Comparing commercial dispute resolution in the UK

Practical Law UK Articles 7-505-7851 (Approx. 12 pages)

Comparing commercial dispute resolution in the UK

by Ross Murdoch, Maclay Murray & Spens LLP

Establishing jurisdiction

The jurisdictional rules that apply across the UK are largely similar. The European regulation that governs jurisdiction, Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Regulation), applies to the UK as a whole. This means that jurisdiction between the UK's constituent parts is determined by reference to the law of the part of the UK in which a claim has been made. The provisions within Schedule 4 of the Civil Jurisdictions and Judgments Act 1982 (CJJA 1982) are the primary source for determining how jurisdiction is allocated within the UK. When the meaning or effect of a provision of the CJJA 1982 is unclear, the courts must have regard to the decisions of the European Court of Justice (ECJ) in relation to the Brussels Regulation (section 16(3), CJJA 1982). However, the ECJ has no jurisdiction to interpret the provisions in Schedule 4 of the CJJA 1982 (Kleinwort Benson Ltd v City of Glasgow District Council (Case C-346/93) [1995] EUECJ).

This similarity is supplemented by the legislation of the UK Parliament, such as the Companies Act 2006, which generally applies to the whole of the UK (with some specific provisions only applying to certain parts). The rules of jurisdiction contained within Schedule 4 of the CJJA 1982 are supplemented by Schedule 8 which only applies to Scotland. There are some minor differences between Schedule 4 and Schedule 8 of the CJJA 1982 but these do not impact to any great extent on the rules which are relevant to contractual disputes.

Intra-jurisdictional forum shopping in the UK

The primary ground of jurisdiction in the UK is the domicile of the party being sued. For companies this is normally their registered office. However, in both England and Wales and Scotland if a claim relates to a branch office or other premises of a company it can be brought in the jurisdiction where this is located. This means that if, for example, a party has a claim against a company with its registered office in England but the claim relates to a contract with a branch, or the place of performance of the contractual obligation, in Scotland, the claimant (known as the pursuer in Scotland) may be able to demonstrate that there are grounds to bring a claim in either jurisdiction.

When assessing where the place of performance of the contractual obligation is, the obligation in question must be the one on which the claimant is bringing proceedings. For example, a party claiming that payment should have been made to an account in England by an English domiciled party should not be able to found jurisdiction in Scotland on the basis that the claimant provided the services giving rise to the payment obligation in Scotland. Place of performance of the obligation in question is a special ground of jurisdiction that in Scotland can be used when there is only one possible place that the obligation should have been performed, otherwise a claim must be made in the jurisdiction in which the defendant (known as the defender in Scotland) is domiciled (Bank of Scotland v Seitz 1990 SLT 584). However, an English court may still exercise jurisdiction in such a situation when a defendant is not domiciled in the jurisdiction (Medway Packaging v Meurer [1990] 2 Lloyd's Rep. 112).

Jurisdiction clauses

The greatest barrier to the freedom to choose the jurisdiction in which a party can issue a claim is an exclusive jurisdiction clause. However, the courts in both England and Wales and Scotland recognise the doctrine of forum non conveniens. This is a test which is applied to determine what is the most appropriate court to try the case for the interests of all the parties and the ends of justice (Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460). This means that if a contract contains a jurisdiction clause which states that it is subject to the exclusive jurisdiction of the courts and law of England and Wales, a court may still decide by applying this test that the claim relates to the actions of a branch office in Scotland and so should be determined by the Scottish courts. The claimant, therefore, may make a tactical decision to issue a claim in one jurisdiction and the defendant (known as the defender in Scotland) then must decide whether to challenge this. This carries with it the usual costs risk, which must be considered by both parties in the circumstances of the case. In cases in the UK this is particularly significant as often there is not much to separate whether one forum is more appropriate than the other, and so the case may remain in the jurisdiction in which the claim has been made.

Impact of EU legislation on jurisdiction in the UK

The CJJA 1982 was passed to implement the Brussels Regulation into UK law but there are a number of key differences which impact on intra-jurisdictional conflicts within the UK. These include:

The form that a jurisdiction clause should take is set out under the Brussels Regulation (Article 23(1)(a) to (c)) but there is no equivalent provision within the CJJA 1982, which means that this is determined by reference to the law of the relevant part of the UK.
Unless the parties agree otherwise, the choice of jurisdiction clause is automatically exclusive under the Brussels Regulation (Article 23(1)). However, this is not repeated within the CJJA 1982. This means that whether a particular jurisdiction is exclusive depends on the application of the law of the relevant part of the UK.
The principle of forum non conveniens applies to UK law (see above, Jurisdiction clauses) to determine what court would be the most appropriate forum to decide the dispute. This is a departure from the Brussels Regulation, which gives effect to the lis pendens rule which prohibits parallel proceedings in different EU courts (Articles 27 to 30). This means that a party can selectively choose to make a claim in one member state in order to delay proceedings. This rule is currently under review (see below, Reform).
Claims brought under an insurance contract are not specifically dealt with in the CJJA 1982 (as they are in Articles 8 to 13 of the Brussels Regulation). This means that the insured is protected from the operation of clauses conferring exclusive jurisdiction on the insurer's own courts.
The CJJA 1982 provides that jurisdiction in relation to proceedings which have, as their object, a decision of an organ of a company or other legal person is not exclusive (unlike Article 22(2) of the Brussels Regulation). Such proceedings can (rather than must) be brought in the courts of the part of the UK in which the company, legal person or association has its seat (rule 4, CJJA 1982).
In disputes relating to a contract a person domiciled in a part of the UK can, in another part of the UK, be sued where the contractual obligation was to be performed (rule 3(a), CJJA 1982). The Brussels Regulation states that the place of performance of the obligation is where goods or services were or should have been provided under the contract (Article 5(1), Brussels Regulation). This means that the courts of the relevant part of the UK must interpret what is meant by the place of performance of the obligation (see above, Intra-jurisdictional forum shopping in the UK).
When lending is secured over immovable property, proceedings can be brought in the courts of the part of the UK where the property is situated (rule 3, CJJA 1982). There is no equivalent provision in the Brussels Regulation.
The provisions in relation to consumer contracts are largely repeated (rules 5 to 7, CJJA 1982) but there is no provision (as in Article 15(2) of the Brussels Regulation) that a branch or agency of a party domiciled within another part of the UK is domiciled where they have their operations. This protects a consumer’s right to sue where they are domiciled.

Costs and funding

It is difficult to be precise about what any given action may cost in one jurisdiction when compared to the other. There are differences procedurally, such as pre-action conduct and disclosure (see below, Procedure and timescales), which apply in England and Wales but not normally in Scotland, that on the face of it, lead to additional upfront costs. However these procedures may take place in Scotland in a commercial action. This must be balanced against the possibility that these procedural steps, which place a greater burden on parties comparatively early on in the procedural timetable, may lead to earlier settlement and an overall costs saving.

In both England and Wales and Scotland, if a claim is decided by the court in a party's favour the general principle is that the losing party pays the winner's costs. However, in both jurisdictions it is very rare for the successful party to obtain their full costs. There is no formal guidance in relation to what a party can recover, since this is at the court’s discretion. Generally a successful party in England and Wales normally recovers somewhere between 65% to 80% of its costs. A successful party in Scotland is only likely to be awarded in the region of 50% of their costs by the courts. In Scotland expenses are awarded by reference to a standard scale. The Court does maintain discretion over what to award but it is arguable that the standard scale does have a depressive effect on what is awarded, which may lead to lower rates of recovery for a successful party than in England and Wales. In both jurisdictions, a defendant can apply for security for the costs that they will incur by defending the claim (known as caution in Scotland). This can be completed by way of a payment into court or by guarantee.

Sources of funding

The vast majority of commercial litigation is funded from a party's own resources in England and Wales and Scotland. These funds can be supplemented by insurance taken out to provide cover for a future legal problem (before-the-event insurance) or to cover litigation costs once a dispute has commenced (after-the-event insurance).

Conditional fee agreements (CFAs) can be entered into in England and Wales and Scotland (often called speculative fee arrangements in Scotland). This is where there is no fee, or a reduced fee, if a party is not successful, with fees being uplifted by up to 100% if the matter is successful. CFAs are more popular in personal injury claims but are increasingly being used in commercial dispute resolution in England and Wales. It is common for these to be used in conjunction with after-the-event insurance and, in England and Wales (but not Scotland), the success fee and insurance premium are recoverable from the losing party. However, this practice will be abolished (see below, Reform).

The use of third party funding, where a party not connected to a claim funds litigation in return for a share of the proceeds, is a comparatively new source of funding, which appears to be becoming more popular with funders in view of the likely changes to the rules in relation to CFAs. This source of funding is not prohibited under Scottish law but has received very little attention in Scotland as a potential funding solution.

Contingency fee arrangements, where fees are based on a percentage of the proceeds recovered in the litigation are not currently permitted in either jurisdiction. These fee arrangements will be introduced in England and Wales (see below, Reform).

Representation

Rights of audience. In England and Wales, the vast majority of hearings are conducted by barristers, who have full rights of audience in both the County Courts and higher courts of England and Wales, and are normally instructed by a solicitor. A solicitor, who is directly instructed by the client, has full rights of audience in the County Courts and limited rights of audience in the higher courts, although full rights can be obtained through qualification as a solicitor advocate. Only authorised persons or exempt persons may carry out reserved legal activities in England and Wales, which includes the exercise of the rights of audience and the conduct of litigation (sections 12-13, 18 and 19, Legal Services Act 2007). Authorised persons include (amongst others):

Solicitors qualified to practice in England and Wales.
Barristers qualified to practice in England and Wales.

The exempt person category may allow those who do not fall within the category of authorised persons to, for example:

Represent a client at a hearing in chambers.
Assist the conduct of litigation.
Appear in court alongside someone who is an authorised person (Schedule 3, Legal Services Act 2007).

An individual who is not qualified in England may be able to assist a party in litigation slightly more than in Scotland. There may be little practical difference as it is normally best practice to instruct someone who is appropriately qualified in the relevant jurisdiction.

In Scotland, solicitors have full rights to conduct matters in the Sheriff Court, the closest equivalent to the County Courts, but not in the Court of Session, the equivalent to the higher courts. Again, full rights can be obtained through qualification as a solicitor advocate. Advocates, the Scottish equivalent to barristers, have full rights of audience in both the Sheriff Court and higher courts of Scotland.

There is a greater divide between the branches of the profession (solicitor and barrister) in England and Wales than there is in Scotland. This may be because whether a claim should be issued in the Sheriff Court or Court of Session is less clear cut than it is in England.

Allocation of the claim. In England and Wales, a claim below GB£25,000 (as at 1 March 2012, US$1 was about GB£0.6) must be issued in the County Courts. A claim worth more than this amount may be heard in either the High Court or the County Court. However, claims worth less than GB£50,000 which are issued in the High Court are normally transferred to the County Court unless there is a specific reason that the case should be tried in the High Court, for example if it is a complex case or fraud is alleged (Civil Procedure Rules (CPR) Practice Direction (PD) 29.2.2).

In Scotland, a claim below GB£5,000 must be made in the Sheriff Court. A claim above this amount can be issued in the Sheriff Court, where a solicitor has a right of audience, or the Court of Session. In the Sheriff Court the court decides for the purposes of expenses whether or not a particular case was sufficiently complex to warrant the instruction of counsel. There is no upper limit on the value of claims in the Sheriff Court.

For major commercial disputes in both jurisdictions it is likely that a barrister, in England and Wales, or advocate in Scotland, will be instructed by a solicitor to conduct proceedings in the High Court or Court of Session respectively.

Generally, inter-solicitors' correspondence may be more aggressive in tone in England and Wales than it is in Scotland. This should be noted when passing correspondence to clients, as the aggressive tone may give them cause for concern and they may need to be advised accordingly as to the strength (or weakness, if appropriate) of their case.

Procedure and timescales

There are a number of procedural differences between England and Wales and Scotland. These include:

Pre-action conduct.
Court structure and procedural timetable.
Limitation periods.
Disclosure.

Pre-action conduct

The pre-action protocols identify the steps that parties should take before a claim is issued in England and Wales. This is not generally required for claims in Scotland (only claims relating to personal injury, disease and professional negligence have pre-action protocols and these are not statutory but voluntary in nature). However, certain pre-action conduct is necessary for commercial actions in the Court of Session. The practice direction on pre-action conduct in England and Wales and the practice note on commercial actions in the Court of Session in Scotland are broadly similar. They both require that the parties have pre-action communications and substantially set out their respective positions, disclosing documents or expert reports, as necessary.

Both jurisdictions also encourage the parties to consider ADR (see below, ADR). The underlying aim is that all issues are fully explored before formal proceedings are commenced or significant expenses are incurred to allow the best possible chance for settlement. The consequences of a claimant not complying with these steps are that the court will take this into account when giving directions and making orders about costs.

Court structure and procedural timetable

Commercial disputes. Large commercial disputes in England and Wales are likely to be brought in the High Court. This is divided into the Chancery Division and the Queen's Bench Division. The Chancery Division deals with disputes relating to:

Tax (including warranty claims).
Competition.
Financial regulatory matters.
Insolvency.
Civil fraud.
Intellectual property.

The Queen's Bench Division deals with:

Contractual claims.
Negligence.
Defamation.

The Commercial Court which deals with complex business disputes, and the Admiralty Court, which deals with shipping and maritime disputes, both sit within the Queen's Bench Division. An unsuccessful party can appeal a decision of the High Court to the Court of Appeal, provided that they have permission to do so from the lower or appeal court. Any decision of the Outer House can be appealed to the Inner House of the Court of Session. Both jurisdictions share the same final tier of appeal: the UK Supreme Court.

In Scotland, large commercial disputes are likely to be brought in the Outer House of the Court of Session either as an ordinary or commercial action. In both jurisdictions parties are encouraged to resolve the dispute as quickly as possible.

Non-commercial disputes. There are clear differences in the procedure for non-commercial actions in Scotland compared to the general procedure in England and Wales. In Scotland, there is no court generated timetable for the progress of an ordinary action. There are rules providing timescales for various steps of procedure (which may be slower than a commercial action) but these only apply once a party has completed the various steps required (Rules of the Court of Session 1994). Commercial action procedure is available in Scotland broadly for any dispute or transaction of a commercial or business nature and this procedure allows the court to set a timetable. In practical terms, for commercial cases the Scottish judiciary may be more interventionist in setting a timetable than their English counterparts (although this is not always the case). This may be because parties more often agree directions between themselves in England.

Timetables. Once a claim has been issued in England and Wales, or raised as a commercial action in Scotland, this must be served on the defendant by a permitted means of service, for example, a process server (distinct rules apply to service out of the jurisdiction). The Brussels Regulation does not apply to service intra-UK and is determined by the rules of the relevant part of the UK in which a claim is made. Service can be completed by any of the permitted methods of service and permission to serve out of the jurisdiction may not be required (CPR 6 and Chapter 16, Rules of the Court of Session 1994).

In England and Wales, the general rule is that the defendant must acknowledge service of the claim form (if served with the particulars of claim) or serve a defence (CPR 10.3 and 15.4). If an acknowledgement of service is filed, the defendant then has 28 days after service of the particulars of claim to file a defence (CPR 15.4). In a commercial action in Scotland, defences must be lodged within seven days after the summons (equivalent to the claim form and particulars of claim) is lodged for calling, It is noteworthy that the summons is expected to be briefer than those required for an ordinary action (rule 18.1, Rules of the Court of Session 1994) and so may potentially be less detailed than particulars of claim in England (although this is often not the case in practice). The court then normally holds a case management conference (CMC) where the court makes directions. These directions can be agreed but this is ultimately the court's decision.

Limitation periods

In England and Wales, the limitation period for an action under a contract or in tort (excluding personal injury cases) is six years from the date that the cause of action accrued (Limitation Act 1980). However, in Scotland, a claim under a contract or in delict, excluding personal injury cases, (the equivalent of tort) must be brought within five years of the cause of action (Prescription and Limitation (Scotland) Act 1973). Personal injury claims in both jurisdictions must be made within three years. A claim under contract runs from the date of breach and a claim under tort (or delict), for example in negligence, normally runs from the date damage is suffered.

The consideration that a claim is, or is partially, time barred in one jurisdiction may lead to forum shopping in another (McElroy v McAllister 1949 SC 110). However, a court will have to be convinced first that it is the most appropriate forum to determine the dispute and then it will apply the relevant limitation period within that jurisdiction. (See above, Intra-jurisdictional forum shopping in the UK and Jurisdiction clauses.)

Disclosure

The methods that a party may use to obtain evidence differ between England and Wales and Scotland.

The directions that a court will make in England and Wales include disclosure. Each party must disclose all documents relevant to the litigation, provided they are not subject to legal privilege, even if they are damaging to its own case (CPR 31). The general rule is that parties in Scotland are not required to disclose any document unless they wish to rely on it in proceedings, although parties may be ordered to disclose certain documents, or certain categories of documents, in a commercial action.

The Scottish courts have certain limited powers to allow a party to recover documents. However, these powers are exercised very cautiously by the Scottish courts. The procedure for obtaining documents from another party is completed by a motion (broadly equivalent to an application in England and Wales) and specification of documents. A specification of documents is a list describing the particular documents that a party wishes to recover. The motion will also ask the court to order a commission and diligence for recovery of the documents which have been approved in the specification. The normal practice is that once a specification is approved, the party who holds the documents will pass these on without further procedure. However, if these are not produced, a party can make a formal request to those holding the documents to produce these and/or a commission can be held. A commission is a form of hearing where the parties can examine witnesses and the commissioner has all the powers of the court to seek the recovery of the specified documents. This procedure resembles, in some respects, the document request procedure under the International Bar Association Rules for the Taking of Evidence in International Arbitration.

The practical effect of Scottish procedure is that the parties may not see all documentation relevant to the litigation. The process of disclosure in England and Wales can be a costly and burdensome exercise but it may mean that parties have a much better understanding of their prospects of success. This may lead to an increased chance of settlement and potentially (but not always) an overall costs saving.

The directions that a court makes in England and Wales also include a date for parties to exchange witness statements. The parties do not exchange witness statements in Scotland. In Scotland, each party takes precognitions (witness statements) to let them know what witness evidence is likely to be. However, witnesses are not required to comply with this, including the other party's witnesses, so it is likely that each party will only "precognose" their own witnesses before a proof (trial).

The above factors can mean that the evidence likely to come out in court is less predictable in Scotland than it is in England and Wales.

Interpretation

The starting point for the interpretation of contractual terms in both jurisdictions is the ordinary and natural meaning of the words used. However, the knowledge of the parties to the contract and surrounding circumstances or factual matrix will be considered to assist interpretation. The English courts and the Scottish courts now agree that the literal meaning of words is no obstacle to interpretation when background facts can be used to show that a reasonable person in the relevant context would have taken the words to mean something different (Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 (HL), Multi-Link Leisure Developments v North Lanarkshire Council [2010] UKSC 47 and Rainy Sky SA v Kookmin Bank [2011] UKSC 50).

In England and Wales, pre-contractual negotiations cannot be examined to assist contractual interpretation (Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38). In Scotland, the position is less clear and pre-contractual negotiations have been considered on occasion (Bank of Scotland v Dunedin Property Investment Co Ltd 1998 SC 657), despite the general rule that this is not permitted (Luminar Lava Ignite Ltd v MAMA Group plc [2010] CSIH 1). This means that it is much more difficult to advise whether such evidence will be considered in Scotland than in England and Wales.

Conduct subsequent to the formation of the contract being used as an aid to interpretation has not been subject to high level judicial determination in England and Wales and Scotland. However, the Investors Compensation Scheme case (see above) does infer that in England and Wales such evidence is inadmissible, because only information available to the parties at the time of the contract will be considered. Again, the position is less clear in Scotland and post-agreement conduct has been considered as an aid to interpretation on occasion (Wincanton Group Ltd v Reid Furniture Ltd [2008] CSOH 109).

There are a number of other differences in the way the courts interpret contracts in Scotland which would not be replicated in England and Wales:

There is no requirement for there to be consideration for a contract to be formed in Scotland.
In Scotland, the parties cannot execute the contract by counterpart and must all sign the same document.
The law of Scotland provides that a party can bind itself to an obligation without any need for acceptance (known as a unilateral promise). This is not possible in England and Wales.
The rights of third parties in England and Wales are governed by the Contracts (Rights of Third Parties) Act 1999. In Scotland, third party rights are recognised at common law under the doctrine of jus quaesitum tertio.
The evidential rule known as estoppel, which prevents a party from denying or contradicting something previously asserted which he has encouraged or permitted another party to accept, is equivalent (but different in its application) to the unitary doctrine of personal bar in Scotland. This is not an equitable remedy in Scotland. Indeed, Scotland does not recognise the law of equity in its English form.

However, in a number of areas, the interpretation of contractual terms or concepts is largely the same, such as remoteness of damages (Hadley v Baxendale (1854) 9 Exch 341), interpretation of indemnity clauses (Smith v UMB Chrysler (Scotland) Ltd 1978 SC (HL) 1) and rescission. However, there may be some differences in application. For example in Scotland, it is not necessary when considering whether a party can rescind a contract to determine whether the term breached is a condition or warranty. It is simply a question of whether there has been a material breach of contract.

Available remedies

The right to damages following loss suffered from a breach of contract is largely the same in England and Wales and Scotland. However, there may be differences in the remedies available.

In Scotland, a party is able to choose whether to seek an order requiring a party to perform the obligation which has been breached (known as specific implement) or damages. Specific implement may not be appropriate in all cases.

The law of England and Wales approaches the question of available remedies from the opposite direction. A party can still obtain damages or specific performance (equivalent to specific implement in Scotland). However, historically specific performance was only available when damages were not an adequate remedy. This position has relaxed somewhat and specific performance is available in a wider range of cases.

The position in England and Wales and Scotland is broadly similar but not always, and sometimes these differences will produce opposite results. For example, in cases involving keep open clauses in commercial leases (Highland & Universal Properties Ltd v Safeway Properties Ltd 2000 SC 297). There is also the possibility in some cases, such as defamation claims, that a party may choose to claim in one jurisdiction to obtain a higher level of damages (Lennon v Scottish Daily Record and Sunday Mail Ltd [2004] EWHC 359 (QB)). However, this should be less of an issue in contractual claims where losses should be more readily quantifiable.

The courts in England and Wales and in Scotland can grant interim remedies to prohibit a party starting or continuing a claim in another jurisdiction within the UK. This is known as an interim injunction in England and Wales and interim interdict in Scotland (these can also be final remedies as injunction and interdict respectively). A party who wishes to guard against such an order being made against it in Scotland can lodge a caveat. This means that an interim interdict cannot be granted unless all reasonable steps have been taken to allow the person who lodged the caveat to be heard. This is lodged in the petitions department of the Court of Session and is renewed annually. There is no equivalent to this in England and Wales.

ADR

In both jurisdictions, mediation and arbitration are increasingly being used as an alternative means to resolve disputes. Mediating disputes is increasingly popular in both England and Scotland. England is commonly used as a forum for arbitration of complex commercial disputes involving international parties based in different jurisdictions. This has been comparatively less popular in Scotland but has been more frequently used following the recent Arbitration (Scotland) Act 2010 and the newly formed Scottish Arbitration Centre.

Reform

The Review of civil litigation costs in England and Wales (Review) proposed a number of changes to court funding. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 incorporates many of the changes from the Review (amongst others) into the law of England and Wales. In relation to commercial disputes, perhaps the most significant change is that after-the-event insurance premiums and success fees under CFAs will no longer be recoverable from the losing party. Furthermore, contingency fees will be permitted for contentious business (where the fee represents a share of the client's damages). These changes take effect during 2013. It is also intended that secondary legislation will provide that general damages awards should be increased by 10%.

The Scottish Civil Courts Review proposed a great number of modernising changes to civil procedure in Scotland. These remain outstanding for implementation although the Scottish Government have recently completed a consultation into the establishment of a Scottish Civil Justice Council to implement these changes. One major proposed change is that the Sheriff Court should have exclusive jurisdiction for claims up to GB£150,000. Other changes include greater judicial intervention to prevent delays that can be caused by the parties under ordinary procedure.

The Brussels Regulation is also undergoing a process of reform. The proposed reforms include:

When a contract contains an exclusive jurisdiction clause, proceedings (including arbitration proceedings) brought in any other member state must be stayed until the court referred to as having exclusive jurisdiction has ruled on its own jurisdiction.
A judgment in one member state can be enforced in another without registration in the country in which enforcement is sought.
The courts will determine the jurisdiction of those domiciled in non-EU member states by reference to the Brussels Regulation, not a member state's own law.
It is also proposed that other proceedings must be stayed when an arbitration agreement exists. This is to allow the tribunal or Court designated as the seat of the arbitration to determine whether or not an arbitration agreement is valid.

It appears that while the EU continues to seek to harmonise jurisdictional rules, the establishment of the devolved law-making Scottish Parliament may lead to further divergences between the laws of England and Wales and Scotland. However, it may be possible for parties to exercise some degree of control over where to make a claim when there are connecting factors to both England and Wales and Scotland. In such a scenario, it may be worthwhile weighing up on a case-by-case basis the pros and cons of bringing a case in one jurisdiction as opposed to the other, particularly as the end result may be different.

Contributor details

Ross Murdoch

Maclay Murray & Spens LLP

Tabular or graphic material set at this point is not displayable.

T +44 20 7634 8770
F +44 20 7002 8501
E [email protected]
W www.mms.co.uk

Qualified. Scotland, 2010; England and Wales, 2011

Areas of practice. Cross-border disputes involving financial services litigation, civil fraud and asset recovery; insolvency litigation; arbitration; oil and gas litigation; professional negligence.

Recent transactions

Cross-border recovery of assets from Lehman Brothers.
Managing multiple complaints made against a client to the Financial Ombudsman Service (FOS) in respect of a financial product.
Acting for a major worldwide news organisation in their claim concerning financial newsfeeds.
Acting for a national airline company in cross-border arbitration proceedings.
Representing a national television company in a trust claim following the insolvency of a global distributor.
Acting for a defendant in a major multi-jurisdiction, multi-defendant, commercial fraud claim.

Comparing commercial dispute resolution in the UK | Practical Law