?), court first defines the category (e.g.,
law of succession in relation to immovable property) and then
the connecting factor which determines the choice of law
(law of place of situation of property): the Philippines?
Choice of law rules for 11
different classifications of
subject matter
 Contract (dealt with in this class)
 Tort
 Immovable Property
 Movable Property
 Intellectual property
 Negotiable instruments
Choice of Law in Contract 12

 What does proper law of the contract govern?

 Capacity to enter into contract
 Interpretation of the contract
 Breach of contract
 Substance of obligation to perform a contract
 How do judges determine the proper law of a contract?
 Subjective test: choice by parties (expressly or implicitly)
 Objective test: closest and most real connection
 Subject to overriding statutory rules

*Perhaps these ideas apply to the Philippines … am I wrong???

Express Choice of Proper Law 13

 Express choice – provision in contract

‘This contract shall be governed by
the laws of the Philippines.’
 Is the parties’ability to choose unlimited? (Some discussions:
what do you think?)
Unconscionability (overwhelmingly
one-sided)
Need for a connection?
Choice not “bona fide” (to avoid
particular legal consequences )
Inferred Choice of Proper Law 14
 How should we determine inferred choice of proper law?
 Can infer choice of law from terms of contract and surrounding
circumstances
 Infer by permissible means of construction whether parties
intended particular system of law: look at terms of contract and
general circumstances of case
 But note possible impact of mandatory provisions of local law
* (Eg, Akai v People’s Insurance Company Ltd (1996) 188 CLR 418
for common law countries)
Objective proper law of a contract –
15
where no choice made (the Closest and
Most Real Connection?): inferred choice
of law (continued)
 Residence
 Language of the contract
 Terminology employed in the contract
 Place of contracting
 Place of performance
 Link between contract and a “System of Law”, not a
particular country
Overriding forum law
(overriding mandatory rules of 16
the forum)
 Overriding forum law?
 Eg, Art 9 of Rome I Regulation, provisions
the respect for which is regarded as
crucial by a country for safeguarding its
public interests, such as its political, social
or economic organisation … such as?
 Rules of public law, mainly, but not always,
antitrust law, import and export restrictions
 Rules of the private law serving to protect
the interests of the weaker party:
consumer/employment law
 No evasion via choice of foreign forum
Choice of law relating to 17
Intellectual Property
 Uncertain
 One view is that since they are created by statute in a
particular jurisdiction then should treat IP rights as immovable
property
 Apply the law of the place where the IP right is created
 Enforcement?
 Distinguish between right and use of right (eg by licensing)
Application of foreign law 18

 Eg, Australian (and Filipino?) court

will revert to forum law
If foreign law is not pleaded
If foreign law is not proved
 Australian court regards foreign law
as a question of fact to be proved
by expert evidence (the
Philippines?)
III. Enforcement of Foreign Judgments –
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Eg, Common Law
 Common law requirements:
 The foreign court had jurisdiction [under
Common Law’s standards, not foreign law’s!]
 The judgment is final
 There is identity of the parties
 The judgment is for a fixed sum
*The Philippines? ‘Final Judgment.’
 Enforcement of foreign judgment can be refused only on
limited grounds (the Philippines: want of jurisdiction; want of
notice to the party; collusion (corruption?); fraud; or clear
mistake of law or fact!? … say comity???)
 Enforcement of foreign judgment cannot be refused on
grounds of mistake of law or procedure (in common law).
Eg, Australian statutory rules on
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Enforcement of Foreign
Judgments
 Foreign Judgments Act 1991 (Cth) – applies to courts in
countries to whom scheme applies (England, Japan etc
… NZ too, but bilateral treaty 2008!)
 Basis for enforcement - registration of judgment in
Australia
Registration? 21

 Some countries require foreign judgments to be registered in a

local court (eg, Australia).
 Effect? : as if judgment given in the court of registration; does
not constitute recognition of underlying cause of action; and
once registered in Australia, no action lies for the recovery of a
sum under that judgment other than pursuant to the
registration.
 But in the Philippines?
*BTW, some countries do not enforce any foreign judgments.
Where?
Grounds for refusing or setting aside22
registration
 The judgment debtor did not receive notice in time to appear
 The judgment was obtained by fraud
 The judgment has been reversed or set aside in the original
country
 Enforcement would be contrary to public policy
Exclusionary Rules on grounds of 23
Public Policy
 Tax laws
 Penal laws
 Assisting foreign government to expropriate assets
 Exercise of foreign government functions
 Public policy (as a vague but in a narrow sense)
 Laws in contravention of international law
*Any opinions about public policy??? Useful concept, but any
problems? Eg, india!
Enrichment: international
conventions on private
international law by Hague
(i) 2005 Hague Convention on Choice of Court (Forum)
Agreements (effective … explained here with a bit more
detail)
(ii) 1971 Hague Convention on the Recognition and
Enforcement of Foreign Judgments in Civil and Commercial
Matters (non-effective yet)
(iii) 2015 Hague Principles on Choice of Law in International
Commercial Contracts (non-effective yet)

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(i) 2005 Hague Convention on 25
Choice of Court (Forum)
Agreements
 [further: see 55 ICLQ 447] in force from 1 Oct 2015 after EU
joined Mexico in ratification; USA and Singapore have also
signed
 http://www.hcch.net/index_en.php?act=conventio
ns.status&cid=98
 Scope:
 Exclusive forum cls [eg “only Oz Cts”]
 Presumed if general [eg “Oz Cts”] (Civil law tradition,
cf US)
 States [eg Oz] can also declare (art 28) that will
enforce judgments under (expressed) non-exclusive
cls (eg “Oz or NZ Cts”, then litigation in NZ Cts with no
objection from Oz-co)
 Cls must be in writing (so conduct n/a, eg “Oz Cts” clause
but Ozco contests in NZ Cts)
 Contracts (but not consumer, labour Ks), torts, IP validity…
3 principles of 2005 Hague 26

Convention
 Chosen Ct [eg Oz, if accedes] must take Jn (if allowed)
unless void under (PIL) law of that state
 NO FNC at all (civil law tradition, cf even Trans-Tasman
treaty)!
 Other Cts [eg J, if accedes to Convention] must not assume
Jn, unless
 void under (PIL) law of original/chosen Ct [Oz]
 P lacked capacity or anti-public policy under law of seised
Ct [J], or manifest injustice, or [force majeure (eg war in J)], or
Oz Ct doesn’t hear the case
 All other Cts [eg J, if it accedes] must recognise the [Oz Ct] Jt,
unless
 Ag’t void under law of chosen Ct (and that Ct hasn’t held
yet to the contrary, ie that it was not void)
 Similar other grounds as above
What is Hague BTW? 27

 Watch:
https://www.youtube.com/watch?v=da0X1V8ZLX
4&t=321s
Other international 28
conventions on private
international law (related to
contract)?
 Regulation (EC) No 593/2008 of the European
Parliament and of the Council of 17 June 2008 on
the law applicable to contractual obligations
(Rome I Regulation)
 Regulation (EU) No 1215/2012 of the European
parliament and of the council of 12 December
2012 on jurisdiction and the recognition and
enforcement of judgments in civil and
commercial matters (recast)
*Mainly Europe, check if you have time.
 Question 29
 Suppose you are a lawyer working for a
Filipino company (choose a company by
yourself). The company is doing business
(decide a type of business by yourself) with a
foreign corporation (choose a corporation by
your self) together in country A (choose a
country by yourself). Unfortunately, the
business is not doing well recently, and the
rumour is that the foreign corporation is
thinking to sue the Filipino company to a
court in country A. The CEO of the Filipino
company took the rumour seriously so that
she asked you for some legal and practical
advice. What will you say to the CEO?