UK
Answer ... Finance documents on project finance transactions in England and Wales are almost always governed by English law.
UK
Answer ... If an English company enters into a contract that is governed by foreign law and is subject to foreign jurisdiction, the validity or enforceability of that contract will be a matter for the applicable foreign jurisdiction. Enforcing a foreign judgement against the English company is addressed in question 12.4. Security documents should generally be governed by the law of the jurisdiction in which the thing that is being secured is located, although there are complicating factors to be considered in relation to cross-border security.
EU Regulation 593/2008 (‘Rome I’) continues to apply following the United Kingdom’s departure from the European Union, with amendments, in the United Kingdom as retained EU law. Rome I provides that the applicable law of a contract is without prejudice to the overriding mandatory provisions of the law of the forum. ‘Overriding mandatory provisions’ are defined as “provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as political, social and economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable”.
So-called ‘asymmetric jurisdiction’ clauses – under which the borrower is required to bring proceedings in only one jurisdiction, whereas the lenders have the choice to bring proceedings in other jurisdictions – are common in project finance agreements.
UK
Answer ... Courts will give effect to the consensual waiver of immunity by a state. Where a state entity enters into a commercial arrangement, it will not generally be entitled to sovereign immunity. Under the State Immunity Act 1978, there are a number of exceptions to the general proposition that UK courts have no jurisdiction to adjudicate disputes against sovereign states, as follows:
- The state has submitted to the jurisdiction of the UK courts;
- The proceedings relate to a commercial transaction entered into by the state;
- The proceedings relate to a contractual obligation on the state to be performed in the United Kingdom; and
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The state has agreed to submit the dispute to arbitration.
UK
Answer ... Judgments from courts in Scotland or Northern Ireland can be enforced in England and Wales pursuant to the Civil Jurisdiction and Judgments Act 1982.
Enforcement of judgments from the European Union, European Free Trade Association states, Mexico, Singapore and Montenegro will be governed by the Hague Convention on the Choice of Court Agreements, where applicable. Judgments from other countries, and judgments to which the Hague Convention does not apply may be enforceable in English courts pursuant to the Administration of Justice Act 1920, the Foreign Judgments (Reciprocal Enforcement) Act 1933 and the common law; but the judgment debtor may be required to commence fresh proceedings before an English court to enforce the foreign judgment as a debt.
The United Kingdom has been a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention, since 1975. The New York Convention provides a regime for the enforcement of arbitral awards in contracting states. Over 157 states are signatories to the New York Convention.
In light of the uncertainty around the enforcement of foreign judgments, there are considerable advantages to the use of arbitration as a means of dispute resolution in cross-border commercial contracts.