LAWSG022 International Commercial Litigation

LAWSG022: INTERNATIONAL COMMERCIAL LITIGATION
Credit value: 30 credits (15 ECTS, 300 learning hours)
Convenor: Alex Mills
Other Teachers: Ugljesa Grusic
Teaching Delivery: 20 x 2-hour weekly seminars, 10 seminars per term, Term One and Two
Who may enrol: LLM students only
Prerequisites: None
Must not be taken with: None
Qualifying module for: LLM in Litigation and Dispute Resolution;
LLM in International Commercial Law;
LLM in International Law
Introductory video Currently there is no introductory video for this module
Assessment
Practice Assessment: Opportunity for feedback on one optional practice essay per term (two in total)
Final Assessment: One 3-hour unseen written examination (100%)
Module Overview
Module summary:

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).

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;
  2. Applicable law – which law or laws will be applied to resolve the dispute (perhaps counterintuitively, courts will often apply foreign 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 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).

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. 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, and also more directly will assist if they are required to advise parties on the approach to these issues in England or other 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. Problem focus 1: Contracts (including sale of goods, services, and contractual networks)
  14. Problem focus 2: Claims against transnational corporations
  15. Problem focus 3: Property (including intellectual and intangible)
  16. Problem focus 4: Libel tourism
  17. Substance and procedure
  18. Public policy and mandatory rules
  19. The pleading and proof of foreign law
Recommended materials:

Statute book:

  • M. George and A. Dickinson (eds), ‘Statutes on the Conflict of Laws’ (Hart, 2015)

Text books:

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

Further reading:

  • Dicey, Morris & Collins on the Conflict of Laws’ (15th edn, 2012, Sweet and Maxwell) (available
    on Westlaw)
  • Hartley, ‘International Commercial Litigation: Text, Cases and Materials on Private International Law’ (2nd edn, 2015, Cambridge University Press) (cases and materials book with some commentary)
  • Rogerson, ‘Collier’s Conflict of Laws’ (4th edn, 2013, CUP) (also available as an ebook through the UCL library catalogue)
Preliminary reading:

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