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  EWHC 1904 (Comm), Bestolov v Povarenkin  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 →
The Commercial Court finds that asymmetric jurisdiction clauses are valid exclusive jurisdiction clauses for the purposes of the Brussels Recast. Given their prevalence in financial contracts, a contrary decision could have produced significant instability.
Commerzbank Aktiengesellschaft v Pauline Shipping and Liquimar Tankers  EWHC 161Continue reading →
An interesting recent judgment of Phillips J in the Commercial Court has clarified the law concerning submission to the jurisdiction of a foreign court. 20 Essex Street’s Michael Collett QC was instructed for the claimant.
The court held that a Moroccan judgment would not be recognised in England because the claimant had not submitted to the jurisdiction of the Moroccan court. Although the claimant had appeared in the Moroccan proceedings, it had done so in order to ask the court to stay the Moroccan proceedings in favour of arbitration and had only engaged with the merits as it was obliged to do so under Moroccan law.
As a result, the claimant ship-owner was not estopped by a Moroccan judgment from asking an English court for a declaration of non-liability for alleged damage to a cargo. Continue reading →
In Asefa Yesuf Import and Export v A.P. Moller-Maersk A/S (16 June 2016) Simon Bryan QC (as a Deputy Judge of the High Court) made an important decision on service under EU rules. I was instructed for the successful defendants.
The Judge set aside service of a claim form on defendant shipowners in Denmark on the basis that the proceedings had not been validly served under EU Regulation 1393/2007 on service of judicial documents on the territories of the Member States.
Although service did not establish substantive jurisdiction in this case, which was based on the Judgments Regulation, the failure to serve the claim form led the court to declare that it had no jurisdiction (in the narrow sense) to hear the case under CPR Part 11. The consequence for the claimants was that they had to issue a new claim form. Unfortunately for the claimants, by this time, their claims had been extinguished under the one-year time bar in the contracts of carriage on which they wished to sue. Continue reading →
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”)  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 ( EWHC 258 (Comm),  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 1 All ER Comm (715) and The Jay Bola  2 Lloyd’s Rep 279 were irreconcilable, the Court preferred the latter. Continue reading →
Three members of 20 Essex Street were involved on both sides of a recent application for an anti-suit injunction in Magellan Spirit ApS v Vitol SA  EWHC 454 (Comm). The central issue in the case was whether there was an agreement conferring jurisdiction on the English High Court for the purposes of, among other things, the Lugano Convention.
In refusing the anti-suit injunction, Leggatt J held that even if a written consensus could satisfy Article 23 of the Lugano Convention, it was not enough for an anti-suit injunction. This is also a case in which delay in applying for an anti-suit injunction was a problem for the applicants (see too our post on Ecobank Transnational v Tanoh). Continue reading →