Court of Appeal confirms that Portuguese “mandatory” law is no defence to swaps liability

Earlier this year (see my March post), Blair J held that Lisbon based transport companies could not use “mandatory” provisions of Portuguese law to defeat a multi-million Euro claim by Santander under interest rate swaps contracts.  The Court of Appeal has now upheld this decision in Banco Santander Totta SA v Cia Carris de Ferro de Lisboa SA [2016] EWCA Civ 1267 (main judgment, Sir Terrance Etherton MR).

In short, under article 3(3) of the Rome Convention, a “mandatory” provision of national law could only displace the parties’ express choice of law in a contract if the situation is truly domestic – an “international situation” (even if not pointing to a specific other country) is sufficient to prevent article 3(3) applying. Continue reading

What benefit? Interpretation of a Jurisdiction Clause: Perella Weinberg Partners UK LLP v Codere SA

In its decision on 20 May 2016, the Commercial Court (Walker J) considered a non-standard jurisdiction clause which fell within the regime of the Brussels I Recast Regulation (Regulation 1215/2012).   Perhaps unsurprisingly, he held that a clause, expressed to confer non-exclusive jurisdiction on the English courts, “for the benefit of” the Claimants did not in fact confer exclusive jurisdiction on those courts.

The decision demonstrates that the court will use both a literal and a common sense business reading when construing the jurisdiction clause.  Further, the Court was reluctant to allow the parties to import new elements (such as symmetry of obligations) into Articles 25 and 31 of the Recast Regulation. Continue reading

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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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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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

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

Recovering Costs of Foreign Litigation Brought in Breach of an Arbitration Clause: Two Bites of the Cherry?

It is well known that English law allows recovery for damages for breach of contract in case of a breach of jurisdiction or arbitration clause (see our post on Blair J’s 2015 decision: Barclays Bank v ENPAM, for example). Parties commonly claim costs of addressing the foreign proceedings as such damages. However, what recovery should there be for an innocent party if the foreign court has already declined jurisdiction and awarded the innocent party its costs of the jurisdictional proceedings? Is there any loss still to be recovered in damages in the correct forum?

This issue was considered in the recent London Arbitration 1/16 (2016) 942 LMLN 2 (published on 11 January 2016). The dispute concerned a series of lay-up contracts, whereby the Respondent laid up vessels in the Claimant’s facility in the Far East. All contracts provided for London arbitration. Continue reading

Pirouetting between jurisdictions: Blue Tropic Ltd v Chkhartishvili [2015] EWHC 3260 (Ch)

A recently reported case features an unusual application for a stay issued, after the conclusion of the trial, but before judgment. The applicant sought a stay based on a parallel proceedings in Georgia in which his counterparts were requesting that the Georgian courts also suspend proceedings pending the English decision.

The English court refused the application.  It found the existence of parallel proceedings to be of the Defendant’s own making and took a dim view of the Defendant’s “pirouetting between jurisdictions”. Continue reading