Insurance Policies and Jurisdiction – AXA Corporate Solutions SA v Weir Services Australia Pty Ltd

The Commercial Court’s decision in this case (Axa v Weir  [2016] EWHC 904 (Comm)) late last week provides a useful restatement of the jurisdictional position concerning insurance written on the London market.

The case, confirms the English Court’s willingness to find that England is the natural forum in such cases even where (as here) there has been no express choice of jurisdiction.  It also shows a willingness to allow parties to continue related foreign proceedings and, if appropriate, to stay the English proceedings (see also, e.g. my post on Blue Tropic and Josephine Davies’ post on Jong v HSBC).
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Derived rights and anti-suit injunctions: The Yusuf Cepnioglou

On Wednesday 20 April 2016 the Court of Appeal (Moore-Bick, Longmore and Macfarlane LJJ) handed down judgment in Shipowners’ Mutual Protection and Indemnity Association (Luxembourg) v Containerships Denizcilik Nakliyat Ve Ticaret AS (The “Yusuf Cepnioglu”) [2016] EWCA Civ 386.

Led by David Lewis QC also at 20 Essex Street, I appeared for the appellant charterers (the “Charterers”) against whom an anti-suit injunction had been ordered, first by Cooke J (ex parte) and then maintained by Teare J at the return date ([2015] EWHC 258 (Comm), [2015] 1 All ER (Comm) 966).

The decision gives a clear signal that the English courts will fiercely protect against the infringement of a party’s English law rights – even to the detriment of comity (which the court held was not a relevant consideration).  Thus, recognising its two previous decisions in The Hari Bhum [2005] 1 All ER Comm (715) and The Jay Bola [1997] 2 Lloyd’s Rep 279 were irreconcilable, the Court preferred the latter. Continue reading

Sanctions in the wake of the Panama Papers: Diplomacy with teeth?

As the repercussions of the Panama Papers – the unprecedented leak of files from the database of the world’s fourth biggest offshore law firm, Mossack Fonseca – continue to unfold, the week closed with the announcement by Angel Gurria, Secretary General of the Organization for Economic Cooperation and Development (OECD) that Panama agreed to adopt global tax reporting standards.  This came about after the EU made it public that it was considering imposing sanctions on Panama over the Panama papers.

Has the imposition of sanctions become a sort of diplomacy with teeth?   The following is a snapshot on sanctions in the wake of the Panama Papers.

The Panama Papers raise interesting issues of public international law and its interaction with national legal systems across jurisdictions. At a jurisdictional level (understood in its public international law concept) we see: (i) acts taking place in one jurisdiction (Panama), breaching international law (sanctions under the European Union and UN) having implications in other jurisdictions (UK, and the entire world); (ii) such countries, asserting their jurisdictions in their own right, when investigations/inquests are opened, parallel to the one taking place in Panama; and (iii) on the other side of the coin, we see, various international fora (UN, EU) enlarging, adopting, sanctions with applicability in the entire world; such public measures affecting private matters (contracts, trade).

This last point brings us to a second type of interaction which operates at the substantive level: public international law resolutions affecting obligations and rights in the private sphere otherwise governed solely by private law (e.g. commercial law); such measures therefore becoming relevant for those practising private, commercial law.

More interestingly, at the level of remedies, the remedy on the part of companies and individuals listed, to be de-listed, is before an international court (European Court of Justice) which can also be parallel to going to local courts, seeking to challenge such international public law measures. Continue reading

Strict approach to the retrospective cure under CPR 6.15 of defective service

The court’s power in CPR 6.15 to allow service by an alternative means can be used retrospectively to validate steps taken to serve proceedings on foreign defendants where those steps fall short of ‘good service’ under the CPR.  The power is of particular significance in common law (rather than Brussels / Lugano cases) because the act of service founds jurisdiction.

This post considers two recent cases on CPR 6.15: Barton v Wright Hassall LLP [2016] EWCA Civ 177 and Abbott v Econowall UK Ltd [2016] EWHC 660 (IPEC).  They demonstrate that the court will adopt a strict approach to retrospective cure of defective service although a defendant’s conduct may form part of the reason to permit cure. Continue reading

Foreign state immunity and the enforcement of international arbitration awards: Gold Reserve v Venezuela

Monica Feria-Tinta examines State immunity issues in the recent High Court decision Gold Reserve Inc v Venezuela [2016] EWHC 153 (Comm) concerning the enforcement of an ICSID award of US$713 million (plus interests and costs) against a Sovereign State, by reference to the wider context of State immunity principles under international law, as reflected in the State Immunity Act 1978.

The case brought to centre-stage important procedural questions tied to issues of State immunity concerning the recognition and enforcement of awards against foreign States under English law.

Continue reading: see Monica’s full case note.

Separability of arbitration agreement: National Iranian Oil Company v Crescent Petroleum Company International Ltd

Is the separability of an arbitration agreement from the contract of which it is a part a matter for the law of the arbitration agreement or the law of the seat of the arbitration?

In his recent judgment in National Iranian Oil Company v Crescent Petroleum Company International Ltd [2016] EWHC 510 (Comm), Burton J held it was a matter for the law of the seat. Continue reading