Cross border disputes and international litigation.
Jurisdiction, applicable law, service out and enforcement for disputes involving parties, assets or contracts in more than one country.
International disputes are decided as much by where and under what law they are heard as by the underlying merits. A claimant who secures the English courts and English law in a case with a strong documentary record is in a very different position from one fighting the same argument abroad, and the opening exchanges on jurisdiction often shape the entire settlement dynamic.
Clerk&Counsel introduces independent barristers with experience of cross border work for exporters, importers, investors, international families and businesses trading across Europe and beyond. Instructions come from solicitors, from foreign law firms and directly from clients under the public access scheme.
The practical questions are consistent. Where can the claim be brought, which law governs it, how is the claim form served on a defendant abroad, how is evidence obtained from another country, and how is any judgment ultimately turned into money. Counsel addresses those in the first advice so that strategy is set before costs are committed.
Cross border work counsel takes on.
- Jurisdiction challenges and applications to stay English proceedings.
- Applications for permission to serve out of the jurisdiction and service under the Hague Service Convention.
- Governing law disputes under retained Rome I and Rome II rules.
- Enforcement of English judgments abroad and of foreign judgments in England and Wales.
- Anti-suit injunctions and applications to restrain foreign proceedings brought in breach of an agreement.
- International sale of goods, carriage, agency and distribution disputes.
- Freezing orders with a worldwide element and asset tracing across jurisdictions.
- Recognition and enforcement of arbitral awards under the New York Convention.
Establishing or resisting the English forum.
Since the Brussels regime ceased to apply to new proceedings, the common law rules have regained their central place. The court asks whether England is the proper place to bring the claim, and forum non conveniens arguments are once again fully available to defendants.
Where the contract contains an exclusive English jurisdiction clause, the 2005 Hague Convention supports both the jurisdiction of the chosen court and the enforcement of its judgment in other contracting states. Where the clause is non-exclusive or absent, permission to serve out must be obtained through one of the gateways, supported by evidence of a serious issue to be tried and a good arguable case on the gateway itself.
These applications are front loaded and evidence intensive. They also carry significant costs consequences, so counsel will give a candid assessment of prospects before a challenge is mounted or defended.
Which law governs the dispute.
A governing law clause is normally decisive for contractual claims. In its absence, the retained Rome I framework points to the law of the country of characteristic performance, subject to a closer connection test, while non-contractual claims are generally governed by the law of the place where the damage occurred.
Where foreign law applies, it must be pleaded and proved as a matter of fact through expert evidence. Counsel will advise on whether to plead foreign law at all, because in some cases the presumption that it is the same as English law produces a simpler and cheaper case.
Mandatory rules and public policy can override the chosen law in areas such as consumer contracts, employment and certain regulatory regimes, and those exceptions need to be identified early rather than at trial.
Turning a judgment into recovery.
A judgment is only as valuable as the assets available to satisfy it. Enforcement planning should begin before proceedings are issued, with an assessment of where the defendant holds assets and what the local courts require to recognise an English judgment.
Interim protection often matters more than final relief. Freezing orders, disclosure orders against third parties and Norwich Pharmacal relief can preserve the position while the substantive claim proceeds, and counsel will advise on the disclosure duties and cross undertakings involved.
Where an arbitration clause governs, the New York Convention offers a well established route to enforcement in over one hundred and seventy states, which is frequently the deciding factor in choosing arbitration over litigation at the drafting stage.
Specialist areas within this practice.
Tell us where the parties and the assets are.
Send the contract, details of the counterparty and a short summary of the dispute. We will come back with counsel options and an initial view on jurisdiction and applicable law.
Common questions.
Can I sue a foreign company in the English courts?
Often yes. Jurisdiction may be founded on an English jurisdiction clause, on the defendant's presence here, or by obtaining permission to serve the claim form out of the jurisdiction under the gateways in Practice Direction 6B. Counsel will advise on the strongest basis before proceedings are issued.
Which country's law applies to my contract?
If the contract contains a governing law clause that will usually be respected. Without one, the applicable law is determined by the retained Rome I rules for contracts and Rome II for non-contractual claims, which look at matters such as characteristic performance and the place of damage.
How has Brexit changed cross border litigation?
The Brussels Recast regime no longer applies to proceedings begun after the transition period. Jurisdiction is now governed largely by common law rules and the 2005 Hague Convention on choice of court agreements, and enforcement in EU states depends on local law or Hague. Forum non conveniens and anti-suit relief are available again.
Can I enforce a foreign judgment here?
Yes, through statutory registration regimes where they apply, through the Hague Convention for qualifying exclusive jurisdiction agreements, or at common law by suing on the judgment as a debt. Counsel will identify the correct route and advise on any defences the debtor may raise.
Do you work with lawyers in other jurisdictions?
Regularly. Counsel can advise English law issues while liaising with foreign lawyers on local procedure, evidence and enforcement, and can appear in English proceedings while overseas advisers handle their own courts.