Article 50 and the Brussels Regulation

With Article 50 now triggered, amongst many other negotiations, attention will turn to the Brussels I Regulation. Rather than setting alarm bells ringing, this article by Sara Masters QC and Belinda McRae sets out three steps, based on previous examples of EU negotiations, of how the UK Government should assuage fears of upheaval in the system of commercial dispute resolution following Brexit.

The full article is here.

Asymmetric result?

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  [2017] EWHC 161 Continue reading

Court agrees with Deutsche Bank – Singapore is not more convenient

An alleged fraud (relating to a sale of Indian cotton) between an Indian, a Malaysian and a Hong Kong company has generated multiple claims in Singapore and one in London, Detusche Bank AG v CIMB Bank Berhad.  These arise from the typical web of letters of credit, finance facilities and guarantees found in international commodities finance.   In London, Deutsche Bank (DB) claim reimbursement from CIMB (a Malaysian bank) of sums paid out under letters of credit issued by CIMB.

Of interest for this blog is the Commercial Court’s decision last week ([2017] EWHC 81 (Comm)) refusing to grant CIMB a stay of the London proceedings on the basis of forum non conveniens.  Teare J’s judgment is a pithy demonstration of the English court’s approach to such arguments applying the Spiliada[1] principles (discussed below).

A key point to note is that the mere risk of inconsistent decisions on a factual point and the duplication of costs was not enough to justify a stay of English proceedings.  The case also should give parties pause to consider before beginning parallel proceedings in another jurisdiction (see my final thoughts on tactics)

20 Essex Street’s Andrew Fulton appeared for Deutsche Bank. Continue reading

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

Submission: Golden Endurance v RMA Watanya

Golden Endurance Shipping SA v RMA Watanya SA [2016] EWHC 2110 (Comm)

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

Hague Convention on Choice of Court Agreements is in force in Singapore from tomorrow

A year after it entered into force in EU countries, the Hague Convention on Choice of Court Agreements of 30 June 2005 will enter into force in Singapore tomorrow (1 October 2016).

I covered the basics of the Convention in my post last year.  Since then, the the UK has voted for Brexit.  This could add to the Convention’s importance. Post Brexit, the UK could sign up to the Hague Convention in its own right (not as part of the EU).  This would make sure that, in other Convention States (1) jurisdiction clauses in favour of the English courts and (2) recognition and enforcement of English judgments, would continue to be effective.

It is important to remember, though, that the Convention applies only to choice of court agreements in “civil or commercial matters” (subject to certain exclusions, e.g. consumer and employment contracts).

Finally, the Convention may be spreading.  In the last year, the Ukraine has signed the Convention (on 21 March 2016) but not ratified it.

Domestic anti-suits and the 6BPD gateways: Fujifilm Kyowa Kirin Biologics Co Ltd v Abbvie Biotechnology Ltd

Fujifilm Kyowa Kirin Biologics Company Ltd v (1) Abbvie Biotechnology Ltd and (2) Abbvie Ltd [2016] EWHC 2204 (Pat)

Arnold J gave judgment today in this important case on jurisdiction.  Thomas Raphael QC and I acted for the claimant biotechnology company (“Fujifilm”) and successfully resisted a challenge from a Bermudan domiciled defendant to the English Court’s jurisdiction which had been founded by service out of the jurisdiction.  Alexander Layton QC, also from 20 Essex Street, acted for the defendants.

Whilst the issues in this case arose within the context of an intellectual property dispute, many aspects of Arnold J’s decision will have a broader relevance to commercial disputes that give rise to issues concerning the Court’s jurisdiction to serve out or domestic anti-suit relief. Continue reading

Proposed UNCITRAL Convention on the Enforcement of Settlement Agreements arising from International Commercial Conciliation

UNCITRAL continues to make progress towards improving the enforcement of settlement agreements which follow from conciliation or mediation in commercial cases.

In 2014, UNCITRAL agreed that a Working Group should consider the issue of enforcement of settlement agreements resulting from international commercial mediation or conciliation. This was based on a proposal from the US delegation, addressing a perceived need for greater ease of enforcement of settlement agreements that had not been converted into formal judgments or arbitration awards.

Progress has been made by the Working Group in 2016, leading to greater clarity as to any likely final proposal.

The Working Group has developed a concept of a framework for conciliated settlement agreements akin to the New York Convention on the Recognition and Enforcement of Arbitral Awards. Continue reading

Failure to follow service rules is the end of a claim

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

Brexit?

This briefing note explores some of the alternatives to the Brussels I Regime that may be introduced if the UK were to vote to leave the EU.

The law relating to civil jurisdiction and judgments has undergone substantial change in recent years, with the entry into force of the Brussels I Regulation (Recast) (‘the Recast Regulation’) on 10 January 2015. That Regulation is the latest in a line of European legislative instruments governing both the allocation of civil and commercial jurisdiction among EU member state courts and the recognition and enforcement of their judgments. This regulatory regime, which has been in force in the UK in various guises since 1987, is likely to be significantly modified, if not entirely replaced, in the event of Brexit.

Read the full note here.