Legal Practice Notes

This Practice Note is for use when determining applicable law where the contract was entered into on or after 17 December 2009. It examines how Regulation ( EC) 593/2008 on the law applicable to contractual obligations— Rome I—operates where the parties have made no choice of governing law. Coverage includes which law governs particular contract types, for example sales of goods, service agreements and distribution arrangements. It also addresses contracts outside those categories, including the operation of the so‑called ‘escape clause’. For these scenarios, the key concepts are ‘characteristic performance’, ‘habitual residence’, and ‘more closely connected’. The Note explores each term and explains how the escape clause contrasts with Rome I’s forerunner, the Rome Convention. Rome I caters for cases where parties select the governing law—see Practice Note: Rome I—applicable law chosen by the parties—as well as where no selection is made. Where no choice...

This Practice Note This Practice Note examines how evidence is obtained in the courts of an EU Member State in civil or commercial disputes under Regulation ( EU) 2020/1783 on co-operation between the courts of the Member States in the taking of evidence in civil or commercial matters, which, from 1 July 2022, repealed and replaced Regulation ( EC) 1206/2001 (the Taking of Evidence Regulation). Its purpose is to enhance and speed up judicial co-operation by ensuring that the sending and execution of requests are managed by the most efficient means between the courts of EU Member States. The regulation overrides any taking of evidence provisions found in bilateral or multilateral treaties or arrangements made by EU Member States and, as set out in Article 29(1) of Regulation ( EU) 2020/1783, this applies in particular to: the Hague Convention of 1 March 1954 on Civil...

ARCHIVED : This Practice Note is archived and no longer maintained or updated. It examines the applicability of the Lugano Convention 2007 to disputes that involve non‑contracting parties to the Convention (commonly termed third states). The Note outlines a range of provisions within the Convention that may operate in third‑state scenarios, and explains their potential use. It also addresses the consequences for the UK when applying those provisions after its departure from the EU—the UK participated in the Lugano Convention 2007 through its EU membership. The Convention’s contracting parties are the EU, Denmark, and the relevant EFTA Member States, namely Iceland, Norway and Switzerland. In the absence of guidance from the pertinent EFTA contracting States on the stance they intend to adopt towards the UK, now that it is a third state for the purposes of the Lugano Convention 2007, it is crucial to obtain local...

ARCHIVED : This Practice Note has been archived and is not maintained. This Practice Note examines how the UK’s departure from the EU influences the application of Regulation ( EU) 1215/2012, Brussels I (recast), when determining jurisdictional disputes. It addresses: the applicable provisions in the Withdrawal Agreement between the UK and the EU; relevant domestic legislation, including, where relevant, transitional provisions, together with the position of the EU Commission; the implications of the UK becoming a third state as a consequence of leaving the EU. It should also be noted that other jurisdictional regimes are affected by the UK leaving the EU. For guidance, see Practice Note: Brexit post implementation period—considerations for dispute resolution practitioners— Jurisdiction. For specific guidance on the position during the implementation period, see Practice Note: Brexit implementation period—jurisdiction [ Archived]......

This Practice Note offers a primer on several key aspects of international arbitration. The Practice Note: Arbitration—an introduction to the key features of arbitration, mentioned below, may likewise be helpful to those wishing to understand arbitration as a method for the resolution of disputes, at a general, introductory level. There is no universally authoritative definition of ‘international arbitration’. At its most basic, it is arbitration with some form of an international element. Although the meaning of ‘arbitration’ is well established, there is no broadly and consistently accepted description of the requisite ‘international’ character. In addition, ‘international arbitration’ is often used to signify ‘international commercial arbitration’ (as contrasted, for example, with international investment arbitration) and, accordingly, it is important to determine what is truly ‘commercial’ for these purposes. International commercial arbitration has increased greatly over the past 40 years, partly as a consequence of the...

This Practice Note outlines the principal provisions of Regulation ( EU) 2020/1784, the Service Regulation (recast), which governs serving documents from one EU Member State to another. The primary channel is via the transmitting and receiving agencies within EU Member States, as addressed in Practice Note: —the stages of transmitting and serving documents). Other service routes are also available under the regulation. The framework can be challenging to follow. For guidance, see Practice Note: —commonly asked questions and answers, which should be read alongside this Practice Note. All forms referred to as appearing in Annex I of the regulation are accessible on the justice.europa website: on-line forms— Serving documents (recast) forms... Practical considerations Service outside the jurisdiction is highly complex and may prove time-consuming. You may need to organise translations of final form documents, and you might choose to effect service using more than one...

This Practice Note summarises Directive 2008/52/ EC of the European Parliament and of the Council of 21 May 2008 concerning particular aspects of mediation in civil and commercial matters. It explains the Directive’s application and terminology, and explores the mediation framework it establishes, including access to quality mediation, the European Code of Conduct for Mediators, confidentiality, and the handling of limitation and prescription periods. It also considers the enforceability of settlement agreements reached through mediation. For details on the Directive’s implementation and evaluation, see Practice Note: —implementation. Definitions Article 3 of the Directive sets out two key definitions: mediation—refers to a structured process, whatever its label, in which two or more parties to a dispute, acting voluntarily, seek to agree terms to resolve their dispute with the support of a mediator. The process may begin at the parties’ initiative, be proposed or ordered by a...

This Practice Note summarises Directive ( EU) 2020/1828 (the EU Representative Actions Directive or EU Collective Redress Directive), which provides a mechanism across all EU Member States to safeguard the collective interests of consumers. The legislation is designed to better enable collective proceedings for European consumers and obliges Member States to ensure at least one procedural route that permits qualified entities to bring representative actions not only for injunctive measures but also for effective remedies on consumers’ behalf. This covers claims for compensation for infringements of consumer rights in sectors including financial services, travel and tourism, energy, health, telecommunications and data protection, as permitted under EU or national law. The Directive took effect on 24 December 2020; Member States were required to transpose it by 25 December 2022, and the measures have applied from 25 June 2023. It repealed Directive 2009/22/ EC, the EU...

This Tracker helps you determine whether a state is a signatory to the Hague Convention on Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (the Hague Judgments Convention), and whether the convention is already operative for that state. It also summarises the work of the Hague Convention on Private International Law ( HCCH) leading up to the convention’s adoption. Note that the convention took effect on 1 September 2023 for the EU and Ukraine. For guidance, see Practice Note: Hague Judgments Convention— Entry into force of the convention. UK and the convention For the UK, the convention began to apply on 1 July 2025, being the first day of the month after the lapse of 12 months from ratification ( Article 28 of the Hague Judgments Convention); the UK ratified on 27 June 2024—see HCCH website: status table. At the outset, the...

E& W Brussels I (recast)—application and exclusions This Practice Note reviews Regulation ( EU) 1215/2012, Brussels I (recast), explaining the matters to which it applies and identifying those expressly excluded from its scope. It also sets out the transitional arrangements, international requirements, and clarifies what is meant by civil and commercial matters. Impact of UK’s departure from the EU Following exit day (ie 31 January 2020), the UK assumed the status of a third state for the purposes of Regulation ( EU) 1215/2012, Brussels I (recast). Under the transitional provisions in the Withdrawal Agreement between the UK and the EU, the UK continued to be subject to Regulation ( EU) 1215/2012, Brussels I (recast) throughout the implementation period, which commenced on exit day and concluded on IP completion day (ie 31 December 2020, at 11 pm). The position after IP completion day requires...

Ireland as a seat of arbitration In recent years, the Republic of Ireland ( Ireland) has pursued a focused drive to position itself as a hub for international arbitration. These initiatives have intensified since the UK’s departure from the EU, with representative bodies such as Arbitration Ireland arguing that Dublin can attract cross-border dispute work at London’s expense. September 2024 saw the second Dublin International Disputes Week, building on the now well‑established Dublin International Arbitration Day. Ireland’s principal selling points in this respect include: a common law jurisdiction membership of the European Union excellent infrastructure and facilities a pool of highly skilled professional expertise adoption of the United Nations Commission on International Trade Law ( UNCITRAL) Model Law on International Commercial Arbitration (the Model Law) The Irish courts have traditionally shown deference to contracting parties’ selection of arbitration as their chosen means of resolving disputes......

Use this Practice Note when identifying the applicable law for agreements made on or after 17 December 2009. It outlines when and for what reasons Regulation ( EC) 593/2008, Rome I was brought in. The Note reviews the implementation of Regulation ( EC) 593/2008, Rome I, the states that have signed up and are therefore bound by it, together with any reservations those states have entered. It explains why the regulation governs contractual disputes within the UK. Guidance is given on interpreting Regulation ( EC) 593/2008, Rome I, followed by consideration of the universal application rule (art 2) and the breadth of the applicable law (art 12). It sets out the general principles alongside rules tailored to particular categories of contract. It also identifies matters excluded from Regulation ( EC) 593/2008, Rome I, including arbitration and questions relating to the status and legal...

Tracker Use this Tracker to confirm if a state is a signatory to the Hague Convention on Choice of Courts Agreements and whether the Convention is already in effect for that jurisdiction. Albania — In force: 1 October 2024. Ratified: 25 June 2024. Signed: 13 February 2024. HCCH website: Albania—the Convention enters into force; HCCH website: Albania signs the Choice of Court Agreements Convention; HCCH notification: Albania ratifies the Choice of Court Agreements Convention. Australia — Signed: No. The Joint Standing Committee on Treaties in 2017 backed accession to the Convention and advised that binding treaty action be undertaken. For information, see Australian Parliament— Convention on Choice of Courts accession. Bahrain — In force: 1 July 2025. Acceded: 13 March 2025. For information, see: Bahrain accedes to the Choice Of Court Convention. China — Approval, ratified or...

This Practice Note reviews the Hague Convention on Choice of Court Agreements, which governs both jurisdiction and the recognition and enforcement of judgments. It outlines the scope of the Hague Convention on Choice of Court Agreements and the need for an international case anchored by an exclusive choice of court agreement. It also examines issues lying outside the Convention’s reach, whether by specific exclusions within the text or through declarations made by contracting states. The Practice Note considers how the Hague Convention on Choice of Court Agreements applies in the UK. An explanatory report on the Hague Convention on Choice of Court Agreements by Trevor Hartley and Masato Dogauchi supplies detailed commentary on each article. When did the Convention come into force? The Hague Convention on Choice of Court Agreements was concluded on 30 June 2005 and was first ratified by Mexico, followed by the EU. In...

This Practice Note offers a concise overview of the matters that warrant attention at the outset of a dispute, including: Is there a dispute resolution procedure or clause? Assess whether a specified dispute resolution mechanism or clause governs the issue at hand. Where one applies, reflect on: the procedural steps and conditions stipulated by the clause the governing law applicable to that clause the forum with jurisdiction over the dispute (and whether that forum is in fact a court) Where proceedings are commenced in defiance of an arbitration clause, the court must stay the claim. Mediation provisions, if expressed with sufficient certainty, must likewise be honoured, and non-compliance may attract an adverse costs order. If a mediation or other dispute resolution clause exists and has not been observed, the court will generally pause any action to enable the parties to fulfil their...

This Practice Note explores the law of maintenance and champerty and its impact on third party litigation funding in Ireland. It outlines the stance of the Irish courts, the recognised exceptions, and recent developments concerning third‑party funding. For general guidance on litigation costs, see Practice Note: Ireland— Legal costs in civil proceedings... The rules against maintenance and champerty Third party litigation funding arises where an unrelated party (with no prior link to the dispute) agrees to pay all or part of the legal expenses in return for a share of any award or settlement obtained. Such funding has long been unlawful in Ireland under the Maintenance and Embracery Act 1634 ( UK), preserved by the Statute Law Revision Act 2007 ( Ireland), which prohibits maintenance and champerty and continues to have effect. Maintenance involves supporting litigation by strangers who lack a legitimate interest....

This Practice Note offers a broad, general overview of data protection law in Ireland, setting out its key concepts and provisions. Irish data protection rules are chiefly driven by the application of the EU General Data Protection Regulation ( Regulation ( EU) 2016/679) ( EU GDPR), and there are also separate, more detailed Practice Notes that advise on particular aspects of data protection at an EU level. This Practice Note summarises the most significant of those aspects and clearly sets them within an Irish regulatory context. Ireland is a notable forum for data protection analysis today, as many major personal‑data‑rich businesses, including large social media platforms and digital service providers, have their European headquarters in Ireland. Introduction to data protection law and its purpose Data protection law is generally designed to ensure that information about living individuals (within the meaning of ‘personal data’) is handled...

Commercial contracts— Australia— Q& A guide This Practice Note offers a jurisdiction-specific Q& A on commercial contracts in Australia, featured in the Lexology Getting the Deal Through series by Law Business Research (published: October 2022). Authors: Baker Mc Kenzie— Adrian J. Lawrence; Caitlin Whale 1. Is there an obligation to use good faith when negotiating a contract? Australian contract law does not recognise a universal duty to act in good faith during negotiations. Courts have nevertheless found that an express agreement to negotiate a particular issue in good faith can be enforceable, provided the clause is drafted with sufficient clarity so it can be given practical effect. In limited contexts, a statutory requirement to negotiate in good faith may arise. For example, the Franchising Code of Conduct obliges the parties to a franchise agreement to act in good faith towards each other, including when...