Raphael QC on Petter v EMC: anti-suit injunctions and comity

Readers may be interested in a recent article on anti-suit injunctions written by 20 Essex Street’s Thomas Raphael QC.   The article, published in the LMCLQ, comments on the Court of Appeal’s controversial decision in Petter v EMC [2015] EWCA Civ 828, [2016] lLPr 6.

As the article exposes, the English court’s case law on anti-suit injunctions has become inconsistent and is in danger of failing to respect comity. The article stands back and takes a high level view of the fundamental principles which are necessary to give international legitimacy to the remedy.

The article makes for interesting reading and is highly recommended.   It has already been cited before the courts on three occasions.

The reference for the full text of the article, based on and developed from Tom’s lecture to Combar in December 2015, is [2016] LMCLQ 256.  Tom is also the author of the standard work on anti-suit injunctions: “The Anti-Suit Injunction” published by OUP.

Extra-territorial claims in the “spider’s web” of the law? Supreme Court judgment on Iraqi Civilians appeal

Ministry of Defence (Respondent) v Iraqi Civilians (Appellant) [2016] UKSC 25

Ever since the case of Al Rawi v Secretary of State for Foreign and Commonwealth Affairs [2008] QB 289, and the Binyam Mohamed case, the direction of travel of jurisprudence by English Courts left behind an earlier position that considered UK foreign affairs a non-justiciable area, and shifted towards scrutiny of the impact of UK foreign policy decisions on individuals.  After all, as it was put by Lord Sumption, in an address at the LSE in 2012, “the acts of the executive are by definition justiciable in its own courts”. The most significant factor for such a shift as Lord Sumption noted, was the enactment into English Law of the European Convention on Human Rights (“ECHR”).

Yet, in a broader spectrum of cases, jurisdictional issues (ratione temporis) and time bars are proving to be hurdles on the path of claimants bringing extra-territorial claims before the highest court of the land. It was so in the recent Supreme Court decision Kayu v Secretary of State for Foreign and Commonwealth Affairs (“Batang Kali massacre“) [2015] UKSC 69 in the form of a temporal jurisdictional obstacle. It is so again in the Supreme Court’s 12 May 2016 decision in Ministry of Defence v Iraqi Civilians [2016] UKSC 25 (“The Iraqi civilians case”) in the guise of a time bar.  

While the Batang Kali massacre case was concerned with the Supreme Court’s interpretation of public international law rules (quite centrally, with the duties Article 2 of the ECHR imposes on the UK in the context of inquiries) the decision in the Iraqi civilians case concerns English private international law and turned on a point of interpretation of The Foreign Limitation Periods Act 1984.

In the Iraqi civilians case, the Supreme Court gave judgment in relation to 14 lead claimants (claims had been brought by over 600 Iraqi citizens) who had alleged unlawful detention and/or physical maltreatment at the hands of British armed forces in Iraq between 2003 and 2009.

The Supreme Court held, applying Iraqi limitation law, that the claims of the Iraqi civilians, were time-barred. It dismissed the appeal. This post addresses the central finding in the case.
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Factors in Determining Domicile: Eng King Ltd v Vincent Petrillo

In this case, decided on 5 May 2016, the Commercial Court gave guidance as to the indicia for consideration in determining domicile.

Factual background

The Claimant was a Swiss businessman, who alleged that he had given the Defendant ( a Russian) $17million, which the Defendant had then wrongly kept rather than investing. The Claimant first brought Russian proceedings for unjust enrichment, on the grounds that the money had passed through Russian bank accounts. The Russian court rejected the claim on the grounds that the dispute was contractual, and that this precluded an unjust enrichment remedy. The Claimant then brought English proceedings, alleging fraudulent misrepresentation and breach of fiduciary duty by the Defendant. The Defendant denied fraud, and denied the jurisdiction of the English courts, stating that Russia or
Belarus was a more appropriate forum. Continue reading

The new LCIA Rules do not preclude applications for anti-suit relief

Mace (Russia) Ltd v Retansel Enterprises Ltd & Anor, 28 April 2016 (unrep)

In this unreported Commercial Court decision last week, Phillips J granted the Claimant an anti-suit injunction to restrain the Defendant from proceeding with an arbitration in Russia in breach of a London arbitration clause.

The case is interesting for two points: the grant of an anti-suit injunction despite a material non-disclosure ex parte; and the decision that the new LCIA Rules do not preclude applications for anti-suite relief. 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

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

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