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

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