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

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

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

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

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.

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

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

New legal year in London, new blog

At the start of this year (on 10 January 2015), the revised EU Regulation on jurisdiction (Regulation (EU) 1215/2012, Brussels I Recast) came into force. It lays down rules for the determination of jurisdiction and the recognition and enforcement of judgments in civil and commercial matters in the EU. Like its predecessor (Council Regulation (EC) 44/2001) Brussels I Recast does not cover all areas. A notable exception is arbitration. The effect of this exclusion is of particular interest in its impact on the ability of EU courts to grant anti-arbitration injunctions. Sara Masters QC and Belinda McRae explore this in their post commenting on the CJEU’s decision earlier this year in Gazprom C-536/13.

Prompted by these decisions, we thought it was time to set up a blog about jurisdictional and applicable law issues. To coincide with the start of the legal year in London, it’s here!

We’ve also included some useful resources in our toolkit section. You can find out more about the site, its authors and 20 Essex Street chambers in the about section.