The power of domicile

This post looks at two cases which show the  importance of the Brussels I Regulation’s primary rule of jurisdiction – that defendants should be sued in the jurisdiction of their domicile.  Those cases are Aspen Underwriting v Kairos Shipping [2017] EWHC 1904 (Comm), Bestolov v Povarenkin [2017] EWHC 1968 (Comm).  It is the fifth of our “new term catch up series”.

Aspen Underwriting achieves a potentially unsatisfactory result with some claims being tried in England and others capable of resolution only in the Netherlands (the place of domicile).  On the other hand, in Bestolov v Povarenkin, jurisdiction was established on the basis of domicile under the Brussels Regulation when it would not have been asserted at common law. Continue reading

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

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