Introduction
The law has various elements that guide it in its application and use. Many organizations and corporations have operations in many countries. Each country has its own laws that deal with commercial disputes. The English common law faces hurdles when dealing with corporations that have foreign connections. It has set a precedent in the way that such cases should be handled. The English common law decides who has the jurisdiction in the event of a commercial legal dispute. The conflict of laws should not be an impediment to a world economy that is increasingly being intermingled.
Discussion
The interests of government can at times have a negative impact to laws and globalization. Every country has its laws that are designed to protect its specific interests. The English common law is designed to ensure fairness with regard to all legal disputes. These include commercial disputes. Common law gives guidance on the settlement of commercial disputes. The decisions of this law allow economies and commercial sectors to grow. When more than one country is involved, such as the case in commercial disputes involving international corporations, decisions on jurisdiction must be made. These decisions must be precise since they will guide future judgments over the same issue. Commercial disputes in England are sometimes solved at the London Court of International Arbitration. A lot of claims are increasingly being adjudicated at this court of arbitration. It is also cheaper than the conventional court process. English law has little difference with the laws that govern commercial adjudications in other countries. This is due to the fact that these policies are obtained from international instruments.
The Brussels Regulation supervises the way that EU contracting states carry out jurisdiction on commercial disputes. It guides the enforcement of judgements in civil and commercial matters. Owusu v Jackson & ors (2005) was a commercial dispute that was under the English court system. The court decided that that English law had jurisdiction over the dispute. The principle of forum non conveniens was seen as contrary to the Brussels Regulation. It was decided that the Brussels Regulation was inapplicable. The court set two conditions for the use of the Regulation. The first was if only one of the potential jurisdictions has ratified the Regulation. The other condition was when the English court was being requested to delay proceedings and have them shift to a state that is not within the EU. Commercial disputes with continuing proceedings in foreign courts cannot be adjudicated in English courts unless the foreign courts reach a decision. The jurisdiction of English courts is in this case restricted. A good example of this policy is the outcome of Erich Gasser GmbH v MISAT Srl (2005). The court decided to stay the proceedings of this case until the outcome of proceedings in a foreign country.Parties to loan agreements usually agree to have their disputes resolved in the courts of the lender’s choice. An example is JP Morgan Europe Ltd v Primacom AG & anr (2005).
Conclusion
Common law can recognize judgements that are arrived at by courts in other countries. English law regularly enforces judgements that are given by the courts of other countries. There are several guidelines that allow an English court to decide whether it has jurisdiction over a particular commercial dispute. Agreements such as the Brussels Regulation govern the outcome of such cases. Traditional rules are also put into consideration. These include anti-suit injunctions. These protect corporations from legal suits. Provisional measures are also put into account. Decisions in choice of law are made and the most suitable law is chosen. Foreign law is taken into account when there is sufficient proof. Sufficient proof is said to exist when evidence is legally and appropriately put before a court of law. Such evidence must be credible and reliable. Documents from known sources can qualify as sufficient proof. The concept is controversial since it depends on various measures. These measures are not always agreed upon. What is sufficient proof to one may not be the case with another. It is hence prone to misunderstanding. A document that is seen as sufficient proof in one court may be rebuked in another. Common law has limited powers to uphold an arbitration agreement. The same is for its authority to enforce such arbitration. These agreements have limited influence on the jurisdiction of common law. English courts maintain the power to supervise the enforcement of foreign arbitration judgements. These courts regularly supervise over jurisdiction agreements. This can be done by either delaying the court process or by issuing anti-suit injunctions.
Reference List
Hayward, R. (2006) Conflict of Laws, 4th edn, Cavendish Publishing Limited.
Friedman, P. & Lea, J. Losing their bite: jurisdiction case law review. Commercial Litigation Journal, September, 05(11), pp. 22.
Stumberg, G. W. (1963) Principles of conflict of laws. New York: Foundation Press.
Collier, J. G. (2001) Conflict of laws. Cambridge: Cambridge University Press.
Story, J. (1857) Commentaries on the conflict of laws, foreign and domestic. London: Little, Brown and company.
Kelly, D., Holmes, A. E. M. & Hayward R. (2005) Business law. London: Routledge Cavendish.