Practice areas
International law – three questions before the legal question itself.
Where a set of facts touches several states, it is rarely the substantive law that decides the outcome. What is decisive is which court has jurisdiction, which law it applies and where a decision can ultimately be enforced. This sequence is not academic – it determines whether the end result is a payment or an unusable title.
General information. The legal assessment depends on the circumstances of each case.
Circumstances
Clarify the context
Evidence
Preserve documents
Deadlines
Explain any urgency
Approach
Discuss the next steps
Overview
Forum, law, enforceability
International law is not a substantive field of law of its own, but a preliminary question that precedes every other. Anyone who wants to sue a contracting party in France, administer an estate with a Spanish property or recover a payment to Estonia must first know in which state they can even conduct proceedings. Only then can claims be discussed in a meaningful way. In practice this sequence is often reversed – with the result that months go into proceedings conducted in the wrong place.
Frequently several places of jurisdiction are open at the same time. In addition to the general forum at the seat of the other party, the Brussels Ia Regulation provides special forums, for example at the place of performance or at the place of the harmful event; in consumer contracts a forum at one’s own domicile is added. Where a choice exists, it is a strategic decision: duration of proceedings, rules of evidence, cost risk and enforcement prospects differ considerably between forums. We make this choice deliberately and not out of habit.
To be distinguished from jurisdiction is the applicable law. For contracts it is determined by the Rome I Regulation, for non-contractual claims by Rome II. A choice of law in the contract is in principle permissible, but is limited by mandatory provisions – in the consumer field, protective provisions of the state of residence remain applicable insofar as they are more favourable. Applicable law and the competent court can therefore diverge: a German court can apply French law, which affects the taking of evidence and the duration of proceedings.
The third and practically most important question is enforceability. Within the European judicial area, decisions are in principle enforceable without a separate recognition procedure; outside it, recognition follows national law and existing treaties. What remains decisive, however, is whether there are realisable assets at the place of enforcement. That is why we review the asset position before proceedings begin and not afterwards – a title against an impecunious opponent is an expensive piece of paper.
Typical matters
- Review of jurisdiction and applicable law before proceedings begin
- Recognition and enforcement of foreign titles
- Interim relief to secure assets abroad
- Drafting of choice-of-law, jurisdiction and arbitration clauses
- Coordination of parallel proceedings in several states
- Service of process and taking of evidence across borders
Frequently asked questions
What clients with a foreign element ask
The answers set out the framework. Which legal system applies in your case emerges only from the facts and the states involved.
Risks
Where cross-border proceedings fail
The following points come up regularly. They almost never concern the substantive legal position, but the preliminary questions – and therefore only take effect once considerable costs have already been incurred.
A title without assets to enforce against
The proceedings are won, yet at the place of enforcement there are no assets, or they have in the meantime been moved. The costs remain; the claim remains irrecoverable.
Possible measures: review the asset position before proceedings begin and, where permissible, apply for interim security.
Ineffective jurisdiction clause
The clause exists, but does not meet the formal requirements or is ineffective in a consumer relationship. The hoped-for forum is then not available.
Possible measures: review existing clauses for form and scope and recast them for future contracts.
Choice of law confused with jurisdiction
It is assumed that choosing German law also leads to German courts. The two must be distinguished, and the confusion regularly costs a set of proceedings.
Possible measures: regulate choice of law and place of jurisdiction separately and review them in advance if a dispute arises.
Time lost through service and translation
Service abroad and certified translations extend proceedings by months. If this effort is not planned for, time-limit problems arise.
Possible measures: clarify service channels early and prepare translations, rather than supplying them afterwards.
A race for the forum
The other side files first in a state that is favourable to it. The court seised later then regularly stays the proceedings.
Possible measures: set the sequence of steps strategically and challenge the jurisdiction of the court first seised where it does not hold.
International
The governing instruments
In the European judicial area the framework is largely unified, which eases the work but also means that errors on the preliminary questions take immediate effect. Outside the EU there is no uniform system; there, national law and bilateral treaties decide, and the review differs from state to state.
For mandates with a connection to the United Kingdom a separate framework has applied since withdrawal: the Brussels Ia Regulation is no longer applicable, so jurisdiction and recognition are to be assessed under national law and the relevant conventions. As one of our two principal offices is in London, this is a constellation we work with regularly.
- Brussels Ia
- Jurisdiction, recognition and enforcement in civil and commercial matters within the EU, with special forums and rules on lis pendens.
- Rome I and Rome II
- Applicable law for contractual and non-contractual obligations, including the limits of a choice of law.
- Account preservation and security
- The European Account Preservation Order makes it possible to secure assets before the other side can react – depending on the evidence.
- Service and taking of evidence
- Separate regulations govern service and the taking of evidence between Member States; outside them the Hague Conventions apply.
Related information
Related information
Contact
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- General information. The legal assessment depends on the circumstances of each case.