Logistical nightmare? British American Tobacco SA v Exel Europe Ltd [2015] UKSC 65

Yesterday the Supreme Court handed down its judgment in an important case for those involved in international road haulage where successive carriers are involved.  The case is also of general importance for its discussion of the relationship between international treaties and EU law.  In that part of its judgment (discussed at the end of this post), the Supreme Court held that Regulation 44/2001 (the Brussels I Regulation) did not, in this case, have the effect of a trump card able to override the CMR’s jurisdiction provisions.

In summary, it was held that where the Convention on the Contract for the International Carriage of Goods by Road 1956 (CMR) applies (as it does in England pursuant to the Carriage of Goods by Road Act 1965), the jurisdiction provisions in CMR article 31 provide a complete jurisdictional code.  As a result, although the first carrier could be sued in England (by reason of its English domicile and/or an exclusive jurisdiction clause), this was not sufficient to found jurisdiction against subsequent, non-English, carriers.  Although the “commercial logic” of the CMR’s provisions might point to a single jurisdiction, “the language of the CMR points clearly in the other direction” (Lord Sumption at [60]).

The result is particularly unattractive for consignees shipping goods subject to high tax or duty. Continue reading

Anchor does not outweigh exclusive jurisdiction clause: Jong v HSBC (Monaco) [2015] EWCA Civ 1057

Yesterday’s Court of Appeal decision under the common law rules is a useful reminder that merely bringing a claim against an English domiciled defendant (who may unquestionably be sued in England) will not always be sufficient to persuade the court that it should exercise its jurisdiction over a foreign domiciled defendant in a related claim. This is particularly so where the foreign defendant and the claimant are party to an exclusive jurisdiction clause in favour of another court.

The courts were clearly influenced by the fact that the claim against the foreign defendant was “the most important of the claims” while “it is difficult to see what practical advantage Mrs Jong would gain by suing the two English … companies.”  Continue reading

Spreading the wings of economic torts? Air Cargo [2015] EWCA Civ 1024

Yesterday’s Court of Appeal decision in Emerald Supplies v British Airways provides an interesting basis to consider the scope of the English court’s jurisdiction to hear claims for damages based on infringements of foreign competition law.

In this case, shippers of various goods who had purchased air freight space, brought actions for damages against British Airways (BA) following on from the Commission’s decision in 2010 that certain airlines had participated in a global cartel to inflate air freight prices.   As well as bringing conventional claims for breach of statutory duty, the claimants made allegations that BA had committed two economic torts: interfering with business by unlawful means and conspiracy to injure using unlawful means.

The bulk of the Court of Appeal’s judgment is concerned with the degree of intention required for these economic torts (it is discussed in more detail in my briefing note).  Interestingly from a jurisdictional point of view, however, the Court of Appeal highlighted the fact that the concept of “unlawful means” has a wider meaning in the conspiracy tort than in the tort of interfering with business.   As a result it may be possible to rely on breach of foreign competition laws in a conspiracy to injure claim even if the foreign law itself does not confer a right of action or if the action is otherwise statute barred.

It may be some time, however, before this proposition is tested given that the Court of Appeal’s findings on the intent required by each tort severely restrict the factual circumstances in which a successful claim could be made.

Note added on 17.12.15 – On 16 December 2015, the General Court annulled the Commission’s infringement decision.

A torpedo misses: Barclays Bank plc v Ente Nazionale di Previdenza [2015] EWHC 2857 (Comm)

This Commercial Court decision of 9 October 2015 makes it clear that attempts to circumvent exclusive jurisdiction agreements in favour of the English courts by bringing related actions in other EU member states are unlikely to succeed.  It also demonstrates the court’s willingness to award damages for breach of a jurisdiction clause.

Thus, although the defendant Italian pension fund (ENPAM) had brought antecedent claims in Italy against the claimant bank (Barclays), Blair J declined to stay the English proceedings under either article 27 or 28 of Regulation 44/2001 (Brussels I).  Blair J also gave summary judgment to Barclays on most of its claim for damages for breach of the exclusive jurisdiction clause. Continue reading

Anti-suit injunctions after Gazprom

Sara Masters QC and Belinda McRae recently wrote a piece on the CJEU’s decision on the Brussels Regulation Gazprom in (2015) 30(8) Butterworths Journal of International Banking and Financial Law 516. Here’s a summary of their thoughts …

The Gazprom case (C-536/13) is the latest in the line of cases that have explored the scope of the arbitration exception in Article 1(2)(d) of the Brussels I Regulation (“Brussels Regulation”). This was the first case heard by the Court of Justice of the European Union (“CJEU”) after the Brussels I Regulation (Recast) (“Recast Regulation”) came into force on 10 January 2015, which includes a new recital that purports to clarify the scope of that exception. After the controversial opinion of Advocate-General Wathelet of 4 December 2014 on the effect of the Recast Regulation, the CJEU’s judgment in the Gazprom case was hotly anticipated. However, the CJEU unsurprisingly declined to engage with the Advocate General’s views, leaving the impact of the Recast Regulation on anti-suit injunctions to be determined on another day. Continue reading

The Hague Convention on Choice of Court Agreements enters into force today

Today, the Hague Convention on Choice of Court Agreements of 30 June 2005 enters into force in EU countries. As its name suggests, the Choice of Court Convention is concerned with the effectiveness of jurisdiction clauses agreed by parties to international commercial transactions.  It applies only to choice of court agreements in “civil or commercial matters”; it excludes consumer and employment contracts and certain specific subject matters.

In order to give effect to choice of court agreements, Article 5 of the Convention provides that the court chosen by the parties must in principle hear the case and, as a mirror image, Article 6 of the Convention provides that any court not chosen must in principle decline to hear the case. In addition, under Articles 8 and 9, the Convention provides for recognition and enforcement of judgments.

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