About Josephine Davies

Josephine has a wide-ranging practice in commercial and competition law. Disputes about jurisdiction and applicable law feature regularly in her work for clients worldwide. She also enjoys managing blogs on the subject! Find out more about Josephine.

Informal step in English proceedings allowed a European Enforcement Order to be made

Chachani Misti v (1) Hostplanet Ltd & (2) Finn Grimpe [2016] EWHC 983 (Ch), decided on 29 April 2016, should be carefully noted by defendants seeking to avoid enforcement of a judgment.  It also demonstrates the potential difficulties in obtaining a European Enforcement Order (“EEO”) if service has been by email. Continue reading

Waived forum non conveniens? A claim could still be stayed…

Last week, in Standard Chartered Bank (Hong Kong) Ltd v Independent Power Tanzania Ltd [2016] EWCA Civ 411, the Court of Appeal (judgment by Longmore LJ) allowed English proceedings to continue in parallel with Tanzanian proceedings involving the same parties and issues.

The case is of particular interest because the contracts included both a non-exclusive jurisdiction clause and a forum non conveniens (FNC) waiver clause (i.e. a clause by which each party irrevocably waived, among other things, any claim it might otherwise make that proceedings had been brought in “an inconvenient forum”).

The combination of those clauses ought severely to restrict the possibility of one party resisting proceedings on jurisdictional grounds.  On the other hand, the Court of Appeal’s decision in this case makes clear that such clauses cannot always prevent parallel proceedings being used to justify a stay of English proceedings, at least on case management grounds.

In general, though, non-exclusive jurisdiction clauses and FNC waiver clauses give rise to a real risk of parallel proceedings.  When deciding whether to include these types of clauses in a contract, this risk needs to be weighed carefully against the benefit of a choice of jurisdictions.

In addition, the court’s treatment of an abuse of process argument (not dependent on the jurisdiction clause points) provides a helpful outline of the relevant principles. 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

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

Israeli will dispute not to be heard in England: Winkler v Shamoon [2016] EWHC 217 (Ch)

The Chancery Division’s lengthy judgment earlier this week in a dispute between the legatees of a billionaire Israeli businessman (Mr Shamoon) makes interesting reading.  The result is that the English court would not take jurisdiction over a dispute about whether certain shares were to be treated as part of Mr Shamoon’s estate.

As well as covering specific points on the scope of the succession exception in Regulation 44/2001 (Brussels I), the judgment contains useful guidance on general points notably, what constitutes submission to the jurisdiction (at common law and under the Regulation). Continue reading

Avoiding enforcement of default judgment: Vizcaya Partners Ltd v Picard [2016] UKPC 5

In its advice delivered today on appeal from the Gibraltar Court of Appeal, the Privy Council examines when a judgment debtor will be regarded as having agreed to the jurisdiction of a foreign court (in advance rather than by appearance) so that a foreign default judgment may be enforced against him in another jurisdiction (in this case Gibraltar).  The Board’s advice also provides a convenient summary of the role of experts on foreign law.

The Board’s advice is given by Lord Collins (editor of the leading text Dicey, Morris and Collins on the Conflict of Laws).  It examines a great deal of apparently conflicting previous authority. It is therefore not surprising that the Board considered the case so important that it has delivered its advice notwithstanding the settlement, post hearing, of the underlying dispute.

The conclusion reached is that an agreement to submit to the foreign court’s jurisdiction may be implied. Continue reading

Combar lecture by Sir Richard Aikens

Last night, Sir Richard Aikens delivered the COMBAR lecture.  Among the topics he covered was Regulation 1215/2012 (Brussels I recast).

In the discussion which followed, it was clear that COMBAR members were divided in opinion as to whether Regulation 1215/2012 could be interpreted (and would be interpreted) to permit the English courts to issue anti-suit injunctions in support of arbitration.  It was suggested that this could be supported on the basis of the Advocate General’s Opinion on Gazprom (see our post on this decision) although many thought the CJEU would not be persuaded to follow this path even bearing in mind the changed recitals in the recast regulation.

More than one participant in the discussion had been involved in a case where the possibility of an injunction post Regulation 1215/2012 had arisen. In those cases, however, the arbitration tribunals had adopted procedures so as to resolve the jurisdiction issue promptly and before any substantial steps had been taken in the foreign litigation.

The issue remains one to watch although any party seeking an anti-suit injunction relying on the AG in Gazprom will almost certainly need to be ready for a trip to the CJEU.

“May” or “must” arbitrate – what’s needed for a stay? Anzen Ltd v Hermes One Ltd [2016] UKPC 1

This advice delivered on 18 January 2016 by the Privy Council (a BVI case) examines the effect of a clause in an agreement providing that in the event of any unresolved dispute “any party may submit the dispute to binding arbitration” (emphasis added).

The Board concluded that in this case, the provision conferred an option on either party to require resolution of the dispute in arbitration.  Further, once such a request had been made, the requesting party could also obtain a stay of judicial proceedings under section 6(2) of the Arbitration Ordinance 1976 (Cap 6).  It was not necessary that the requesting party in fact began an arbitration. Continue reading

Third time lucky? Enforcing an arbitration award which remains under challenge in the seat

On 10 November 2015, the Court of Appeal handed down its latest decision in IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation ([2015] EWCA Civ 1144 and 1145).  The case arises from a long running attempt by the claimant (IPCO) to enforce a Nigerian arbitration award from 2004 of some USD 152 million (current value with interest over USD 340 million) against the state owned defendant company (NNPC).  The award is under challenge by NNPC in Nigeria.

The case is important in deciding that excessive delay in the determination of a challenge was sufficient to justify enforcement of the award without further adjournment under section 103(5) of the Arbitration Act 1996 (save in so far as the challenge relating to fraud was successfully made out in England under the section 103(3) public policy ground).   Continue reading

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