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Durham University

Postgraduate Module Handbook 2022/2023

Archive Module Description

This page is for the academic year 2021-22. The current handbook year is 2022-23

Department: Law

LAW46430: CROSS-BORDER COMMERCIAL LITIGATION

Type Open Level 4 Credits 30 Availability Not available in 2021/22

Prerequisites

  • None.

Corequisites

  • Applied Research Methods in Law (LAW41115).

Excluded Combination of Modules

  • None.

Aims

  • To provide postgraduate students with an understanding of the major private international law rules and principles relating to the resolution of issues that may arise in cross-border commercial litigation before English courts and the way in which English courts interact with courts in other jurisdictions in dealing with these issues;
  • To provide comparative analysis of the English private international law rules with the relevant rules and practice in European Union law and in other legal systems (e.g. the United States, Australia, China and Singapore);
  • To develop research skills on, and contextual awareness of, the debates concerning the regulation of cross-border commercial activities in the international legal order.

Content

  • The module will cover a selection of topics from the following list:
  • Key issues and concepts in private international law (characterisation, ascertainment of foreign law in English courts, public policy and mandatory rules etc.) and how they function in cross-border commercial litigation;
  • Overlapping jurisdictions of courts of different countries and the circumstances under which an English court obtains jurisdiction over a case and how it determines whether to exercise the jurisdiction or not (the rules on jurisdiction in the traditional English common law and the continued application of some of the European Union rules, depending on the outcome of the Brexit negotiations, will be examined);
  • The ways in which the English common law responds to the practice of forum shopping to a foreign court (anti-suit injunctions and proceedings for (negative) declaratory relief);
  • English choice of law rules in specified areas (contractual and non-contractual obligations, the transfer of property inter vivos in commercial dealings, matters involving corporations etc.);
  • Effects of foreign judgments and orders in English courts (mechanism for the recognition and enforcement of judgments from Member States of the European Union and other jurisdictions);
  • Some contemporary issues in cross-border commercial litigation (e.g. the recent proliferation of international commercial courts and the rise of legal hubs, the impact of the internet on jurisdiction and choice of law issues in private international law etc.);
  • Comparative analysis – the discussion of the above issues will include comparative analysis of the relevant approaches adopted in European Union law and in other legal systems (e.g. the United States, Australia, China and Singapore).

Learning Outcomes

Subject-specific Knowledge:
  • On completion of the module, students will:
  • have the awareness of how complex issues may arise in cross-border commercial litigation;
  • have the awareness of litigation risk in contract drafting and negotiation;
  • understand the relevant legal rules and principles applicable to cross-border commercial litigation in English courts;
  • understand the factors shaping the development of the private international law rules in England and other legal systems.
Subject-specific Skills:
  • Students should be able to:
  • demonstrate a critical understanding of the private international law rules and principles as would be applied by English courts in cross-border commercial litigation;
  • demonstrate an awareness and understanding of the significance of private international law in the wider context of cross-border commercial transactions.
Key Skills:
  • Students should be able to:
  • demonstrate developed research and writing skills, including the ability to work independently and to take responsibility for their own learning, in relation to aspects of cross-border commercial litigation;
  • critically explain and analyse complex materials.

Modes of Teaching, Learning and Assessment and how these contribute to the learning outcomes of the module

  • The teaching of this module will be by way of seminars supported by targeted reading assignments before each session. The readings are selected from both primary and secondary sources. The seminars will work from a basic level of doctrinal knowledge. Building on that foundation, they will then discuss more complicated and practical issues. This will encourage students to learn the material and develop the ability to discuss it and understand how each aspect of the reading fits in with relevant debates.
  • Formative assignment is used both to develop problem-solving skills, the ability to engage in sustained evaluation of ideas and issues in cross-border commercial litigation, and the ability to evaluate the law in a critical and contextual way.
  • Summative assessment comprises one summative essay of 6000 words, which will provide the means for students to demonstrate the acquisition of subject knowledge and the development of their problem-solving skills.
  • Students will be supported and encouraged in the development of their research and writing skills.

Teaching Methods and Learning Hours

Activity Number Frequency Duration Total/Hours
seminars 15 Normally weekly in Michaelmas and Epiphany Terms 2 hours 30
preparation and reading 270
TOTAL 300

Summative Assessment

Component: essay Component Weighting: 100%
Element Length / duration Element Weighting Resit Opportunity
summative essay 6,000 words 100%

Formative Assessment:

One optional written essay of 1500-2000 words (written feedback will be provided well before the submission date for the summative essay); one optional oral presentation of 10-15 minutes (oral feedback will be provided individually in or after class).


Attendance at all activities marked with this symbol will be monitored. Students who fail to attend these activities, or to complete the summative or formative assessment specified above, will be subject to the procedures defined in the University's General Regulation V, and may be required to leave the University