PI & Clinical Negligence analysis: The Montreal Convention (the Convention) provides the sole cause of action where a passenger is injured or killed in the course of carriage by air. Article 33 of the Convention sets out the jurisdictional regime applicable in these cases; generally, the airline may be sued in the courts of its domicile or of the place of destination of the flight, but there is an additional jurisdictional option arising from the passenger’s domicile. In this case the English High Court considered the limitations of the parameters of this option for the first time. Article 33(2) provides that a claim under the Convention may be brought—‘in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft or on another carrier’s aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement’. Written by Sarah Prager, barrister at 1 Chancery Lane.

TMT analysis: The Court of Appeal has dismissed the appeal in this defamation claim which concerns section 9 of the Defamation Act 2013 (DA 2013), which governs jurisdiction in cases where a defendant is domiciled outside the UK, EU or a Lugano Convention state. The court upheld the first instance decision that this was not a case in which England and Wales was ‘clearly the most appropriate place’ to bring the action, but disagreed with the finding that a two-stage test should be applied when considering that issue.

Arbitration analysis: The Hong Kong Court of First Instance dismissed an application to set aside an HKIAC award arising from a fuel oil sale dispute. The applicant argued that a prior Mainland court decision created an issue estoppel which deprived the tribunal of jurisdiction, that the tribunal failed to address a key termination issue, and that the award offended public policy. Rejecting all grounds, the court held that issue estoppel is an objection directed to the claim rather than the tribunal's jurisdiction, reaffirming the distinction between jurisdiction and admissibility established by the Court of Final Appeal in C v D (see para [19]). The judgment also illustrates the high threshold for challenges based on an alleged failure to deal with issues and confirms that public policy cannot be used to mount a disguised appeal on the merits of an award.

Information Law analysis: How is jurisdiction determined in a claim by a data subject for breach of the Data Protection Regulation, Regulation (EU) 2016/679 (GDPR)? How does the rule in Article 79(2) of the GPDR interplay with the ordinary private international law rules of jurisdiction, set out in Regulation (EU) 1215/2012, Brussels I ( recast)? What about where the controller seeks to rely on a jurisdiction agreement, which under Article 25 of the Brussels I (recast), would take priority? Christopher Knight, Barrister, at 11 KBW explains.

Construction analysis: The Technology and Construction Court dismissed a jurisdictional challenge to an adjudicator’s decision, which alleged that the adjudicator had been appointed by the wrong nominating body, or alternatively that the referring party had ‘approbated and reprobated’ in respect of the underlying contract and its nomination provision.

Dispute Resolution analysis: This case concerned an application by the defendants for an order declaring that the High Court should not exercise its jurisdiction to try the claims against them, on the ground that Brazil, as opposed to England and Wales, was the proper forum for the claims to be tried. While there were factors which pointed to Brazil as being the country with a real and substantial connection to the dispute, the court found that the Courts of England and Wales were the appropriate forum, due to the real risk that the claims could not be sufficiently funded were they to proceed in Brazil. This was another case of that exceptional kind, where there was not merely a difference in the availability of funding in the two jurisdictions, but a real risk that substantial justice would not be obtained in the foreign jurisdiction. Written by Georgia Whiting, legal counsel at Ardmore Construction.

Arbitration analysis: The Commercial Court refused to overturn an arbitral award, following a jurisdictional challenge made under section 67 of the Arbitration Act 1996 (AA 1996). This arose from the Korean corporate restructuring of an original counterparty to a supply contract, which had occurred before the arbitration was commenced. The award debtor contended that, in the context of the restructuring, the award creditor was not in fact a party to the supply contract, had not commenced the arbitration and that there had been no valid transfer to the award creditor of the right to arbitrate. The case provides useful guidance for parties in relation to how the English courts will treat challenges to arbitral awards based on the contested impact of corporate succession and where questions are raised in relation to the transfer of rights to bring claims in arbitration. Written by Rebecca Warder, Head of Knowledge at Hausfeld LLP.

Dispute Resolution analysis: In Okuashvili v JSC Tbilisi Tobacco, the High Court heard a complex jurisdictional challenge in respect of two separate sets of proceedings brought against various individuals and companies located in or with a nexus to Georgia. The judgment, which resulted in the court ultimately declining jurisdiction over almost all of the claims against all but one defendant, provides a helpful summary of the law applicable to the granting of permission to serve out of the jurisdiction under CPR 6.36 and CPR 6.37. It also serves as a timely reminder to practitioners of the importance of compliance with the duty of full and frank disclosure which arises in the context of without notice applications such as an application for permission to serve a claim out of the jurisdiction, and of the factors the court will take into consideration when determining whether or not there has been valid service out of the jurisdiction. Written by Emily Lodge, senior associate at Quinn Emanuel Urquhart & Sullivan UK LLP.

Banking & Finance analysis: In UniCredit Bank GmbH v Ruschemalliance LLC, the Supreme Court held that there was nothing in the wording of the bonds which excepted the arbitration clause from the choice of English law as the governing law.

Arbitration analysis: In a recent decision in a case between Gold Reserve Inc and Venezuela, the Portuguese Supreme Court of Justice (SCJ) provided a clear stance on sovereign immunity and public policy. The court decided that sovereign immunity from jurisdiction is waived when a state consents to being sued. This decision was based on the unilateral offer to arbitrate under the Venezuela-Canada BIT, the New York Convention (‘NYC’), and the settlement agreement between the parties. The court did not address immunity from execution. Regarding public policy, the SCJ applied the exception under the NYC very narrowly. The court dismissed arguments that recognising the arbitration award would violate Portuguese legal principles, including environmental and local population protection, non-interference, proportionality, and abuse of rights. The SCJ found no evidence of any specific abuse of rights under Portuguese law and rejected the argument that recognition was sought to pierce the corporate veil and reach assets of other Venezuelan entities. Written by Ana Coimbra Trigo, senior associate at PLMJ Law Firm, Lisbon, and Francisco Salvado Bastos, trainee lawyer at PLMJ Law Firm, Lisbon.

This Practice Note provides an introduction to some of the jurisdictional issues that may arise in international arbitration proceedings and could lead to challenges to an arbitral tribunal’s substantive jurisdiction over a dispute or part thereof. It is important that both the parties' advisors and the tribunal be aware of the areas where a jurisdictional challenge may arise and advise participants accordingly. It is important to remember that although a party may have grounds to raise a jurisdictional challenge in a particular case that does not mean that it ought to or will do so. It may be that while a party considers a matter not to be subject to an arbitration agreement, the same party would prefer for the matter to be determined by arbitration in any event, therefore waiving its right to challenge jurisdiction on certain grounds. Any such waiver should be confirmed in writing. Identifying the law applicable to the determination of jurisdictional issues is potentially complex as the law governing the substance of the dispute, the law of the arbitration

This Practice Note provides guidance on jurisdiction in children proceedings, having regard to the implications of Brexit. It deals with jurisdiction on and after 1 January 2021 and jurisdiction prior to (implementation period) IP completion day (31 December 2020), where transitional provisions will apply, see: Jurisdiction on and after 1 January 2021 and Jurisdiction prior to IP completion day (31 December 2020) and where transitional provisions apply. It also details the procedure to be adopted as to issues of jurisdiction in children proceedings and guidance issued by the judiciary, including Guidance from the President of the Family Division: Transfer of proceedings, issued on 21 January 2025, replacing guidance issued in April 2016 on the transfer of proceedings under Article 15 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II bis or Brussels IIA) and Articles 8 and/or 9 of the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect