Some useful reminders as to service out in insolvency proceedings: Hosking v Apax Partners LLP [2016] EWHC 558 (Ch)

Practitioners regularly acting in insolvency proceedings were given a “refresher” on the matters to which they should have regard when seeking permission to serve a non-EU foreign defendant out of the jurisdiction in Hosking v Apax Partners LLP [2016] EWHC 558 (Ch). Continue reading

Limited scope for the application of Portuguese mandatory rules: Banco Santander Totta SA

This case (Banco Santander Totta SA v Companhia de Carris de Ferro de Lisboa SA [2016] EWHC 465 (Comm)), arises from a number of complex swap contracts under which, by October 2015, some EUR 272 million were due but not paid.

In his judgment on 4 March 2016, among other things, Blair J decided that Article 3(3) of the Rome Convention [1] could not be used to displace a contractual choice of English law with certain mandatory provisions of Portuguese law even where both contracting parties were Portuguese.  Had he held otherwise, Portuguese law might have provided a complete defence to payment.  Blair J’s decision was clearly influenced by the desirability of legal certainty in major financial transactions and upholding party autonomy.

Blair J’s decision is notable because his conclusion is at odds with that of Walker J in a similar case involving Italian parties (Dexia Crediop SpA v Comune di Prato [2015] EWHC 1746 (Comm)). Continue reading

Anti-suit application grounded: Magellan Spirit [2016] EWHC 454 (Comm)

Three members of 20 Essex Street were involved on both sides of a recent application for an anti-suit injunction in Magellan Spirit ApS v Vitol SA [2016] EWHC 454 (Comm).  The central issue in the case was whether there was an agreement conferring jurisdiction on the English High Court for the purposes of, among other things, the Lugano Convention.

In refusing the anti-suit injunction, Leggatt J held that even if a written consensus could  satisfy Article 23 of the Lugano Convention, it was not enough for an anti-suit injunction.   This is also a case in which delay in applying for an anti-suit injunction was a problem for the applicants (see too our post on Ecobank Transnational v Tanoh).  Continue reading

Security for costs – incorporation in a low-disclosure jurisdiction does not prevent an order

Yesterday’s Court of Appeal decision in Sarpd Oil International Ltd v Addax Energy SA [2016] EWCA Civ 120 is not strictly a decision on jurisdiction or conflicts of law.   It may well still be of significant interest to those involved in international litigation.  It will be welcomed by defendants who wish to secure security for costs against claimant companies incorporated in low disclosure jurisdictions.  The successful appellant was represented by two members of 20 Essex Street, David Lewis QC and Oliver Caplin. Continue reading