Kerry Underwood

EMPLOYMENT: COURT OF APPEAL CLARIFIES WHEN A “DISPUTE HAS ARISEN” FOR JURISDICTION PURPOSES

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Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

In

Merinson v Yukos International UK BV and others [2019] EWCA Civ 830 (15 May 2019)

the Court of Appeal held that the courts of England and Wales had jurisdiction over a claim brought by employers against an employee domiciled in England and Wales, even though a settlement agreement provided for exclusive Dutch jurisdiction, and which at common law would have been actionable only in the Netherlands.

Article 22(1) of the Recast Brussels Regulation states that an employer may bring proceedings only in the courts of the member state in which the employee is domiciled.

This provision may be departed from only by a jurisdiction agreement which is entered into after the dispute has arisen.

The test was whether the parties had disagreed on a specific point, and whether litigation in relation to the dispute in question was either imminent or contemplated.

In the present case, in the absence of direct communication between the parties in advance of the settlement agreement, there was no actual dispute between them going to the subject matter of the English/Welsh action.

The special employment provisions of the Regulation apply to matters relating to individual contracts of employment.

They were engaged here because there was in reality or substance a material nexus between the employers’ claims for annulment of the settlement agreement and the employee’s contract of employment.

The court adopted the test in

Aspen Underwriting Ltd v Credit Europe Bank NV [2018] EWCA Civ 2590.

The Court of Appeal agreed with the original judge that Article 59, which provides for the enforceability of court settlements in other member states, did not preclude the jurisdiction of the  courts of England and Wales over the annulment claim.

This decision is relevant not only to the validity of jurisdiction agreements under the employment provisions of the Recast Brussels Regulation, but also to its similar consumer and insurance rules.

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Written by kerryunderwood

May 30, 2019 at 8:45 am

Posted in Uncategorized

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