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(p. 57) 2. Civil jurisdiction 

(p. 57) 2. Civil jurisdiction
Chapter:
(p. 57) 2. Civil jurisdiction
Author(s):

Jonathan Hill

DOI:
10.1093/he/9780198732297.003.0002
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I Introduction

A General considerations

2.1 This chapter addresses the English court’s jurisdiction other than in family law matters (which is dealt with in Chapter 8) and excluding a few other kinds of proceedings.1

2.2 Broadly speaking, questions of jurisdiction may be looked at from two angles—one positive, the other negative. Looked at positively, there are various reasons why the English court may be a suitable forum to decide a dispute that has foreign elements. One is that the parties have agreed or submitted to its jurisdiction. If both parties are content for litigation to proceed in England there can be little objection to the assumption of jurisdiction by the English court. A second ground is a connection between the defendant and England; it will seldom be an injustice to a person to have to defend a case in his own country. Thirdly, the English court may be appropriate because there is a connection between the substance of the claim and England. While it may cause a foreign defendant expense and inconvenience to defend proceedings in England, it may nevertheless be reasonable for the English court to deal with the case if relevant events occurred in England. For example, if the defendant is alleged to have committed a tort against an English claimant while on a visit to England, both fairness to the claimant and the ready availability of witnesses and other evidence make the English court an appropriate forum.

2.3 These positive considerations are only one half of the equation. Situations arise in which, although England is prima facie a suitable forum, there are good grounds for the courts of another country to try the case. There are various reasons why a foreign court may be a more appropriate forum, notwithstanding the fact that there is a sufficient connection with England to justify the assumption of jurisdiction by the English court. For example, it may be more convenient for the claim against the defendant to be joined to related proceedings already pending in a foreign forum when the claimant seeks to invoke the English court’s jurisdiction. A jurisdictional inquiry involves not only an investigation of the potential bases on which the English court may assume jurisdiction, but also a consideration of countervailing factors which may point towards (p. 58) the English court staying the proceedings or declining jurisdiction in favour of the courts of another country.

2.4 It has been suggested that certain aspects of English law relating to the assumption of jurisdiction may have to be reconsidered in light of the Human Rights Act 1998, which implements the European Convention on Human Rights (ECHR). In Lubbe v Cape plc2 it was argued that, if the English proceedings were stayed, the claimants would be deprived of their right to a fair trial under article 6 of the ECHR. As the House of Lords refused to grant a stay under normal principles,3 the argument did not have to be directly addressed. Nevertheless, Lord Bingham did not think that ‘article 6 supports any conclusion which is not already reached on application of [the usual] principles’.4 Although, in particular circumstances, the ECHR may become relevant, its role is unlikely to be other than marginal. Article 6 of the ECHR protects the right to a ‘fair and public hearing before an independent and impartial tribunal established by law’, but it says nothing about where that right has to be capable of being exercised.5 Only in exceptional circumstances will jurisdiction rules designed to determine where litigation is to take place (rather than whether or not it can take place at all) run the risk of falling foul of the Human Rights Act 1998.6

2.5 In the context of the current discussion there are two types of claim which may be commenced in England: claims in personam and Admiralty claims in rem. A claim in personam is one in which the claimant seeks a judgment requiring the defendant to pay money, deliver property or do, or refrain from doing, some other act. A claimant who wishes to commence proceedings in personam must be able to serve a claim form on the defendant—either in England or abroad. In certain circumstances a claimant is able to serve process on the defendant as of right; in others the claimant requires the permission of the court. Typical proceedings in personam include claims for an injunction or damages in tort and claims for damages or specific performance for breach of contract.

2.6 Admiralty proceedings in rem are directed against property, usually a ship.7 Although it is not uncommon for the ship to be referred to as the defendant in a claim in rem, the reality is that the claim is brought against the owner of the ship.8 A typical case is where the claimant has a claim against a ship-owner in respect of his ship—for example, where the claimant’s cargo has been damaged as a result of the negligent navigation of the vessel. Proceedings in rem are commenced by process being affixed to any suitable part of the superstructure of the ship. The claimant will normally (p. 59) also seek to arrest the ship so that it can be sold to meet any judgment granted to the claimant. However, the owner will often avoid the arrest of the vessel (or obtain the vessel’s release after its arrest) by giving security for the claim. In that case the proceedings assume a hybrid character; the claim continues in rem (notionally) against the ship and also in personam against the ship-owner who has submitted to the English court’s jurisdiction by giving security. Where a claim is brought solely in rem the claimant is confined to the proceeds of sale of the ship for the satisfaction of his judgment, but the claimant is not so limited in a case which is brought both in rem and in personam.

B The structure of English law on jurisdiction in personam

2.7 There are three main regimes governing the in personam jurisdiction of the English court. The first, which has a European origin, is the Brussels I Recast (which is derived from the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters). The second regime is a modified version of the European jurisdiction rules, which in certain circumstances allocates jurisdiction within the United Kingdom. Thirdly, there are the so-called traditional rules which apply in cases not regulated by the European rules and/or the modified version which allocate jurisdiction within the United Kingdom.9 A brief introductory description of these regimes will be given before aspects of the law are analysed in more detail.

1. The Brussels I Recast

(A) Development

2.8 In the 1960s the original six Member States of the EEC10 negotiated a convention to provide for uniform rules on jurisdiction in civil and commercial matters and for the reciprocal recognition and enforcement of judgments in such matters. These negotiations led to the signing of the Brussels Convention in 1968. As the EC expanded in the latter part of the twentieth century the new Member States acceded to the Brussels Convention.11

2.9 The next step in the development of the Brussels regime was the replacement of the Brussels Convention by the so-called Brussels I Regulation,12 which came into force in 2002 (hereafter ‘the 2002 Regulation’). The territorial scope of the 2002 Regulation (p. 60) expanded as new Member States acceded to the EU.13 The 2002 Regulation made provision for the European Commission to report on the functioning of the Regulation and, if appropriate, to make proposals for its amendment. This process of revision was initiated by the Commission in 200914 and a proposal for a revised Regulation was published towards the end of 2010.15 The revised version—known as the Brussels I Recast16 (also referred to as ‘the Recast’)—was enacted in 2012 and came into force in January 2015.17 The first three Chapters of the Recast define its scope (Chapter I), set out detailed rules on jurisdiction (Chapter II), and make provision for the reciprocal recognition and enforcement of judgments (Chapter III).18

(B) Interpretation

2.10 Questions of interpretation under the Brussels I Recast may be referred to the Court of Justice in accordance with the terms of article 267 of the Treaty on the Functioning of the European Union (TFEU). Under article 267 TFEU, a court against which there is no judicial remedy under national law ‘shall’ make a reference if a ruling on a point of European law is necessary to enable the court to make its decision;19 any other court or tribunal ‘may’ make such a reference.

2.11 In the context of the Brussels Convention, it was provided that, when ascertaining the meaning of provisions of the Convention the court may consider the official reports which accompanied the Convention and the various subsequent Accession Conventions,20 of which the most important are the Jenard Report21 and the Schlosser Report.22 In view of the importance of continuity between the Brussels Convention, the 2002 Regulation and the Recast,23 these reports remain relevant when the provisions (p. 61) of the Recast derived from the earlier instruments are under consideration, as does the extensive case law of the Court of Justice. The Court of Justice may also take account of the relevant travaux préparatoires, in particular the European Commission’s proposals which preceded the adoption of the 2002 Regulation and the Recast.24

2.12 The Court of Justice has adopted a teleological style of interpretation; the Recast must be interpreted having regard to both its principles and objectives.25 Because each of the different language versions is equally authoritative an ambiguity in the English text may be resolved by reference to other language versions.

2.13 The Court of Justice has been required to consider on numerous occasions whether a specific concept should be given an autonomous interpretation or a national one. This is a question of policy which has to be resolved by reference to the objectives of the instrument in question. Because the Brussels I Recast (like the Convention and the 2002 Regulation before it) aims to produce uniformity in the allocation of jurisdiction, the Court of Justice tends to impose an autonomous interpretation in relation to the terms used in Chapter I, which defines the material scope of the Recast, and the conceptual categories which determine the scope of the specific jurisdiction provisions in Chapter II. For example, whether a particular dispute concerns ‘matters relating to a contract’ for the purposes of article 7(1) has to be decided by reference to a supranational conception of ‘contract’ rather than a purely national one.26 It is not, however, the aim of the Brussels I Recast to harmonise the systems of civil procedure of the Member States.27 Accordingly, matters which relate to procedural consequences or the detailed operation of legal concepts are normally to be interpreted by reference to the relevant national law.

(C) Outline

2.14 Within its material scope, the Brussels I Recast determines the international jurisdiction of the courts of Member States (such as where an English claimant sues an English defendant in respect of a tort committed in Jamaica28 or where a German national of unknown domicile is sued in the Czech Republic for payment of arrears on a mortgage loan29). The material scope of the Recast, which is defined by article 1, encompasses civil and commercial matters, but does not extend to revenue, customs, or administrative matters. In broad terms, the phrase ‘civil and commercial matters’ covers ‘legal actions for compensation for disturbance of ownership and property rights, contractual performance and damages’.30 Problems surrounding the scope of civil and commercial matters are likely to arise most frequently in cases where one of the parties to the (p. 62) litigation is a public authority. Proceedings fall outside the ambit of article 1 where the dispute involves a public authority acting in the exercise of its public authority powers.31 However, a case involving a public authority is within the scope of the Recast if the relationship between the parties is governed by private law.32 The Recast covers, for example, a claim by a public authority for recovery of overpaid compensation for the loss of real property from victims of persecution under the Nazi regime,33 an action whereby a public authority claims damages for loss caused by a tortious conspiracy to commit VAT fraud,34 and a claim for legal redress for damage resulting from the infringement of EU competition law.35

2.15 It is also provided that various matters are excluded from the Recast’s scope.36 Matters relating to the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, and wills or succession are excluded. In addition, the Recast does not apply to bankruptcy, proceedings relating to the winding up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings,37 social security,38 or arbitration. Of these exceptions the one which has posed most difficulty is the one relating to arbitration.39

2.16 When a question arises whether or not proceedings fall within the Recast’s scope, reference must be made solely to the subject-matter of the dispute; if, by virtue of its subject-matter a dispute concerns one of the exceptions to article 1, the existence of a preliminary issue which is within the scope of article 1 does not bring the proceedings under the Recast.40 By the same token, a civil or commercial claim (such as a claim for breach of contract) falls within the scope of the Recast, notwithstanding the fact that the court must, as a preliminary issue, determine whether or not the parties in dispute are bound by an arbitration clause, a question which is outside the scope of the (p. 63) Recast. In West Tankers Inc v Allianz SpA41 the question concerning the scope of the 2002 Regulation arose in a case in which the claimant applied for an injunction to restrain the defendant from pursuing Italian proceedings which were allegedly brought in breach of an arbitration agreement by which the parties were bound. The claimant argued that, as the purpose of the injunction was to enforce the arbitration agreement, the application fell outside the 2002 Regulation’s scope. On a reference from the House of Lords, the Court of Justice decided that, notwithstanding the arbitration agreement, the Italian proceedings (which involved a claim in tort) concerned civil and commercial matters within the scope of the 2002 Regulation;42 furthermore, an anti-suit injunction whose purpose was to obstruct the Italian proceedings was held to be incompatible with the Regulation.43 Although the Recast does not alter the text of article 1 in this regard, it does introduce a new recital in response to the West Tankers decision. The significance of this recital, which relates to the recognition and enforcement of judgments, rather than the allocation of jurisdiction, is considered in the next chapter.44

2.17 As regards the allocation of jurisdiction under the Recast, the defendant’s domicile45 is ‘the point on which the jurisdiction rules hinge’.46 A defendant who is domiciled in a Member State may normally be sued in the courts of that state.47 However, the Recast specifies circumstances in which a person domiciled in one Member State may be sued in other Member States. For example, where a person domiciled in England commits a tort in France the claimant has a choice whether to bring proceedings in England or in France; where an English company and a German company agree to refer a dispute to the jurisdiction of the German courts the German company may sue the English company in Germany.

2.18 In terms of basic philosophy, the Brussels I Recast favours certainty over flexibility. One of the central objectives of the Recast is to enable a claimant to identify easily the court (or courts) in which he may sue and the defendant reasonably to foresee before which court (or courts) he may be sued.48 This approach is in marked contrast to the English traditional rules, whose operation is, to a large extent, based on judicial discretion.

2.19 Where proceedings are covered by article 1 of the Recast, the English court cannot assume jurisdiction over a defendant domiciled in another Member State on the basis of the traditional rules; a person domiciled in a Member State may be sued in the courts of another Member State only in accordance with the terms of the Recast.49 Where proceedings are commenced in England against a person domiciled in another (p. 64) Member State and the defendant does not enter an appearance, if the Recast does not confer jurisdiction on the English court, the court must decline jurisdiction of its own motion.50

2.20 If the defendant is not domiciled in a Member State the general rule is that the court may apply its traditional rules on jurisdiction.51 However, there are certain bases of jurisdiction under the Recast which apply regardless of domicile. For example, the effect of article 24(1) is that a dispute relating to the ownership of immovable property in Italy is within the exclusive jurisdiction of the Italian courts, whether the defendant is domiciled in Italy, another Member State or a third state (that is, a non-Member State). It is a mistake to think that the Recast does not apply to parties who are not domiciled in a Member State. The Brussels I Recast also includes provisions that are designed to reduce the incidence of conflicting judgments by preventing situations where the courts of two or more Member States may assume jurisdiction in relation to the same or related issues. According to these rules, where parallel proceedings involving the same parties and the same cause of action are brought in more than one Member State (lis pendens) the general rule is that any court other than the court ‘first seised’ must stay the proceedings or decline jurisdiction; where related proceedings are brought in different Member States, a court other than the court ‘first seised’ may, in the exercise of its discretion, stay the proceedings or, if certain conditions are fulfilled, decline jurisdiction.

2. Schedule 4 to the Civil Jurisdiction and Judgments Act 1982

2.21 Schedule 4, which is modelled on Chapter II of the Recast, applies when the defendant is domiciled in the United Kingdom (or article 24 of the Recast allocates exclusive jurisdiction to the courts of the United Kingdom) and the proceedings are within the material scope of the Recast.52 However, the Court of Justice has no jurisdiction under article 267 TFEU to rule on the interpretation of schedule 4, even in relation to those of its provisions which are identical to the equivalent provisions of the Recast.53 Schedule 4 operates in two main ways.

2.22 First, it supplements the Recast in those cases where its rules allocate jurisdiction to the United Kingdom but without specifying any particular part of the United Kingdom.54 For example, the effect of article 4 of the Recast is simply that a person domiciled in the United Kingdom may be sued in the United Kingdom. Rule 1 of schedule 4 identifies the particular part (or parts55) of the United Kingdom in which proceedings may be (p. 65) brought by providing that a person domiciled in a part of the United Kingdom may be sued in that part.

2.23 Secondly, schedule 4 allocates jurisdiction in cases which are internal to the United Kingdom but which have connections with more than one part of it.56 The effect, so far as the English court is concerned, is that Scotland and Northern Ireland are (subject to modifications) treated as if they were Member States. If the defendant is domiciled in another part of the United Kingdom the English court will have jurisdiction only if it would have had jurisdiction had the defendant been domiciled in another Member State. The effect of schedule 4 is that, as regards disputes that fall within the material scope of the Recast, the English court cannot assume jurisdiction on the basis of the traditional rules if the defendant is domiciled in another part of the United Kingdom.

3. The traditional rules

2.24 At common law the basis of the English court’s jurisdiction in claims in personam is that the defendant is amenable to the court’s jurisdiction—in the sense that the claim form commencing the proceedings can be served on him (whether in England or abroad). If the defendant is present in England, process can be served on him in England. If the defendant is not present in England at the commencement of the proceedings, but he has submitted to being sued in England, the English court has jurisdiction. If the defendant cannot be served with process in England, and does not submit to the jurisdiction, then the court may have the power under CPR rule 6.36 to assume jurisdiction by giving permission for process to be served on the defendant out of the jurisdiction.57 This power arises where, notwithstanding the fact that the defendant is foreign, there is a connection between the events or subject-matter of the dispute and England.

2.25 An important feature of the traditional rules is that the outer limits of the court’s jurisdiction are fixed by the court’s discretion. Where a defendant is served with process in England as of right (because he is physically in England at the time of service) the court may nevertheless grant a stay of the English proceedings at the request of the defendant on the basis that there is a more appropriate forum abroad (forum non conveniens). Similarly, in exercising its powers to give permission for service of process out of the jurisdiction under CPR rule 6.36 the court has discretion and will permit service only if it is shown that England is the appropriate forum (forum conveniens).

2.26 When the traditional rules are compared with the Brussels I Recast the obvious difference in approach is that under the Recast the assumption of jurisdiction is, for the most part, mandatory whereas under the traditional rules the scope of the court’s jurisdiction is largely determined by the exercise of discretion on the basis of an assessment of whether the English court is the appropriate forum.

(p. 66) 4. The meaning of ‘domicile’

2.27 Under the Brussels I Recast the English court’s jurisdiction may depend on whether the defendant is domiciled in England, in another part of the United Kingdom, in another Member State, or in a third state (that is, a non-Member State). It is provided that, as regards individuals, the law of each Member State determines whether a person is domiciled in that state.58 For the purposes of the Recast, ‘domicile’ is given a special meaning, which is different from its meaning at common law and closer to the continental usage of this term: an individual is domiciled in the United Kingdom if he is resident in the United Kingdom and the nature and circumstances of his residence indicate that he has a substantial connection with the United Kingdom, which will be presumed to be so (unless the contrary is proved) if he has been resident in the United Kingdom for the last three months or more.59 A person will be regarded as resident in a particular part of the United Kingdom if that place is his settled or usual place of abode.60 Mere ownership of a house in England by the defendant does not amount to domicile if the defendant’s use of the house is infrequent, intermittent, and fleeting.61

2.28 If an individual is not domiciled in the forum state according to its law, then a court of that state must decide whether he is domiciled in another Member State by applying the law of the latter state.62 If, for example, an English court wishes to determine whether someone is domiciled in France (for the purposes of the Recast) it must apply French law.

2.29 As regards the domicile of companies and other legal persons, article 63(1) of the Recast lays down a uniform rule: a company or other legal person (or association of natural or legal persons) is domiciled at the place where it has its statutory seat or its central administration or its principal place of business.63 A company’s central administration is not determined by where board meetings and AGMs are held, but is located where the company (through its organs) takes the decisions that are essential for the company’s operations—in other words, the place where the company conducts its entrepreneurial management.64 The principal place of business is where the company’s main economic activity takes place. In practice, the principal place of business of a company and its central administration will often be in the same country.

2.30 As article 63 refers to the relevant connecting factors as alternatives, it is possible for a company to have more than one domicile (where, for example, its central (p. 67) administration is in Italy, but its principal place of business is in Spain).65 It is also possible for an individual to be regarded as domiciled in more than one Member State (where, for example, an individual is domiciled in England under English law and domiciled in Germany under German law).

C The structure of English law on jurisdiction in rem

2.31 The situations in which the claimant may invoke the court’s Admiralty jurisdiction in rem are set out in provisions of the Senior Courts Act 1981.66 Although these provisions are based on international conventions,67 the terms of the 1981 Act are, in certain respects, broader than the conventions from which the domestic legislation is derived. The Act provides, for example, that the English court may assume jurisdiction in a case involving ‘any claim for damage done by a ship’68 or ‘any claim for loss of or damage to goods carried in a ship’69 or ‘any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship’.70 As a general rule, where a claim falls within the scope of the court’s Admiralty jurisdiction, proceedings in rem may be brought against the ship or property in connection with which the claim arises.71 It is also provided that in certain circumstances a claim in rem can be brought against a sister ship of the ship in connection with which the claim arises.72

2.32 The Admiralty jurisdiction of the English court in rem is strictly territorial. Although there is no requirement that the claim or the parties should have any connection with England, the claimant may invoke the jurisdiction of the English court only if, first, the claim falls within one of the bases of jurisdiction outlined in the 1981 Act and, secondly, the ship in question can be served with the claim form in English territorial waters. However, just as with a claim in personam where jurisdiction is based on the defendant’s presence in England, the court has discretion to grant a stay of proceedings on the ground of forum non conveniens. Indeed, several of the cases in which the forum-non-conveniens doctrine was developed were commenced as Admiralty actions in rem.73

2.33 The Brussels I Recast does not formally draw a distinction between cases involving claims in personam and cases involving Admiralty claims in rem. Although the impact of the Recast is limited by article 71 which preserves the effect of special conventions in the field of jurisdiction and the recognition and enforcement of judgments,74 there are two important ways in which the Recast has a role to play with regard to claims in rem.

2.34 First, where the claim falls within the material scope of the Brussels I Recast and the person who is interested in contesting the claim in rem is domiciled in a Member (p. 68) State, the English court has jurisdiction only if the assumption of jurisdiction under the Senior Courts Act 1981 is consistent either with the special conventions preserved by article 71 or with the provisions of Chapter II of the Recast.75 Where, for example, cargo-owners bring English proceedings in rem in respect of a vessel chartered by a German defendant, but refrain from arresting the vessel because the defendant puts up security for the claim, the English court does not have jurisdiction.76 This is because, in such circumstances, the assumption of jurisdiction under the Senior Courts Act 1981 is authorised neither by the Recast (because the defendant is domiciled in Germany rather than in England) nor by the Arrest Convention (because the application of the Arrest Convention depends on the ship having been arrested). The fact that the court would have had jurisdiction under the Senior Courts Act 1981 if the defendant had not been domiciled in a Member State is irrelevant.

2.35 Secondly, because the special conventions preserved by article 71 do not address questions relating to parallel or related proceedings, the provisions of the Recast fill the gap. Where parallel or related proceedings are commenced in two or more Member States, the provisions of the Recast concerning lis pendens and related actions are relevant whether the proceedings are in personam or in rem.77

II Bases of jurisdiction in personam

2.36 When considering the bases on which the court may assume jurisdiction in personam it is important to distinguish those cases that are governed by the Brussels I Recast from those which fall under the traditional rules. Whether the case is determined by the Recast or the traditional rules, the territorial connections of the claimant—in terms of nationality, domicile, or residence—are generally irrelevant when deciding whether or not the claim is covered by the particular jurisdictional basis invoked by the claimant.78

A Bases of jurisdiction under the Brussels I Recast

2.37 Although the domicile of the defendant is the point on which the jurisdiction rules in Chapter II hinge, it is appropriate in cases falling within the material scope of the Recast—as determined by article 1—to start by considering those bases of jurisdiction (p. 69) which apply in relation to all defendants, regardless of their domicile. If the jurisdiction of the English court under the Recast is contested (for example, on the basis that England was not the place of performance of the contractual obligation in question or, in a tort case, the place where the harmful event occurred), the claimant must establish ‘a good arguable case’ that the conditions of the article invoked are satisfied.79 The court is not required, however, to conduct a comprehensive taking of evidence at the stage of determining jurisdiction.80

1. General bases of jurisdiction which do not depend on the defendant being domiciled in a Member State

2.38 Article 6 provides that, except in cases where article 18(1), article 21(2), article 24, or article 25 is effective to confer jurisdiction on the courts of a Member State, if the defendant is not domiciled in a Member State, jurisdiction is to be determined by the traditional rules.81

(A) Exclusive jurisdiction

2.39 Article 24 allocates exclusive jurisdiction, regardless of the defendant’s domicile,82 in circumstances where the courts of a particular Member State are thought to be uniquely appropriate to adjudicate upon the subject-matter of the dispute. The five paragraphs of article 24 concern ‘proceedings’83 of various types: (1) certain proceedings relating to immovable property; (2) certain proceedings concerning the formation and dissolution of companies and partnerships and the validity of decisions of their organs;84 (3) certain proceedings concerning entries in public registers; (4) certain proceedings concerning intellectual property rights;85 and (5) proceedings concerning the enforcement of judgments.86

(p. 70) 2.40 The jurisdiction rules in article 24 are mandatory and exclusive; they may not be departed from either by an agreement purporting to confer jurisdiction on the courts of another Member State or by submission to another forum. Their application is, however, dependent on the proceedings being principally concerned with matters covered by the jurisdiction rule in question.87 If the claimant seeks to invoke the jurisdiction of the English court in a matter which, by virtue of the provisions of article 24, falls within the exclusive jurisdiction of the courts of another Member State, the English court must of its own motion decline jurisdiction.88 As only the first of the five bases of exclusive jurisdiction has been repeatedly referred to the Court of Justice, the discussion which follows is limited to article 24(1).89

2.41 The general rule contained in article 24(1) provides that the courts of the Member State in which immovable property is situated have exclusive jurisdiction in proceedings which have as their object rights in rem in, or tenancies of, such property. If the immovable property is in England, the English court has jurisdiction irrespective of where the defendant is domiciled.90 If, however, the property is situated in another Member State (or in another part of the United Kingdom), the English court may not assume jurisdiction, even if the defendant is domiciled in England.91

(i) Rights in rem in immovable property

2.42 Article 24(1) encompasses claims which seek to determine the extent, content, ownership, or possession of immovable property or the existence of other rights in rem therein and to provide the holders of those rights with the protection of the powers which attach to their interest.92 For example, if land is occupied by squatters, a claim by the paper owner to evict the squatters and recover possession falls within the scope of article 24(1). Similarly, an application for a declaration that a right of pre-emption relating to land in Germany had not been validly exercised is within the exclusive jurisdiction of the German courts;93 an action for the termination of a tenancy in common of immovable property by way of sale is within the scope of article 24(1).94

2.43 Conversely, there is a large body of case law indicating many types of legal proceedings which fall outside the scope of article 24(1). For example, an action which seeks to prevent a nuisance affecting land belonging to the claimant does not fall under article 24(1); although the basis of such an action is the interference with a right in rem in immovable property, the nature of the right is of only marginal significance.95 Neither (p. 71) a claim based on a contract for the transfer of ownership of immovable property96 nor a claim for rescission of a contract for the sale of land and consequential damages97 is covered by article 24(1). Where a defendant occupies immovable property for nine years under a transfer from the claimant which is subsequently declared by the courts to be void, a claim to recover compensation for use of the property during the nine-year period is not within the exclusive jurisdiction of the courts of the Member State in which the property is situated.98 In addition, article 24(1) does not apply to a claim by a creditor to have a disposition of immovable property declared ineffective as against him on the ground that it was made in fraud of his rights by the debtor.99 By the same token, an application by a person placed under guardianship for authorisation to dispose of his immovable property is linked to legal capacity and does not involve rights in rem in immovable property for the purposes of article 24(1).100 English proceedings for a declaration that the defendant holds an apartment in the south of France on trust for the claimant and for an order that the defendant should execute such documents as are required to vest legal ownership in the claimant are outside the scope of article 24(1); as the claimant is not claiming that he already enjoys rights in relation to the property which are enforceable against the whole world, but is seeking only to assert rights as against the defendant, his claim is a claim in personam rather than a claim in rem within the meaning of article 24(1).101 The application of this reasoning leads to the conclusion that the English court has jurisdiction to make an order for the sale of a villa situated in Portugal in a case where, following the bankruptcy of one of the owners, that person’s trustee in bankruptcy applies for such an order.102

(ii) Tenancies of immovable property

2.44 In Rösler v Rottwinkel103 the Court of Justice ruled that proceedings which have as their object a tenancy of immovable property (even a short holiday lease) include disputes as to the existence or interpretation of the lease and claims by the landlord for recovery of the premises, for rent and other charges, or for compensation for damage caused by the tenant, whether or not the proceedings are based on a right in rem.104 However, article 24(1) does not apply to a dispute arising from an agreement by which one party is to take over from the other a business carried on in immovable property which the latter leases from a third party.105 Article 24(1) does not apply to disputes which are only indirectly related to the use of the property let, such as a claim for the loss of holiday enjoyment and travel expenses106 or disputes relating to holiday contracts (p. 72) which include not only accommodation, but also other services, such as information and advice, the reservation of transport, reception on arrival, and insurance against cancellation.107 Proceedings relating to disputes arising from financing arrangements concerning leases covered by article 24(1) fall outside the scope of the exclusive jurisdiction provisions.108 Article 24(1) does not normally apply to claims arising out of timeshare contracts (at least, where the arrangement takes the form of a club membership contract under which the ‘tenant’s’ entitlement may relate to different premises each year109); such agreements should be regarded as consumer contracts within the scope of article 17.110

2.45 The practical significance of Rösler v Rottwinkel with regard to short leases is limited by the fact that article 24(1) also provides that, in certain circumstances, the claimant may bring proceedings in the court of the Member State in which the defendant is domiciled. Where proceedings involve a tenancy for temporary private use for a maximum period of six consecutive months, the courts of the Member State in which the defendant is domiciled have jurisdiction, provided that the tenant is a natural person and that the landlord and the tenant are both domiciled in the same Member State. The forum designated by this rule relating to short leases is an alternative to the courts of the Member State in which the property is situated. If a cottage in England is let by its French owner to a French tenant for a period of three months, a dispute arising out of the tenancy may be litigated either in England or in France.

(B) Prorogation of jurisdiction: jurisdiction agreements

(i) Introduction

2.46 As a general rule, a person may confer jurisdiction on a court by consent. A party may consent by a formal agreement concluded within the context of a wider contractual relationship (such as a jurisdiction clause in a printed contract) or by submitting to the jurisdiction of a court after the commencement of proceedings by the claimant. The Brussels I Recast refers to both of these situations as examples of ‘prorogation of jurisdiction’; by the parties’ agreement or submission the jurisdiction of the courts of a Member State is thereby extended. Article 25 is concerned with the effects of jurisdiction agreements in favour of the courts of a Member State;111 article 26, which enables a defendant to confer jurisdiction on the courts of a Member State by submission, is considered in a later section of this chapter.112

2.47 Under article 25(1), if the parties, regardless of their domicile, have agreed that a court or the courts of a particular Member State shall have jurisdiction over disputes relating (p. 73) to a particular legal relationship, then such court or courts will have jurisdiction,113 provided that the agreement satisfies certain formal requirements.114 The paradigm case covered by article 25 is where a dispute relates to a contract which contains a jurisdiction clause referring disputes to the courts of a particular country or place.115 The application of article 25 does not depend on the situation having an international element; article 25 is effective to confer exclusive jurisdiction on the contractual forum in a case where parties domiciled in England enter a contract which includes a clause requiring any legal proceedings to be brought in London.116

2.48 The courts tend to construe jurisdiction clauses broadly, so as to cover all disputes between the contracting parties.117 In a case where a contract contains a standard jurisdiction clause which refers disputes arising in connection with the agreement to specific courts, if the facts give rise to parallel claims in contract and tort, both claims fall within the scope of the clause.118 An appropriately drafted jurisdiction clause may, for example, extend to tortious damages for breach of competition law.119 Article 25(5) gives effect to the doctrine of separability, providing that the validity of a jurisdiction clause cannot be contested solely on the ground that the contract of which it forms a part is not valid. Accordingly, a dispute relating to the validity of a contract (which includes a jurisdiction clause) does not fall outside the scope of the jurisdiction clause, unless the basis on which the validity of the contract is challenged also calls into question the very existence of the jurisdiction clause itself (as opposed to the validity of the contract as a whole). The courts of a Member State which have been designated in a jurisdiction clause validly concluded under article 25(1) also have jurisdiction where the proceedings are for a declaration that the contract containing the jurisdiction clause is (p. 74) void.120 It is only if the jurisdiction clause itself comes under specific attack (for example, on the basis of duress, forgery, or non est factum) that a question arises as to the clause’s effectiveness.121

2.49 The concept of ‘an agreement conferring jurisdiction’ is an independent one which is to be understood by reference to European law, rather than the law of the forum or the law governing the contract. Although a jurisdiction agreement normally takes the form of a provision in a contract, a clause conferring jurisdiction which appears in a company’s articles of association is to be regarded as an agreement for the purposes of article 25.122

2.50 There is no requirement that there should be any objective connection between the relationship in dispute and the contractual forum.123 Article 25(1) applies even if neither the claimant nor the defendant is domiciled in a Member State; it has no application, however, to cases where the parties have chosen the courts of a non-Member State.124 It is not necessary for the parties’ agreement to identify directly the contractual forum; a jurisdiction clause in a bill of lading which indirectly identifies the contractual forum (by referring disputes to the court for the carrier’s principal place of business) falls within article 25.125

(ii) Formal requirements

2.51 Article 25(1) applies only if the jurisdiction agreement satisfies one of a range of alternative formal requirements.126 To be effective a jurisdiction agreement must be (a) in writing or evidenced in writing;127 or (b) in a form which accords with practices which the parties have established between themselves; or (c) in international trade or commerce in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned. A party seeking to rely on a jurisdiction agreement must have a ‘good arguable case’ (that is to say, he must have a much better argument than the other party) that article 25(1)’s formal requirements are met.128 Although the purpose of these requirements is to ensure that there is consensus between the parties, in cases covered by article 25(1)(c) consensus is presumed.129

(p. 75) 2.52 As a general rule, a jurisdiction agreement is ‘in writing’ only if it is contained in a document that is signed by both parties.130 Furthermore, where a clause conferring jurisdiction is included in general conditions printed on the back of the contract, the agreement is ‘in writing’ if the contract signed by both parties contains an express reference to the general conditions.131 Similarly, where A offers in writing to sell goods on A’s standard terms (which contain a jurisdiction clause) and B accepts A’s offer in writing, the formal requirements of article 25 are satisfied,132 whether or not B reads or understands A’s standard terms.133 Where, having reached an oral agreement on jurisdiction, one of the parties sends written confirmation of that agreement to the other and the latter raises no objection, the agreement is to be regarded as ‘evidenced in writing’.134 Where, however, X and Y conclude a contract orally without expressly agreeing on jurisdiction, if X subsequently confirms the contract by sending to Y printed terms and conditions containing a jurisdiction clause, that clause is not ‘in writing or evidenced in writing’ unless Y accepts the terms and conditions in writing.135

2.53 An agreement which is not ‘in writing or evidenced in writing’ may, nevertheless, be effective under paragraph (b) or (c) of article 25(1). Where, for example, the parties orally conclude a contract for the carriage of goods, which is subsequently confirmed in writing when the carrier issues a bill of lading (which includes a jurisdiction clause), the requirements of article 25(1)(b) are satisfied, notwithstanding the absence of express written agreement by the shipper, if the carrier and the shipper have a continuing business relationship which is governed as a whole by the carrier’s general conditions which contain the jurisdiction clause.136 Even in the absence of a continuing trading relationship, such a jurisdiction clause may be effective if it conforms to trade usages. However, for the purposes of article 25(1)(c) it is not sufficient that, in international trade or commerce, a jurisdiction agreement is in a form which accords with practices in such trade or commerce of which the parties are or ought to have been aware; the usage must also be widely known in international trade or commerce and regularly observed by parties to contracts of the type involved in the particular trade or commerce concerned.137

(p. 76) (iii) Material validity

2.54 Article 25(1) requires that the parties ‘have agreed’ to confer jurisdiction on particular courts; in the absence of such an agreement, the conditions of article 25(1) are not satisfied. Although article 25(1) itself determines whether an alleged agreement is formally valid, which law governs the agreement’s material validity (for example, whether the defendant’s consent is vitiated by mistake or duress)?138 Under the 2002 Regulation, it was unclear whether the material validity of a jurisdiction clause should be governed by an autonomous European standard or by the law of a country (whether the law of the forum in which legal proceedings were brought, the law governing the contract as a whole or the law of the chosen forum). Article 25(1) of the Recast does not seek to lay down a uniform standard; instead, it provides a clear choice-of-law rule: questions of material validity are governed by the law of the chosen forum.139

(iv) Exclusive or non-exclusive?

2.55 Article 25(1) provides that the jurisdiction which is derived from the parties’ agreement ‘shall be exclusive unless the parties have agreed otherwise’. In a simple case where contracting parties agree on French jurisdiction, the claimant cannot bring proceedings in England even if, in the absence of the agreement, the English court would have been competent on the basis of the defendant’s domicile in England. However, where the parties have concluded a non-exclusive jurisdiction agreement the claimant has the option of relying either on the agreement or on other provisions of Chapter II. So, where two parties domiciled in Germany conclude a non-exclusive jurisdiction agreement in favour of the English courts, either party may sue the other in England (on the basis of article 25) or in Germany (on the basis of article 4). Similarly, parties may, by their agreement, confer jurisdiction on the courts of more than one Member State; they may, for example, agree that if A sues B the German courts are to have jurisdiction, but that if B sues A the French courts are to have jurisdiction.140 Whether a jurisdiction agreement is exclusive or non-exclusive depends on the words used and is a question of construction,141 which ought to be answered by reference to the law of the chosen forum.

2.56 Whether a one-sided or unilateral jurisdiction clause (known in France as a clause potestative) is valid under article 25 of the Recast has divided opinion.142 In Soc Banque (p. 77) privée Edmond de Rothschild Europe v X,143 for example, the French courts declared a one-sided jurisdiction clause to be null and void.144 From an English perspective, this decision is hard to accept. As article 25(1) seeks to give effect to both exclusive and non-exclusive clauses, it is not obvious why a clause which is exclusive for one of the parties, but non-exclusive for the other should not be upheld. There is no doubt that, as far as English practice is concerned, such one-sided jurisdiction clauses are regarded as valid and are routinely enforced according to their terms.145

(v) The relationship between article 25 and other provisions

2.57 Article 25 yields both to articles 24 and 26. So, if the dispute between the parties involves rights in rem relating to immovable property situated in France, the French courts have mandatory and exclusive jurisdiction, notwithstanding a jurisdiction agreement between the parties in favour of the courts of another Member State.146 Similarly, in a case where the parties have agreed on the jurisdiction of the Italian courts, if the claimant issues proceedings in England and the defendant acknowledges service of process, the English court has jurisdiction; the defendant’s submission—which is in effect a waiver of the jurisdiction clause—supersedes the earlier contractual agreement.147

2. General bases of jurisdiction with regard to defendants domiciled in a Member State

2.58 If jurisdiction is not allocated by the above provisions, which apply both to defendants who are domiciled in a Member State and to defendants who are not so domiciled, the domicile of the defendant is normally of crucial importance. If the defendant is domiciled in a Member State the court may assume jurisdiction only by virtue of the provisions of Chapter II;148 if the defendant is not domiciled in a Member State, subject to article 18(1) and article 21(2),149 the traditional rules are applicable.

(A) Prorogation of jurisdiction: submission

2.59 Although the Recast does not expressly provide that article 26 applies only to defendants who are domiciled in a Member State, this conclusion follows from article 6 which (p. 78) states that, if the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State is, subject to articles 18(1), 21(2), 24, and 25, to be determined by that state’s traditional rules. As far as English law is concerned, it makes little difference whether article 26 or the equivalent traditional rules apply as it is well established under the traditional rules that a defendant may confer jurisdiction on the English court by submission.150

2.60 Article 26 provides that the court of a Member State has jurisdiction if the defendant enters an appearance in that court, unless the appearance was entered to contest the court’s jurisdiction. By virtue of article 26 the court has jurisdiction if the defendant empowers a solicitor in England to accept service on his behalf and the solicitor does so. However, a defendant who appears, not to defend the claim on the merits but merely to contend that the court has no jurisdiction, does not submit to the court’s jurisdiction. If, at the same time as contesting the court’s jurisdiction, the defendant raises in the alternative a defence on the merits, jurisdiction is not conferred by article 26.151

2.61 Article 26 cannot override the exclusive jurisdiction provisions of article 24. If the English court has jurisdiction in relation to a dispute concerning immovable property situated in England the defendant cannot confer jurisdiction on the French courts by submitting to proceedings commenced by the claimant in France. However, a submission by appearance in England is effective to confer jurisdiction on the English court even if the parties had agreed, prior to the dispute, that the courts of another Member State were to have jurisdiction.152

(B) Defendant domiciled in England

2.62 Under article 4 a person domiciled in a Member State may be sued in the courts of that state. Where a defendant is domiciled in England article 4 of the Recast provides that the claimant may bring proceedings in the courts of the United Kingdom. The Civil Jurisdiction and Judgments Act 1982, through rule 1 of schedule 4, allocates jurisdiction to England—the part of the United Kingdom in which the defendant is domiciled. The relevant time at which the defendant’s domicile must be established is when the claim form is issued, rather than when it is served.153 This ground of jurisdiction is applicable even if neither the claimant nor the dispute has a connection with England (or with any Member State).154 In Lucasfilm Ltd v Ainsworth,155 for example, the Supreme Court held that a claim for breach of US copyright could be brought in England against a defendant domiciled in England.

(p. 79) (C) ‘Special jurisdiction’: alternatives to the domicile rule

2.63 The basic rule that a defendant shall be sued in the Member State in which he is domiciled must be considered in conjunction with the ‘special jurisdiction’ provisions of Chapter II—notably, articles 7 and 8156—according to which a person domiciled in a Member State may be sued in an alternative Member State.

2.64 Jurisdiction under article 7 is premised on the existence of a close connection between the claim and the forum (unlike article 4 which is based on the defendant’s connections with the forum). Article 7 contains seven paragraphs of which the most important are paragraph (1), which concerns ‘matters relating to a contract’, and paragraph (2), which allocates jurisdiction in ‘matters relating to tort’. Paragraph (5) is concerned with disputes ‘arising out of the operations of a branch, agency or other establishment’.157 Article 8, which deals with cases involving multiple claims and defendants, is based on the simple idea that it is often convenient for related proceedings to be heard by the same court. The bases of jurisdiction in articles 7 and 8 are derogations from the general principle contained in article 4 and the Court of Justice has indicated that these derogations should be interpreted strictly.158

2.65 In inspiration, articles 7 and 8 are similar to the traditional grounds of jurisdiction listed in CPR PD 6B para 3.1. Their operation is, however, very different. In cases where the claimant relies on any of the jurisdiction rules contained in Chapter II, process can be served on the defendant without the court’s permission;159 the claimant does not have to demonstrate that the forum in which the proceedings are brought is the most appropriate one. Where, for example, D, domiciled in France, negligently injures C in England, C may bring proceedings in France on the basis of article 4 or, relying on article 7(2), sue D in England (where the harmful event occurred). The choice is entirely for C;160 there is no mechanism whereby D can require C to opt for one jurisdiction rather than another.

(i) Matters relating to a contract and to tort: introduction

2.66 Article 7 draws a distinction between ‘matters relating to a contract’ (article 7(1)) and ‘matters relating to tort’ (article 7(2)). For the purposes of article 7, ‘contract’ and ‘tort’ are autonomous concepts which must be interpreted by reference principally to the system and objectives of the Brussels I Recast, rather than in accordance with the law (p. 80) of the forum.161 This means that a situation which according to English law would not be regarded as contractual may have to be classified as such for jurisdictional purposes.

2.67 Paragraphs (1) and (2) are mutually exclusive.162 If the proceedings concern ‘matters relating to a contract’ the claimant cannot, relying on English law, invoke the English court’s jurisdiction under article 7(2) by framing the claim in tort rather than in contract. Equally, if the proceedings concern ‘matters relating to tort’ the French courts may not assume jurisdiction under article 7(1) on the basis that the claim is contractual according to French law.163 Where a claimant has a claim against a defendant part of which is based in tort and another part of which is based in contract, a court which has jurisdiction under article 7(2) over the claim in so far as it is based in tort does not have jurisdiction over that claim in so far as it is not so based.164

2.68 Whether paragraphs (1) and (2) necessarily encompass claims which are restitutionary, rather than contractual or tortious, is uncertain. In Kalfelis v Bankhaus Schröder, Münchmeyer, Hengst & Co the Court of Justice stated that article 7(2) must be regarded as covering ‘all actions which seek to establish the liability of a defendant and which are not related to a “contract” within the meaning of article [7](1)’.165 Although this statement appears to endorse the view that paragraphs (1) and (2), taken together, cover all situations in which the claimant seeks to establish the civil liability of the defendant, the judgment as a whole seems to accept the possibility of a situation in which an obligation is excluded from the scope of paragraph (2) (because it is not tortious) and is not within paragraph (1) (because it is not contractual either).

2.69 The House of Lords’ decision in Kleinwort Benson Ltd v Glasgow City Council166 indicates that a claim for restitution of money paid under a purported contract (which is void) falls neither within article 7(1) nor within article 7(2). In policy terms, there is no compelling reason why claims based on unjust enrichment should fit somewhere within article 7: ‘If a claim cannot be brought within article [7], it can always be pursued in the courts of the defendant’s domicile.’167

(ii) Jurisdiction in matters relating to a contract

2.70 Article 7(1)(a) provides that in matters relating to a contract a person who is domiciled in a Member State may be sued in another Member State if that is the place of (p. 81) performance of the obligation in question.168 This general principle is fleshed out by subparagraph (b), which indicates how the place of performance is to be determined in certain types of cases.

(a) Matters relating to a contract

2.71 The Court of Justice has ruled that article 7(1) ‘is not to be understood as covering a situation in which there is no obligation freely assumed by one party towards another’;169 the application of article 7(1) depends on ‘the establishment of a legal obligation freely consented to by one person towards another and on which the claimant’s action is based’.170 So, where a manufacturer sells defective goods to a wholesaler, who sells them to a retailer, the retailer’s claim against the manufacturer is to be classified, for jurisdictional purposes, as tortious, even if the claim is regarded as contractual under the law of the forum. Conversely, a claim which is classified as tortious under the law of the forum is within the scope of article 7(1), rather than 7(2), if there is a contractual relationship between the parties and the conduct complained of, although tortious under the law of the forum, might be considered a breach of the terms of the contract.171 Where, under English law, the defendant’s conduct constitutes both a breach of contract and a tort (such as negligence172 or conversion173) article 7(1) allocates jurisdiction over the tortious claim to the court for the place of performance of the defendant’s contractual obligation and the claimant cannot rely on article 7(2).

2.72 Article 7(1) is not rendered inapplicable merely by the fact that the defendant denies the existence of the contract on which the claim is based.174 In Boss Group Ltd v Boss France SA175 it was held that article 7(1) is applicable even in a case where the claimant seeks a declaration that a contract alleged by the defendant does not exist. The Court of Appeal relied on the inconsistency of the defendant contending both that the claimant was in breach of contract and that article 7(1) was inapplicable because there was no contract between the parties. Although the correctness of the decision was doubted, the Court of Appeal’s analysis is consistent with the Court of Justice’s later decision in Folien Fischer v Ritrama SpA,176 a case involving jurisdiction in matters relating to tort.

2.73 In Agnew v Lansförsäkringsbølagens AB177 the plaintiff sought to avoid a contract of reinsurance on the ground that the defendant had failed to comply with the duty to make (p. 82) fair presentation of the risk. The House of Lords held that the proceedings involved ‘matters relating to a contract’, notwithstanding the fact that, as a matter of English law, the defendant’s obligation arose extra-contractually. Conversely, in the Tacconi178 case, the Court of Justice ruled that a claim based on breach of a pre-contractual obligation to conduct contractual negotiations in good faith is a matter ‘relating to tort’ rather than a matter ‘relating to a contract’. However, the cases are distinguishable: whereas in Agnew v Lansförsäkringsbølagens AB there was a concluded contract between the parties, in the Tacconi case there was never any contractual relationship.

2.74 The extent to which article 7(1) extends to restitutionary obligations is contentious. Although in Kleinwort Benson Ltd v Glasgow City Council179 the House of Lords accepted the proposition that normally restitutionary claims fall outside the scope of article 7(1), Lord Goff suggested that certain types of proceedings, which would be regarded as restitutionary in nature according to English law (such as a claim to recover, on the ground of failure of consideration, money paid under a valid contract), might come within article 7(1).180

2.75 There is a degree of tension between the decisions in the Agnew and Kleinwort Benson cases. Whereas in Kleinwort Benson one of the reasons for holding that restitutionary claims normally fall outside article 7(1) was that, in such cases, there is no contractual obligation (breached by the defendant) which can serve as the basis of the claim, in the Agnew case it was held that a pre-contractual obligation imposed by the general law may qualify as the ‘obligation in question’ for the purposes of article 7(1). The solution to this tension may be to confine the decision in the Kleinwort Benson case to situations in which the invalidity of the contract is not in dispute.181

(b) The place of performance of the obligation in question: article 7(1)(a)

2.76 As regards the place of performance of the obligation in question, the current version of article 7(1) distinguishes two different types of situation.182 A large number of contractual disputes arise out of contracts for the sale of goods and contracts for the provision of services; jurisdiction in these cases falls to be determined primarily by article 7(1)(b). As regards contracts not falling within these categories, article 7(1)(a) applies; under this provision jurisdiction turns on, first, designation of the obligation in question and, secondly, identification of the place of performance of that obligation.183

(p. 83) 2.77 For the purposes of article 7(1)(a), the relevant obligation is, as a general rule, the obligation (allegedly breached by the defendant) on which the claim is based.184 So, where A contracts with B to exchange a ton of potatoes for a ton of carrots, if A sues for B’s failure to deliver the carrots, the obligation in question is B’s obligation to deliver, even if B’s non-performance is a response to the fact that the potatoes delivered by A are not of satisfactory quality. In the context of a contract under which A hires a car from B, if B sues A for the unpaid hire, the obligation in question is A’s obligation to pay the hire charge. Where the claim is based on more than one obligation the court should be guided by the maxim ‘accessorium sequitur principale’; jurisdiction under article 7(1)(a) should be determined by the principal obligation.185 Where, for example, the claimant wishes to sue the defendant on the basis not only of the latter’s failure to perform the principal obligation in England but also of a failure to perform an accessory obligation abroad, article 7(1)(a) allocates jurisdiction to the English court with regard to the entire claim. For example, in Union Transport plc v Continental Lines SA186 the plaintiff brought proceedings in England against a Belgian company for failure, under the terms of a tbn187 charterparty agreement, to nominate and provide a vessel to carry a cargo of telegraph poles from Florida to Bangladesh. Although Florida was the place of performance of the obligation to provide the vessel, the House of Lords held that the English court had jurisdiction over the entire claim under article 7(1) on the basis that the principal obligation was the obligation to nominate a vessel and that nomination should have been made in England.188

2.78 Where the defendant is in breach of two independent obligations of equal significance—rather than a principal obligation to which another is accessory—jurisdiction with regard to each obligation must be determined by the general rule.189 In the Leathertex case,190 the Belgian court thought that the defendant’s obligation to give a reasonable period of notice on termination of a commercial agency agreement (in Belgium) was of the same significance as the obligation to pay commission under the agency contract (in Italy). This means that, where two independent obligations are to be performed in two different Member States, there is a danger that there will be a fragmentation of related proceedings. It must be remembered, however, that special jurisdiction under article 7 is an alternative to the general jurisdiction which is conferred by article 4; the claimant has the option of relying on article 4 and litigating the entire claim in the courts of the Member State in which the defendant is domiciled.

2.79 If the parties agree in their contract on the place of performance of the obligation on which the claim is based, article 7(1)(a) normally allocates jurisdiction to the courts for (p. 84) that place.191 If, however, the agreed place of performance is fictitious (or abstract)—in the sense that it has no actual connection with the subject-matter of the contract—and is designed solely to establish jurisdiction (rather than to determine the real place of performance), the agreement is not effective to confer jurisdiction on the courts for that place unless it satisfies the requirements as to form laid down in article 25.192 In the absence of such agreement, the court whose jurisdiction is invoked must fix the place of performance by applying the law which, according to its own choice of law rules, governs the contract.193 So, if the claimant seeks to proceed in England under article 7(1)(a), the court must decide, by reference to English choice of law rules, which law is applicable to the contract and determine the place of performance of the obligation in question in accordance with that law.

2.80 Article 7(1)(a) refers to the place of performance. Accordingly, jurisdiction in matters relating to a contract cannot be allocated by article 7(1) in a case where a place of performance cannot be identified. In Besix v Wasserreinigungsbau Alfred Kretzschmar GmbH & Co KG194 the question was whether the place of performance of the defendants’ contractual obligation to ‘act exclusively and not to commit themselves to other partners’ was Belgium (where one of the contracting parties was domiciled). The Court of Justice ruled that article 7(1) is not applicable where ‘the place of performance cannot be determined because it consists in an undertaking not to do something which is not subject to any geographical limit and is, therefore, characterised by a multiplicity of places for its performance’.195 The extent to which the Besix ruling is applicable in the situation where a positive obligation may be performed in more than one identifiable place (such as where the defendant is entitled to make payment under a contract in any one of a number of different countries) is yet to be definitively determined.196

(c) The place of performance of the obligation in question: article 7(1)(b)

2.81 The potential scope of the general principle in article 7(1)(a) is significantly curtailed by article 7(1)(b), which expressly identifies the place of performance in relation to contracts for the sale of goods and contracts for the provision of services. As for the meaning of the concepts employed in article 7(1)(b), the Court of Justice has given some guidance. In Falco Privatstiftung v Weller-Lindhorst197 it was held that a contract whereby the owner of an intellectual property right grants, in return for payment, a licence for use of the right in question is not a contract for the provision of services. It is not necessary that ‘services’ in article 7(1)(b) should be interpreted as broadly as it is (p. 85) in the context of article 57 TFEU;198 in order for an agreement to constitute a contract for the provision of services for the purposes of article 7(1)(b) of the Recast, normally the party who is remunerated must carry out a particular activity in return for the payment.199

2.82 The distinction between the sale of goods and the provision of services was considered by the Court of Justice in Car Trim GmbH v KeySafety Systems Srl,200 which involved contracts for the manufacture and delivery of car parts. The terms of the contract obliged the seller to manufacture components to the customer’s specifications and the question arose whether the contract should be characterised as a contract for the sale of goods or a contract for the provision of services. The Court of Justice concluded that the fact that the customer laid down detailed requirements for the manufactured products was not relevant; the contracts in question did not involve the seller in working raw materials provided by the customer (which might be regarded as the provision of a service), but were fundamentally contracts for the sale of the goods manufactured by the seller, for whose quality the seller was legally responsible.

2.83 With regard to contracts for the sale of goods and the provision of services, the Recast adopts the ‘characteristic obligation’ theory; jurisdiction is determined by reference to the place of performance of the obligation which determines the nature of the contract, namely the seller’s obligation to deliver the goods (in a contract for the sale of goods) and the obligation to perform the services (in a contract for the provision of services). So, where the proceedings relate to a contract for the sale of goods, the place of performance of the obligation in question is, unless otherwise agreed, the place in a Member State where, under the contract, the goods were delivered or should have been delivered. Where the proceedings relate to a contract for the provision of services, the place of performance is, unless otherwise agreed, the place in a Member State where the services were or should have been provided.

2.84 It will not normally be too difficult to determine the place where contractual services are to be performed. However, contracts of sale potentially pose more difficulty. Is the place of delivery to be determined by reference to the terms of the contract as interpreted by the applicable law or should the place of delivery be understood as referring to the factual destination of the goods? The wording of the Recast makes it clear that, if the parties have agreed the place of delivery, article 7(1)(b) allocates jurisdiction to the courts for that place. In Electrosteel Europe SA v Edil Centro SpA the Court of Justice ruled that use of the phrase ‘under the contract’ means that the court must take into account (p. 86) all the relevant clauses of the contract, including clauses generally recognised and applied in international commercial usage (such as Incoterms), in so far as they enable the place of delivery to be clearly identified.201 In Electrosteel, a contract for the sale of goods between an Italian seller and a French buyer included the term: ‘delivered free ex our business premises’. The seller argued that the Italian courts had jurisdiction on the basis that this contractual provision was equivalent to the ‘ex works’ Incoterm and that, consequently, Italy was the place of delivery ‘under the contract’. The Court of Justice held that it was for the Italian court to determine whether or not the contractual term relied on by the seller amounted to an agreement to the effect that the seller’s place of business was the agreed place of delivery.

2.85 What is the position, however, if the parties’ contract fails to designate the place of delivery? The European Commission’s proposal which formed the background to the 2002 Regulation suggests that the place of delivery was intended to be based on a purely factual criterion.202 In the Car Trim case, the Court of Justice ruled that where the contract does not explicitly provide an answer, the place of delivery is the place where the physical transfer of the goods took place as a result of which the purchaser obtained, or should have obtained, actual power of disposal over those goods at the final destination of the sales transaction.203

2.86 In view of this ruling, the correctness of the earlier decision of the House of Lords in Scottish & Newcastle International Ltd v Othon Ghalanos Ltd204 may be doubted. The seller contracted to sell goods which were to be shipped from Liverpool to Limassol (Cyprus). The buyer argued that since Limassol was entered as the ‘Place of delivery’ on the invoices, the English court did not have jurisdiction under article 7(1)(b). However, the seller had no legal interest in the goods once shipment had taken place as, under English law, which was the law governing the contract, property and risk passed to the buyers upon delivery of the goods to the carrier in Liverpool. The House of Lords held that the English court had jurisdiction as the place of delivery was Liverpool, where the seller had transferred the goods to the carrier. As, in this case, the contract did not expressly identify Liverpool as the place of delivery and Limassol was the final destination of the sales transaction, the ruling in the Car Trim case suggests that the English court should not have assumed jurisdiction in this situation.205

2.87 Article 7(1)(b) does not expressly indicate the solution if, under the contract, goods are to be delivered to (or services provided in) more than one place.206 This question was considered by the Court of Justice in Color Drack GmbH v Lexx International Vertriebs (p. 87) GmbH,207 a case in which the seller had undertaken to deliver goods to a number of retailers in different parts of Austria. The Court held that article 7(1) should be interpreted as allocating jurisdiction to a single place of performance; where the defendant undertook to deliver goods in several places in the same Member State, the court with jurisdiction was the court for the ‘place of the principal delivery, which must be determined on the basis of economic criteria’.208 If there is no principal place of delivery, the claimant can choose to bring proceedings in any of the places of delivery.209

2.88 Although, in the Color Drack case, the Court of Justice stated that it was not seeking to address the problems posed by the situation where different obligations under a contract are performed in different countries, the approach taken in Color Drack was followed in the context of a contract for services in which the defendant had undertaken to perform services in more than one Member State. In Wood Floor Solutions Andreas Domberger GmbH v Silva Trade SA210 the dispute arose out of a contract of commercial agency under the terms of which the agent undertook to provide services in more than one Member State. The Court of Justice held that the court which has jurisdiction to hear and determine all the claims arising from the contract is the court in whose jurisdiction the place of the main provision of services is situated; in a contract of commercial agency, that place, if not determined by the terms of the contract, is the place where, in practice, the contract is mainly performed (provided that the provision of services in that place is not contrary to the parties’ intentions as it appears from the provisions of the contract) or, where that place cannot be established, the place where the agent is domiciled.

2.89 The same basic analysis was employed in Rehder v Air Baltic Corporation,211 which involved a claim for compensation following the cancellation by the defendant, a Latvian airline, of a flight from Germany to Lithuania. The Court of Justice held that, where there are several places at which services are provided, the court with jurisdiction is the court for the place where the main provision of services is carried out. The Court decided that, in a contract for air transport, the main provision of services occurs at both the place of departure and the place of arrival of the aircraft; as neither place can be identified as the ‘principal’ place of performance (on the basis of economic criteria), article 7(1)(b) allows the claimant to bring proceedings at either place.212 Alternatively, the claimant may, relying on article 4, sue the airline in the Member State in which the airline is domiciled.

(d) Article 7(1) and close connection

2.90 The purpose of article 7(1) is to allocate jurisdiction by reference to a connecting factor which identifies a place which has a close connection with the dispute.213 Where, for (p. 88) example, an Irish company agrees to provide services in England for a Belgian client, in the event of the client’s failure to pay for the services (for example, because the standard of the service is unsatisfactory) the English court may assume jurisdiction in relation to the Irish company’s claim for payment. In these circumstances, it is the claimant’s obligation to provide the services (not the defendant’s obligation to pay for them) which localises the contract and determines jurisdiction for the purposes of article 7(1)(b). To this extent, the Recast is an improvement upon the equivalent provision of the Brussels Convention214 (as interpreted by the Court of Justice) which adopted the ‘specific obligation’ theory—according to which jurisdiction in contractual matters is determined by reference to the specific obligation (of the defendant) on which the claim is based. In proceedings relating to a dispute arising out of a contract for the sale of goods, the place of performance of the seller’s obligation to deliver the goods is more likely to be the factual centre of gravity of the dispute than the specific obligation on which the claim is based. Where, for example, defective goods are delivered to D in Germany and D refuses to pay for them, the dispute underlying C’s claim for recovery of the price will normally have a closer connection with the place of delivery than the place of payment. However, it should not be assumed that the Recast will always allocate jurisdiction in contractual matters to a closely connected forum—for three reasons.

2.91 First, article 7(1)(b) applies not only to cases of defective performance (in which the place of performance will often have a close connection with the subject-matter of the dispute) but also to cases of non-performance (in which it is less certain that the intended place of performance will have a close factual connection with the dispute).

2.92 Secondly, as regards contracts for the sale of goods, the place designated by article 7(1)(b) is where, under the contract, the goods were (or should have been) delivered; it by no means follows that the contractual place of delivery is the place where the goods are actually delivered.

2.93 Thirdly, article 7(1)(b) applies only to contracts for the sale of goods and contracts for the provision of services and only where the place of delivery (or the place of the provision of services) is in a Member State. If article 7(1)(b) does not apply, article 7(1)(a) applies.215 Consider, for example, a case in which C, an English seller, contracts with D, a German buyer, to deliver goods to premises in New York. If D fails to pay for the goods, can C sue D in England? As article 7(1)(b) does not apply (because the agreed place of delivery is not in a Member State), C should be able to rely on article 7(1)(a). Under article 7(1)(a) the obligation in question is D’s obligation to pay and, if the contract is governed by English law (which is very likely216), the place of performance is England (as under English law the debtor must, as a general rule, seek out the creditor at his place of business and pay him there217).

(p. 89) (iii) Jurisdiction in matters relating to tort

2.94 Article 7(2) provides that in matters relating to tort a person who is domiciled in a Member State may be sued in another Member State in the courts for the place where the harmful event occurred or may occur. This rule is based on the premise that the courts for the place where the harmful event occurs is usually the most appropriate in terms of proximity and the ease of taking evidence.218 So, where C is injured in England in a road accident caused by the negligent driving of D, who is domiciled in Spain, article 7(2) enables C to sue D in England.

2.95 As a general rule, proceedings fall within the scope of article 7(2) if the claim is based on wrongful conduct committed (or threatened) by the defendant and the act caused (or would cause) harm to the claimant.219 For example, article 7(2) covers: a dispute concerning the lawfulness of industrial action which allegedly caused loss to the claimant;220 in a situation where there is no contract between the parties, a claim based on the pre-contractual liability of the defendant for having failed to conduct negotiations in good faith;221 the situation where a creditor of a limited company seeks to establish the liability of a director and a shareholder of that company for the company’s debts;222 in the context of a case involving breach of trust, a constructive trust claim based upon dishonest assistance.223 The Court of Justice, rejecting the opinion of the Advocate General, ruled that article 7(2) also applies to proceedings for a negative declaration (that is, that the claimant is not liable to the defendant in tort); although the parties’ usual roles are reversed, the courts for the place of the harmful event (alleged by the defendant, rather than the claimant) have jurisdiction over the claimant’s application for declaratory relief.224

2.96 Which law determines whether or not a particular event is to be regarded as ‘harmful’ for the purposes of article 7(2)? In Shevill v Presse Alliance SA225 the defendant argued that the plaintiff could not invoke the jurisdiction of the English court in a libel case because the plaintiff, who had sought to rely solely on the presumption of harm, had failed to establish that a harmful event had occurred. The House of Lords rejected this argument. On the basis of the Court of Justice’s opinion that ‘the criteria for assessing whether the event in question is harmful … are … governed by … the substantive (p. 90) law determined by the national conflict of laws rules of the court seised’,226 it was held that it was purely a question of English law whether the publication was a harmful event. So, where English law presumes that the publication of a defamatory statement is harmful, that is sufficient for the application of article 7(2).

(a) Multiple locality cases

2.97 In cases where all the elements constituting a tort occur in the same place, article 7(2) is simple to apply. The position is potentially more difficult if the defendant’s wrongful act is committed in one place and the claimant is injured in another. In Bier v Mines de Potasse d’Alsace227 it was alleged that D, a French company, had discharged harmful chemicals into the Rhine in France as a result of which C, a nursery gardener in the Netherlands, who used polluted water from the Rhine, suffered damage to his property. Could C sue D in the Netherlands? The Court of Justice ruled that a harmful event occurs either at the place where the damage occurs or at the place of the event giving rise to it.228 Article 7(2) gives the claimant the option of suing at either place.229

2.98 At first glance, the interpretation favoured by the Court of Justice seems to allow the claimant an excessively wide choice. However, as the Court of Justice pointed out in its judgment in the Bier case, ‘the place of the event giving rise to the damage no less than the place where damage occurred can, depending on the case, constitute a significant connecting factor from the point of view of jurisdiction’.230 Furthermore, in many cases involving a transnational tort, the place of the event giving rise to the damage is likely to coincide with the defendant’s domicile.

(b) The place where the damage occurs

2.99 The place where the damage occurs is the place where the harm is inflicted. So, where the claimant alleges infringement by the defendant of a registered trademark, the damage occurs in the Member State where the trademark is registered.231 Where the defendant makes a contaminated product in Belgium and sells it to the claimant for use in the manufacture of fertiliser in the Netherlands, the claimant may rely on article 7(2) to sue the defendant in the Netherlands.232

2.100 Under article 7(2), the place where the damage occurs does not refer to the place where the injury (in particular, financial loss) is suffered;233 article 7(2) does not confer (p. 91) jurisdiction on the courts for the place where the claimant feels the adverse consequences of an event that has already caused actual damage elsewhere.234 The crucial factor is where the event giving rise to the damage produced its ‘initial’, ‘direct’, ‘immediate’, or ‘physical’ harmful effect.235 On the one hand, where a claimant suffers damage as a result of anti-competitive behaviour by the defendant (or defendants), the place of the damage is where the claimant’s registered office is located.236 On the other, where a French company suffers loss when its German subsidiaries become insolvent as a result of the negligent advice of a German bank, Germany is both the place where the event giving rise to the damage occurs and the place where the damage occurs, even though it is in France that the claimant suffers injury.237 Similarly, where an Italian claimant suffers financial loss in Italy consequential upon initial damage arising from the defendant’s refusal to return promissory notes which the claimant has deposited in England, article 7(2) does not confer jurisdiction on the Italian courts; England is the place where the damage occurs, notwithstanding the fact that Italy is the place where the loss is suffered.238 Where the harm suffered takes the form of the claimant failing to receive a payment to which he was entitled, the harm occurs at the place where the payment should have been made.239

2.101 The distinction between the place where the damage occurs and the place where the loss is suffered may be relevant not only in situations involving pure economic loss. For example, in a case where the claimant is injured in a road accident in France, the English courts do not have jurisdiction under article 7(2) even if the claimant can establish that he suffered an aggravation of his injuries in England and even if the worsening of his condition constitutes a fresh cause of action under French law; in these circumstances, the deterioration which occurs in England is a consequence of the original harmful event in France, rather than a new harmful event occurring in England.240 Similarly, where goods are transported in sealed containers, if the owner of the goods brings a claim in tort against the carrier of the goods, the place where the harmful event occurred for the purposes of article 7(2) is the place where the carrier was to deliver the goods, rather than the place where the owner actually discovers that the goods are damaged.241 In this type of case it is normally impossible to determine exactly where the goods were damaged; if, however, the place where the damage was discovered were treated as the relevant place for the purposes of article 7(2), it would (p. 92) mean that, in any case where the ultimate place of delivery is the claimant’s place of business, the claimant would be able to bring proceedings in his home forum.

(c) The place of the event giving rise to the damage

2.102 In most situations, the localisation of the event giving rise to the damage presents few problems. Not all cases, however, are totally straightforward. For example, in a case involving a fraudulent or negligent misrepresentation contained in (say) a letter posted in France to a recipient in England, is the place of the event giving rise to the damage in France (where the misstatement originates) or in England (where the misstatement is received)? According to the English courts, in this type of case, the event giving rise to the damage occurs in France.242 In a product liability case in which the defendant, having manufactured a machine in Germany, puts it on the market in England with no warning as to its defects and the claimant is injured by the machine in Ireland, the place of manufacture (Germany) is the place of the event giving rise to the damage for the purposes of article 7(2).243 In a case where a creditor of a company sues members of the company for losses caused by the defendants’ failure to monitor the company’s financial situation effectively, the place of the event giving rise to the damage will normally be where the company’s seat is located.244

2.103 Where it is alleged that a tort has been committed online, the place of the event giving rise to the damage is not the location of the server through which the allegedly tortious material was made available; using the location of a server as a connecting factor would not satisfy the Recast’s requirement that the designation of the court (or courts) with jurisdiction should be foreseeable. In the online context, the event giving rise to the damage takes place where the person responsible for the uploading or activation of the material in question is established.245

2.104 Problems may also arise in tort cases where there is more than one perpetrator of the alleged tort. Where C claims that it suffered harm as a result of the actions of X (who acted in Germany) and D (who acted in England) and seeks to establish jurisdiction on the basis of the location of the event giving rise to the damage, C cannot sue D in Germany even if, under German law, the law of the forum, the acts of X can be attributed to D.246 It would be contrary to the basic scheme of the Recast if it were possible to sue D in a forum with which he had no connection and in which he had not acted. (p. 93) In such a case, however, the claimant may be able to sue D in Germany on the basis that Germany was the place where the damage occurred.247

2.105 Similar problems arise in a case where a number of defendants cause damage to a range of claimants by means of anti-competitive behaviour (in the form of a single and continuous infringement) carried out in a number of Member States, at different times and in different places. In such a case, the place of the event giving rise to the damage is either the place in which the cartel was definitively concluded or the place in which one agreement in particular was concluded which is identifiable as the sole cause of the loss allegedly suffered by the claimant.248

(d) Article 7(2) and the infringement of personality rights

2.106 The application of the ruling in Bier v Mines de Potasse d’Alsace to the case of a libel by a newspaper article distributed in several Member States gives the claimant a wide choice of jurisdictions in which to sue.249 In Shevill v Presse Alliance SA250 the Court of Justice ruled that a claimant who alleges international libel by the print media may bring proceedings in the place where the publisher is established because that is the place of the event giving rise to the damage; if successful, the claimant will recover damages for all the loss he has suffered. Alternatively, the claimant may sue the defendant in any of the places where the publication is distributed, because that is where the damage occurs. However, in such a case, the claimant may recover damages only for the loss of reputation suffered in the particular Member State in which the proceedings are brought.251 Suppose a publishing company which is domiciled in Belgium produces a newspaper which is distributed in France and England. A person who is defamed by the publication may sue the publisher in England for the damage to his reputation in England and may sue the publisher in France for the damage to his reputation in France. The potential disadvantage of having different courts ruling on various aspects of the same dispute can be avoided if the claimant litigates his entire claim in Belgium, the place where the publisher is established.

2.107 The Shevill ruling, formulated in the context of libel by print media, was adapted in eDate Advertising GmbH v X252 a case where the claim was based on infringement of personality rights by means of content placed online. The Court of Justice held that the claimant can sue for all the damage either in the Member State where the publisher of the content is established (as in Shevill), or in the Member State in which the centre of the claimant’s interests is based (normally, the Member State in which the claimant (p. 94) is habitually resident). The Court of Justice considered that the courts of the Member State in which the centre of the claimant’s interests is based are the ones best placed to assess the impact which material placed online is likely to have on the claimant.253 The claimant may also sue in any other Member State in which the content is accessible, but only in respect of the damage caused in that Member State.

(e) Threatened wrongs

2.108 Article 7(2) applies to cases of threatened wrongs as well as committed wrongs, thereby providing a clear ground of jurisdiction for preventive measures. Where, for example, a claimant seeks an injunction to prevent the publication of defamatory material, article 7(2) confers jurisdiction on the court for the place where the harm would occur if the publication were not prevented.

(iv) Branch, agency, or other establishment

2.109 Under article 7(5) a defendant domiciled in a Member State may, as regards a dispute arising out of the operations of a branch, agency, or other establishment, be sued in another Member State in the courts for the place in which the branch, agency, or other establishment is situated. So, a natural or legal person domiciled in France can be sued in England if it has a branch in England, provided that the dispute arises out of the branch’s operations.

2.110 The words ‘agency or other establishment’ add little to ‘branch’, which normally displays the following characteristics: it is subject to the direction and control of the parent body; it has a place of business which has the appearance of permanency; it is able to transact business with third parties.254 These characteristics seem not, however, to be of universal application. The Court of Justice has ruled that, for the purposes of article 7(5), a parent company may be regarded as a branch of one of its subsidiary companies (even though the two companies are legally independent of each other) if it appears to third parties that the parent is acting on behalf of the subsidiary.255

2.111 The concept of ‘operations’ comprises three categories of activity: (i) actions relating to contractual and non-contractual obligations concerning the management of the branch itself, (ii) actions relating to undertakings which have been entered into by the branch in the name of the parent, and (iii) actions concerning non-contractual obligations arising from the activities of the branch on behalf of the parent.256 There is no requirement that undertakings in the second category should be performed in the Member State where the branch is situated257 or that non-contractual obligations (p. 95) in the third category should have produced harmful effects in that Member State.258 Article 7(5) is satisfied as long as the nexus between the branch and the dispute is such that it is natural to describe the dispute as one which arose out of the branch’s activities.259 Such a connection may exist where a Dutch defendant’s English branch is responsible for the production of the marketing material on which the claimant’s claim for negligent misstatement is founded.260

2.112 The purpose of article 7(5) is to enable a third party who comes into contact with the parent through the activities of a branch or agent to sue the parent at the place where the branch or agent is established. There is no reason why, in a dispute between the parent and an agent, the agent should be able to rely on article 7(5) to sue the parent in the place where the agency is situated.261

2.113 The rationale of article 7(5) is the presumed existence of a close connection between the dispute and the country in which the branch is located. However, if its conditions are satisfied, article 7(5) is effective to confer jurisdiction on the courts for the place where the branch is situated, whether or not the dispute is connected in a meaningful way with that place. Where, for example, an English company undertakes (through its French branch) to perform services in Spain (through its Spanish branch) the French courts have jurisdiction under article 7(5) in relation to the claim for damages based on the defendant’s defective performance of the services in Spain.262

(v) Multiple parties and claims

2.114 Where a dispute involves more than two parties it is often just and convenient for all the claims and the defences to them to be decided at the same time by the same court. Article 8 seeks to mitigate the effects of those provisions of Chapter II which tend towards the fragmentation of various disputes arising out of a single set of facts. Nevertheless, article 8 cannot be used to undermine the effectiveness of exclusive jurisdiction agreements under article 25; in a case where the court has jurisdiction over D1 (under article 4) and prima facie jurisdiction over D2 (under article 8), jurisdiction over D2 cannot be exercised if that would conflict with a jurisdiction agreement (either between the claimant and D2 or between D1 and D2).263 There are three paragraphs of article 8 to be considered.264

(a) Multiple defendants

2.115 Article 8(1) deals with the situation where the claimant wishes to sue two (or more) defendants—for example, because they are each liable to him or they are liable in the (p. 96) alternative. Under article 8(1) each of a number of defendants domiciled in different Member States may be sued in the courts for the place where any one of them is domiciled. Where, for example, there are two joint debtors—one domiciled in England (D1), the other domiciled in France (D2)—the claimant may sue both in either country. However, article 8(1) cannot be invoked if none of the defendants is domiciled in the Member State in which proceedings are brought. Where, for example, C sues D1, who is domiciled in France, in England on the basis of article 7(1), C cannot rely on article 8(1) in order to join D2, who is domiciled in Germany, to those proceedings.

2.116 Where article 8(1) is engaged, there is no requirement that the claims against D1 and D2 should be pursued in the same proceedings; article 8(1) is wide enough to encompass defendants and claims in more than one action.265 However, the same person must be the claimant in proceedings brought against D1 and D2.266

2.117 The Court of Justice’s judgment in Reisch Montage AG v Kiesel Baumaschinen Handels GmbH267 indicates that article 8(1) cannot be relied on where claims are brought under article 8(1) for the sole purpose of removing D2 from the jurisdiction of the courts of the Member State in which that defendant is domiciled. Although the text of article 8(1) does not support this view and the contrary position appears to have been taken in Freeport plc v Arnoldsson,268 subsequent decisions of the Court of Justice confirm that article 8(1) does not allow an applicant to make a claim against a number of defendants with the sole object of ousting the jurisdiction of the courts of the Member State where one of those defendants is domiciled.269 Accordingly, an attempt to join a co-defendant on the basis of article 8(1) may be refused if there is clear evidence of collusion or abuse.270

2.118 It has been established that, where D1 is domiciled in England and D2 is domiciled in another Member State, it is generally necessary for a claimant to satisfy the court that there is a serious issue to be tried against both D1 and D2.271 However, once proceedings have been properly initiated against D2, article 8(1) does not cease to be applicable by virtue of the claimant obtaining a default judgment against D1.272 Somewhat surprisingly, in the Reisch Montage case,273 the Court of Justice decided that, where the claimant brought proceedings in Germany against D1 (domiciled in Germany) and D2 (domiciled in Austria), the German court had jurisdiction over the claim against D2 on the basis of article 8(1), notwithstanding the fact that, when D2 was joined to the proceedings, the action against D1 had become inadmissible. A similar issue arose in the Cartel Damage Claims case.274 The Court of Justice held that, in a situation (p. 97) involving a number of defendants which had participated in different places and at different times in a single and continuous infringement of EU competition law, if C brings proceedings in Germany against D1 (domiciled in Germany) and a number of other defendants (domiciled in other Member States), article 8(1) continues to confer jurisdiction on the German courts as regards the claims against the other defendants, even if the claim against D1 is withdrawn. This rule does not apply, however, if there is firm evidence to support the allegation that C and D1 had colluded in creating a situation in which the conditions of article 8(1) were artificially fulfilled or their fulfilment was artificially prolonged.

2.119 The Court of Justice has held that article 8(1) cannot be invoked by an employee who finds himself in dispute with two (allegedly joint) employers. In Glaxosmithkline v Rouard275 C, who was employed first by D1 (a French company) and then by D2 (a UK company in the same group), claimed that he had been wrongfully dismissed. C started proceedings in France against D1 (on the basis of D1’s domicile in France) and sought to join D2 to those proceedings. The Court, which disagreed with the Advocate General, adopted a literal reading of the relevant provisions and ruled that the jurisdiction rules in Section 5 dealing with employment contracts cannot be amended or supplemented by other jurisdiction rules laid down in Chapter II unless special reference to them is made in Section 5 itself.276 Given that there is no reference to article 8(1) in Section 5,277 article 8(1) does not apply in disputes relating to individual contracts of employment.

2.120 Because article 8(1) applies only to defendants domiciled in Member States, if proceedings are brought in England against D1 (who is domiciled in a Member State), article 8(1) does not confer jurisdiction on the English courts as regards D2 (who is not domiciled in a Member State). Equally, if proceedings are brought in England against D1 (who is not domiciled in a Member State), article 8(1) does not confer jurisdiction on the English courts as regards D2 (who is domiciled in a Member State).278

2.121 Article 8(1) provides that jurisdiction can be assumed over co-defendants who are domiciled in other Member States only if the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.279 In order for this condition to be satisfied, it must be shown that there is in fact a realistic possibility of there being separate proceedings.280 In Roche Nederland BV v Primus281 the claimant alleged that a number of companies based in different Member States, but part of the same corporate group, had infringed the claimant’s European patent. The claimant brought proceedings against the Dutch company in the Netherlands and sought to join the other defendants (p. 98) on the basis of article 8(1). The Court of Justice held that the co-defendants could not be joined in this case as, in order for there to be irreconcilable judgments, ‘it is not sufficient that there be a divergence in the outcome of the dispute, but that divergence must also arise in the context of the same situation of law and fact’.282 There was no risk of irreconcilable judgments in the Roche Nederland case as, under the European patent system, each patent derived from a European patent application took effect as an independent, national patent governed by national law. So, as regards each alleged infringement, although the factual situation was the same, the legal situation was not.

2.122 However, the Roche Nederland case appears to have been qualified by the ruling in Painer v Standard Verlags GmbH,283although the Court of Justice has not explained the relationship between the two cases. In the Painer case, the claimant alleged copyright infringement by a number of German and Austrian defendants and sought to bring proceedings against all the defendants in Austria, notwithstanding the fact that the liability of the Austrian defendants was governed by Austrian law and that of the German defendants by German law. The Court of Justice ruled that article 8(1) is not inapplicable solely because actions against several defendants for substantially identical copyright infringements are brought on national legal grounds which vary from country to country; it was for the Austrian court to determine whether there was a risk of irreconcilable judgments if the claimant had to proceed against the Austrian and German defendants separately. Presumably, such a risk could have been thought to arise if, in terms of substance, the laws of Austria and Germany were identical on the relevant issues.

2.123 On the basis of the Court of Justice’s controversial judgment in Réunion Européenne SA v Splietoff’s Bevachtingskantoor BV,284 it appeared that article 8(1) could not be invoked in a case involving two claims directed against different defendants and based in one instance on contractual liability and in the other on liability in tort.285 However, in Freeport plc v Arnoldsson286 the Court of Justice took the opportunity to resolve the misunderstandings to which the Réunion Européenne case had given rise. C brought proceedings in Sweden against D1, a Swedish company, and D2, an English company which was D1’s parent company, for payment that was allegedly due under a contract between C and D2. D2 sought to rely on the Réunion Européenne case to contest the Swedish court’s jurisdiction over it on the basis that the requirements of article 8(1) were not satisfied: whereas the claim against D1 was non-contractual in nature, the claim against D2 was for breach of contract. The Court of Justice had no hesitation in ruling that the Swedish court had jurisdiction over both claims in this type of situation; where an action is brought before the court for the place where one of the defendants is domiciled, article 8(1) applies notwithstanding the fact that the claims brought (p. 99) against different defendants have different legal bases. According to the Court of Justice, as the Réunion Européenne case had involved a situation in which proceedings had been brought in a Member State in which none of the defendants was domiciled, the judgment had no bearing on the proper interpretation of article 8(1) (regardless of what national courts and commentators had thought). The effect of the Freeport decision is that where, for example, C is injured in a coach accident while on holiday in Spain, C’s contractual claim against D1, the English tour operator, and his tortious claim against D2, the Spanish coach operator, are sufficiently closely connected for the purposes of article 8(1) to enable the English court to assume jurisdiction over C’s claim against D2.

(b) Third-party proceedings

2.124 The main purpose of article 8(2) is to deal with the case where it is a defendant, rather than the claimant, who wishes to join a further party to the proceedings. For example, a case may arise in which C sues D1 and D1 wishes to join D2 as a party to the proceedings so that if D1 is held liable he can shift liability (either in whole or in part) to D2.287 However, article 8(2) also covers situations in which a third party joins proceedings in order to protect his own interests—for example, by bringing against the defendant in the original proceedings a claim that is closely linked to the original proceedings.288

2.125 Article 8(2) provides that a person domiciled in a Member State may be joined as third party in the court of another Member State which is seised of the original proceedings. For example, where a German manufacturer sells defective goods to a Belgian wholesaler who sells them to an English retailer, if the English retailer sues the Belgian wholesaler in Belgium, the Belgian wholesaler can use article 8(2) to join the German manufacturer to the Belgian proceedings. A restriction imposed on article 8(2) is that it cannot be invoked if the proceedings were brought solely with the object of removing the third party from the jurisdiction of the court which would otherwise be competent; it is for the national court to determine whether such an abuse of process has occurred.289

2.126 Although the text of article 8(2) is potentially ambiguous, it should be possible for jurisdiction to be assumed under article 8(2) only in cases where jurisdiction against the first defendant is derived from the provisions of Chapter II. Where, for example, C invokes the jurisdiction of the English court against D1, a New York defendant, under the Civil Procedure Rules, D1 should not be able to use article 8(2) to join D2, domiciled in Germany, as a third party. There is, however, no requirement under article 8(2) that the original proceedings should be brought in the Member State in which the first (p. 100) defendant is domiciled. Where, for example, C relies on article 7(1) to bring proceedings in the Netherlands against D1, a German company, D1 can invoke article 8(2) to join D2, another German company, as a third party.290

(c) Counterclaims

2.127 Article 8(3) provides that a person domiciled in a Member State may be sued on a counterclaim in the court in which the original claim is pending as long as the counterclaim arises from the same contract or facts on which the original claim was based. So, if C (domiciled in Italy) relies on article 4 to sue D in England, the English court has jurisdiction over D’s counterclaim against C.

2.128 The Court of Justice has ruled that article 8(3) applies only to claims by defendants which may lead to the pronouncement of a separate judgment.291 It does not, however, deal with the situation where the defendant pleads, as a defence, the existence of a claim which he allegedly has against the claimant and which would have the effect of wholly or partially excluding the claim, but which would not lead to a separate judgment; the defences which may be raised and the conditions under which they can be raised are determined by the law of the forum in which the claimant is proceeding.292 Where, for example, C sues D for the recovery of a sum of money and D raises set-off as a defence, article 8(3) has no application; the defence is an integral part of the proceedings initiated by C and does not involve C being ‘sued’ within the meaning of article 8(3).

3. Jurisdiction in matters relating to insurance, consumer contracts, and employment contracts

2.129 Chapter II contains detailed provisions dealing with jurisdiction in matters relating to insurance (Section 3), consumer contracts (Section 4), and employment contracts (Section 5). These detailed provisions create self-contained and exclusive codes in relation to the matters within their scope; it is not possible for litigants to fall back on the other provisions of the Brussels I Recast (unless expressly authorised by the relevant provisions).293 However, there appears to be an exception in cases where the defendant submits to a court which would not otherwise have jurisdiction under the specific provisions of Chapter II. The Court of Justice has held that a court to which jurisdiction is not allocated by the provisions of Section 3 is nevertheless competent under article 26 (submission) if the defendant enters an appearance and does not contest the court’s jurisdiction.294

(p. 101) 2.130 There are two important aspects of these special rules in Sections 3 to 5. First, the primary aim of the rules is to protect the party who from the socio-economic point of view is weaker—that is, the policyholder, the consumer, or the employee. As a general rule the weaker party is able to ensure that any litigation will take place in his home forum. Secondly, a jurisdiction clause in an insurance contract, a consumer contract, or an employment contract may be enforced against the weaker party only in limited circumstances.

(A) Matters relating to insurance

2.131 Under Section 3, which comprises articles 10–16, in a matter relating to insurance,295 an insurer domiciled in a Member State may be sued not only in the courts of the Member State in which he is domiciled, but also in the Member State in which the weaker party (that is, as the case may be, the policyholder, the assured, or a beneficiary) is domiciled.296 Moreover, an insurer, who is not domiciled in any Member State but has a branch or agency in a Member State, is, in relation to disputes arising out of the operations of the branch or agency, deemed to be domiciled in that state.297 In respect of liability insurance or insurance of immovable property, the insurer may be sued in the courts for the place where the harmful event occurred.298 With regard to liability insurance, an insurer (whether or not domiciled in a Member State299) may be joined to proceedings brought by the injured party against the insured.300 As a general rule, the insurer may bring proceedings only in the Member State in which the defendant is domiciled.301

2.132 The effectiveness of a jurisdiction agreement in an insurance contract is determined by articles 15 and 16.302 Such an agreement will be enforced in only five alternative situations: (1) it was entered into after the dispute arose; (2) the agreement allows the weaker (p. 102) party a wider choice than that permitted by the other provisions of the Recast; (3) the agreement confers jurisdiction on the courts of the Member State in which both the policyholder and the insurer are domiciled;303 (4) the policyholder is not domiciled in a Member State (unless the insurance is compulsory or relates to immovable property situated in a Member State); (5) the agreement forms part of a contract of insurance dealing with major risks as defined by article 16 (such as a contract of marine insurance).

2.133 Although the rules relating to insurance were designed for the protection of the small policyholder against the more powerful insurer, the application of Section 3 does not depend on it being shown that the policyholder is weak and in need of protection.304

(B) Consumer contracts

2.134 Section 4, which comprises articles 17–19, sets out provisions for the protection of consumers.305 To fall within the scope of the consumer contract provisions, the dispute must arise out of a concluded contract306 and one of the parties must have entered the contract for a purpose outside his trade or profession.307 In addition, the contract must be one of the following: (a) a contract for the sale of goods on instalment credit terms;308 or (b) a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; or (c) any other contract309 concluded with a person who pursues commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State and the contract falls within the scope of such activities.310 According to the European Commission, the purpose of subparagraph (c) is to ensure that consumer contracts concluded via an interactive website accessible in the state of the consumer’s domicile (p. 103) are covered by the special provisions.311 If a contract is concluded between two parties neither of whom was engaged in commercial or professional activities, neither party is a ‘consumer’ and the case falls outside the scope of Section 4.312

2.135 If the supplier is domiciled in a Member State (or is deemed to be so domiciled by virtue of having a branch in a Member State313), the consumer may sue the supplier in the courts for the place in which the supplier is domiciled (or deemed to be domiciled); alternatively, the consumer may sue the supplier in the courts of the Member State in which the consumer is domiciled, regardless of the supplier’s domicile.314 However, the consumer may be sued only in the Member State in which he is domiciled.315

2.136 These rules are subject to the provisions which regulate jurisdiction agreements in consumer contracts. A jurisdiction agreement is effective in only three alternative situations: (1) it was concluded after the dispute arose; or (2) the agreement gives the consumer a wider choice of jurisdictions in which to sue than that permitted by the other provisions of the Regulation; or (3) the agreement is in favour of the courts of the Member State in which both the consumer and the supplier are domiciled.316

2.137 These provisions are relevant only to the extent that a consumer is personally the claimant or defendant in proceedings; if A, a consumer, contracts with B and then assigns his rights under the contract to C, who is not a consumer, C is not able to rely on the consumer contract provisions even though A would have been able to do so.317

(C) Employment contracts

2.138 Section 5, comprising articles 20–23, applies to claims in matters relating to318 individual contracts of employment319 and sets out provisions for the protection of employees.320 (p. 104) If the employer is domiciled in a Member State (or is deemed to be so domiciled by virtue of having a branch, agency, or other establishment321 in a Member State), the employee may sue the employer in the Member State in which the employer is domiciled or deemed to be domiciled. Alternatively, the employee may sue the employer in the courts for the place where the employee habitually carries out his work322 (or for the last place where he did so);323 an employee who does not habitually carry out his work in any one country can sue the employer in the courts for the place where the business which engaged the employee is (or was) situated.324 An employer not domiciled in a Member State may be sued in the courts for the place (in a Member State) where the employee habitually carries out his work or where he last did so.325 The employee may be sued only in the Member State in which the employee is domiciled.326

2.139 These provisions may be departed from only where the parties have concluded a jurisdiction agreement which was entered into after the dispute arose327 or where the jurisdiction agreement allows the employee to bring proceedings in courts other than those designated by the other employment contract provisions in Chapter II.328

B Bases of jurisdiction under the traditional rules

2.140 An important difference between the jurisdiction of the English court under the traditional rules and under the Brussels I Recast is that the assumption of the former jurisdiction is discretionary, depending on whether the English court is the appropriate forum, whereas the latter is, in the main, mandatory, the court not normally being free to decline jurisdiction. The traditional rules apply not only in cases which are not within the scope of article 1 of the Recast but also in situations falling within the scope of article 1 where the defendant is not domiciled in a Member State and jurisdiction is not allocated by any of the rules which apply regardless of domicile.329 Accordingly, the (p. 105) traditional rules apply both to cases involving arbitration (because the subject-matter of the dispute is outside the Recast’s scope) and to a simple claim for breach of contract brought against, say, a Japanese corporation.

2.141 Under the traditional rules the English court has jurisdiction in three situations: (i) if the defendant is present in England when the claim form is served (though the court may stay the proceedings on the ground that another court is a more appropriate forum); (ii) if the defendant submits to the court’s jurisdiction; (iii) if the claim falls within one of the grounds of jurisdiction (‘gateways’) set out in para 3.1 of Practice Direction 6B of the Civil Procedure Rules (hereafter ‘CPR PD 6B’) and the court, having decided that England is the appropriate forum, gives permission under CPR rule 6.36 for service of the claim form out of the jurisdiction.

1. Presence

(A) Individuals

2.142 If a natural person is not domiciled in a Member State (and jurisdiction is not determined by the provisions of the Brussels I Recast which apply regardless of domicile) the English court has jurisdiction if the claim form is served on the defendant in England.330 Jurisdiction on the basis of presence is potentially very wide; it allows the claimant to bring proceedings in England merely because the defendant happens to be temporarily present in England when process is served.331 In Maharanee of Baroda v Wildenstein,332 for example, process was served on the defendant, who was resident abroad, while he was briefly visiting England in order to attend the Ascot races. If, however, the claimant fraudulently induces the defendant to come to England—with the aim of serving a claim form on him in England—the claim may be struck out as an abuse of process.333

(B) Companies

2.143 As regards matters within the Brussels I Recast’s scope, a company which is domiciled in England may be sued in England and a company which is domiciled in another Member State may be sued in England only if the English court has jurisdiction under Chapter II of the Recast. A company which is not domiciled in a Member State, but which has a place of business in England, may be sued in England in accordance with either the provisions of the Companies Act 2006 (and the regulations made under it334) or CPR rule 6.9. Service of process on a senior officer of a foreign company which (p. 106) does not have a place of business in England does not establish the jurisdiction of the English court under the traditional rules.335

(i) Companies Act 2006

2.144 Part 34 of the Companies Act 2006 lays down various requirements relating to ‘overseas companies’, which are defined as companies ‘incorporated outside the United Kingdom’.336 An overseas company which ‘opens a UK establishment’ is required to register certain information with the Registrar of Companies, including the establishment’s address and the ‘name and service address of every person resident in the United Kingdom authorised to accept service of documents on behalf of the company’.337 Under section 1139(2)(a) of the 2006 Act, a document may be served on an overseas company by leaving it at, or sending it by post to, the registered address of any person resident in the United Kingdom who is authorised to accept service of documents on the company’s behalf. Where an overseas company is registered under the 2006 Act, service may be effected by complying with this rule even if the company has ceased to have a place of business in England when the proceedings are commenced.338 If there is no person authorised to accept service or, for some other reason, service cannot be effected, the overseas company can be served by leaving the claim form at, or sending it by post to, any place of business of the company in the United Kingdom.339 There is no requirement under the Companies Act 2006 that the claim should have a connection with the conduct of the company’s business in England.340

(ii) CPR rule 6.9

2.145 The rules under the Companies Act 2006 are supplemented by CPR rule 6.9, as a consequence of which the court’s jurisdiction is effectively extended to almost any case in which a foreign company has a business presence in England.341 As regards a company which is not incorporated or registered in England, CPR rule 6.9(2) allows process to be served at any place of business of the company within the jurisdiction. Not only is this rule in addition to the rules in the companies legislation which prescribe methods of service but also there is no requirement that the dispute should have any connection with the defendant’s activities in England.342 On the basis of CPR rule 6.9, where a foreign company occupies a stand for a few days at a trade exhibition in England, the English court has jurisdiction over the company if the claimant serves a claim form on the stand during the exhibition.343

(p. 107) (C) Forum non conveniens

2.146 Where jurisdiction is based merely on the defendant’s presence within the jurisdiction, it is quite possible that the dispute will have only a limited connection with England. In such circumstances it may seem unreasonable for a foreign defendant to have English proceedings forced upon him. In cases involving both natural and legal persons the court has discretion, under the doctrine of forum non conveniens, to stay proceedings. Normally, a stay will be granted if the defendant is able to show that there is another forum with which the parties’ dispute is more closely connected; however, a stay will be refused if the claimant can satisfy the court that substantial justice will not be done in the more closely connected forum.

2.147 The doctrine of forum non conveniens is potentially misleading in two respects. First, the basis of the doctrine is appropriateness rather than simply convenience. In the context of applications for a stay of proceedings litigational convenience is only one of the factors which the court takes into account. Secondly, to obtain a stay of proceedings the defendant has to satisfy the court that there is another forum which is more appropriate than England, rather than to show that England is an inappropriate forum. It is theoretically possible for English proceedings to be stayed, notwithstanding the fact that England is an appropriate forum, because another forum is more appropriate.344

2. Submission

2.148 Under the traditional rules, the defendant’s submission is sufficient to confer jurisdiction on the English court. Whereas any step taken voluntarily by the defendant to defend the claim on the merits amounts to submission,345 a defendant who appears to contest the court’s jurisdiction does not thereby submit.346 Any jurisdictional challenge must be made prior to submission. A defendant who has submitted to the court cannot subsequently change his mind and obtain a stay of English proceedings on the basis of forum non conveniens, even if the case has little connection with England and a much stronger connection with another country.

2.149 It is not uncommon for foreign defendants to instruct solicitors in England to accept service on their behalf. Where a defendant agrees to submit to English jurisdiction and the agreement stipulates a method whereby process can be served in England, if the claimant complies with the terms of the agreement (for example, by sending the claim form to the defendant’s English solicitors), the defendant will be regarded as having submitted.347 A contract which contains a jurisdiction clause but does not specify the method whereby process can be served in England is not to be regarded as a submission to the English court. In such a case, however, either the court has jurisdiction under the Brussels I Recast348 or jurisdiction may be exercised on a discretionary basis.349

(p. 108) 3. Service out of the jurisdiction with the permission of the court

(A) Introduction

2.150 As regards a defendant who is not domiciled in a Member State, the English court may assume ‘long-arm’ jurisdiction under the Civil Procedure Rules.350 CPR rule 6.36 (which enables process to be served out of the jurisdiction in cases covered by CPR PD 6B para 3.1) is based on the idea that there are certain situations in which it is appropriate for proceedings to be conducted in England notwithstanding the fact that jurisdiction cannot be based on the defendant’s presence in England or on his submission. Such situations arise most commonly in cases where there is a connection between the claim (rather than the defendant) and England. In functional terms, the bases of jurisdiction in CPR PD 6B para 3.1 are similar to articles 7 and 8 of the Brussels I Recast.

2.151 Jurisdiction under CPR rule 6.36, which is discretionary, enables the court to give the claimant permission to serve process on the defendant out of the jurisdiction.351 The court will not give permission unless satisfied that England is ‘the proper place in which to bring the claim’.352 In Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran353 the House of Lords confirmed that there are three issues to be considered, the third of which is derived from Spiliada Maritime Corpn v Cansulex Ltd.354 Unless the claimant satisfies the court on all three issues permission will not be given.

(i) A serious issue to be tried

2.152 As regards the merits, the claimant must show that there is a serious issue to be tried.355 The hurdle established by this requirement is ‘not a high one’; it involves no more than the claimant having a real (as opposed to fanciful) prospect of success.356 There is a ‘serious issue’ if there is a substantial question of fact or law which the claimant bona fide desires to have tried.357 Where, however, the facts alleged by the claimant, if proved, would not provide a sufficient foundation for the claim, this requirement is not satisfied.358

(ii) A claim within the scope of CPR PD 6B para 3.1

2.153 The claimant must show that his claim falls within one of the ‘gateways’ listed in CPR PD 6B para 3.1. If this second issue turns on the proper interpretation of one of the gateways the court must be satisfied that the interpretation favoured by the claimant is (p. 109) the correct one.359 If there is ambiguity in the construction of the rules, such ambiguity should be resolved in the defendant’s favour.360

2.154 Where the second issue turns on a disputed question of fact, the claimant is required to show merely a ‘good arguable case’ that his claim falls within the gateway in question. The claimant will be able to show a ‘good arguable case’ that the jurisdictional ground is satisfied if he has a strong argument, albeit one falling short of a balance of probabilities.361 Nevertheless, the court will normally require the claimant to have ‘a much better argument on the material available’.362 Where, for example, the claimant seeks permission to serve out under gateway (6)(c)—on the basis that the claim relates to a contract governed by English law—the claimant must have a good arguable case not only that there was a contract between the claimant and the defendant but also that the contract in question was governed by English law; it is not enough for the claimant to show that, had there been a contract, English law would have been its applicable law.363

(iii) Forum conveniens

2.155 The court must also be satisfied that England is the forum conveniens—that is, the forum in which the case can most suitably be tried in the interests of the parties and for the ends of justice.364 The factors which are relevant for the question whether England is the forum conveniens are the same as those which the court must consider when deciding whether to stay proceedings on the ground of forum non conveniens in a case which is brought against a defendant who is present in England when process is served.

2.156 The determination of the appropriate forum requires the court to answer one overall question: has it been clearly and distinctly shown that England is the appropriate forum?365 In addressing this question the court is required to consider not only the various factors which connect the parties’ dispute with England, on the one hand, and with other countries, on the other, but also whether or not substantial justice would be done in a closely connected foreign forum.

2.157 The issue is not simply one of practical convenience, but one of appropriateness, having regard to all the circumstances. So, the court must consider the nature of the dispute, the legal and practical issues involved, such questions as local knowledge, availability of witnesses and their evidence and expense.366 Regard should also be had to the jurisdictional gateway invoked by the claimant. In some cases the gateway is such that (p. 110) permission will normally be granted. For example, the English court will normally be regarded as the appropriate forum in a claim in tort if the tort was committed in England and, as a result, the claim is governed by English law.367 However, there is no rule to this effect. In VTB Capital plc v Nutritek International Corpn,368 a case in which the claimant, an English subsidiary of a Russian bank, sought damages in deceit and conspiracy against Russian defendants in respect of torts allegedly committed in England, the Supreme Court dismissed the appeal against the lower courts’ refusal to give permission to serve out of the jurisdiction. In other cases, the gateway relied on will carry less weight in relation to the appropriateness of the English forum. If England is the centre of gravity of the dispute, permission will be granted; if the factual and legal connecting factors do not suggest that England is the appropriate forum, permission should normally be refused.

2.158 Even if England is not the most closely connected forum, the court may give permission for service out of the jurisdiction if the claimant would not obtain justice in the natural forum. The appropriate test is whether ‘there is a real risk that justice will not be obtained in the foreign court by reason of incompetence or lack of independence or corruption’369 and there is no principle to the effect that the English court may not rule on such questions. Nevertheless the mere fact that the claimant will be deprived of a legitimate personal or juridical advantage if the English court does not assume jurisdiction is not decisive and the English court should be extremely cautious before deciding that there is a risk of injustice abroad.

(B) The jurisdictional gateways

2.159 CPR PD 6B para 3.1 contains more than a dozen gateways listing the various circumstances in which the court may grant permission to serve a claim form out of the jurisdiction under CPR rule 6.36. Only the most important and commonly relied on gateways are considered here in any detail.

(i) Contract

2.160 Gateway (6) sets out four types of case in which the English court may assume jurisdiction where ‘a claim is made in respect of a contract’. The essence of gateway (6) is that (p. 111) the claimant is suing in order to assert a contractual right or a right which arose as a result of the non-performance of a contract. The claim does not have to be a claim under a contract as long as it is closely connected with a contract.370 Nor does the claimant have to be a party to the contract in respect of which the claim is made; for example, a claim for a contribution under the Civil Liability (Contribution) Act 1978 which has a connection with a contract is a claim in respect of that contract for the purposes of gateway (6) even if it is not a claim brought under a contract.371 However, the defendant must be a party to the contract in question.372 Where C’s claim is under contract A, which has no connection with England, permission for service out of the jurisdiction cannot be based on the fact that contract A is connected to contract B, which does have an appropriate link with England.373

(a) Contract made in England

2.161 Permission may be granted if the contract was made within the jurisdiction.374 Where the parties’ acts in making the contract take place in different countries, the contract is regarded as made in the country where the last act occurred which was necessary for the conclusion of the contract—that is, the country in which the acceptance takes effect. A problem may arise because the laws of different countries have different rules on this matter. For example, in a contract concluded by correspondence the moment at which the acceptance is effective (whether, for example, on dispatch by the offeree or on receipt by the offeror) differs in different laws. For the purposes of gateway (6)(a), the rules of the English law of contract are applicable for determining the place where the contract was concluded, whether or not the contract is governed by English law.375 So, in a postal case, the contract is made in the country where the acceptance is posted,376 whereas if virtually instantaneous means of communication are used, such as telephone, the contract is made in the country where the acceptance is received.377 Strict analysis in terms of offer and acceptance is not always appropriate; where, for example, two parties from different countries conclude a contract after a long period of negotiation, it may be more realistic to say that the contract is made in both countries.378 Where a contract is made partly in England and partly abroad, gateway (6)(a) is satisfied if the contract which is the subject-matter of the proceedings was ‘substantially made’ within the jurisdiction.379 A contract concluded in England, but amended abroad, is made within the jurisdiction for the purposes of gateway (6)(a).380

(p. 112) (b) Contract made through an agent in England

2.162 Jurisdiction may be assumed if the contract was made by or through an agent trading or residing within the jurisdiction.381 This gateway is not confined to the case where the English agent concludes the contract on behalf of a foreign principal (when, in any event, the contract is likely to be made within the jurisdiction) but also includes the case where the agent in England solicits an order from an English customer and sends it on to the principal abroad, who concludes the contract by accepting the order.382 This gateway is limited to cases where the contract is concluded through the defendant’s agent; the fact that the claimant concludes the contract through an agent in England is irrelevant.383

(c) Contract governed by English law

2.163 The claimant may seek to invoke the court’s jurisdiction where a claim relates to a contract which is governed by English law.384 Whether a contract is governed by English law has to be determined in accordance with English choice of law rules.385

(d) English jurisdiction clause

2.164 Jurisdiction may be exercised where the contract contains a term to the effect that the court shall have jurisdiction to determine any claim in respect of the contract.386 This provision is largely superseded by article 25 of the Brussels I Recast. In most cases involving an English jurisdiction clause, article 25 allocates exclusive (and mandatory) jurisdiction to the English court.387 However, article 25 does not apply if the subject-matter of the dispute falls outside the material scope of the Recast. Furthermore, a jurisdiction clause in favour of the English courts is governed by article 5 of the Hague Choice of Court Convention (rather than by article 25 of the Recast) if one of the parties is resident in a third state which is a Contracting State to the Convention, even if the other party is domiciled in an EU Member State. In the absence of any amendment to the CPR, if service out of the jurisdiction is required in a case where the English court’s jurisdiction is derived from article 5 of the Convention, the claimant may obtain permission under gateway (6)(d).

(e) Negative declarations

2.165 Gateway (8) covers cases involving a claim for a declaration that no contract exists where, if the contract were found to exist, it would fall within one of the heads of jurisdiction set out in gateway (6).

(ii) Breach of contract in England

2.166 By virtue of gateway (7) the English court may assume jurisdiction over an absent defendant where the claim is made in respect of a breach of contract committed within (p. 113) the jurisdiction. A breach is committed within the jurisdiction if the obligation not performed was, according to the terms of the contract or under the law applicable to it, required to be performed in England or if defective performance occurred in England. If the breach relied upon took the form of repudiation, that must have occurred in England.

(iii) Tort

2.167 Gateway (9) allows for permission to serve out to be granted in cases involving a claim in tort if (a) damage has been or will be sustained within the jurisdiction; or (b) the damage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction. To determine whether a claim is made in tort for the purposes of this rule, the court applies exclusively English law. It has been held, for example, that gateway (9) extends to a claim for misuse of private information (which is a tort),388 although it does not cover a claim for breach of confidence (which is not).389

2.168 The form of words used in gateway (9)—which expressly adopts the approach of article 7(2) of the Brussels I Recast as interpreted by the Court of Justice—is designed to avoid the theoretical difficulties associated with trying to determine the place where a tort is committed in a case where the defendant commits the wrongful act in one country and the claimant suffers loss or damage in another. Gateway (9) allows the English court to assume jurisdiction if either some ‘significant damage’ was sustained in England or the damage resulted from ‘substantial and efficacious acts’ committed by the defendant in England (whether or not other substantial and efficacious acts were committed elsewhere).390 Where the claimant alleges that he has been defamed by an internet posting, the wrongful act takes place in England if the material is downloaded in England; however, if permission to serve out is given in such a case, the claimant can be compensated only in respect of injury to his reputation suffered in England.391

2.169 Since gateway (9) mirrors article 7(2) of the Brussels I Recast, the same problems of interpretation arise, particularly in cases involving economic loss.392 Not surprisingly, there are cases in which the English courts rely on the Court of Justice’s jurisprudence under Brussels I when considering the operation of gateway (9).393 Nevertheless, there are English authorities (albeit at first instance) in which the court has given permission for service out on the basis of a much broader view of the place where damage was sustained than that suggested by the Court of Justice’s case law under Brussels I. For example, in Booth v Phillips394 permission for service out was granted where, following the (p. 114) death of her husband abroad, an English widow invoked the court’s jurisdiction on the basis that her loss of financial dependency was damage sustained in England. Similarly, in Cooley v Ramsey395 the victim of a traffic accident which occurred in Australia obtained permission to serve out of the jurisdiction on the basis that the economic loss he suffered following the Australian accident occurred in England. In neither of these factual scenarios would England be the place where the harmful event occurred for the purposes of article 7(2) of the Recast. In Erste Group Bank AG v JSC ‘VMZ Red October’396 the Court of Appeal expressed serious reservations as to the correctness of these cases, both of which can legitimately be regarded as having been wrongly decided.397

(iv) Restitution

2.170 Gateway (16) covers the case where, as regards a claim for restitution, the defendant’s alleged liability arises out of acts committed within the jurisdiction. Whether this gateway extends to a claim based on an equitable proprietary interest is debatable.398 There was no counterpart to gateway (16) under the procedural rules which were replaced by the CPR, and there is some uncertainty over the relationship between gateway (16) (restitution) and gateway (6) (contract). It is reasonable to suppose that, given that the implied contract theory of restitution is rejected by modern commentators,399 claims for restitution should not normally be regarded as falling within the scope of gateway (6).400 However, there is no reason to suppose that a claim for restitution which is founded on the rescission or discharge of a contract does not fall within gateway (6) as well as gateway (16).

2.171 Gateway (15) is primarily designed to enable proceedings to be brought in fraud cases against a foreign company which has not participated directly in the fraud, but which has been used by the persons who control it as a receptacle for the proceeds of the fraud. Under gateway (15) the court may assume jurisdiction in a case where the claim is made for a remedy against the defendant as constructive trustee (or as trustee of a resulting trust) and the claim arises out of acts committed or events occurring within the jurisdiction or relates to assets within the jurisdiction. A claimant is able to bring his claim within the scope of gateway (15) by showing that some of the relevant acts of the defendant were committed in England; the fact that the factual matrix also has connections with other countries does not automatically take the case outside gateway (15).401 For example, it is not essential that the defendant acquired the knowledge upon which a claim to enforce an alleged constructive trust is based within the jurisdiction.402

(p. 115) (v) Multiple defendants

2.172 In the context of gateway (3), where a claim is brought against a person on whom a claim form has been or will be served (D1), permission may be granted to serve process on a person out of the jurisdiction (D2) if (a) there is between the claimant (C) and D1 a real issue which it is reasonable for the court to try; and (b) D2 is a necessary or proper party to C’s claim against D1. The first of these requirements ensures that the court will not give permission where it appears that the claim against D1 is not brought bona fide, but merely as a pretext to bring D2 before the English court.403 For the purpose of gateway (3), jurisdiction over D1 may be based either on the Brussels I Recast (if D1 is domiciled in a Member State) or the traditional rules (if D1 is not domiciled in a Member State).

2.173 If D1 is served in England or abroad, the court may grant permission for process to be served on D2 abroad, even though the case would not come under any other rule. Where claims against a number of defendants arise out of the same series of transactions and involve common questions of fact, each defendant is to be regarded as a necessary or proper party for the purposes of gateway (3).404

2.174 Gateway (4) allows permission for service out to be given in relation to a Part 20 claim (third-party proceedings) where the third party is a necessary or proper party to the claim. Gateway (4) is the equivalent, under the traditional rules, of article 8(2) of the Brussels I Recast.405

2.175 Gateways (3) and (4) are different from the other important bases of jurisdiction contained in CPR PD 6B para 3.1 because they are not founded on a connection between the claim and the forum. For this reason, the courts should exercise ‘caution’ or ‘special care’ in cases falling within the scope of these provisions.406 Gateways (3) and (4)—like article 8 of the Brussels I Recast—are based on the practical consideration that it is more convenient and economical for a dispute involving multiple parties to be litigated in a single forum rather than to be fragmented between a number of different courts.407 It follows that where some of the defendants against whom the claimant is bringing proceedings are domiciled in a Member State and are amenable to the English court’s jurisdiction under the Brussels I Recast, there will be a tendency for the court to regard England as the forum conveniens with regard to those defendants who are domiciled in third states; because, in this type of case, the court cannot stay proceedings against (p. 116) a defendant who is domiciled in a Member State (other than for reasons provided by the Brussels I Recast itself),408 proceedings are bound to take place in England and the only way of producing a situation in which all the issues (involving all the defendants) can be resolved in one set of proceedings is to allow liberal use of the power to serve out on the basis of gateways (3) and (4).409

(vi) Other bases of jurisdiction

2.176 The numerous other bases of jurisdiction listed in CPR PD 6B para 3.1 (in relation to which the English court may assume jurisdiction over an absent defendant by giving permission to serve out under CPR rule 6.36) include: claims brought against a defendant domiciled in England,410 claims to enforce foreign judgments and arbitral awards,411 claims relating to property located within the jurisdiction,412 claims in respect of a trust which is governed by English law413 or which provides that the English courts have jurisdiction,414 claims in respect of UK taxes,415 and claims under various statutes.416

III Declining jurisdiction and staying proceedings

2.177 The fact that there exists a basis on which the English court may assume jurisdiction (whether under the Brussels I Recast or under the traditional rules) does not necessarily mean that the litigation will proceed in England. There may be countervailing factors which mean that the English court should decline jurisdiction or grant a stay of the proceedings. Under the traditional rules the English court may grant a stay on the basis of forum non conveniens; this involves consideration of the same factors as those which determine whether the court will allow service of a claim form out of the jurisdiction under CPR rule 6.36 on the basis of forum conveniens. The Brussels I Recast contains provisions dealing with parallel and related proceedings which are designed to reduce the possibility of the courts of two or more countries rendering irreconcilable judgments.

2.178 Whereas declining jurisdiction is a definitive step which brings the proceedings to a close, a stay merely places the proceedings on hold. In practice, it normally makes (p. 117) little difference whether the court stays proceedings or declines jurisdiction; while the stay is maintained the proceedings cannot continue. There are, however, situations in which the court may be justified in lifting a stay. Where, for example, English proceedings are stayed on the basis that there is another more appropriate forum abroad, if it subsequently transpires that the claim cannot be brought in the foreign forum the court may lift the stay to enable the claimant to pursue his claim in England.417

2.179 When considering whether or not the court should stay proceedings or decline jurisdiction it is important, once again, to draw a distinction between cases which fall within the relevant provisions of the Brussels I Recast and situations which are governed by the common law.

A The effect of parallel or related proceedings in another Member State

1. Introduction

2.180 Cases may arise under the Brussels I Recast where the courts of more than one Member State have jurisdiction. For example, in a dispute arising out of a contract, proceedings may be brought either in the Member State in which the defendant is domiciled (under article 4) or in the court for the place of performance of the obligation in question (under article 7(1)). Similarly, as a defendant may be domiciled in more than one Member State, more than one court may have general jurisdiction under article 4.

2.181 The primary objective of the Brussels I Recast is to facilitate the free flow of judgments between the Member States. If the courts of different Member States may issue conflicting judgments on the same or related questions the free flow of judgments is impeded. Accordingly, the Recast contains provisions which are designed to reduce the possibility of such conflicts. The Brussels I Recast draws a distinction between two types of situation. First, there are cases within article 29 concerning parallel proceedings or lis pendens—where the same parties are involved in litigation on the same issues in two or more Member States.418 Secondly, article 30 deals with situations where related proceedings are being pursued in two or more Member States. The general approach of the Recast is to give precedence to the court ‘first seised’. Before the discussion turns to specific aspects of articles 29 and 30, a number of general points which are applicable to both provisions should be addressed.

2.182 It is important to remember that the material scope of the Brussels I Recast is restricted to civil and commercial matters. If parallel or related proceedings are brought in two Member States articles 29 and 30 are engaged only if both sets of proceedings fall within the scope of article 1. Furthermore, articles 29 and 30 do not apply to proceedings, or (p. 118) issues arising in proceedings, concerning the recognition and enforcement of judgments given in civil and commercial matters in non-Member States.419 So, if a claimant starts proceedings to enforce a New York judgment in Italy and in England, articles 29 and 30 have no application even though the same issues (such as whether the judgment was procured by fraud) may be raised by the defendant in both sets of proceedings.

2.183 Articles 29 and 30 apply regardless of the domicile of the parties and regardless of the basis of jurisdiction on which the proceedings are founded.420 So, article 29 is relevant in a case where A, a Brazilian company, brings proceedings in England against B, a French national domiciled in Senegal (relying on CPR rule 6.36), and B brings proceedings against A in France (relying on article 14 of the French Civil Code). For the purposes of article 29 it is irrelevant that neither party is domiciled in a Member State and that, as regards each set of proceedings, the claimant seeks to invoke the court’s jurisdiction under traditional rules.

2.184 Central to the operation of articles 29 and 30 is the idea of the court ‘first seised’. The Recast lays down a uniform rule for determining the moment at which a court is deemed to be seised of proceedings.421 A court is generally seised when the document instituting the proceedings is lodged with the court; however, the court will not be regarded as having been seised at this time if the claimant subsequently fails to take the steps he was required to take to have service effected on the defendant.422 Furthermore, if under the procedural law of the court in question, the document has to be served before being lodged with the court, the court is regarded as having been seised at the time when the document is received by the authority responsible for service—though the court will not be regarded as having been seised at this time if the claimant subsequently fails to take any necessary steps to have the document lodged with the court.423

2. Parallel proceedings

(A) The framework of article 29

2.185 Article 29 deals with the situation where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States. It is provided that any court other than the court first seised shall stay its proceedings until such time as the jurisdiction of the court first seised is established; if the (p. 119) jurisdiction of the court first seised is established,424 any other court is required to decline jurisdiction. In the situation where A sues B in France and B challenges the jurisdiction of the French court and starts proceedings against A in England, the English court must stay the proceedings. If B’s challenge to the French court’s jurisdiction is successful, there is no obstacle to the continuation of the English proceedings and the stay will be lifted. If, however, B’s challenge to the jurisdiction of the French court is rejected, the English court must decline jurisdiction.425

2.186 Although the English language version of article 29 refers only to ‘the same cause of action … between the same parties’, other language versions indicate that article 29 involves three elements: the same subject-matter (or object), the same cause of action and the same parties.426 Relying on the jurisprudence of the Court of Justice, the English courts regard the terms ‘cause’ and ‘object’ to have wide meanings.427

(B) The same cause of action and the same subject-matter (or object)

2.187 The subject-matter (or object) of an action is ‘the end the action has in view’.428 Parallel proceedings have the same object where, for example, the question whether a contract is binding lies at the heart of the two sets of proceedings or where the issue of liability is central to both sets of proceedings. To determine whether two claims pending before the courts of two Member States have the same subject-matter, the court should take into account only the claims of the two claimants, to the exclusion of the defence submissions raised by the defendants.429 The mere fact that two claims raise some common issues does not mean that the same ‘cause’ and ‘object’ are involved.430

2.188 Parallel proceedings involve the same cause of action where they are both based on the same contractual relationship or where the same facts and the same rule of law are relied on as the basis of each claim.431 So, a contractual claim cannot involve the same cause of action as a tortious claim even if both claims arise out of the same overall factual situation.432 Similarly, article 29 is not engaged by claims arising out of different (p. 120) contractual relationships.433 An application for provisional measures in one Member State (under article 35) does not involve the same cause of action as substantive proceedings in another Member State.434

2.189 In Gubisch Maschinenfabrik KG v Palumbo435 a German ‘seller’ started proceedings in Germany against an Italian ‘buyer’ to enforce the terms of a disputed contract and the ‘buyer’ subsequently started proceedings in Italy with a view to obtaining a declaration that the alleged contract was not binding on him. The Court of Justice ruled that the conditions of article 29 were satisfied and that the Italian court was required to decline jurisdiction. Had the Italian proceedings been commenced first, however, the German court would have had to decline jurisdiction. Article 29 lays down a strict ‘first come, first served’ rule; it makes no difference whether the proceedings in the court first seised involve a positive claim by A to establish the liability of B or a claim for a declaration of non-liability by B against A.436

(C) The same parties

2.190 In a situation involving only two parties the requirement that parallel proceedings should involve the same parties is simple enough to apply. The position is potentially more difficult where more than two parties are involved. What is the position, for example, where as a result of disputes arising out of a joint venture agreement between four parties (A, B, C, and D), A sues B and C in France and then B sues D and A in England? In The Tatry437 the Court of Justice ruled that the obligation of the court second seised to decline jurisdiction applies only to the extent to which the parties to the proceedings pending before it are also parties to the proceedings before the court first seised; it does not prevent the proceedings from continuing between the other parties. So, in the above example, provided the parallel proceedings involve the same cause of action and the same object, the English court is required to decline jurisdiction as regards A, but not D. This approach obviously involves the danger that proceedings involving the same issues will be fragmented between the courts of different Member States. However, this danger can be averted, to some extent, by the application of article 30.

2.191 Article 29 raises difficult questions in multi-party cases where the interests of different parties overlap. For example, does article 29 apply in a case where, following a road accident involving cars driven by A and B, A sues B for negligence in France and C (B’s insurer) sues A in England? If the interests of B (the insured) and C (the insurer) are identical, the two sets of proceedings are to be regarded as involving the same parties; if, however, the interests of B and C are not entirely congruent, the same parties are not involved in both sets of proceedings and article 29 does not apply (though, in (p. 121) all probability, article 30 does).438 In any particular situation it may be difficult to determine whether or not the interests of the parties are congruent. It seems clear, however, that where a judgment rendered against B would have the force of res judicata as against C, B and C are to be regarded as one and the same party for the purposes of article 29.439 By contrast, two separate subsidiaries of the same parent company are not ‘the same party’ for the purposes of article 29.440

2.192 Questions surrounding the applicability of article 29 may also arise in cases involving proceedings in rem. If A starts Dutch proceedings in rem in relation to a ship owned by B and B starts proceedings in personam in England against A, are the two sets of proceedings between the same parties or not? It used to be thought that, since proceedings in rem are (notionally) brought against specific property (usually a ship) rather than a person, article 29 could not apply.441 However, this view has been rejected and the older cases overruled; for the purposes of article 29, the person who has an interest in defending proceedings in rem (typically, the ship-owner) is a party to those proceedings.442 So, if the claimant starts proceedings in rem in relation to a vessel in Belgium and then starts proceedings in personam in England against the ship-owner, the two sets of proceedings involve the same parties for the purposes of article 29.

(D) The relationship between the court first seised and the court second seised

2.193 As a general rule, it is not permissible for the court second seised to review the basis on which the court first seised assumed jurisdiction. As the Court of Justice stressed in Overseas Union Insurance Ltd v New Hampshire Insurance Co,443 in no case is the court second seised in a better position than the court first seised to determine whether the latter has jurisdiction: either the jurisdiction of the court first seised is determined directly by the Brussels I Recast (which is common to both Member States) or jurisdiction is derived, by virtue of article 6, from the traditional rules of the state of the court first seised (in which case that court is clearly better placed to rule on the question of its own jurisdiction).

2.194 However, article 29 does not apply in cases where the court second seised has exclusive jurisdiction under article 24.444 If the court first seised assumes jurisdiction contrary to the terms of article 24, the judgment of that court is not entitled to recognition and enforcement under Chapter III.445 If proceedings are commenced (p. 122) in another Member State in a matter which, by virtue of article 24, falls within the exclusive jurisdiction of the English court, it makes no sense to apply article 29 to prevent one of the parties from starting proceedings in England on the same issue.

2.195 Under the Convention and the 2002 Regulation there was controversy over whether jurisdiction derived from the parties’ agreement took precedence over the provisions relating to parallel and related proceedings. In Continental Bank NA v Aeakos Compania Naviera SA446 the Court of Appeal decided that, where proceedings are started in Greece (first) and England (second), the English court did not have to stay its proceedings if the dispute fell within the scope of an English jurisdiction clause between the parties. The Court of Justice, however, took the opposite view in Erich Gasser GmbH v Misat Srl,447 a case involving a dispute between an Italian company (B) and an Austrian company (A), which arose from a contract containing an Austrian jurisdiction clause. B brought an action in Italy, a non-contractual forum, before A started proceedings on the same cause of action against B in Austria, the contractual forum. The Court of Justice decided that the Austrian court, being the court second seised, was bound to stay its proceedings: the court second seised was not entitled to decide whether or not the court first seised was justified in assuming jurisdiction and there was no exception to this principle in cases where there was (allegedly) a jurisdiction agreement referring the dispute in question to the court second seised. Under the Gasser ruling, it was for the court first seised (the non-contractual forum) to rule on the effect of a jurisdiction agreement in favour of the court second seised (the contractual forum).

2.196 Although the Court of Justice’s view was supported by the text and structure of the 2002 Regulation, in policy terms the ruling was fundamentally unsatisfactory as its effect was to encourage delaying tactics by litigants. In a case involving a jurisdiction agreement, one of the parties, by bringing a torpedo action in a non-contractual forum, could paralyse proceedings in the contractual forum.448 To make matters worse, the Court of Justice had ruled in Gasser that, even if the delay in the non-contractual forum was excessively long (as was very likely to be the case in relation to court proceedings in Italy), the court second seised could not pre-empt the decision of the court first seised on the jurisdictional issue.449

2.197 Not surprisingly, during the process that culminated in the enactment of the Recast, there was almost universal support for an amendment whose purpose was ‘to enhance the effectiveness of exclusive choice-of-court agreements and to avoid abusive litigation tactics’.450 The solution adopted by the Recast is to create an exception to the ‘first come, first served’ rule in article 29 and to give priority, in a case like Gasser, to the (p. 123) contractual forum.451 Article 31(2) provides that where, by virtue of article 25, the parties have conferred exclusive jurisdiction on a court of a Member State, any court of another Member State shall stay its proceedings. This obligation to stay arises only when the contractual forum is seised. So, in a case like Gasser, the Italian court would have to grant a stay only if proceedings are brought by A in Austria. If the contractual forum declines jurisdiction (for example, on the basis that the jurisdiction clause does not satisfy the requirements of article 25), the non-contractual forum may lift the stay. If, however, the jurisdiction of the contractual forum is established, the non-contractual forum must decline jurisdiction in favour of the contractual forum.452

2.198 The solution adopted by the Recast, by giving priority to the contractual forum (regardless of whether it was first or second seised), goes a long way to solving the problems revealed by the Gasser case. It should be noted, however, that article 31(2) also has the potential for causing delay. Simply by asserting the existence of a jurisdiction clause (whether it is legally effective or not), a litigant is able to obstruct the commencement of litigation in a forum with jurisdiction under the Recast and can require the other party, before initiating proceedings in his preferred forum, to obtain a judgment from the (alleged) contractual forum to the effect that the jurisdiction agreement is invalid or ineffective.

3. Related actions

2.199 Article 30 is designed to deal with situations not falling within the strict confines of article 29. Where related actions are pending in the courts of two Member States the court second seised has discretion to stay the proceedings (or in certain circumstances decline jurisdiction). Even when the two actions arise out of the same factual situation, if there is no risk of irreconcilable decisions, there is no basis for a stay under article 30.453 For the purposes of article 30, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.454 Whether proceedings are related for the purposes of article 30 depends on the circumstances as they exist at the date of the application for a stay, rather than when the proceedings before the court second seised were commenced.455

2.200 Under article 30 the concept of related actions is a broad one; two actions may be related—on the basis that there is a risk of irreconcilable judgments—even if it would be perfectly possible for the judgments resulting from the two actions to be separately (p. 124) enforced. The concept of related actions covers the case where there is a risk that the courts of two Member States may reach contradictory conclusions on questions of fact. For example, proceedings (in one Member State) brought by an owner of cargo which has been damaged while being carried by the defendant’s ship are related to proceedings (in another Member State) brought by the ship-owner to obtain exoneration from or limitation of liability for damage to a similar cargo owned by others.456 Whether actions pending in different courts are related should not turn on a sophisticated and difficult exercise of legal analysis; rather, there should be a broad common-sense approach to whether the actions in question are related.457 Where, for example, two actions in different Member States involve overlapping issues, there can be little doubt that article 30 is engaged.458 The court second seised should rely on article 30 whenever it considers that the reasoning of the court first seised may concern issues likely to be relevant in the proceedings before the court second seised.459

2.201 Where there are related actions in the courts of two Member States, the court second seised may stay its proceedings.460 Furthermore, on the application of one of the parties, the court second seised may decline jurisdiction if both actions are pending at first instance and, under the law of the court first seised, the two actions can be consolidated.461

2.202 Article 30 does not indicate how the courts should exercise their discretion. The traditional understanding is that where article 30 applies the first duty of the court is to stay its proceedings.462 Accordingly, in principle, when the court second seised is considering whether or not to stay proceedings under article 30, the degree of risk of irreconcilable judgments should be the major factor. The court second seised may be justified in refusing to stay its proceedings or to decline jurisdiction where, for example, the risk of irreconcilable judgments is very small463 or the risk is dependent on a range of contingent matters.464 If, however, the degree of connection between the English and foreign proceedings is such that resolution of the issues in the English proceedings would be easier after conclusion of the foreign proceedings, the English proceedings should be stayed pending the final outcome of the foreign proceedings.465

2.203 The risk of irreconcilable judgments is not the only relevant factor. The appropriateness of the competing fora is something that may be taken into account; the court second seised is entitled to have regard not only to the stage reached in each set of (p. 125) proceedings, but also to the proximity of the courts to the subject-matter of the case466 and the length of time before judgment is likely to be rendered in the related foreign proceedings.467 Where the court second seised has jurisdiction by virtue of the parties’ agreement, that court may exercise its discretion against granting a stay under article 30 (thereby upholding the agreement).468

2.204 Article 30 does not expand the jurisdiction of the court first seised; it is a negative rule, which enables a court other than the court first seised to stay proceedings in a situation in which it has prima facie jurisdiction.469 Consider a case where A sues B in France and then C sues A in England. If the English court grants a stay under article 30 on the basis that the English proceedings are related to the earlier French proceedings, the fact that the English court has granted a stay does not thereby confer jurisdiction on the French court in relation to C’s claim against A.

B The effect of parallel or related proceedings in a non-Member State

2.205 Neither the Brussels Convention nor the 2002 Regulation made any attempt to address problems posed by parallel or related proceedings brought in a third state, rather than a Member State. This gap in the framework of Brussels I was a cause of both uncertainty and criticism. The Brussels I Recast contains provisions which go some way towards filling this gap. The amendments introduced by the Recast are, however, seriously flawed and leave almost as many questions unanswered as the 2002 Regulation which it replaced.

2.206 In the context of parallel and related proceedings in a third state, article 33 (lis pendens) and article 34 (related proceedings) are, in very broad terms, the provisions equivalent to articles 29 and 30 of the Recast. There are, however, very considerable differences between the operation of articles 29 and 30, on the one hand, and articles 33 and 34, on the other.

2.207 Article 33, unlike article 29, does not normally require parallel proceedings to be stayed or dismissed. Article 33 applies if the Member State court’s jurisdiction is based on article 4 (domicile) or articles 7, 8, or 9 (special jurisdiction) and the Member State proceedings involve the same cause of action and are between the same parties as proceedings already commenced in a non-Member State. The Member State court may stay its proceedings under article 33(1) if: (a) it is expected that the third state court will give a judgment capable of recognition and enforcement in that Member State; and (b) the court of the Member State is satisfied that a stay is necessary for the proper administration of justice.

(p. 126) 2.208 Having granted a stay under article 33(1), the court may lift the stay if: (a) the non-Member State proceedings are themselves stayed or discontinued; (b) it appears that the non-Member State proceedings are unlikely to be concluded within a reasonable time; or (c) the continuation of the Member State proceedings is required for the proper administration of justice. However, if, when proceedings are commenced in the courts of a Member State, the parallel proceedings in a third state have already led to a judgment which is capable of recognition and enforcement in that Member State, the Member State court must dismiss its proceedings.470

2.209 Article 34 establishes the same basic regime for cases involving related proceedings in a third state. Article 34 is engaged if the Member State court’s jurisdiction is based on one of articles 4, 7, 8, or 9 and the Member State proceedings are related to an action in a non-Member State. The Member State court may stay its proceedings on the basis of article 34(1) if: (a) it is expedient to hear and determine the related actions together to avoid the risk of irreconcilable judgments resulting from separate proceedings; (b) it is expected that the non-Member State court will give a judgment capable of recognition and enforcement in that Member State; and (c) the court of the Member State is satisfied that a stay is necessary for the proper administration of justice.

2.210 A stay may be lifted under article 34(2) if: (a) there is no longer a risk of irreconcilable judgments; (b) the non-Member State proceedings are stayed or discontinued; (c) the non-Member State proceedings are unlikely to lead to a judgment within a reasonable time frame; and (d) the continuation of the Member State proceedings is required for the proper administration of justice. In addition, the Member State court may dismiss its proceedings if the third state proceedings have resulted in a judgment which is capable of recognition and enforcement in that Member State.471

2.211 There are various features of articles 33 and 34 which should be emphasised. First, like articles 29 and 30, they give precedence to the court first seised. The possibility of proceedings being stayed on the basis of parallel or related proceedings in a third state depends on there being proceedings already pending before the courts of a third state when the Member State court is seised. Secondly, articles 33 and 34 follow article 30 in the sense that they confer discretion on the Member State court (except in the case envisaged by article 33(3)—where parallel proceedings in a third state have already led to an enforceable judgment). Thirdly, the operation of articles 33 and 34 is not easy to predict as both provisions employ a number of open-textured phrases—such as ‘the proper administration of justice’, ‘unlikely to be concluded within a reasonable time’. Recital (24), however, draws attention to a number of factors which may be taken into account in the context of articles 33 and 34: connections between the facts of the case and the parties and the non-Member State concerned; the stage reached by the foreign proceedings; when the foreign court is likely to render a judgment; whether the foreign court has exclusive jurisdiction. Fourthly, the contours of articles 33 and 34 depend on each Member State’s conflicts rules on the recognition and enforcement of foreign (p. 127) (third state) judgments. The possibility of proceedings brought before a Member State court being stayed under articles 33 and 34 arises only if parallel or related proceedings in a non-Member state are likely to lead to a judgment which is enforceable under the national law of that Member State. The lack of legal uniformity as regards the enforcement of third state judgments means that the practical significance of articles 33 and 34 may differ markedly from one Member State to another. Finally, it seems that articles 33 and 34 of the Recast do not attempt to provide a solution to certain key problems which were identified as arising under the Brussels Convention and the 2002 Regulation. Consider, for example, the case where a New York company (A) and an English company (B) enter a contract which includes an exclusive jurisdiction clause in favour of the New York courts. If A sues B in England and, then, B sues A (on the same cause of action) in New York, there is nothing in articles 33 and 34 to allow the English court to stay the proceedings commenced by A, notwithstanding the fact that New York is the contractual forum.472 The issues thrown up by this example are considered in a later section.473

C Staying proceedings on the basis of the doctrine of forum non conveniens

1. The development of the doctrine

2.212 An important difference between the jurisdiction of the English court under the traditional rules and that under the Brussels I Recast is that the assumption of the former jurisdiction is discretionary, while the latter is largely mandatory.

2.213 Where the claimant invokes the jurisdiction of the English court on the basis of the defendant’s presence in England, or the claimant is seeking permission under CPR rule 6.36 for process to be served abroad, the court has discretion whether or not to assume jurisdiction. Originally, the approaches in the two classes of case were very different. For much of the twentieth century the court would not stay proceedings brought against a defendant who was present in England unless the bringing of the proceedings was vexatious or oppressive, which usually required proof of an intention by the claimant to harass the defendant.474 Short of that, the claim would be tried in England even if the parties were foreigners and the facts of the dispute had no connection with England. If the claimant believed he would enjoy some advantage by suing in England, he was free to do so, as long as process could be served on the defendant in England. The traditional attitude of the English courts—which necessarily encouraged forum shopping—was summed up by Lord Denning’s observation that ‘if the forum is England, it is a good place to shop in, both for the quality of the goods and the speed of service’.475 By contrast, in cases brought under CPR rule 6.36 (and its predecessors), it (p. 128) has been established since the nineteenth century that permission to serve out requires the claimant to show that England is the appropriate forum.476

2.214 As a result of a series of cases decided in the 1970s and 1980s,477 the differences between these two categories of case were largely reduced, though not entirely eliminated. The House of Lords moved from the position that a stay would be granted only if the English proceedings were vexatious or oppressive to the modern position that a stay should be granted if there is an available forum which is more appropriate than the English court. The culmination of this development is the speech of Lord Goff in Spiliada Maritime Corpn v Cansulex Ltd,478 which forms the cornerstone of the modern law.

2. General principles

(A) The fundamental question

2.215 Although in Amin Rasheed Shipping Corpn v Kuwait Insurance Co479 Lord Wilberforce expressed the view that the principles which had been formulated in relation to the staying of proceedings were of little assistance in service-out cases, the Spiliada case480 establishes that the same fundamental principles apply where the defendant seeks a stay of proceedings which have been started as of right in England (forum non conveniens) and where the claimant seeks permission to serve a claim form on the defendant out of the jurisdiction (forum conveniens). The fundamental principle is to identify the court in which the case can be most suitably tried for the interests of the parties and the ends of justice.

2.216 The question which the court is required to consider runs a real risk of drawing the court into a consideration of the merits and demerits of foreign systems for the administration of justice. In the past, English judges were criticised for displaying ‘judicial chauvinism’, a feature of ‘the good old days, the passing of which many may regret, when the inhabitants of this island felt an innate superiority over those unfortunate enough to belong to other races’.481 More recently, however, a number of senior judges have gone out of their way to deprecate such chauvinism and to indicate that it has been replaced by ‘judicial comity’.482 When applying the test of appropriateness the English court should not pronounce upon the advantages and disadvantages of the system of administering justice in foreign countries as compared with the system of administering justice in England. To make such invidious comparisons ‘is not consistent with the mutual respect which the courts of friendly states, each of which has a well developed system for the administration of justice, owe, or should owe to each other’.483

(p. 129) (B) The determination of the appropriate forum

2.217 A stay will be granted on the ground of forum non conveniens if the defendant satisfies the court that there is another available forum, having competent jurisdiction,484 which is clearly or distinctly a more appropriate forum than the English court. In cases where the court’s jurisdiction under CPR rule 6.36 is invoked the burden is on the claimant to establish that England is the most appropriate forum. If there is no foreign forum which is available to the claimant as an alternative forum for resolution of the dispute the court will refuse to grant a stay (or will give permission to serve out). Assuming, however, that there is another available forum, in the context of an application for a stay of English proceedings, the court applies a two-stage test to determine whether the English court or the alternative forum is more appropriate.

(i) The first stage

2.218 At the first stage, the judge must consider which forum—the English court or a foreign one—is more closely connected with the dispute. The court must have regard to connecting factors which point towards one forum or the other as that with which the dispute has its most real and substantial connection. Relevant factors include the law governing the substance of the dispute and the places where the parties reside or carry on business as well as factors which affect convenience and expense (such as the availability of witnesses). Where the claim in England is for a negative declaration (rather than for positive relief such as damages), this fact alone does not affect the relative appropriateness of the English court and the alternative forum—as long as the negative declaration is sought for a valid reason and the grant of such a declaration would serve a useful purpose.485 In a case where proceedings are brought in England on the basis of the defendant’s presence within the jurisdiction, if the court concludes at this stage that there is no other forum which is more closely connected with the dispute than England, it will refuse a stay.

2.219 There is no finite list of connecting factors which the court must consider at the first stage; much depends on the circumstances of each particular case. A factor which is of special significance in one case may be regarded as largely irrelevant in another. In principle, at the first stage, the court is seeking to identify the centre of gravity of the dispute so that inconvenience and expense can be reduced. The decided cases suggest that the court will have regard to six factors.

(a) Territorial connections

2.220 The court will always consider the territorial connections of the parties and the location of the evidence. If both the parties are resident in a foreign country and all the evidence is abroad, England is obviously not the most closely connected forum.486

(p. 130) (b) Lis alibi pendens

2.221 Where proceedings between the same parties arising out of the same dispute are also pending in a foreign court (lis alibi pendens) the English court will often be a less appropriate forum than it would have been in the absence of the foreign proceedings. The additional inconvenience and expense which results from allowing two sets of proceedings to be pursued concurrently in two different countries—where the same facts are in issue and the testimony of the same witnesses required—adds weight to the argument that the foreign court is the appropriate forum. The court must also bear in mind the danger that parallel proceedings in two countries may lead to conflicting judgments.487 In The Abidin Daver,488 for example, A (Turkish ship-owners) had started proceedings in Turkey, claiming compensation from B (Cuban ship-owners) for damage arising from a collision between their ships in Turkish waters. B then started proceedings in England claiming damages from A in respect of the collision. The House of Lords took the view that the English proceedings should be stayed.

2.222 Unlike article 29 of the Brussels I Recast, the traditional rules do not endorse a simple ‘first come, first served’ approach;489 the existence of parallel or related proceedings abroad is only one factor—which has to be weighed against the other connecting factors.490 Where proceedings in the foreign court have been started only a few days before the commencement of English proceedings, the existence of lis alibi pendens is of little or no significance. Where, however, the foreign proceedings are well-advanced and judgment is imminent the argument that the foreign court is the more appropriate forum is a very strong one.491

(c) Multiple parties

2.223 Where the factual matrix from which the dispute arises involves a multiplicity of parties the court will have regard to the desirability of ensuring that, as far as possible, all the disputes between the parties are resolved in one set of proceedings in a single forum. For example, in a case where A sues B in England and has a related claim against C, the English court may regard itself as being the appropriate forum for A’s claim against C, even though England is not the centre of gravity of the dispute, if England provides a forum in which the related claims against B and C can be determined together.492 Conversely, if a foreign court has jurisdiction to determine all the claims in multi-party proceedings—and the English court does not—this is an argument in favour of the foreign court being regarded as the appropriate forum.493

(p. 131) (d) The ‘Cambridgeshire’ factor

2.224 The balance of convenience may be tilted in favour of one forum rather than another because of the existence of other proceedings in that forum involving different parties but raising the same factual and legal issues. This is known as the Cambridgeshire factor. In the Spiliada case,494 the dispute arose out of a contract made between the plaintiff ship-owners and the defendants, who carried on business in British Columbia. The contract was governed by English law. The plaintiffs claimed that damage had been caused to the ship by the defendants having loaded a cargo of sulphur when it was wet. A similar cargo had been loaded at the same time on another ship, the Cambridgeshire. When the plaintiffs sought to invoke the jurisdiction of the English court, the owners of the Cambridgeshire had already commenced proceedings against the defendants in England. These proceedings involved a similar claim and the same solicitors and insurers. The House of Lords held that the judge was justified in holding that England was the appropriate forum.

(e) The applicable law

2.225 Although the first stage of the Spiliada doctrine is usually dominated by a consideration of factual connections, the court will also have regard to the applicable law. While it is perfectly possible for the English court to apply a foreign law and for a foreign court to apply English law, where the dispute centres on legal rather than factual questions ‘it is generally preferable, other things being equal, that a case should be tried in the country whose law applies’.495 Although English judges are better placed than others to rule on questions of English law, the weight to be attached to the applicable law depends on the circumstances of the case.496 If the dispute is essentially one of fact, the applicable law is of relatively little significance.497 However, it is preferable for difficult questions of English law to be determined by the English courts which are experienced in dealing with such matters.498 Similarly, if an issue of English public policy arises in the context of a dispute concerning a contract governed by English law that issue should be decided by the English court. Not only would proceedings in a foreign forum involve the extra expense and inconvenience of expert evidence from English lawyers, but also a question of English public policy is not ‘capable of fair resolution in any foreign court, however distinguished and well instructed’.499

(p. 132) (f) Documentary evidence

2.226 If documentary evidence is an important element in the equation, the language of the documents is relevant. If the question is whether England or Mexico is the appropriate forum, the fact that the dispute centres on documents which are drawn up in Spanish is an argument in favour of the Mexican court; if the relevant documents were in English, this would be a factor pointing towards England as the appropriate forum.500

(ii) The second stage

2.227 The second stage has to be considered only if, having regard to the relevant connecting factors at the first stage, the court thinks that the dispute is more closely connected with a foreign court. Where proceedings are brought in England as of right (because the defendant was present in England when the claim form was served), if the court would incline towards granting a stay on the basis that a foreign court is the forum with which the dispute is most closely connected, the claimant may seek to resist a stay at the second stage on the basis that substantial justice will not be done in the foreign forum. Notwithstanding the fact that England is not the centre of gravity of the dispute, the court will not grant a stay if it is satisfied that justice requires that the claimant should not be required to litigate abroad.501

2.228 At the second stage the burden is on the claimant to satisfy the court that there is a real risk that justice will not be obtained in the foreign forum. The court will consider all the circumstances of the case, including circumstances which go beyond those taken into account at the first stage. To succeed at the second stage it is not enough for the claimant to show that he has a legitimate personal or juridical advantage in proceedings in England. The fact that the claimant will be deprived of such an advantage if the dispute is not determined in England is not a sufficient reason for the court to assume jurisdiction, provided that the court is satisfied that substantial justice will be done in the available foreign forum.

2.229 Perhaps the most difficult issue at the second stage is to determine the dividing line between, on the one hand, a factor which is merely an advantage to the claimant and, on the other, a factor which is so important that, if denied to the claimant, there will be a denial of justice. A number of factors have been discussed by the courts.

(a) Time bars

2.230 If the claim is time-barred in the alternative forum, the court may decide that England is the most appropriate forum, notwithstanding the fact that the dispute is more closely connected with another forum. In a case where the claim is time-barred in the foreign court, but proceedings would not be time-barred in England, if the claimant did not act unreasonably in failing to commence proceedings abroad within the relevant limitation period, it would not normally be just for the English court to (p. 133) stay the proceedings, unless the defendant agrees to waive the time-bar in the foreign court.502

(b) Procedural advantages: delays, damages, and costs

2.231 Although Lord Goff made it clear in the Spiliada case503 that, as a general rule, an advantage to the claimant of proceeding in England, rather than abroad, should not be regarded as decisive, there are several reported instances where the court has decided that the fact that a particular advantage to the claimant is not available in the more closely connected forum means that justice would not be done if the English proceedings are stayed. For example, in The Vishva Ajay,504 which involved a dispute arising out of a collision between two ships in Indian waters, the court refused to stay the proceedings on the basis that delay in India was likely to be at least six years and that a successful litigant in India would not be awarded costs on a realistic basis. By contrast, in Radhakrishna Hospitality Service Private Ltd v EIH Ltd,505 another case in which India was the country with which the parties’ dispute was most closely connected, less weight was given to the possibility that Indian proceedings would be significantly slower than English proceedings and a stay was granted.506 In Roneleigh Ltd v MII Exports Inc,507 a case in which New Jersey was plainly the more closely connected forum, the Court of Appeal upheld the judge’s decision to allow service out of the jurisdiction. The basis of the decision was that, because the law of New Jersey does not allow a successful claimant to recover costs, substantial justice would not be done in the foreign forum.

2.232 As a general rule, the fact that the claimant, if successful, would recover higher damages in English proceedings than in proceedings abroad is not enough to justify the conclusion that proceedings should continue in England.508 Nevertheless, there are cases in which it has been held that, where the difference between the damages which could be recovered in England and abroad is very considerable, it would amount to an injustice if the claimant were required to pursue his claim abroad.509 The court may regard the fact that the claimant cannot afford to litigate abroad to be decisive. Where the claimant’s financial predicament means that there is no possibility of the claim being litigated in the most closely connected forum, but litigation can be pursued in England (for example, because of the availability of legal aid or a conditional fee agreement between the claimant and his English solicitors) the court may decide that, in the interests of justice, English proceedings should not be stayed.510 Similarly, in a case (p. 134) where the claim is being brought by a large number of claimants and the alternative forum does not have either experience of, or adequate facilities for, dealing with such proceedings, the court may refuse to grant a stay on the basis that the English court (which does have the necessary experience and facilities) provides the most appropriate forum.511 Finally, it has been held that, where a foreign judgment is more difficult to enforce internationally than an English judgment (which is enforceable in other Member States under the Brussels I Recast), it may be unjust to deprive the claimant of the advantage of proceeding in England.512

(c) Divergent choice of law rules

2.233 The court may conclude that justice will not be done abroad in circumstances where it is shown that the foreign court, applying its own choice of law principles, will reach a conclusion which is opposed to that which would be reached by the English court through the application of English conflicts rules.513 For example, in a case where the rival jurisdictions are England and the United Arab Emirates, if the courts of the United Arab Emirates would apply the local law, under which the claimant is bound to fail, but the English court would—on the basis of English choice of law principles—apply Spanish law, according to which the claimant has an arguable claim, the English court is likely to assume jurisdiction, even though the United Arab Emirates is the more closely connected forum.514 The approach in this type of case is based on the courts’ view that it is not conducive to justice to require the claimant, who has—in the eyes of English private international law—an arguable claim, to litigate in a forum where his claim would inevitably be rejected. This approach is, however, hardly consistent with judicial comity.515

(d) Procedural fairness

2.234 If the defendant will not receive a fair hearing in the alternative forum—whether for political or ideological reasons, incompetence, lack of independence or corruption—this is a significant factor which is likely to tilt the balance in favour of England as the appropriate forum. The claimant does not, however, have to prove that he will not obtain justice abroad; a real risk of injustice is enough.516

2.235 In Oppenheimer v Louis Rosenthal & Co AG517 leave was sought in 1937 for process to be served in Germany. Although in other circumstances the German court might well have been the more appropriate forum, leave was granted because the plaintiff, being a Jew, would probably not have received a fair trial in the German court and, indeed, (p. 135) might have been put in a concentration camp if he visited Germany. Similarly, a foreign court with which the dispute was closely connected was held not to be the appropriate forum in a case where substantial evidence of procedural failings (such as breach of principles of natural justice) and irrational conclusions created a risk of injustice.518 However, it is not unjust to refuse a stay in a case where the principal reason for the claimant wanting not to litigate in a more closely connected foreign forum is to avoid being exposed to criminal charges in that country.519

2.236 It should not be thought that the court will simply accept an allegation by the claimant that he will not be given a fair trial abroad. A litigant’s unsubstantiated fears as to the quality of justice in the alternative forum are not relevant520 and a claimant who wishes to resist a stay on the basis that even-handed justice may not be done abroad ‘must assert this candidly and support his allegations with positive and cogent evidence’.521

(iii) Weighing the factors

2.237 At the first stage, where the connecting factors point in different directions, the court has to weigh them against each other to decide where the balance of convenience lies. In Amin Rasheed Shipping Corpn v Kuwait Insurance Co,522 for example, the plaintiff, a Liberian company resident in Dubai, had entered a contract of marine insurance with the defendant, a Kuwaiti insurance company. When a dispute arose between the parties the plaintiff wished to bring proceedings in England. The House of Lords, although holding that the parties had impliedly chosen English law as the applicable law, held that the judge had been right to conclude that England was not the appropriate forum. The factual issues ‘could be determined as well in Kuwait as in England, possibly better, and with no clear overall balance of convenience’.523 Although any legal questions were to be decided by English law, there was no reason to suppose that a Kuwaiti judge would have any difficulty in applying the relevant rules.

2.238 The problems of weighing the relevant factors are considerably greater at the second stage in cases where the court has to balance the fact that England is not the country with which the parties’ dispute is most closely connected against the claimant’s assertion that justice will not be done abroad. The range of factors which the court is entitled to consider is very wide and the authorities do not give any guidance on how these factors are to be weighed in any particular case. Inevitably, the test of appropriateness is rather open-textured and its application is unpredictable.524 The Spiliada doctrine is open to the criticism that it unduly favours the English forum by giving the claimant two bites at the cherry. If England is the most closely connected forum, the English court will refuse to grant a stay (or will give permission to serve out); if England is not (p. 136) the most closely connected forum, the court may still decide that the claim should be litigated in England on the basis that justice will not be done in the foreign forum. As has been seen, the fact that the claimant has a significant advantage in suing in England rather than abroad may be regarded as of such importance that the court concludes that there would be a denial of justice if the case were not heard in England. However, the court will invariably assume jurisdiction in cases where England is the most closely connected forum as there is no scope for the defendant to challenge the jurisdiction of the English court on the basis that substantial justice will not be done in England. If a claimant can resist a stay of proceedings on the basis that damages abroad are derisory, why is a defendant not able to obtain a stay on the basis that English damages are much lower than those which would be awarded by the alternative forum? As the Spiliada doctrine is asymmetrical in this way, the boast that ‘judicial chauvinism has been replaced by judicial comity’525 should not be accepted too uncritically.

3. The effect of a dispute-resolution clause

(A) Cases involving a jurisdiction clause in favour of the English courts

2.239 In most cases where the parties choose English jurisdiction, article 25 of the Brussels I Recast applies and the English court’s jurisdiction is mandatory.526 In those cases where article 25 does not confer mandatory jurisdiction (for example, in situations falling outside the scope of article 1 of the Recast), whether the court is entitled to assume jurisdiction is determined by the traditional rules.

2.240 If the traditional rules apply, the court has discretion whether or not to assume jurisdiction. A defendant who, having agreed to English jurisdiction, is served with a claim form in England, may apply for a stay of proceedings (as long as he has not submitted to the English court’s jurisdiction). However, it would require ‘some exceptional justification’527 for the English court to accede to the defendant’s application and there is no reported case in which a stay has been granted in this situation.528 If the defendant cannot be served with process in England, the court will—in the absence of strong reasons to the contrary—hold the parties to their bargain and give permission for service out of the jurisdiction under CPR rule 6.36.529

(B) Cases involving a jurisdiction clause in favour of the courts of a non-Member State

2.241 The English court will normally not permit proceedings to be conducted in England in breach of the terms of an agreement conferring exclusive jurisdiction on the courts of a third state. If, notwithstanding such an agreement, the English court’s jurisdiction is (p. 137) invoked under the traditional rules530 (for example, because the defendant is not domiciled in a Member State), proceedings will normally be stayed (if service is effected in England)531 or permission to serve out of the jurisdiction will normally be refused (if the claimant seeks to rely on CPR rule 6.36).532 Although a non-exclusive jurisdiction clause may create a strong prima facie case that the contractual forum is the appropriate one,533 such a clause is not conclusive.534

2.242 Notwithstanding the foreign jurisdiction clause, the court may, in the exercise of its discretion, assume jurisdiction if ‘strong cause’ is shown by the claimant.535 The court may, for example, decide to assume jurisdiction if there are related proceedings already being conducted in England and there will be significant advantages—in terms of convenience and expense—if the claimant is permitted to sue the defendant in England.536 The mere fact that the claimant has failed to bring proceedings in the contractual forum within the limitation period is not a sufficient cause for allowing proceedings to be brought in England.537 However, if the limitation period has expired in the contractual forum and it was not unreasonable for the claimant not to have started proceedings within the limitation period, a stay of proceedings may be refused (unless the defendant undertakes to waive the time bar in the contractual forum).538

2.243 If the claimant can establish that he will not receive a fair trial in the contractual forum—for example for political or racial reasons—the English court may allow the claimant to sue in England in breach of the terms of the jurisdiction agreement. For example, in Carvalho v Hull, Blyth (Angola) Ltd539 the plaintiff, who had fled Angola shortly after the start of the civil war, was able to sue the defendant in England even though the parties’ contract (which had been concluded before the civil war) referred disputes to the Angolan courts. The court refused to grant a stay of the English proceedings not only because the post-revolution Angolan court was completely different from the court contemplated by the parties at the time of the contract540 but also because there was a question whether the plaintiff would be treated fairly by the Angolan courts in view of the fact that he ‘was the sort of person who would be anathema to the [new] government in Angola’.541

(p. 138) (C) The Hague Choice of Court Convention

2.244 In the 1990s the Hague Conference on Private International Law started work on what, it was hoped, would result in a worldwide convention along the lines of the Brussels Convention. In fact, the result of negotiations was the Hague Choice of Court Convention which, in basic structure, looks much more like the New York Convention of 1958 (which makes provision for the enforcement of arbitration agreements and for the recognition and enforcement of arbitral awards) than the Brussels Convention (which is a comprehensive jurisdiction and judgments convention). The Choice of Court Convention, which was signed in 2005 and entered into force between Mexico and the Member States of the European Union (except Denmark) on 1 October 2015,542 seeks to promote both the enforcement of jurisdiction agreements and the recognition and enforcement of judgments in cases where the court of origin assumed jurisdiction on the basis of a choice of court clause.

2.245 The Hague Convention, which applies to ‘exclusive choice of court agreements concluded in civil or commercial matters’,543 determines the jurisdictional impact of exclusive jurisdiction agreements in favour of the courts of a Contracting State. If a choice of court agreement designates an EU Member State as the contractual forum, the Convention applies in cases where one of the parties is resident in a Contracting State to the Convention which is not an EU Member State. So, if one of the parties is resident in Mexico, a choice of court agreement in favour of the English courts falls within the scope of the Hague Convention, rather than the Brussels I Recast.

2.246 The basic jurisdiction rules in article 5 of the Convention are that the contractual forum ‘shall have jurisdiction to decide a dispute to which the agreement applies, unless the agreement is null and void under the law of that State’ and that the contractual forum ‘shall not decline to exercise jurisdiction on the ground that the dispute should be decided in a court of another State’. Article 5 of the Convention does not bring about a significant change to the circumstances in which the English court assumes jurisdiction. Notwithstanding the fact that, under the traditional rules that applied before the entry into force of the Convention, the English court had a discretion in cases involving jurisdiction clauses, there appears to be no reported case in which the English court has failed to assume jurisdiction in a situation where the parties concluded an exclusive jurisdiction agreement in favour of the English courts.

2.247 What is the situation where the contractual forum is a Contracting State to the Convention which is not an EU Member State? If proceedings are brought in England (for example, on the basis of the defendant’s presence in England or under CPR rule 6.36), the court is normally required by article 6 to ‘suspend or dismiss proceedings to which an exclusive choice of court agreement applies’. However, article 6 of the (p. 139) Convention provides that a choice of court agreement (or an alleged agreement) in favour of the courts of a Contracting State is not a bar to the assumption of jurisdiction by the courts of another Contracting State in five situations:

  1. (a) the agreement is null and void under the law of the State of the chosen court;

  2. (b) a party lacked the capacity to conclude the agreement under the law of the State of the court seised;

  3. (c) giving effect to the agreement would lead to a manifest injustice or would be manifestly contrary to the public policy of the State of the court seised;

  4. (d) for exceptional reasons beyond the control of the parties, the agreement cannot reasonably be performed; or

  5. (e) the chosen court has decided not to hear the case.

2.248 Although a case like Carvalho v Hull, Blyth (Angola) Ltd544 would most probably be decided in the same way under the Convention (on the basis of article 6(c)), the English court will, as a general rule, be unable to assume jurisdiction in cases where the contractual forum is a Contracting State to the Convention.

(D) Cases involving an arbitration clause

2.249 What position should the courts adopt in a situation where one party to an arbitration agreement starts legal proceedings in breach of the terms of that agreement? The issues raised by this type of situation are similar to those surrounding jurisdiction agreements. However, in this situation, the discretionary doctrines of English private international law are not relevant as the situation is governed by the provisions of the Arbitration Act 1996 which implement article II of the New York Convention of 1958. One of the purposes of the New York Convention was to ensure that arbitration agreements are respected and enforced. Where legal proceedings are brought in breach of an arbitration agreement, article II of the Convention obliges the courts of Contracting States to refer the parties to arbitration.

2.250 The English courts are required to grant a stay of proceedings only if a number of conditions are satisfied. First, the defendant must establish that there is an arbitration agreement between the parties,545 which must be ‘in writing’.546 The expression ‘in writing’ is given a broad definition; the Act extends to agreements which are evidenced in writing547 and to cases where the parties agree otherwise than in writing to terms which are in writing.548 So, where a printed clause is orally or tacitly accepted (so that it becomes a term of the contract) it satisfies the formal requirements of the English (p. 140) legislation.549 It is also provided that an agreement is ‘in writing’ if it is recorded by any means.550

2.251 Secondly, the legal proceedings in question must be ‘in respect of a matter which under the agreement is to be referred to arbitration’.551 To have the right to a stay the defendant needs to satisfy the court that the dispute falls within the arbitrator’s jurisdiction. The court may have to decide, for example, whether the arbitration agreement is broad enough to cover a claim in tort brought by one party to the agreement against another or whether the dispute between parties can be said to be ‘in relation to’ the agreement between the parties. Such questions must be determined by reference to the proper law of the arbitration agreement. Under English law, the court will assume that the parties are likely to have intended any dispute arising out of the relationship between them to be decided by the same tribunal.552 Accordingly, the tendency is to construe arbitration agreements broadly, rather than narrowly.553

2.252 Thirdly, the subject-matter of the dispute must be capable of settlement by arbitration.554 Although the majority of commercial disputes are arbitrable,555 there are limits. Because of the consensual nature of arbitration, an arbitrator cannot determine certain types of dispute which have implications not only for the parties. For example, an arbitrator cannot make an award in rem in a shipping dispute or make a binding award winding up a company.

2.253 Fourthly, the defendant in legal proceedings must apply for a stay after acknowledging the legal proceedings against him, but before submitting to the court’s jurisdiction by taking a step in those proceedings to answer the substantive claim.556 A party who applies for a stay but, subsequently or simultaneously, invokes or accepts the court’s jurisdiction conditionally on the application for a stay failing, has not taken a step in the proceedings.557

2.254 If these conditions are satisfied, the defendant is, in principle, entitled to a stay and it is irrelevant that there would be potential advantages if the parties’ dispute were considered by the court (for example, in a case where the dispute involves three parties, only two of whom are bound by the arbitration agreement).558 By the same token, the (p. 141) court cannot refuse to grant a stay on the basis that the defendant has no prospect of successfully defending the claim and it would be quicker and cheaper if the court made a summary judgment under the procedure provided by Part 24 of the CPR.559 If there is a dispute between the parties—that is to say, where the claimant advances a claim which the defendant does not admit—the grant of a stay is mandatory.560 Attempts by litigants to persuade the court that the grant of a mandatory stay under section 9 of the Arbitration Act 1996 is inconsistent with the right to a fair trial under article 6 of the European Convention on Human Rights have not met with success.561

2.255 However, the defendant’s prima facie right to a stay may be defeated. First, a stay will be refused if the claimant satisfies the court (on the balance of probabilities) that the arbitration agreement is ‘null and void, inoperative or incapable of being performed’.562 Whether or not the agreement is valid should also be referred to its proper law.563 If D denies the existence of an arbitration agreement and C unequivocally accepts D’s repudiation by commencing litigation, the arbitration agreement ceases to be operative and D cannot seek to revive the arbitration agreement and obtain a stay of proceedings under section 9 of the Arbitration Act 1996.564 Conversely, an arbitration agreement does not become inoperative by virtue of an ICC arbitration being suspended because one of the parties refuses to bear its share of the advance costs of the arbitration.565

4. Cases involving immovable property or intellectual property rights not regulated by the Brussels I Recast

2.256 In a situation which falls within the scope of the Recast, article 24(1) provides that proceedings relating to rights in rem in, or tenancies of, immovable property are within the exclusive jurisdiction of the courts of the Member State in which the property is situated. However, the Brussels I Recast does not determine jurisdiction either if the subject-matter of the dispute is outside the scope of article 1 (for example, because it involves rights in property arising out of a matrimonial relationship) or if the immovable property in question is not situated in a Member State and the defendant is not domiciled in a Member State. These situations are governed by the traditional rules.

2.257 At common law, under the rule in British South Africa Co v Companhia de Moçambique,566 the English court will not adjudicate on questions relating to the title to, or the right to the possession of, immovable property567 out of the jurisdiction. Accordingly, in a case involving title to land in Brazil, the English court will not assume (p. 142) jurisdiction even if the claimant can serve the Brazilian defendant with the claim form in England or can invoke some other basis of jurisdiction recognised by the traditional rules.

2.258 Although the origin of the common law rule may have lain in procedural requirements, the justification for it today is, first, that, as immovable property is under the control of the authorities of the country where it is situated, whose law may refuse to recognise an English judgment relating to the property, such an exercise of jurisdiction would quite possibly be ineffective and, secondly, that the courts of the situs are the ones best able to apply their own often technical and complex rules about title to land.

2.259 In Norris v Chambres568 the plaintiff had contracted to buy foreign land and paid a deposit to the vendor. The vendor repudiated the contract and sold the land to the defendant. The plaintiff brought proceedings against the defendant in England claiming that he was entitled to a lien over the land in respect of the deposit he had paid. The court held that it had no jurisdiction to decide whether the plaintiff had such a right over foreign land. The same approach is illustrated by Deschamps v Miller.569 The plaintiff’s father had acquired lands in India and subsequently transferred them to the defendant. The plaintiff claimed that his mother had been entitled, by virtue of the proprietary consequences of her marriage, to a half-share in the property and that, on his mother’s death, he was entitled to succeed to this half-share. The court held that it lacked jurisdiction to decide the question.

2.260 Until late in the twentieth century the law was that the English court would not assume jurisdiction in respect of a tort affecting foreign land.570 Section 30 of the Civil Jurisdiction and Judgments Act 1982 provides that the court is not deprived of jurisdiction in such a case ‘unless the proceedings are principally concerned with a question of the title to, or the right to possession of’ the property.571

2.261 While the court will not assume jurisdiction on a question as to the title to, or a right to possession of, a foreign immovable, it does not follow that it must not deal with any case having a connection with such property. For example, the court may exercise jurisdiction in rem against a ship to enforce a claim for damage done to foreign land.572 More importantly, if the court has jurisdiction in contractual proceedings, that jurisdiction will not be ousted because the contract relates to foreign land. Moreover, the court will enforce an obligation arising from such a contract, or from a trust or some other source, not merely by an award of damages or other monetary relief, but even by ordering a party to transfer or create a right in foreign land.573 In such a case, the court is not adjudicating on the present title to the land, on which (p. 143) its decision may be ineffective; its order to transfer or create a title can be enforced in personam574—by committing the defendant for contempt if he does not comply with the order. However, the court will not order a party to do in relation to foreign land something which the law of the foreign country would not permit or enable him to do.575

2.262 A court may make a decree of specific performance in relation to the sale of foreign land576 and may order a party to execute a mortgage over foreign land in fulfilment of a contractual promise to do so.577 The court may also enforce an obligation to transfer or create a right in foreign land arising from ‘a fiduciary relationship or fraud, or other conduct which, in the view of the Court of Equity in this country, would be unconscionable’.578 Such orders cannot actually affect the title of foreign land; if, however, the defendant is amenable to the jurisdiction of the English court, such orders can be enforced in personam.579

2.263 The situations just considered are not exceptions to the rule that the English court will not adjudicate on the title to or right to possession of foreign immovables, but rather, fall outside its scope. There are, however, a number of true exceptions. First, where the court has jurisdiction over a deceased’s estate which includes property in England the court will also determine entitlement to immovable property situated outside England which is part of that estate.580 The basis of this jurisdiction, which is far from obvious, has not been satisfactorily explained by the courts, but the jurisdiction seems to be established. It should be noted that, because such proceedings fall outside the scope of the Brussels I Recast (which does not apply to wills and succession), this jurisdiction applies equally to immovable property in Member States and third states. Secondly, ‘in the exercise of the undoubted jurisdiction of the courts it may become necessary incidentally to investigate and determine the title to foreign lands’.581 It is not clear what cases would fall within this category.582

2.264 As regards foreign intellectual property (IP) rights, it has long been accepted that the Moçambique rule applies to registered interests (such as patents and registered trademarks) in the same way as foreign land; such interests are treated (by analogy) as territorial in nature.583 Whether the same approach should be taken to unregistered IP rights has been the subject of controversy. In Lucasfilm Ltd v Ainsworth584 the Supreme (p. 144) Court undertook an exhaustive review of the scope of the non-justiciability rule derived from the Moçambique case585 and concluded that, if the court has in personam jurisdiction over the defendant, claims relating to unregistered foreign IP rights can be pursued in England.

5. If jurisdiction is derived from the Brussels I Recast, is there any residual discretion in cases involving connections with non-Member States?

(A) Background and general principles

2.265 Apart from the specific provisions of the Brussels I Recast which set out the circumstances in which proceedings must (or may) be stayed,586 the court has no general discretion under the Recast to stay proceedings. For example, where an English defendant is sued in England in relation to a road accident which occurred in France, the court cannot stay the proceedings on the basis that France is a more appropriate forum; this type of case is governed solely by the Brussels I Recast.587 One of the most hotly debated questions under the 2002 Regulation was whether the English court may, in cases where its jurisdiction is derived from Chapter II, stay proceedings or decline jurisdiction in favour of the courts of a third state—whether in reliance on the doctrine of forum non conveniens or on some other basis.

2.266 According to the doctrine propounded by the Court of Appeal in Re Harrods (Buenos Aires) Ltd,588 in a case where jurisdiction is based on the defendant’s domicile in England the English court may grant a stay if the defendant satisfies the court that a non-Member State is a more appropriate forum. However, such were the question-marks over whether the Harrods case had been correctly decided,589 it was widely recognised that, sooner or later, the issue would have to be referred to the Court of Justice.590

2.267 In Owusu v Jackson591 C, who was domiciled in England, suffered personal injuries when diving into the sea at a private beach in Jamaica. C had been staying in a villa let to him by D1, also domiciled in England. C started English proceedings against D1 (for breach of an implied contractual term that the beach was reasonably safe) and several Jamaican companies, including the owner of the beach (for failing to warn swimmers of potential dangers). The Court of Appeal sought an answer from the Court of Justice to the question whether the English court was permitted to (p. 145) stay the proceedings against D1 on the ground that Jamaica was a more appropriate forum.592

2.268 The Court of Justice had no hesitation in concluding that, where a national court has jurisdiction on the basis of the defendant’s domicile, it is precluded from declining that jurisdiction on the ground that a third state would be a more appropriate forum for the trial—even if there are no connecting factors linking the situation to any other Member State. In reaching this conclusion, the Court of Justice emphasised various points: (i) the domicile rule (article 4 of the Recast) is mandatory in nature; (ii) principles of legal certainty and predictability would be undermined if a national court were permitted to stay proceedings on a discretionary basis; (iii) as the doctrine of forum non conveniens is found in the laws of only some of the Member States, it would adversely affect the uniform application of Brussels I if those states were allowed to apply the doctrine in cases where jurisdiction is derived from article 4. Although the ruling in Owusu v Jackson refers only to cases where the national court’s jurisdiction is based on the defendant’s domicile,593 the logic of the decision applies equally to situations involving other bases of jurisdiction under the Brussels I Recast (such as article 7594 or article 25595).

(B) Cases where the grant of a stay is not inconsistent with the Brussels I Regulation

2.269 In a case which is internal to the United Kingdom and is governed entirely by schedule 4 to the Civil Jurisdiction and Judgments Act 1982, the Recast does not inhibit the discretion of the English court to stay proceedings in favour of the courts of Scotland or Northern Ireland.596 In addition, where the English court is authorised by article 6 of the Brussels I Recast to assume jurisdiction under the traditional rules, a stay may be granted on the basis of forum non conveniens whether the alternative forum is a third state or another Member State.597 Where, for example, process in relation to a dispute arising out of a road traffic accident in Germany is served on a New York resident during a fleeting visit to England, the English court should be able to stay the English proceedings on the ground that Germany is a more appropriate forum. If parallel or related proceedings have already been commenced in another Member State the English court must apply articles 29 and 30 before considering whether to grant a stay under its inherent jurisdiction.

(C) Outstanding questions

2.270 In Owusu v Jackson the Court of Appeal not only referred the question whether, in that case, the English court was precluded from granting a stay in favour of the Jamaican (p. 146) courts on the basis of forum non conveniens, but also asked what the position would be in a case where the parties had agreed to the jurisdiction of the courts of a third state or where the dispute related to immovable property situated in a non-Member State or where parallel or related proceedings had been started in a third state before the commencement of proceedings in England. Although some consideration of this second question could have resolved several difficult issues, the Court of Justice declined to provide an answer on the basis that, in the Owusu case itself, this question was entirely hypothetical.

2.271 One potential approach to the second question is to take the Court of Justice at its word and to extrapolate the decision in Owusu to the three types of case to which the Court of Appeal referred in its second question. In its ruling in Owusu the Court of Justice stated that what is now article 4 of the Recast ‘is mandatory in nature and … according to its terms, there can be no derogation from the principle it lays down except in the cases expressly provided for’.598 If this statement is to be understood literally, the answer to the Court of Appeal’s second question is that, if a national court has jurisdiction under article 4, proceedings may be stayed or jurisdiction declined only on the basis of articles 33 and 34 of the Recast. This position was adopted by the Irish High Court599 and the same approach was taken in England by Barling J in Catalyst Investment Group Ltd v Lewinsohn.600

2.272 In policy terms, however, this absolutist view of article 4 has little to recommend it. Within the framework of the Brussels I Recast, article 4 is subordinate to other provisions in Chapter II. The provisions which take priority over article 4 reflect important policy choices of general application—such as (i) the allocation of exclusive jurisdiction in cases where the subject-matter of the dispute is very closely connected with a particular place (article 24), (ii) the enforcement of jurisdiction agreements (article 25) and (iii) the avoidance of parallel and related proceedings (articles 29 and 30).

2.273 Although the Brussels I Recast, unlike the Convention and the 2002 Regulation, includes provisions addressing parallel proceedings and related actions in third states (articles 33 and 34), these provisions—which, like articles 29 and 30, give priority to the court first seised—do not offer a convincing solution to the problems posed by jurisdiction agreements in favour of the courts of third states or by cases where the dispute is so closely connected with a third state that the courts of that state should be regarded as having exclusive jurisdiction. If, for example, the English court has to decline jurisdiction over proceedings brought against a defendant domiciled in England when the dispute falls within the scope of a jurisdiction clause in favour of the courts of another Member State, there is every reason to think that the court should also decline jurisdiction in a case where the parties’ agreement refers the dispute to the courts of a (p. 147) non-Member State. Whether the English court was first seised or second seised should not be the most significant factor. The same argument can be made with regard to disputes relating to immovable property. Furthermore, if a Member State court is not able to stay proceedings in such cases, there is a serious danger that practical problems will be generated by the fact that the same issues will be litigated both in a third state and a Member State. As Lawrence Collins LJ stated in Masri v Consolidated Contractors International (UK) Ltd (No 2),601 it would be odd if the English courts were not able to grant a stay of proceedings in the types of situation identified by the Court of Appeal in its second question in Owusu. All the practical arguments point towards a national court being able to decline jurisdiction in a situation involving connections with a non-Member State if the circumstances are such that jurisdiction would have been declined (or the proceedings stayed) had the connection in question been with a Member State.

2.274 Within the authorities, there are indications that the approach adopted in cases such as Catalyst Investment Group Ltd v Lewinsohn does not command universal support. The case law of the Court of Justice does not unequivocally support the absolutist approach; in Owusu v Jackson itself, both the Advocate General and the Court were at pains to make clear that they were not purporting to provide an answer to the Court of Appeal’s second question. Accordingly, it would be somewhat perverse to regard the Owusu doctrine as providing the definitive answer to the whole range of problems which may arise where a dispute has connections with both a Member State and a third state. For example, before the Owusu case was decided, the Court of Justice seems to have accepted the idea that a Member State court may give effect to a jurisdiction clause in favour of the courts of a third state; in Coreck Maritime GmbH v Handelsveem BV602 the Court of Justice stated that the validity of a jurisdiction clause in favour of the courts of a non-Member State is governed by its applicable law (as determined by the forum’s choice of law rules). This part of the judgment appears implicitly to accept that, in a case where a Member State court decides that a jurisdiction clause in favour of a third state is valid, the court is entitled to give effect to the jurisdiction clause under its national law (for example, by staying its proceedings or declining jurisdiction), even if its jurisdiction is derived from the Brussels I Recast.603

2.275 There are also several English authorities which have rejected the notion that the Owusu doctrine applies in the types of cases identified by the Court of Appeal’s second question in the Owusu case.604 For example, in Winnetka Trading Corp v Julius Baer (p. 148) International Ltd605 it was held that the English court may stay its proceedings in a case where the dispute falls within the scope of a jurisdiction clause in favour of the courts of a non-Member State, notwithstanding the fact that the court’s jurisdiction is derived from Brussels I.606

2.276 If such a power to grant a stay or to decline jurisdiction exists, what is its legal basis? The most plausible answer to this question is that the relevant provisions of the Recast (in particular, articles 24 and 25) should be given so-called ‘reflexive effect’.607 In Ferrexpo AG v Gilson Investments Ltd608 Andrew Smith J, having referred to the analysis in the fourth edition of this work, explicitly rejected the approach adopted in the Catalyst case and held that the provision which is now article 24 of the Recast should be applied reflexively in cases with an appropriate connection with a third state. But, exactly how the doctrine of ‘reflexive effect’ (if it exists) should operate is contentious. Theories of ‘reflexive effect’ may take one of a number of forms.

2.277 First, according to the most flexible approach, national courts should retain discretion under national law in cases which, in broad terms, involve the types of issues that are addressed by article 24 of the Recast and jurisdiction clauses in favour of the courts of a non-Member State. This approach, which appeals to some English courts,609 does not depend on it being shown that, if the relevant connection were with a Member State rather than a non-Member State, the conditions of article 24 or 25 (as the case may be) would have been satisfied. However, the considerable hostility shown by the Court of Justice in Owusu to the operation of discretionary principles in the field of civil jurisdiction suggests that a version of the ‘reflexive effect’ theory which preserves the traditional English approach to the staying of proceedings is not the correct solution.610

2.278 Secondly, the doctrine of ‘reflexive effect’ may enable a Member State court to rely on domestic doctrines in cases where, had there been an equivalent connection with a Member State, the court would have been obliged by the Recast to decline jurisdiction. According to this approach, in a case where the parties, one of whom is domiciled in England, enter a contract which includes a New York jurisdiction clause, if the English party is sued in England, the court may rely on the Eleftheria test and, in the exercise of its discretion, stay its proceedings (or decide not to do so)—even though the court would have been obliged by article 25 to decline jurisdiction if the contractual forum (p. 149) had been a Member State.611 In terms of certainty and predictability, the advantage of this version of the ‘reflexive effect’ theory is that the circumstances in which a national court may stay proceedings or decline jurisdiction in favour of the courts of a third state are determined with precision (albeit indirectly) by the terms of the Recast itself. However, from the Court of Justice’s perspective, the problem with the second version is that it runs the risk of introducing the kind of discretion and lack of uniformity which was considered to be so objectionable in the Owusu case. Accordingly, there must be considerable doubt as to whether the Court of Justice is likely to endorse it.

2.279 Thirdly, the strictest version of the ‘reflexive effect’ theory involves applying provisions of the Recast by analogy as though non-Member States were Member States. According to this approach, a national court has no discretion over whether its proceedings are to be stayed or its jurisdiction declined. Under this strict version of the ‘reflexive effect’ theory, where English proceedings concerning title to immovable property situated in New York are brought against a defendant domiciled in England, the court must decline jurisdiction if it would have declined jurisdiction had the immovable property been situated in a Member State; the English court must also decline jurisdiction in a case involving a jurisdiction clause in favour of the courts of a non-Member State—as long as the requirements of article 25 would have been satisfied had a Member State been the contractual forum. While this approach is not without its problems, one of its advantages is that it avoids the uncertainty and lack of uniformity which is implicit in allowing the application of doctrines of national law (such as forum non conveniens).

(D) Conclusion

2.280 There is no easy solution to the issues discussed in the preceding paragraphs. Part of the problem is that the provisions of the Recast which seek to regulate the jurisdictional relationship between the courts of Member States and those of third states (articles 33 and 34) adopt a ‘first come, first served’ approach without distinguishing run-of-the-mill cases from situations which involve either jurisdiction agreements or connecting factors which justify exclusive jurisdiction. Because articles 33 and 34 of the Recast so obviously fail to address the full range of issues surrounding cases involving connections with third states, the doctrine of ‘reflexive effect’ continues to offer an intellectually attractive solution to the problems generated by the largely inward-looking nature of the provisions of Chapter II.612 Given that, in Owusu v Jackson, the Court of Justice definitively rejected the discretionary approach previously favoured by the English courts, the only practical way of achieving a suitable jurisdictional balance between Member States and non-Member States is to give ‘reflexive effect’ (in some way) to articles 24 and 25 in cases involving connections with third states. Whether the Court of Justice will decide to adopt one of the possible versions of the ‘reflexive effect’ theory remains a matter for speculation.

(p. 150) IV Provisional measures

A Introduction

2.281 One of the significant developments in the latter part of the twentieth century was the evolution of certain types of provisional measures designed to maintain the status quo pending the outcome of the dispute between the parties.613 For example, the English court may grant a freezing injunction (commonly referred to as a Mareva injunction),614 the purpose of which is to prevent the defendant from moving his assets or dissipating them, so that if the claim is successful there will be assets available to satisfy the judgment. By such orders the courts aim to frustrate the efforts of defendants who seek to make themselves immune from the court’s final judgment.

2.282 Where the main proceedings are being conducted in England, plainly the English court has jurisdiction to grant such provisional measures as may be appropriate in the context of those proceedings.615 More problematic, however, are cases where the main proceedings are being conducted in another country: may the English court grant provisional measures in support of those proceedings? Even more contentious is whether the English court may make orders requiring the defendant to do something or refrain from doing something not in England but in another country.

B Jurisdiction to grant provisional measures in support of foreign proceedings

2.283 Common sense would suggest that if proceedings are pending in one country and the defendant’s assets are situated in another, the claimant ought to be able to obtain protective or interim relief by way of attachment in the country where the assets are to be found.616 After a lengthy period of uncertainty and development, English law finally achieved this position in the 1990s.

1. Proceedings in another Member State (or another part of the United Kingdom)

2.284 Article 35 of the Brussels I Recast provides that application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that state, even if the courts of another Member State have jurisdiction (p. 151) as to the substance of the matter.617 Although this provision should apply only in relation to matters within the material scope of the Brussels I Recast, the Court of Justice has held that article 35 applies where a claimant seeks provisional measures in support of arbitration proceedings (rather than court proceedings in another Member State) as long as the rights which the claimant is seeking to safeguard are civil or commercial in nature.618 Article 35 covers measures which are intended to preserve a factual or legal situation in one Member State so as to safeguard rights which are the subject-matter of litigation in a court of another Member State which has jurisdiction as to the substance of the matter.619 Accordingly, a measure ordering the hearing of a witness so that the applicant can determine whether a potential claim is well founded and decide whether or not to commence proceedings is not a provisional measure for the purposes of article 35.620 A measure is not within the scope of article 35 if its provisional character is not guaranteed; a court order requiring the defendant to make an unconditional interim payment falls outside article 35 unless the defendant can obtain repayment if the claimant is unsuccessful.621 Freezing injunctions are provisional measures for the purposes of article 35.

2.285 Article 35 does not in itself confer jurisdiction on an English court to grant a freezing injunction in support of foreign proceedings. It is, however, provided by section 25 of the Civil Jurisdiction and Judgments Act 1982 that the court may grant interim relief in cases where the subject-matter of the litigation falls within the scope of article 1 of the Brussels I Recast and the proceedings have been commenced or are to be commenced in a Member State other than the United Kingdom (or in another part of the United Kingdom), whether or not the defendant is otherwise amenable to the jurisdiction of the court. Where proceedings have been commenced in France, the claimant may apply to the English court for an injunction freezing the defendant’s assets, even though the court does not have jurisdiction over the substantive claim.622 The power to grant interim relief in support of proceedings in another Member State exists whether or not the defendant is domiciled in a Member State.

2. Proceedings in a third state and proceedings outside the scope of article 1 of the Brussels I Recast

2.286 At common law, the English court does not have jurisdiction to order provisional measures in support of foreign proceedings.623 Towards the end of the twentieth (p. 152) century the position at common law came under considerable criticism and, in due course, section 25 of the Civil Jurisdiction and Judgments Act 1982 was extended not only to cases falling outside the scope of article 1 but also to cases covered by article 1 involving proceedings in a non-Member State.624 However, the foreign proceedings must be court proceedings on the substance of the dispute between the parties; under section 25 of the 1982 Act, the English court may not grant provisional measures in support of an arbitration or in relation to proceedings ancillary to an arbitration which are pending in another country.625

3. Procedural issues

2.287 Where a claim is made for an interim remedy under section 25 of the 1982 Act, the Civil Procedure Rules make provision for the claim form to be served out of the jurisdiction with the permission of the court.626 There is no requirement that the foreign proceedings in respect of which the interim remedy is sought should be international in nature; where a French claimant sues a French defendant in France, the English court is not prevented from giving permission to serve out.627 Furthermore, the English court may grant a freezing injunction to support foreign proceedings even before the foreign proceedings have been commenced; it is sufficient that such proceedings are intended.628

4. Discretion

2.288 In the context of an application for interim relief under section 25 of the 1982 Act, the first issue is whether the conditions for the grant of the relief would have been satisfied if the main proceedings had been pending in England. A freezing injunction will not be granted unless the claimant can establish not only that he has a good arguable case on the merits629 but also that refusal of the order would involve a real risk that a judgment in favour of the claimant would remain unsatisfied.630 A claimant might reasonably anticipate that, if the application succeeds, the injunction will cover the highest amount in respect of which he has a good arguable case (including a sum for interest and costs).631 The claimant must normally provide a cross-undertaking in damages to indemnify the defendant for losses in the event of the substantive claim failing or to compensate any third party who suffers injury by reason of the injunction. If, had the main proceedings been commenced in England, the court would not have granted provisional relief, the power conferred by section 25 will not be exercised.

(p. 153) 2.289 If, however, the necessary conditions are satisfied the court has to consider whether the fact that the court does not have jurisdiction other than under section 25 makes it inexpedient to grant the interim relief.632 A significant factor in the inexpediency question is the connection (or lack of it) with England.633 Equally important is the impact of any order granted by the English court on the foreign proceedings. It would, for example, be inexpedient for jurisdiction under section 25 to be exercised if the grant of interim relief would obstruct or hamper the management of the case by the foreign court seised of the substantive proceedings.634 Relief will also be refused if an injunction would not support or otherwise assist the substantive proceedings being conducted abroad635 or if there would be no sanction available against the defendant in the event of his non-compliance with the English order.636 Where the substantive proceedings are taking place in England, such sanction may take the form of barring a defendant who refuses to comply with the court’s order from defending the claim on the merits.637 Where, however, the application is for a freezing order in support of foreign proceedings, the court normally has no effective sanction for disobedience if the defendant is neither resident in England nor has any assets in England.638

C Extraterritorial orders

2.290 As a matter of principle there is no reason why provisional measures granted by the court should be limited to acts performed in England or to assets located in England. If a defendant who is amenable to the court’s jurisdiction commits an act in breach of the terms of an injunction, the act amounts to a contempt regardless of whether the act was committed in England or abroad. The court has the power under section 37(1) of the Senior Courts Act 1981 to appoint a receiver over assets which are abroad,639 to make a search order (frequently referred to as an Anton Piller order) in respect of foreign premises,640 and to grant a freezing injunction in relation to the defendant’s assets, regardless of their location.641

(p. 154) 2.291 The fact that the court has the power to grant provisional measures which seek to restrain the defendant from performing certain acts abroad does not mean that such a power should be liberally exercised. The mere fact that an order is in personam and is directed towards someone who is subject to the court’s personal jurisdiction does not exclude the possibility that the making of the order would be contrary to public international law and outside the court’s subject-matter jurisdiction.642 To avoid exceeding the jurisdictional limits imposed by public international law, the court must, when faced with an application for an extraterritorial order, consider (a) the defendant’s connection with England, (b) whether the proposed order is exorbitant in terms of jurisdiction, and (c) whether the order has impermissible effects on foreign parties.643 As a matter of public international law, state A is not permitted to trespass upon the authority of state B, by attempting to seize assets situated within the jurisdiction of state B or compelling the citizens of state B to do acts within the territory of state B.644

2.292 The propriety of granting extraterritorial provisional measures has been considered most frequently by the courts in the context of applications for a ‘worldwide’ freezing injunction. Although it is firmly established that the English court’s jurisdiction to grant a freezing injunction against a person depends not on the court’s territorial jurisdiction over assets located in England but on the court’s unlimited jurisdiction in personam against any person who is properly made a party to English proceedings,645 an extraterritorial Mareva injunction will be granted only in exceptional circumstances.646 So that the balance is not tilted too much in the claimant’s favour, where a claimant makes an application without notice (as is usual), the claimant is normally required to (i) give an undertaking in damages in the event of the claim being unsuccessful;647 and (ii) make proper disclosure of all matters relevant to the exercise of the court’s discretion to grant a worldwide injunction. Failure to make proper disclosure will normally lead to the injunction being discharged648 (unless the non-disclosure is minor649).

2.293 The court will consider the grant of extraterritorial relief only if the defendant has insufficient English assets to satisfy the claim. In an appropriate case the court may even order the transfer of foreign assets from one foreign country (where the final judgment will not be entitled to recognition) to another (where a judgment in the claimant’s favour will be recognised).650 As a matter of discretion, an extraterritorial (p. 155) freezing injunction is more likely to be made after judgment than before651 and the court will also be more inclined to grant Mareva relief in cases where the claim is proprietary rather than personal.652 Although it has been said that the court should not normally grant an extraterritorial freezing injunction in cases where the claimant is seeking to enforce a foreign judgment in England,653 the correctness of this view has been doubted.654 Although freezing injunctions permit the defendant to carry on his business in the ordinary way and to meet his debts or other obligations as they come due,655 the court may, in exceptional circumstances, order a defendant not to perform contracts to which he has already become bound and not to trade with a particular partner in the future.656

2.294 In Van Uden Maritime BV v Firma Deco-Line,657 the Court of Justice ruled that the granting of provisional measures in support of substantive proceedings in another Member State is conditional on the existence of ‘a real connecting link’ between the subject-matter of the measures sought and the territorial jurisdiction of the court before which those measures are sought.658 As a general rule, unless England is the forum for the substantive dispute between the parties, the court should confine itself to assets within the jurisdiction.659 In a suitable case, however, the court may grant a worldwide freezing injunction in support of proceedings abroad. Such an order will not normally be granted unless the defendant has a sufficiently strong connection with England; worldwide orders are most likely in a case where the defendant is amenable to the in personam jurisdiction of the English court (such as where the defendant is domiciled in England).660 If the defendant neither is domiciled in England, nor owns substantial assets in England, the grant of an extraterritorial order is not normally appropriate.661 Indeed, in a case where the defendant is not domiciled in England, whether the court may, in support of proceedings in another Member State, grant an extraterritorial freezing injunction in relation to foreign assets is contentious.

2.295 Somewhat exceptionally, extraterritorial relief was granted in Republic of Haiti v Duvalier,662 a case in which the defendants neither were domiciled in England nor had assets in England. The Republic started proceedings in France against the defendants, who comprised Baby Doc Duvalier and various members of his family, who, prior to their flight from Haiti, had allegedly embezzled significant sums of money belonging (p. 156) to the Republic. The Republic applied to the English court for a worldwide Mareva injunction and a disclosure order requiring the defendants to reveal the whereabouts of their assets, wherever located. The Court of Appeal decided that it was an appropriate case for the grant of a worldwide Mareva injunction, notwithstanding the fact that the substantive proceedings were being conducted in France, where the defendants were domiciled. Opinion is divided as to whether the requirement to show a real connecting link with England could have been satisfied in these circumstances. For example, in Banco Nacional de Commercio Exterior Snc v Empresa de Telecommunicaciones de Cuba SA,663 a case involving an application for protective measures in the context of the enforcement in England of an Italian judgment under the 2002 Regulation, the Court of Appeal granted a domestic freezing injunction, but refused to make a worldwide order on the basis that there is no connecting link at all between the subject-matter of a measure directed at assets abroad and the territorial jurisdiction of the court.664 By contrast, it has been suggested that the ruling in Van Uden does not necessitate a reconsideration of the Republic of Haiti case (because a real connecting link was provided by the fact that the defendants had solicitors in England who held assets for them abroad)665 and Lawrence Collins LJ reiterated this view in Masri v Consolidated Contractors International (UK) Ltd (No 2).666 Nevertheless, it has to be conceded that, in the Republic of Haiti case, the link with England was, in objective terms, very weak and it is at least possible that the effect of the ruling in the Van Uden case is to deprive the English courts of the power to grant extraterritorial measures in circumstances such as those which arose in Republic of Haiti v Duvalier.667

2.296 In Motorola Credit Corpn v Uzan (No 2)668 a worldwide freezing injunction in support of substantive proceedings in New York was granted against a defendant who, although domiciled in Turkey, had substantial assets in England (including a house in London).669 Even more controversially, in Royal Bank of Scotland plc v Fal Oil Co Ltd670 a worldwide freezing injunction in support of proceedings in Sharjah was granted against UAE companies even though the defendant companies had no assets in England. It is very doubtful whether the fact that directors of the defendant companies made regular visits to England can legitimately be regarded as a real connecting link between the subject-matter of the injunction (that is, the defendants’ assets) and England.

2.297 Where the court exercises its discretion in favour of granting extraterritorial relief, it is important that steps should be taken to ensure that oppression of the defendants by way of exposure to a multiplicity of proceedings and the misuse of information is (p. 157) avoided and that the position of third parties is protected. Where the court grants extraterritorial relief the claimant is normally required to give an undertaking not to take any action abroad in respect of the defendant’s assets without the court’s permission.671 Furthermore, a worldwide freezing injunction normally contains appropriate provisions for the protection of third parties.672 As a general rule, a third party will not be in contempt, even if he is subject to English jurisdiction, if he was not able to prevent the wrongful acts or omissions outside the jurisdiction or if the reason for his failure to comply with the freezing injunction is that he acted in accordance with his obligations under the law of the country in which the acts were committed: ‘it would be an exorbitant exercise of jurisdiction to put a third party abroad in the position of having to choose between being in contempt of an English court and having to dishonour its obligations under a law which does not regard the English order as a valid excuse.’673 This protection of third parties is of particular importance to banks which might otherwise find themselves in contempt of court for dealing with the defendant’s assets in accordance with the defendant’s instructions.

V Restraining foreign proceedings: anti-suit injunctions

A Introduction

2.298 The English court cannot stay proceedings in a foreign court. However, on the basis of section 37 of the Senior Courts Act 1981, it can grant an injunction restraining a party from instituting or pursuing such proceedings.674 An anti-suit injunction is most likely to be sought where D has started foreign proceedings against C, who claims that the matter should be (or has been675) decided by the English court (or by arbitration in England) rather than abroad. Normally in such cases, unless the application is to restrain proceedings brought in breach of an arbitration agreement, C will already have started proceedings in England at the time of the application for the anti-suit (p. 158) injunction. In such cases, if the English court has jurisdiction over the substantive claim against D, it also has jurisdiction to grant the anti-suit injunction sought by C: ‘once the court has jurisdiction over the substance of the case, it has jurisdiction to make ancillary orders, including anti-suit injunctions to protect the integrity of its process.’676

2.299 As an anti-suit injunction is a measure which is designed to have an extraterritorial effect, a major area of controversy is the exercise of the court’s discretion. It is recognised that, because an injunction which orders a litigant to discontinue proceedings abroad involves an indirect interference with the process of justice in the foreign court, the court’s approach should be cautious.677

2.300 At one time the courts took the view that the principles to be applied to an application for an anti-suit injunction were the same as those which governed the staying of English proceedings.678 This approach has since been rejected. There are two broad categories of case in which the courts may consider granting injunctive relief: (i) where a person has behaved, or threatens to behave, in a manner which is unconscionable; (ii) where a litigant has invaded, or threatens to invade, a legal or equitable right of another.679 The fundamental test for the grant of an anti-suit injunction is whether it is in the interests of justice.

B Unconscionable behaviour

2.301 Where a remedy for a particular wrong is available both in England and in a foreign forum, the court will, as a general rule, only restrain the claimant from pursuing proceedings in the foreign court if two conditions are satisfied: first, England is (p. 159) the appropriate forum680 and, second, the pursuit of the foreign proceedings would be vexatious or oppressive.681 It is, of course, notoriously difficult to define concepts such as ‘vexatious or oppressive’. The fact that the foreign proceedings are not being conducted in the appropriate forum does not necessarily mean that such proceedings are vexatious or oppressive; the court should not grant an injunction if, by doing so, it would deprive the claimant of advantages in the foreign forum of which it would be unjust to deprive him.682 A party cannot be said to be acting unconscionably when it seeks a legitimate juridical advantage in a foreign court, especially where that is the court of its domicile.683 However, the court may conclude that foreign proceedings are vexatious if they are not brought in good faith.684 So, an anti-suit injunction may be granted where the purpose of the foreign litigation is to disrupt proceedings between the parties in England,685 to make a collateral attack on an English arbitration686 or to undermine an English judgment.687 It should be stressed, however, that the purpose of an anti-suit injunction ‘is not to ensure that an English judgment is recognised by a friendly foreign state, but to prevent unconscionable conduct’.688

2.302 There is a difficult dividing-line to be drawn between, on the one hand, situations where foreign proceedings are brought with the purpose of obtaining an unfair advantage (which is vexatious or oppressive) and, on the other, cases where a claimant brings proceedings abroad to obtain an advantage of which it would be unjust to deprive him (which is not). There is a tendency for the court to decide that it is vexatious or oppressive for a litigant to pursue a claim abroad if England is overwhelmingly the most appropriate forum and either the foreign proceedings are obviously doomed to failure or the advantages to the claimant in the foreign proceedings are relatively minor or not legitimate.689 Such cases are, however, fairly uncommon. The mere fact that a foreign court will not apply the law which would be the applicable law according to English choice of law principles does necessarily render proceedings brought in that forum vexatious or oppressive.690

2.303 In Société Nationale Industrielle Aérospatiale v Lee Kui Jak691 the Privy Council, sitting on appeal from the Court of Appeal of Brunei, held that an injunction should be granted to restrain the plaintiff from continuing proceedings in Texas. The Brunei court (p. 160) was the most appropriate forum and the continuation of the Texas proceedings would be oppressive or vexatious. The defendants would suffer serious injustice on account of the fact that they were unable, in the Texas proceedings, to claim an indemnity from a third party (because the third party was unwilling to submit to Texas jurisdiction); the claim for indemnity could, however, be brought in the Brunei proceedings because the third party was prepared to submit to Brunei jurisdiction. As a result of undertakings given by the defendants in relation to the litigation in Brunei, there would be no injustice to the plaintiff in not being able to continue with the proceedings in Texas.

2.304 In the context of an application for an anti-suit injunction, the court should not take too forum-centric a view and should have regard to the requirements of comity, a notoriously difficult concept to pin down.692 Because the effect of an anti-suit injunction (if complied with) is to interfere, albeit indirectly, with foreign proceedings and there is ‘something of a touch of egoistic paternalism’ in restraining the continuation of proceedings in a foreign forum, comity should cause the court to pause long and hard before granting an injunction in other than exceptional cases.693

2.305 In the Société Nationale Industrielle Aérospatiale case the Privy Council indicated that an anti-suit injunction should not normally be granted unless England is the most appropriate forum. This limitation was taken further in Turner v Grovit.694 According to Lord Hobhouse, the English court will not grant an anti-suit injunction unless the applicant is a party to litigation in England and establishes that there is a clear need to protect existing English proceedings.695 On the basis of Lord Hobhouse’s speech, some of the earlier cases are of doubtful authority. For example, the decision in Midland Bank plc v Laker Airways Ltd696 is inconsistent with the approach in Turner v Grovit: an injunction was granted to restrain an English plaintiff from pursuing proceedings against an English defendant in the United States claiming damages under the United States anti-trust legislation, even though there were no proceedings in England. Similarly, Lord Hobhouse’s speech contradicts Lord Goff’s suggestion (obiter) in Airbus Industrie GIE v Patel that, notwithstanding the fact that England is not the appropriate forum (as a result of which there are no English proceedings), the grant of an anti-suit injunction might be justified in an exceptional case where ‘the conduct of the foreign state is such as to deprive it of the respect normally required by comity’.697

C Infringement of a legal or equitable right

2.306 A defendant in foreign proceedings may apply for an anti-suit injunction in a case where the bringing of those proceedings involves a breach of the legal or equitable rights of the defendant. A right not to be sued abroad may be contractual (for example, where there is an arbitration clause or a clause conferring exclusive jurisdiction on the (p. 161) English courts) or may arise by virtue of an equitable defence to the claim (such as estoppel). Most of the recent cases have involved foreign proceedings brought in breach of the terms of a contractual dispute-resolution clause.

2.307 Traditionally, the courts at least paid lip-service to the principle that an anti-suit injunction should be regarded as an exceptional remedy.698 More recently, in The Angelic Grace699 (a case ‘followed on many occasions since’700), it was held that where proceedings abroad involve the breach of a jurisdiction or arbitration agreement the court should not feel reticent about granting an anti-suit injunction; in such a case damages are not an adequate remedy for the breach of contract. In the situation where foreign proceedings involve the breach of an exclusive jurisdiction clause or an arbitration clause, an anti-suit injunction is granted almost as a matter of course, with judges referring to the remedy in such cases as something to which the claimant is prima facie entitled.701 Accordingly, if there is a binding dispute-resolution agreement between the parties and the subject-matter of the foreign proceedings falls within the scope of that agreement, an injunction should ordinarily be granted unless there are ‘special countervailing factors’,702 or unless good reason is shown why the court’s discretion should not be exercised in the applicant’s favour.703

2.308 Notwithstanding the fact that the foreign proceedings were brought in breach of a dispute-resolution clause, relief may be refused if the applicant is guilty of misconduct which amounts to having ‘unclean hands’704 or if there has been delay on the part of the claimant in applying for the order; a party who is sued abroad in breach of the terms of a dispute-resolution clause should apply promptly for an anti-suit injunction from the English court.705 If the application is made at the last minute in an attempt to frustrate foreign proceedings which have been ongoing for an appreciable period of time, an anti-suit injunction will be refused.706 The general principle that equity will not act in vain applies to anti-suit injunctions as much as to any other type of injunction; if it is (p. 162) clear that an anti-suit injunction would be disregarded or would be a brutum fulmen, the court should refrain from granting the relief sought by the applicant.707

2.309 The fact that the claimant in the English proceedings, instead of seeking to rely on the jurisdiction clause or arbitration agreement to contest the foreign court’s jurisdiction, submitted in the foreign proceedings normally provides a good reason for the court to refuse to grant an anti-suit injunction.708 The court may also refuse an injunction if, in a case involving a multiplicity of parties, foreign proceedings provide the best means of submitting the whole dispute to a single tribunal which is able to make a comprehensive judgment on all issues between the parties.709

2.310 Where the parties’ contract includes a non-exclusive jurisdiction agreement in favour of the English courts, there is no presumption that the grant of an injunction to restrain foreign proceedings is appropriate. The grant of an anti-suit injunction in such cases depends upon the foreign proceedings being shown to be vexatious or oppressive.710 If the parties agreed to the non-exclusive jurisdiction of the English courts, the commencement of proceedings abroad will be considered vexatious or oppressive if their purpose is to prevent or hamper proceedings in England.711

2.311 The approach adopted in cases involving dispute-resolution clauses was inexplicably extended in Samengo-Turner v Marsh & McLennan (Services) Ltd712 to a case involving an employment contract in which the English court had exclusive jurisdiction under Brussels I. When the employer brought proceedings in New York against three of its English employees, the employees applied to the English court for an anti-suit injunction to restrain the New York action. Although the contract of employment included a New York jurisdiction clause, the employees argued that, under what is now article 23 of the Recast, the jurisdiction clause was not enforceable against them and that, accordingly, they had a legal right not to be sued other than in the Member State of their domicile. The Court of Appeal granted an anti-suit injunction to protect the employees’ right to be sued only in the English courts.

2.312 This decision is plainly wrong, the Court of Appeal’s error being to accept the idea that Brussels I was the source of a ‘right’ for the employees not to be sued other than in England. Properly understood, Brussels I does no more than direct the courts of Member States either to assume or to decline jurisdiction in certain specified circumstances; it does not purport to confer rights (or impose obligations) on natural and (p. 163) legal persons.713 Although the grant of an anti-suit injunction in the Samengo-Turner case cannot be supported, the decision was followed unquestioningly in Petter v EMC Europe Ltd.714

D Anti-suit injunctions and the Brussels I Recast

2.313 In principle, the court’s general jurisdiction to grant equitable remedies exists regardless of whether proceedings are brought in a Member State in accordance with the terms of Brussels I or in a non-Member State. Nevertheless, the grant of an injunction which interferes (albeit indirectly) with the process of justice in another Member State hardly seems compatible with the Brussels I Recast. Given that articles 29 and 30 of the Recast establish rules for dealing with conflicts of jurisdiction between Member States, any measure taken by the courts of one Member State which has the effect of pre-empting the decision of the courts of another Member State on questions of jurisdiction disrupts the scheme of the Recast. Where, for example, a claimant brings proceedings in France against a defendant who is domiciled in England for breach of contract (on the basis that France is the place of performance of the obligation in question) there should be no question of the English court granting an anti-suit injunction restraining the claimant from pursuing the French proceedings, even if the defendant will be deprived of advantages which he would have enjoyed had the proceedings been brought in England.

2.314 Despite the formidable arguments against anti-suit injunctions being granted in cases where jurisdiction is conferred by Brussels I, the English courts took the view that a claimant is entitled to an injunction restraining the defendant from pursuing proceedings in another Member State either where the foreign proceedings are (in the eyes of the English court) brought in breach of an English jurisdiction clause715 or where the claimant is already a litigant in England and the foreign proceedings are brought with the purpose of harassing and oppressing him.716 This approach was, however, subject to widespread criticism717 and, when questions concerning the compatibility of anti-suit injunctions with the Brussels Convention were referred to the Court of Justice, the doctrine of the English courts was conclusively shown to be wrong.

2.315 In Turner v Grovit718 the English plaintiff, who had temporarily worked in Spain, resigned from his job and started proceedings in England against the defendant, his former employer, claiming constructive dismissal. When the defendant then began proceedings for breach of contract against the plaintiff in Spain, the plaintiff applied (p. 164) for an anti-suit injunction to restrain the Spanish proceedings. Notwithstanding the argument that, as the Spanish court should be allowed to decide for itself whether or not to assume jurisdiction, the grant of an anti-suit injunction was inappropriate,719 neither the Court of Appeal720 nor the House of Lords721 thought that it was incompatible with the Brussels Convention for the English court to grant an anti-suit injunction restraining Spanish proceedings if those proceedings had been brought only to harass and oppress the English plaintiff. Nevertheless, the House of Lords recognised that the issue was controversial and referred the matter to the Court of Justice.

2.316 Although the House of Lords was at pains to emphasise that an anti-suit injunction is directed at the litigant rather than the foreign court,722 the Court of Justice considered that an injunction prohibiting the bringing of proceedings in a particular court constitutes an interference with the jurisdiction of that court.723 For the English court to grant an anti-suit injunction which prohibits a litigant from commencing or continuing legal proceedings in another Member State is incompatible with Brussels I even where that person is acting in bad faith with a view to frustrating existing English proceedings.724

2.317 The logic of the Court of Justice’s ruling is that, in cases which fall within the scope of article 1 of the Recast, the English court is prevented from granting an anti-suit injunction in relation to proceedings in another Member State not only where the foreign court’s jurisdiction is based on the direct jurisdiction provisions of Chapter II of the Brussels I Recast, but also in cases where the foreign court has assumed jurisdiction under its traditional rules against a defendant not domiciled in a Member State (as authorised by article 6). However, the Court of Justice’s ruling extends neither to cases where the application is for an injunction restraining proceedings in a non-Member State725 nor to proceedings which are outside the material scope of the Recast.

2.318 For several years, the English courts took the view that, in a case where the parties had agreed to refer their dispute to arbitration, the subject-matter of an application for an anti-suit injunction to restrain a litigant from pursuing proceedings in breach of the arbitration agreement was ‘arbitration’ and that, by virtue of article 1(2)(d), such an application fell outside the scope of Brussels I.726 However, in West Tankers Inc v Allianz SpA,727 a case in which the claimant applied for an anti-suit injunction to restrain the defendant from pursuing Italian proceedings which allegedly had been brought in breach of an arbitration clause, the House of Lords, while supporting the (p. 165) practice endorsed by The Angelic Grace,728 decided to refer the following question to the Court of Justice: ‘Is it consistent with [Brussels I] for a court of a Member State to make an order to restrain a person from commencing or continuing proceedings in another Member State on the ground that such proceedings are in breach of an arbitration agreement?’729

2.319 The Court of Justice answered this question in the negative.730 In the Court’s view, a crucial issue ignored by the English practice was the nature of the proceedings towards which the anti-suit injunction was directed: the decisive question was not whether the application for an anti-suit injunction fell within the scope of Brussels I, but whether the proceedings against which the anti-suit injunction was directed did so.731 Even where the purpose of an injunction is to promote respect for an arbitration agreement, the courts of one Member State are not entitled to prevent the court of another Member State from determining for itself whether it has jurisdiction to resolve the dispute before it. So, if Italian proceedings are within the scope of the Brussels I Recast, an English anti-suit injunction would be incompatible with the Recast and would run counter to ‘the trust which the Member States accord to one another’s legal systems and judicial institutions and on which the system of jurisdiction under [Brussels I] is based’.732 The Court of Justice had no hesitation in concluding that the Italian proceedings were civil or commercial in nature and did not concern arbitration: whether or not proceedings fall within the scope of Brussels I has to be determined from the substantive subject-matter of the dispute; the subject-matter of the Italian proceedings was a claim in tort (possibly also in contract) which fell within the scope of article 1 and the fact that, as a preliminary issue, the Italian court had to examine the validity and scope of an arbitration agreement did not lead to the conclusion that the subject-matter of the Italian proceedings was ‘arbitration’. Accordingly, an anti-suit injunction which restrains the defendant from continuing civil or commercial proceedings in Italy interferes with proceedings which are within the scope of the Brussels I Recast and is incompatible with it. The effect of the ruling in the West Tankers case is that the practice so robustly promoted in The Angelic Grace733 (and enthusiastically followed in numerous cases for more than a decade) is limited to situations where the offending proceedings are brought in a non-Member State.734

2.320 In policy terms, the problems with the West Tankers case echo some of those generated by the decision in Erich Gasser GmbH v MISAT Srl,735 since reversed by the (p. 166) amendments implemented by the Recast. A party who is intent on undermining the effect of an arbitration clause can initiate proceedings in any Member State which, but for the clause, would have jurisdiction over the substantive dispute; by contesting the validity or effectiveness of the arbitration clause, a party can drag out these proceedings in the non-contractual forum. Even if such a tactic does not ultimately prevent the dispute being referred to arbitration, it will be a source of aggravation and costs.

2.321 One way of attempting to address these concerns would have been to amend Brussels I with a view to strengthening the enforcement of arbitration agreements. Although various options were considered during the process which led to the enactment of the Recast,736 none of the proposals relating to the potential amendment of the arbitration exception was adopted. Accordingly, the problems generated by the ruling in West Tankers remain largely unresolved under the Recast.

Notes:

1 Such as administration of estates and bankruptcy.

2 [2000] 1 WLR 1545.

3 As laid down in Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460. See paras 2.2152.238.

4 [2000] 1 WLR 1545 at 1561.

5 See Atkins J in The Kribi [2001] 1 Lloyd’s Rep 76 at 87.

6 See, generally, Fawcett, ‘The Impact of Article 6(1) of the ECHR on Private International Law’ (2007) 56 ICLQ 1.

7 A claim in rem may also be directed at cargo or freight and, in certain circumstances, against aircraft: Senior Courts Act 1981, s 21(5).

8 Republic of India v India Steamship Co (No 2) [1998] AC 878. See Teare, ‘The Admiralty Action In Rem and the House of Lords’ [1998] LMCLQ 33.

9 In the 1990s the Hague Conference on Private International Law commenced work which, it was hoped, would lead to a worldwide jurisdiction and judgments convention (based, to some extent, on the European model). The final version of this convention, which was agreed in June 2005, was much less ambitious; it focuses only on the enforcement of jurisdiction agreements and the recognition and enforcement of judgments in cases where the court of origin assumed jurisdiction on the basis of the parties’ agreement. The Convention came into force between the Member States of the European Union (except Denmark), on the one hand, and Mexico, on the other, on 1 October 2015.

10 Belgium, Germany, France, Italy, Luxembourg, and the Netherlands.

11 In 1978, Denmark, Ireland, and the United Kingdom; in 1982, Greece; in 1989, Spain and Portugal; in 1996, Austria, Finland, and Sweden.

12 Regulation (EC) No 44/2001, OJ 2001 L12/1.

13 In 2004, the Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia; in 2007, Bulgaria and Romania; in 2013, Croatia.

14 See Report from the Commission … on the application of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, COM (2009) 174 final; Green Paper on the Review of Council Regulation (EC) No 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (hereafter ‘Brussels I Recast Green Paper’), COM (2009) 175 final.

15 European Commission, Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (hereafter ‘Brussels I Recast Proposal’), COM (2010) 748 final.

16 Regulation (EU) No 1215/2012, OJ 2012 L351/1. See Dickinson and Lein, The Brussels I Regulation Recast (2015); Mankowski and Magnus (eds), Brussels Ibis Regulation (2015); Nielsen, ‘The New Brussels I Regulation’ (2013) 50 CML Rev 503.

17 Although Denmark did not participate in the adoption of the Brussels I Recast, the provisions of the Recast apply to relations between Denmark and the other EU Member States by virtue of a separate agreement: see OJ 2013 L79/4. The Lugano Convention regulates the relationship between, on the one hand, the EU Member States and, on the other, Iceland, Norway, and Switzerland. The current version of the Lugano Convention, dating from 2007, follows closely the text of the 2002 Regulation.

18 There are a number of substantive differences between the Recast and the Lugano Convention. This chapter considers Chapters I and II of the Recast.

19 In the context of English civil proceedings, the Supreme Court is, for nearly all practical purposes, the only court against whose decisions there is no judicial remedy.

20 Civil Jurisdiction and Judgments Act 1982, s 3(3).

21 OJ 1979 C59/1.

22 OJ 1979 C59/71.

23 2002 Regulation, recital (19); Brussels I Recast, recital (34). See, eg, Case C–133/11 Folien Fischer v Ritama SpA [2013] QB 523; Case C–375/13 Kolassa v Barclays Bank plc [2015] ILPr 14.

24 Brussels I Proposal, COM (1999) 348 final; Brussels I Recast Proposal, COM (2010) 748 final.

25 Case 33/78 Somafer SA v Saar-Ferngas AG [1978] ECR 2183.

26 See para 2.71.

27 Case 365/88 Kongress Agentur Hagen GmbH v Zeehaghe BV [1990] ECR I–1845.

28 Case C–281/02 Owusu v Jackson [2005] ECR I–1383. See also Case C–478/12 Maletic v lastminute.com GmbH [2014] QB 424 (in which the claimant and the second defendant were domiciled in Austria).

29 Case C–327/10 Hypotecni banka as v Lindner [2011] ECR I–11543.

30 Joined Cases C–226/13, C–245/13, C–247/13 & C–578/13 Fahnenbrock v Greek Republic [2016] ILPr 4 at para 59.

31 Case 814/79 Netherlands State v Rüffer [1980] ECR 3807; Case C–172/91 Sonntag v Waidmann [1993] ECR I–1963; Case C–292/05 Lechouritou v Dimosio tis Omospondiakis Dimokratias tis Germanias [2007] ECR I–1519.

32 Case C–271/00 Gemeente Steenbergen v Baten [2002] ECR I–10489; Case C–266/01 Préservatrice foncière TIARD SA v Netherlands [2003] ECR I–4867; Case C–433/01 Freistaat Bayern v Blijdenstein [2004] ECR I–981; Case C–265/02 Frahuil SA v Assitalia SpA [2004] ECR I–1543.

33 Case C–645/11 Land Berlin v Sapir [2013] ILPr 29.

34 Case C–49/12 Revenue and Customs Commissioners v Sunico APS [2013] ILPr 43, noted by Collins, (2014) 130 LQR 353.

35 Case C–302/13 FlyLAL-Lithuanian Airlines SAS v Starptautiska Lidosta Riga VAS [2015] ILPr 2.

36 Art 1(2).

37 Case 133/78 Gourdain v Nadler [1979] ECR 733; Case C–111/08 SCT Industri AB (in liquidation) v Alpenblume AB [2009] ECR I–5655. As between EU Member States private international law aspects of insolvency proceedings are dealt with by Regulation (EC) No 848/2015, OJ 2015 L141/19 (replacing Regulation (EC) No 1346/2000, OJ 2000 L160/1).

38 Case C–271/00 Gemeente Steenbergen v Baten [2002] ECR I–10489.

39 Case C–190/89 Marc Rich & Co AG v Società Italiana Impianti [1991] ECR I–3855; Case C–391/95 Van Uden Maritime BV v Firma Deco-Line [1998] ECR I–7091; Case C–185/07 West Tankers Inc v Allianz SpA [2009] 1 AC 1138; Case C–536/13 Proceedings concerning Gazprom OAO [2015] 1 WLR 4937. For an evaluation of these cases, see Hartley, ‘The Brussels I Regulation and Arbitration’ (2014) 63 ICLQ 63. See the discussion at paras 2.3182.321 and 3.933.96.

40 Case C–190/89 Marc Rich & Co AG v Società Italiana Impianti [1991] ECR I–3855, para 26.

41 Case C–185/07 [2009] 1 AC 1138.

42 See also Youell v La Réunion Aérienne [2009] 1 Lloyd’s Rep 586.

43 See paras 2.3182.321.

44 See paras 3.953.96.

45 For the purposes of the Brussels I Recast ‘domicile’ has a special meaning and is different from the common law concept considered in Chapter 6. See paras 2.272.30.

46 Jenard-Möller Report, OJ 1990 C189/65.

47 Art 4.

48 See, eg, Case C–533/07 Falco Privatstiftung v Weller-Lindhorst [2009] ECR I–3327, para 22; Case C–327/10 Hypotecni banka as v Lindner [2011] ECR I–11543, para 44.

49 Art 5; Case 9/12 Corman-Collins SA v La Maison du Whisky SA [2014] QB 431. Where the English court has jurisdiction under the Brussels I Recast, the claim form may be served on the defendant out of the jurisdiction without the permission of the court: CPR r 6.33.

50 Art 28(1). Under art 28(2), the court should normally stay the proceedings if the defendant has not been able to receive the document instituting the proceedings in sufficient time to enable him to arrange for his defence. But, see Case C–327/10 Hypotecni banka as v Lindner [2011] ECR I–11543; Case C–292/10 G v de Visser [2013] QB 168.

51 Art 6.

52 Civil Jurisdiction and Judgments Act 1982, s 16.

53 Case C–346/93 Kleinwort Benson Ltd v City of Glasgow District Council [1995] ECR I–615.

54 Where the Brussels I Recast allocates jurisdiction to a ‘place’ rather than to a Member State (eg, where art 7(1) or (2) applies) sch 4 to the Civil Jurisdiction and Judgments Act 1982 does not have to be invoked.

55 Daniel v Foster 1989 SLT (Sh Ct) 90.

56 Unless jurisdiction is allocated by the Brussels I Recast. See the discussion of art 24(1) at paras 2.392.45 and art 25 at paras 2.462.57.

57 The jurisdictional bases (‘gateways’) which enable the court to permit service out of the jurisdiction under CPR r 6.36 are listed in CPR PD 6B para 3.1.

58 Art 62(1).

59 Civil Jurisdiction and Judgments Order 2001, SI 2001/3929, sch 1, para 9(2), (6). To determine whether an individual is domiciled in England, the same test applies (mutatis mutandis): sch 1, para 9(3), (6). An individual is also to be regarded as domiciled in England if he is domiciled in the United Kingdom and resident in England and the nature and circumstances of his residence do not indicate that he has a substantial connection with any particular part of the United Kingdom: sch 1, para 9(5).

60 Bank of Dubai Ltd v Abbas [1997] ILPr 308.

61 Cherney v Deripaska [2007] 2 All ER (Comm) 785.

62 Art 62(2).

63 In the United Kingdom (and Ireland) the statutory seat means the registered office, or if there is no such office, the place of incorporation or, if there is no such place, the place under the law of which the formation took place: art 63(2).

64 Young v Anglo American South Africa Ltd [2014] 2 CLC 143.

65 See the discussion in Alberta Inc v Katanga Mining Ltd [2009] ILPr 14.

66 Ss 20–24.

67 There are two important conventions which date from 1952: the International Convention for the Unification of Certain Rules relating to the Arrest of Seagoing Ships and the International Convention for the Unification of Certain Rules concerning Civil Jurisdiction in Matters of Collision.

68 S 20(2)(e).

69 S 20(2)(g).

70 S 20(2)(h).

71 S 21(2) and (3).

72 S 21(4).

73 Eg, The Atlantic Star [1974] AC 436; The Abidin Daver [1984] AC 398.

74 Such as the 1952 Arrest and Collision Conventions. See Case C–148/03 Nürnberger Allgemeine Versicherungs AG v Portbridge Transport BV [2004] ECR I–10327 (a case concerning the Convention on the Contract for the International Carriage of Goods by Road 1956).

75 See The Po [1991] 2 Lloyd’s Rep 206; The Nordglimt [1988] QB 183; The Deichland [1990] 1 QB 361; The Prinsengracht [1993] 1 Lloyd’s Rep 41.

76 The Deichland [1990] 1 QB 361.

77 Case C–406/92 Owners of the cargo lately laden on board the ship ‘Tatry’ v Owners of the ship ‘Maciej Rataj’ [1994] ECR I–5439. See also Case C–452/12 Nipponkoa Insurance Co (Europe) Ltd v Inter-Zuid Transport BV [2014] ILPr 10; British American Tobacco Switzerland SA v Exel Europe Ltd [2015] 3 WLR 1173 (both cases concerning carriage of goods under the Convention on the Contract for the International Carriage of Goods by Road).

78 Other than in relation to a few specific provisions, the Brussels I Recast applies whether or not the claimant is domiciled in a Member State: Case C–412/98 Universal General Insurance Co (USIG) v Group Josi Reinsurance Co SA [2000] ECR I–5925.

79 Canada Trust Co v Stolzenberg (No 2) [2002] 1 AC 1. For an example of the application of the test, see Morley v Reiter Engineering GmbH [2012] ILPr 6. The requirement of a good arguable case is not satisfied if the arguments for and against are equal: Joint Stock Co Aeroflot—Russian Airlines v Berezovsky [2013] 2 CLC 206.

80 Case C–375/13 Kolassa v Barclays Bank plc [2015] ILPr 14, para 64.

81 Arts 18 and 21, which deal with consumer and employment contracts respectively, are considered at paras 2.1342.139. It is also established that arts 29–33 apply regardless of domicile; these provisions are discussed at paras 2.1802.211.

82 In Choudhary v Bhattar [2010] 2 All ER 1031 the Court of Appeal held that, despite its explicit wording, the exclusive jurisdiction rule (now art 24 of the Recast) does not apply where the defendant is domiciled in a non-Member State if the conflict of jurisdiction is between a Member State and a non-Member State. However, this decision was wrongly decided as it is inconsistent with the case law of the Court of Justice (see, eg, Case C–73/04 Klein v Rhodos Management Ltd [2005] ECR I–8667, para 14). It seems clear that Choudhary’s case was decided per incuriam and should not be followed: Dal Al Arkar Real Estate Development Co v Refai [2015] 1 WLR 135.

83 Applications for provisional measures are not ‘proceedings’ for the purposes of art 24: JSC BTA Bank v Ablyazov [2013] ILPr 53.

84 See Case C–372/07 Hassett v South Eastern Health Board [2008] ECR I–7403; Case C–144/10 Berliner Verkehrsbetriebe (BVG) v JP Morgan NA [2011] 1 WLR 2087; Case C–302/13 FlyLAL-Lithuanian Airlines SAS v Starptautiska Lidosta Riga VAS [2015] ILPr 2.

85 See Case 288/82 Duijnstee v Goderbauer [1983] ECR 3663; Case C–4/03 Gesellschaft für Antriebstechnik mbH & Co KG v Lamellen und Kupplungsbau Beteiligungs KG [2006] ECR I–6509.

86 See Case C–261/90 Reichert v Dresdner Bank (No 2) [1992] ECR I–2149; Case C–129/92 Owens Bank Ltd v Bracco [1994] ECR I–117; Masri v Consolidated Contractors International (UK) Ltd (No 2) [2009] QB 450.

87 Case C–144/10 Berliner Verkehrsbetriebe (BVG) v JP Morgan NA [2011] 1 WLR 2087.

88 Art 27.

89 For consideration of the other paragraphs of what is now art 24, see Dicey, Morris and Collins, The Conflict of Laws (15th edn, 2012) pp 518–26.

90 Art 24(1) of the Recast allocates jurisdiction to the courts of the United Kingdom; r 11(a) of sch 4 to the Civil Jurisdiction and Judgments Act 1982 gives exclusive jurisdiction to the English court.

91 See, eg, Re Hayward [1997] Ch 45.

92 Case 115/88 Reichert v Dresdner Bank [1990] ECR I–27, para 11.

93 Case C–438/12 Weber v Weber [2015] Ch 140.

94 Case C–605/14 Komu v Komu, [2016] 4 WLR 26.

95 Case C–343/04 Land Oberösterreich v ČEZ as [2006] ECR I–4557, para 34.

96 Schlosser Report, OJ 1979 C59/122, para 172.

97 Case C–518/99 Gaillard v Chekili [2001] ECR I–2771.

98 Case C–292/93 Lieber v Göbel [1994] ECR I–2535.

99 Case C–115/88 Reichert v Dresdner Bank [1990] ECR I–27.

100 Case C–386/12 Proceedings brought by Schneider [2014] 2 WLR 1048.

101 Case C–294/92 Webb v Webb [1994] ECR I–1717, para 15. For a criticism of this decision, see Briggs (1994) 14 YBEL 557.

102 Ashurst v Pollard [2001] Ch 595.

103 Case 241/83 [1985] ECR 99.

104 See also Case C–8/98 Dansommer A/S v Götz [2000] ECR I–393.

105 Case 73/77 Sanders v van der Putte [1977] ECR 2383.

106 Case 241/83 Rösler v Rottwinkel [1985] ECR 99.

107 Case C–280/90 Hacker v Euro-Relais GmbH [1992] ECR I–1111.

108 Jarrett v Barclays Bank plc [1999] QB 1.

109 Case C–73/04 Klein v Rhodos Management Ltd [2005] ECR I–8667.

110 See European Commission, Brussels I Proposal, COM (1999) 348 final, p 16.

111 Chapter II also includes specific rules relating to jurisdiction agreements in insurance contracts, consumer contracts, and individual contracts of employment. See paras 2.1292.139.

112 See paras 2.592.61.

113 Where goods are sold from A to B and then from B to C, C cannot, in proceedings against A, rely upon a jurisdiction clause in the contract between A and B unless it is established that C actually consented to that clause under the conditions laid down in art 25: Case C–543/10 Refcomp SPA v AXA Corporate Solutions Assurance SA [2013] ILPr 17.

114 The Hague Choice of Court Convention (see paras 2.2442.248), which came into force between the Member States of the European Union and Mexico on 1 October 2015, overrides the provisions of the Recast in cases where one or more of the parties reside in Mexico, which is a Contracting State to the Convention but which is not bound by the Recast. If and when the Convention is in force in the United States, a jurisdiction agreement between an English company and a New York company will not be governed by art 25 of the Recast.

115 See Ratkovic and Zgrabljic Rotar, ‘Choice-of-court Agreements under the Brussels I Regulation (Recast)’ (2013) 9 Journal of Private International Law 245.

116 Snookes v Jani-King (GB) Ltd [2006] ILPr 19.

117 The approach adopted in Fiona Trust & Holding Corporation v Privalov [2007] 4 All ER 951, a case concerning an arbitration clause, has been held to apply to jurisdiction clauses. See, eg, Deutsche Bank AG v Asia Pacific Broadband Wireless Communications Inc [2008] 2 Lloyd’s Rep 619; UBS AG v HSH Nordbank AG [2009] 2 Lloyd’s Rep 272; Cinnamon European Structured Credit Master Fund v Banco Commercial Portugues SA [2010] ILPr 11; Deutsche Bank AG v Sebastian Holdings Inc (No 2) [2011] 2 All ER (Comm) 245. However, in a case where parties to a contract (the first relationship) which includes a jurisdiction clause subsequently enter into a second legal relationship, a dispute arising from that second relationship is likely not to fall within the scope of the jurisdiction clause: Deutsche Bank AG London Branch v Petromena ASA [2015] 1 WLR 4225.

118 Kitechnology BV v Unicor GmbH Plastmaschinen [1994] ILPr 568. See also Maple Leaf Macro Volatility Master Fund v Rouvroy [2009] 1 Lloyd’s Rep 475 at [197]–[199].

119 Case C–352/13 Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Akzo Nobel NV [2015] QB 906.

120 Case C–269/95 Benincasa v Dentalkit Srl [1997] ECR I–3767.

121 Deutsche Bank AG v Asia Pacific Broadband Wireless Communications Inc [2008] 2 Lloyd’s Rep 619.

122 Case C–214/89 Powell Duffryn plc v Petereit [1992] ECR I–1745.

123 Case C–159/97 Trasporti Castelletti Spedizione Internazionali SpA v Hugo Trumpy SpA [1999] ECR I–1597, para 50.

124 Case C–387/98 Coreck Maritime GmbH v Handelsveem BV [2000] ECR I–9337.

126 National courts cannot impose additional requirements, over and above those contained in art 25(1) itself: Case 150/80 Elefanten Schuh v Jacqmain [1981] ECR 1671; Case C–159/97 Trasporti Castelletti Spedizione Internazionali SpA v Hugo Trumpy SpA [1999] ECR I–1597.

127 Any communication by electronic means which provides a durable record of the agreement is treated as ‘writing’: art 25(2). A so-called ‘click-wrap’ agreement is ‘in writing’ for the purposes of art 25: Case C–322/14 El Majdoub v CarsOnTheWeb Deutschland GmbH [2015] 1 WLR 3986.

128 Bols Distilleries BV (trading as Bols Royal Distilleries) v Superior Yacht Services Ltd [2007] 1 WLR 12.

129 Case C–106/95 Mainschiffahrts-Genossenschaft eG (MSG) v Les Gravières Rhénanes Sarl [1997] ECR I–911.

130 Case 71/83 Partenreederei ms Tilly Russ v NV Haven & Vervoerbedrijf Nova [1984] ECR 2417, para 16.

131 Case 24/76 Estasis Salotti di Colzani Aimo v RÜWA Polstereimaschinen GmbH [1976] ECR 1831.

132 7E Communications Ltd v Vertex Antennentechnik GmbH [2007] 1 WLR 2175. See also Crédit Suisse Financial Products v Société Générale d’Entreprises [1997] ILPr 165; AIG Europe SA v QBE International Insurance Ltd [2001] 2 Lloyd’s Rep 268.

133 Coys of Kensington Automobiles Ltd v Pugliese [2011] 2 All ER (Comm) 664.

134 Case C–221/84 F Berghoefer GmbH & Co KG v ASA SA [1985] ECR 2699. See also Polskie Ratownictwo Okretowe v Rallo Vito & C SNC [2010] 1 Lloyd’s Rep 384; Kolmar Group AG v Visen Industries Ltd [2010] ILPr 23.

135 Case C–25/76 Galeries Segoura SPRL v Bonakdarian [1976] ECR 1851.

136 Case 71/83 Partenreederei ms Tilly Russ v NV Haven & Vervoerbedrijf Nova [1984] ECR 2417. See also Calyon v Wytwornia Sprzetu Komunikacynego PZL Swidnik SA [2009] 2 All ER (Comm) 603. Cf Lafarge Plasterboard Ltd v Fritz Peters & Co KG [2000] 2 Lloyd’s Rep 689.

137 See Case C–159/97 Trasporti Castelletti Spedizione Internazionali SpA v Hugo Trumpy SpA [1999] ECR I–1597.

138 Some suggest that material validity does not include questions of consent: see, eg, Brand, ‘The Evolving Private International Law/Private Law Overlap in the European Union’ in Mankowski and Wurmest, Festschrift für Ulrich Magnus (2014) pp 371–83. However, the better view is that art 25(1) of the Recast deals with questions of material consent: see Camilleri, ‘Article 23: Formal Validity, Material Validity or Both?’ (2011) 7 Journal of Private International Law 297.

139 See Herranz Ballesteros, ‘The Regime of Party Autonomy in the Brussels I Recast: The Solutions Adopted for Agreements on Jurisdiction’ (2014) 10 Journal of Private International Law 291.

140 Case 23/78 Meeth v Glacetal [1978] ECR 2133.

141 See Insured Financial Structures Ltd v Elektrocieplownia Tychy SA [2003] QB 1260; Bank of New York Mellon v GV Films [2010] 1 Lloyd’s Rep 365.

142 See the discussion by Keyes and Marshall, ‘Jurisdictional Agreements: Exclusive, Optional and Asymmetrical’ (2015) 11 Journal of Private International Law 345.

143 Noted by Briggs, ‘One-Sided Jurisdiction Clauses: French Folly and Russian Menace’ [2013] LMCLQ 137; Fentiman, ‘Unilateral Jurisdiction Clauses in Europe’ [2013] CLJ 24.

144 The jurisdiction clause in a contract between the bank and one of its clients provided that ‘disputes between Bank and Client shall be subject to the exclusive jurisdiction of the courts of Luxembourg, though Bank reserves the right to bring proceedings before the courts of the Client’s domicile, or before any other court which would have jurisdiction apart from this agreement’.

145 See, eg, Continental Bank NA v Aeakos Compania Naviera SA [1994] 1 WLR 588 and, more recently, Mauritius Commercial Bank Ltd v Hestia Holdings Ltd [2013] 2 All ER (Comm) 898 (which post-dated the decision of the French courts in the Soc Banque privée Edmond de Rothschild Europe case).

146 Art 25(4).

147 Case 150/80 Elefanten Schuh GmbH v Jacqmain [1981] ECR 1671.

148 If the whereabouts of the defendant, who is a citizen of a Member State, is unknown, the claimant can, nevertheless, rely on the jurisdictional bases in Chapter II, unless there is firm evidence that the defendant is domiciled outside the European Union: Case C–292/10 G v de Visser [2013] QB 168.

149 See paras 2.1342.139.

150 See paras 2.1482.149.

151 Case 150/80 Elefanten Schuh GmbH v Jacqmain [1981] ECR 1671.

153 Canada Trust Co v Stolzenberg (No 2) [2002] 1 AC 1; Ministry of Defence and Support of the Armed Forces for Iran v Faz Aviation Ltd [2007] ILPr 42; Linuzs v Latmar Holdings Corp [2013] ILPr 19.

154 See, eg, International Transport Workers’ Federation v Viking Line ABP [2005] 2 CLC 720. Whether the English court may stay the proceedings in such circumstances on the basis of forum non conveniens is discussed at paras 2.2652.268.

155 [2012] 1 AC 208.

156 Art 9, the third article which confers ‘special jurisdiction’, concerns claims relating to the limitation of liability for the use or operation of a ship.

157 The other paragraphs of art 7 deal with the following matters: (3) ‘a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings’; (4) ‘a civil claim for the recovery of a cultural object’; (6) certain proceedings relating to trusts; (7) ‘a dispute concerning the payment of remuneration claimed in respect of the salvage of a cargo or freight’. For the interpretation of art 7(6), see Gomez v Gomez-Moche Vives [2009] Ch 245.

158 Case 189/87 Kalfelis v Bankhaus Schröder, Münchmeyer, Hengst & Co [1988] ECR 5565.

159 CPR r 6.33.

160 Case C–469/12 Krejci Lager & Umschlagbetriebs GMBH v Olbrich Transport und Logistik GMBH [2014] ILPr 8.

161 Case 9/87 SPRL Arcado v SA Haviland [1988] ECR 1539; Case 189/87 Kalfelis v Bankhaus Schröder, Münchmeyer, Hengst & Co [1988] ECR 5565; Case C–548/12 Brogsitter v Fabrication de Montres Normandes EURL [2014] QB 753.

162 Case 189/87 Kalfelis v Bankhaus Schröder, Münchmeyer, Hengst & Co [1988] ECR 5565. For discussion of the implications of this decision, see Zogg, ‘Accumulation of Contractual and Tortious Causes of Action under the Judgments Regulation’ (2013) 9 Journal of Private International Law 39.

163 Case C–26/91 Jakob Handte & Co GmbH v Traitements Mécano-chimiques des Surfaces SA [1992] ECR I–3967.

164 Case 189/87 Kalfelis v Bankhaus Schröder, Münchmeyer, Hengst & Co [1988] ECR 5565.

165 [1988] ECR 5565, para 17. See also Case C–51/97 Réunion Européenne SA v Splietoff’s Bevachtingskantoor BV [1998] ECR I–6511, para 22.

166 [1999] 1 AC 153.

167 Millett LJ in Kleinwort Benson Ltd v Glasgow City Council [1996] QB 678 at 698.

168 For consideration of the rules that apply to matters relating to insurance, consumer contracts, and individual contracts of employment, see paras 2.1292.139.

169 Case C–26/91 Jakob Handte & Co GmbH v Traitements Mécano-chimiques des Surfaces SA [1992] ECR I–3967, para 15 (discussed by Hartley (1993) 18 ELRev 506).

170 Case C–147/12 ÖFAB v Koot [2015] QB 20, para 33. See also Case C–519/12 OTP Bank Nyilvánosan Müködö Részvénytársaság v Hochtief Solution AG [2015] ILPr 30.

171 Case C–548/12 Brogsitter v Fabrication de Montres Normandes EURL [2014] QB 753; Dickinson, [2014] LMCLQ 466.

172 Source Ltd v TUV Rheinland Holding AG [1998] QB 54.

173 Mazur Media Ltd v Mazur Media GmbH [2004] 1 WLR 2966.

174 Case 38/81 Effer SpA v Kantner [1982] ECR 825.

175 [1996] 4 All ER 970. See also USF Ltd v Aqua Technology Hanson NV/SA [2001] 1 All ER (Comm) 856.

176 Case C–133/11 [2013] QB 253.

177 [2001] 1 AC 223.

178 Case C–334/00 Fonderie Officine Mecchaniche Tacconi SpA v Heinrich Wagner Sinto Maschinenfabrik GmbH [2002] ECR I–7357.

179 [1999] 1 AC 153.

180 At 171.

181 Somewhat exceptionally, prior to the commencement of the Kleinwort Benson litigation, it had already been established, in related proceedings raising identical issues, that the contract in question was void ab initio (because it was ultra vires the local authority): Hazell v Hammersmith and Fulham London Borough Council [1992] 2 AC 1.

182 In addition, there are specific provisions that apply to insurance contracts, consumer contracts, and employment contracts: see paras 2.1292.139.

183 In relation to intra-United Kingdom cases, r 3(a) of sch 4 to the Civil Jurisdiction and Judgments Act 1982 contains no counterpart to art 7(1)(b).

184 Case 14/76 Ets A de Bloos SPRL v Société en commandite par actions Bouyer [1976] ECR 1497. This ruling has been confirmed in subsequent cases such as Case C–288/92 Custom Made Commercial Ltd v Stawa Metallbau GmbH [1994] ECR I–2913.

185 Case 266/85 Shenavai v Kreischer [1987] ECR 239.

186 [1992] 1 WLR 15.

187 To be nominated.

188 See also AIG Europe (UK) Ltd v The Ethniki [2000] 2 All ER 566; Barry v Bradshaw [2000] CLC 455; MBM Fabri-Clad Ltd v Eisen-und Huttenwerke Thale AG [2000] ILPr 505.

189 Case C–420/97 Leathertex Divisione Sintetici SpA v Bodotex BVBA [1999] ECR I–6747.

191 Case 56/79 Zelger v Salinitri [1980] ECR 89.

192 Case C–106/95 Mainschiffahrts-Genossenschaft eG (MSG) v Les Gravières Rhénanes Sarl [1997] ECR I–911.

193 Case 12/76 Industrie Tessili Italiana Como v Dunlop AG [1976] ECR 1473; Case C–440/97 GIE Groupe Concorde v Master of the Vessel Suhadiwarno Panjan [1999] ECR I–6307.

194 Case C–256/00 [2002] ECR I–1699.

195 Ibid, para 55.

196 Compare Mora Shipping Inc v Axa Corporate Solutions Assurance SA [2005] 2 Lloyd’s Rep 769 and Canyon Offshore Ltd v GDF Suez E&P Nederland BV [2015] ILPr 8.

197 Case C–533/07 [2009] ECR I–3327.

198 Art 57 defines ‘services’ for the purposes of the free movement of persons, services, and capital under Title IV of Part 1 of the TFEU.

199 Case C–469/12 Krejci Lager & Umschlagbetriebs GMBH v Olbrich Transport und Logistik GMBH [2014] ILPr 8 (contract for storage is a contract for the provision of services); Case 9/12 Corman-Collins SA v La Maison du Whisky SA [2014] QB 431 (a distribution contract is a contract for the provision of services); Case C–419/11 Ceska Sporitelna AS v Feichter [2013] ILPr 22 (a contract of aval, a type of guarantee, is not a contract for the provision of services).

200 Case C–381/08 [2010] ECR I–1255.

201 Case C–87/10 [2011] ILPr 28, para 22.

202 Case C–381/08 Car Trim [2010] ECR I–1255, para 52 (referring to European Commission, COM (1999) 348 final, p 14).

203 Ibid, para 62. The result of the Car Trim ruling is that the place of delivery for the purposes of art 7(1)(b) may be different from the place of delivery under the substantive law governing the contract.

204 [2008] 2 All ER 768. See Hare and Hinks [2008] LMCLQ 353.

205 See, however, Briggs (2008) 79 BYIL 508.

206 See Grusic, ‘Jurisdiction in Complex Contracts under the Brussels I Regulation’ (2011) 7 Journal of Private International Law 321.

207 Case C–386/05 [2007] ECR I–3699. Harris (2007) 123 LQR 522.

208 Case C–386/05 [2007] ECR I–3699, para 40.

209 Ibid, paras 42–43.

210 Case C–19/09 [2010] 1 WLR 1900.

211 Case C–204/08 [2009] ECR I–6073.

212 Ibid, paras 42–44.

213 Jenard Report, OJ 1979 C59/22. This rationale has been frequently repeated in the Court of Justice’s case law. See, eg, Case C–533/07 Falco Privatstiftung v Weller-Lindhorst [2009] ECR I–3327, para 24.

214 For criticism of the Convention on this point, see Hill, ‘Jurisdiction in Matters Relating to a Contract under the Brussels Convention’ (1995) 44 ICLQ 591; Kennett, ‘Place of Performance and Predictability’ (1995) 15 YBEL 193.

215 Art 7(1)(c).

216 See para 4.51.

217 Robey & Co v Snaefell Mining Co Ltd (1887) 20 QBD 152; Rein v Stein [1892] 1 QB 753.

218 Case C–167/00 Verein für Konsumenteninformation v Henkel [2002] ECR I–8111, para 46.

219 See Advocate General Gulmann in Case C–261/90 Reichert v Dresdner Bank (No 2) [1992] ECR I–2149 at 2169.

220 Case C–18/02 Danmarks Rederiforening v Lo Landsorganisation I Sverige [2004] ECR I–1417.

221 Case C–334/00 Fonderie Officine Mecchaniche Tacconi SpA v Heinrich Wagner Sinto Maschinenfabrik GmbH [2002] ECR I–7357.

222 Case C–147/12 ÖFAB v Koot [2015] QB 20, para 42.

223 Casio Computer Co Ltd v Sayo [2001] ILPr 43; Cronos Containers NV v Palatin [2003] ILPr 16. See also WPP Holdings Italy Srl v Benatti [2007] 1 WLR 2316 (claim for breach of fiduciary duty involves matters relating to tort).

224 Case C–133/11 Folien Fischer v Ritrama SpA [2013] QB 253. See also the English case law which foreshadowed the Court of Justice’s decision: Equitas Ltd v Wave City Shipping Co Ltd [2005] 2 All ER (Comm) 301 (following Boss Group Ltd v Boss France SA [1996] 4 All ER 970).

225 [1996] AC 959.

226 Case C–68/93 Shevill v Presse Alliance SA [1995] ECR I–415, para 41.

227 Case 21/76 Handelskwekerij GJ Bier BV v Mines de Potasse d’Alsace SA [1976] ECR 1735.

228 See also Case 523/10 Wintersteiger AG v Products 4U Sondermaschinenbau GmbH [2012] ILPr 23.

229 The determination of the court (or courts) with jurisdiction under art 7(2) is not affected by the claim in question having been transferred by the party initially injured to the claimant: Case C–147/12 ÖFAB v Koot [2015] QB 20, para 59.

230 Case 21/76 Handelskwekerij GJ Bier BV v Mines de Potasse d’Alsace SA [1976] ECR 1735, para 15.

231 Case C–523/10 Wintersteiger AG v Products 4U Sondermaschinenbau GmbH [2012] ILPr 23. See also, in the context of breach of copyright claims, Case C–170/12 Pinckney v KDG Mediatech AG [2014] ILPr 7; Case C–441/13 Hejduk v EnergieAgentur.NRW GmbH, [2015] Bus LR 560.

232 Case C–189/08 Zuid-Chemie BV v Philippo’s Mineralenfabriek NV/SA [2009] ECR I–6917.

233 See Lehmann, ‘Where Does Economic Loss Occur?’ (2011) 7 Journal of Private International Law 527.

234 Case C–168/02 Kronhofer v Maier [2004] ECR I–6009, para 21; Case C–375/13 Kolassa v Barclays Bank plc [2015] ILPr 14, para 48.

235 See Simon J’s summary of the Court of Justice’s jurisprudence in London Helicopters Ltd v Heliportugal LDA-INAC [2006] 1 All ER (Comm) 595 at [20]. See also AMT Futures Ltd v Marzillier, Dr Meier & Dr Gunter Rechtanswaltsgesellschaft mbH [2015] QB 699.

236 Case 352/13 Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Akzo Nobel NV [2015] QB 906.

237 Case 220/88 Dumez France SA v Hessische Landesbank [1990] ECR 49.

238 Case C–364/93 Marinari v Lloyds Bank plc [1995] ECR I–2719. See also Case C–168/02 Kronhofer v Maier [2004] ECR I–6009.

239 Dolphin Maritime & Aviation Services Ltd v Sveriges Angfartygs Assurans Forening [2009] 2 Lloyd’s Rep 123.

240 Henderson v Jaouen [2002] 1 WLR 2971.

241 Case C–51/97 Réunion Européenne SA v Splietoff’s Bevachtingskantoor BV [1998] ECR I–6511.

242 Domicrest Ltd v Swiss Bank Corpn [1999] QB 548; Alfred Dunhill Ltd v Diffusion Internationale de Maroquinerie de Prestige SARL [2001] CLC 949; London Helicopters Ltd v Heliportugal LDA-INAC [2006] 1 All ER (Comm) 595; The Seaward Quest [2007] 2 Lloyd’s Rep 308. In this type of case, the place of the damage will normally be where the communication is received and relied upon by the claimant.

243 Case C–45/13 Kainz v Pantherwerke AG [2015] QB 34. Of course, on such facts, Ireland would be the place where the damage occurs.

244 Case C–147/12 ÖFAB v Koot [2015] QB 20, para 54.

245 Case C–523/10 Wintersteiger AG v Products 4U Sondermaschinenbau GmbH [2012] ILPr 23; Case C–441/13 Hejduk v EnergieAgentur.NRW GmbH, [2015] Bus LR 560.

246 Case C–228/11 Melzer v MF Global UK Ltd [2013] QB 1112. See also Case C–360/12 Coty Germany GmbH v First Note Perfumes NV [2014] Bus LR (in the context of jurisdiction over trade mark infringement under art 93(5) of the Community Trade Mark Regulation).

247 Case C–387/12 Hi Hotel HCF SARL v Spoering [2014] 1 WLR 1912.

248 Case 352/13 Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Akzo Nobel NV [2015] QB 906.

249 For a discussion of the human rights implications of ‘libel tourism’, see Fawcett, Ní Shúilleabháin and Shah, Human Rights and Private International Law (2016) ch 10.

250 Case C–68/93 [1995] ECR I–415.

251 The same rule applies where it is alleged that the defendant infringed the claimant’s copyright and that the infringement caused loss in more than one Member State: Case C-387/12 Hi Hotel HCF SARL v Spoering [2014] 1 WLR 1912.

252 Joined cases C–509/09 & C–161/10 eDate Advertising GmbH v X; Martinez v MGN Ltd [2012] QB 654. See Gillies (2012) 61 ICLQ 1007; Nagy (2012) 8 Journal of Private International Law 251.

253 [2012] QB 654, para 48.

254 Case 14/76 Ets A de Bloos SPRL v Société en commandite par actions Bouyer [1976] ECR 1497; Case 33/78 Somafer SA v Saar-Ferngas AG [1978] ECR 2183; Case 139/80 Blanckaert and Willems PVBA v Trost [1981] ECR 819.

255 Case 218/86 SAR Schotte GmbH v Parfums Rothschild SARL [1987] ECR 4905.

256 Case 33/78 Somafer SA v Saar-Ferngas AG [1978] ECR 2183.

257 Case C–439/93 Lloyd’s Register of Shipping v Société Campenon Bernard [1995] ECR I–961.

258 Anton Durbeck GmbH v Den Norske Bank ASA [2003] QB 1160.

260 McGraw-Hill v Deutsche Apotheker- und Arztebank EG [2014] 2 Lloyd’s Rep 523.

261 See the opinion of Advocate General Reishl in Case 14/76 Ets A de Bloos SPRL v Société en commandite par actions Bouyer [1976] ECR 1497 at 1519.

262 Case C–439/93 Lloyd’s Register of Shipping v Société Campenon Bernard [1995] ECR I–961.

263 Hough v P & O Containers Ltd [1999] QB 834.

264 Art 8(4) allows a mortgagee of immovable property to combine, in the Member State in which the property is situated, an action concerning the personal liability of the owner with an action for the enforced sale of the property.

265 Masri v Consolidated Contractors International (UK) Ltd [2006] 1 WLR 830.

266 Madoff Securities International Ltd v Raven [2012] 2 All ER (Comm) 634.

267 Case C–103/05 [2006] ECR I–6827, para 32.

268 Case C–98/06 [2007] ECR I–8319, para 54.

269 Case C–145/10 Painer v Standard Verlags GmbH [2012] ECDR 6, para 78; Case C–616/10 Solvay SA v Honeywell Fluorine Products Europe BV, para 22.

270 Siber Energy Ltd v Tchigirinski [2012] 2 All ER (Comm) 1285.

271 Brown v Innovatorone plc [2011] ILPr 9. Compare The Xing Su Hai [1995] 2 Lloyd’s Rep 15.

272 Linuzs v Latmar Holdings Corp [2012] ILPr 19.

273 Case C–103/05 [2006] ECR I–6827.

274 Case 352/13 Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Akzo Nobel NV [2015] QB 906.

275 Case C–462/06 [2008] ECR I–3965.

276 Case C–462/06 [2008] ECR I–3965, para 19.

277 See paras 2.1382.139.

278 Case C–51/97 Réunion Européenne SA v Splietoff’s Bevachtingskantoor BV [1998] ECR I–6511, para 46.

279 The text of art 8(1) of the Brussels I Recast effectively incorporates the ruling in Case 189/87 Kalfelis v Bankhaus Schröder, Münchmeyer, Hengst & Co [1988] ECR 5565.

280 Brown v Innovatorone plc [2011] ILPr 9.

281 Case C–539/03 [2006] ECR I–6535.

282 Ibid, para 26. See also Case C–616/10 Solvay SA v Honeywell Fluorine Products Europe BV, unreported.

283 Case C–145/10 [2012] ECDR 6.

284 Case C–51/97 [1998] ECR I–6511, para 50.

285 It is now clear that, as some had suggested, the Court of Justice did not mean what it appeared to have said: Watson v First Choice Holidays and Flights Ltd [2001] 2 Lloyd’s Rep 339; Andrew Weir Shipping Ltd v Wartsila UK Ltd [2004] 2 Lloyd’s Rep 377.

286 Case C–98/06 [2007] ECR I–8319.

287 See, eg, Kinnear v Falconfilms NV [1996] 1 WLR 920. Compare Barton v Golden Sun Holidays Ltd (in liquidation) [2007] ILPr 57 (in which jurisdiction was refused in a case where there was no risk of irreconcilable judgments).

288 Case C–521/14 SOVAG-Schwarzmeer und Ostsee Versicherungs-Aktiengesellschaft v If Vahinkovakuutusyhtiö Oy [2016] ILPr 12.

289 See Case C–77/04 Groupement d’intérêt économique (GIE) Réunion européenne v Zurich España [2005] ECR I–4509.

290 Case 365/88 Kongress Agentur Hagen GmbH v Zeehaghe BV [1990] ECR I–1845.

291 Case C–341/93 Danvaern Production A/S v Schuhfabriken Otterbeck GmbH & Co [1995] ECR I–2053.

292 Ibid, paras 12–14.

293 Case C-462/06 Glaxosmithkline v Rouard [2008] ECR I–3965. See also Jordan Grand Prix Ltd v Baltic Insurance Group [1999] 2 AC 127. Note that the rules dealing with insurance, consumer contracts, and employment contracts are ‘without prejudice’ to art 7(5) and art 6: arts 10, 17(1), 20.

294 Case C–111/09 Česká podnikatelská pojišťovna as, Vienna Insurance Group v Bilas [2010] ECR I–4545. There is no reason to suppose that the position in relation to consumer contracts (Section 4) or employment contracts (Section 5) is different.

295 The insurance provisions do not apply either to proceedings between insurers (Case C–77/04 Groupement d’intérêt économique (GIE) Réunion européenne v Zurich España [2005] ECR I–4509) or to proceedings relating to contracts of reinsurance (Case C–412/98 Universal General Insurance Co (USIG) v Group Josi Reinsurance Co SA [2000] ECR I–5925). However, claims brought by policyholders against reinsurers should fall within these provisions: European Commission, Brussels I Proposal, COM (1999) 348 final, p 15.

296 Art 11(1). For the purposes of this provision, it is the domicile of the weaker party when the proceedings are commenced, rather than when the contract of insurance was concluded, that is relevant: Sherdley v Nordea Life and Pension SA [2013] ILPr 26. Where a direct action by an injured person against an insurer is permitted, the scope of art 11(1) is broadened by art 13(2), which allows an injured party who is not the policyholder, the insured or the beneficiary of the insurance contract to sue the insurer in the Member State in which the injured party is domiciled: Case C–463/06 FBTO Schadeverzekeringen NV v Odenbreit [2007] ECR I–11321; Jones v Assurances Generales de France (AGF) SA [2010] ILPr 4 (English victim of road accident in France entitled to sue French insurer of allegedly negligent (Irish) driver in England). See also Maher v Groupama Grand Est [2010] 1 WLR 1564; Keefe v Mapfre Mutualidad Cia De Seguros Y Reaseguros SA [2016] 1 WLR 905. Art 13(2) does not permit a social security institution, acting as statutory assignee of the rights of a person directly injured in a road accident, to bring proceedings against the insurer in the country in which the social security institution is domiciled: Case C–347/08 Vorarlberger Gebietskrankenkasse v WGV-Schwäbische Allgemeine Versicherungs AG [2010] ILPr 2.

297 Art 11(2).

298 Art 12.

299 Jordan Grand Prix Ltd v Baltic Insurance Group [1999] 2 AC 127.

300 Art 13(1).

301 Art 14(1).

302 See Sherdley v Nordea Life and Pension SA [2013] ILPr 26.

303 But, a jurisdiction clause cannot be enforced against a beneficiary who is not domiciled in the same Member State as the policyholder and the insurer unless the beneficiary has expressly subscribed to the clause: Case C–112/03 Société financière industrielle du Peloux v Axa Belgium [2005] ECR I–3707.

304 New Hampshire Insurance Co v Strabag Bau AG [1992] 1 Lloyd’s Rep 361.

305 See Hill, Cross-Border Consumer Contracts (2008) chs 3 and 4.

306 Case C–96/00 Gabriel v Schlank & Schick GmbH [2000] ECR I–6367; Case C–27/02 Engler v Janus Versand GmbH [2005] ECR I–481; Case C–180/06 Ilsinger v Dreschers [2009] ECR I–3961; Case C–375/13 Kolassa v Barclays Bank plc [2015] ILPr 14.

307 Case C–464/01 Gruber v Bay Wa AG [2005] ECR I–439. See also Standard Bank London Ltd v Apostolakis [2000] ILPr 766. A person who enters a contract with a view to pursuing a trade or profession, not at the present time but in the future, is not a consumer: Case C–269/95 Benincasa v Dentalkit Srl [1997] ECR I–3767. Where a managing director or majority shareholder guarantees the debts of the company in question, the contract of guarantee is not a consumer contract: Case C–419/11 Ceska Sporitelna AS v Feichter [2013] ILPr 22.

308 See Case C–89/91 Shearson Lehman Hutton v TVB Treuhandgesellschaft für Vermögensverwaltung und Beteiligungen mbH [1993] ECR I–139; Case C–99/96 Mietz v Intership Yachting Sneek BV [1999] ECR I–2277.

309 Including contracts which, for an inclusive price, provide for a combination of travel and accommodation (package holidays) (see Cases C–585/08 & C–144/09 Pammer v Reederei Karl Schlüter GmbH & Co KG; Hotel Alpenhof GesmbH v Heller [2010] ECR I–12527) but excluding other contracts of transport: art 17(3).

310 Art 17(1). There is no further requirement that the contract be concluded at a distance, rather than face-to-face: Case C–190/11 Mühlleitner v Yusufi [2012] ILPr 46. Some of the factors relevant for determining whether activities are directed to a particular Member State are considered in Case C–218/12 Emrek v Sabranovic [2014] ILPr 49. See also Case C–297/14 Hobohm v Benedikt Kampik Ltd & Co KG [2016] 2 WLR 940.

311 European Commission, Brussels I Proposal, COM (1999) 348 final, p 16. For consideration of the application of art 17(1)(c) in the context of e-commerce, see Cases C–585/08 & C–144/09 Pammer v Reederei Karl Schlüter GmbH & Co KG; Hotel Alpenhof GesmbH v Heller [2010] ECR I–12527.

312 Case C–508/12 Vapenik v Thurner [2014] 1 WLR 2486 (a case involving the European Enforcement Orders Regulation).

313 Art 17(2).

314 Art 18(1). See Case C–318/93 Brenner and Noller v Dean Witter Reynolds Inc [1994] ECR I–4275. Under art 18(1) of the Brussels I Recast an English consumer may sue a Scottish supplier in England, notwithstanding the fact that both parties are domiciled in the same Member State: European Commission, Brussels I Proposal, COM (1999) 348 final, p 17.

315 Art 18(2). Or, in certain circumstances, the Member State in which the consumer was last domiciled: Case C–327/10 Hypotecni banka as v Lindner [2011] ECR I–11543.

316 Art 19.

317 Case C–89/91 Shearson Lehman Hutton v TVB Treuhandgesellschaft für Vermögensverwaltung und Beteiligungen mbH [1993] ECR I–139, para 23.

318 To fall within the scope of Section 5, proceedings do not have to be ‘under’ the contract of employment; the ‘relating to’ test is broader and may cover claims pleaded in tort (or on some other legal basis): Alfa Laval Tumba AB v Separator Spares International Ltd [2013] 1 WLR 1110; CEF Holdings Ltd v Mundey [2012] FSR 35.

319 For consideration of the characteristics of an employment contract, see Case C–47/14 Holterman Ferho Exploitatie BV v Spies von Büllesheim [2015] ILPr 44. As for the distinction between a contract of employment and a consultancy agreement, see WPP Holdings Italy Srl v Benatti [2006] 2 Lloyd’s Rep 610 (Field J); [2007] 1 WLR 2316 (CA).

320 For the argument that Section 5 fails to meet the objective of employee protection, see Grusic, ‘Jurisdiction in Employment Matters under Brussels I: A Reassessment’ (2012) 61 ICLQ 91.

321 An embassy may be an ‘establishment’ for the purposes of art 20(2): Case C–154/11 Mahamdia v People’s Democratic Republic of Algeria [2012] ILPr 41.

322 See Case C–383/95 Rutten v Cross Medical Ltd [1997] ECR I–57; Case C–37/00 Weber v Universal Ogden Services Ltd [2002] ECR I–2013; Case C–437/00 Pugliese v Finmeccanica SpA [2003] ECR I–3573. See also Case C–29/10 Koelzsch v Grand Duchy of Luxembourg [2012] QB 210 (a case decided under the related provision of the Rome Convention).

323 Art 21(1)(b)(i).

324 Art 21(1)(b)(ii). See Case C–384/10 Voogsgeerd v Navimer SA [2012] ILPr 16 (a case decided under the Rome Convention).

325 Art 21(2).

326 Art 22.

327 See Simpson v Intralinks [2012] ILPr 34 (in which the English court had jurisdiction, notwithstanding a German jurisdiction clause in the contract of employment).

328 Art 23. For the purposes of this provision, the ‘other’ courts may be the courts of a non-Member State: Case C–154/11 Mahamdia v People’s Democratic Republic of Algeria [2012] ILPr 41.

329 As regards a citizen of a Member State whose whereabouts is unknown, jurisdiction cannot be invoked under the traditional rules unless the court seised has firm evidence that the defendant is in fact domiciled outside the European Union: Case C–327/10 Hypotecni banka as v Lindner [2011] ECR I–11543, para 42; Case C–292/10 G v de Visser [2013] QB 168, para 40.

330 As regards permissible methods of service, see CPR r 6.9.

331 If the defendant cannot be served personally, he may be served at his ‘usual or last known residence’ in England: CPR, r 6.9(2): see Relfo Ltd (in liquidation) v Varsani [2011] 1 WLR 1402. Controversially, the Court of Appeal allowed C to invoke the court’s jurisdiction by serving the claim form on D by post at D’s English address, even though D was out of the country at the relevant time: City & Country Properties Ltd v Kamali [2007] 1 WLR 1219. This decision is contrary to principle and the earlier decision of Lawrence Collins J in Chellaram v Chellaram (No 2) [2002] 3 All ER 17 (which the Court of Appeal in the Kamali case regarded as wrong) is to be preferred.

332 [1972] 2 QB 283.

333 Watkins v North American Land and Timber Co Ltd (1904) 20 TLR 534.

334 Overseas Companies Regulations 2009, SI 2009/1801.

335 SSL International plc v TTK LIG Ltd [2012] 1 WLR 1842.

336 Companies Act 2006, s 1044.

337 Companies Act 2006, s 1046; Overseas Companies Regs 2009, reg 7(1).

338 Rome v Punjab National Bank (No 2) [1989] 1 WLR 1211.

339 Companies Act 2006, s 1139(2)(b).

340 Teekay Tankers Ltd v STX Offshore & Shipping Co [2015] 2 All ER (Comm) 263.

341 For criticism, see Enonchong, ‘Service of Process in England on Overseas Companies and Article 5(5) of the Brussels Convention’ (1999) 48 ICLQ 921; Rogerson, ‘English Courts’ Jurisdiction over Companies: How Important is Service of the Claim Form in England?’ (2000) 3 CFILR 272.

342 Sea Assets v PT Garuda Indonesia [2000] 4 All ER 371.

343 As in Dunlop Pneumatic Tyre Co Ltd v Actien-Gesellschaft für Motor und Motorfahrzeugbau Vorm Cudell & Co [1902] 1 KB 342.

344 The doctrine of forum non conveniens is considered further at paras 2.2152.238.

345 See, eg, Global Multimedia International Ltd v Ara Media Services [2007] 1 All ER (Comm) 1160.

346 Re Dulles’ Settlement (No 2) [1951] Ch 842; Williams and Glyn’s Bank plc v Astro Dinamico Cia Naviera SA [1984] 1 WLR 438.

347 CPR r 6.11.

348 Art 25. See paras 2.462.57.

349 See CPR r 6.36, PD 6B para 3.1(6)(d). See para 2.164.

350 Although jurisdiction based on service out has traditionally been characterised as ‘exorbitant’, in Abela v Baadarani [2013] 1 WLR 2043 the Supreme Court regarded this characterisation as no longer realistic given that litigation between residents of different states is a routine incident of commercial life: see Lord Sumption JSC at [53]. For differing views of Lord Sumption’s short judgment, see Briggs [2013] LMCLQ 415; Dickinson (2014) 130 LQR 197; Collins (2014) 130 LQR 555.

351 Service of process cannot be effected by a method which is not permitted under the law of the place of service: CPR r 6.40(3)(c). See Amalgamated Metal Trading Ltd v Baron [2012] 1 CLC 920.

352 CPR r 6.37(3).

353 [1994] 1 AC 438.

354 [1987] AC 460.

355 This condition overlaps with the requirement under CPR r 6.37(1)(b) that the claim must have ‘a reasonable prospect of success’: Carvill America Incorporated v Camperdown UK Ltd [2005] 2 Lloyd’s Rep 457.

356 See Carvill America Incorporated v Camperdown UK Ltd [2005] 2 Lloyd’s Rep 457; Standard Bank plc v EFAD Real Estate Company WLL [2014] 3 All ER (Comm) 208.

357 Seaconsar Far East Ltd v Bank Jomhouri Islami Iran [1994] 1 AC 438 at 452.

358 See Global 5000 Ltd v Wadhawan [2012] 1 Lloyd’s Rep 239.

359 EF Hutton & Co (London) Ltd v Mofarrij [1989] 1 WLR 488.

360 The Hagen [1908] P 189; Siskina (Owners of cargo lately laden on board) v Distos Compania Naviera SA [1979] AC 210.

361 Carvill America Incorporated v Camperdown UK Ltd [2005] 2 Lloyd’s Rep 457.

362 Waller LJ in Canada Trust Co v Stolzenberg (No 2) [1998] 1 WLR 547 at 555; Lord Collins in Altimo Holdings & Investments Ltd v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804 at [71].

363 See Rogerson, ‘Problems of the Applicable Law of the Contract in the English Common Law Jurisdiction Rules: The Good Arguable Case’ (2013) 9 Journal of Private International Law 387.

364 Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460.

365 VTB Capital plc v Nutritek International Corpn [2013] 2 AC 337.

366 Lord Wilberforce in Amin Rasheed Shipping Corpn v Kuwait Insurance Co [1984] AC 50 at 72.

367 The Albaforth [1984] 2 Lloyd’s Rep 91; Schapira v Ahronson [1998] ILPr 587; Berezovsky v Michaels [2000] 1 WLR 1004; King v Lewis [2003] ILPr 16; The Omega King [2011] 2 Lloyd’s Rep 206. If, in a libel case, the claimant is unable to satisfy the court that he has a sufficient reputation to protect in England, permission to serve out may be refused: Kroch v Rossell et Cie [1937] 1 All ER 725; Chadha & Osicom Technologies Inc v Dow Jones & Co Inc [1999] ILPr 829. See Morse, ‘Rights Relating to Personality, Freedom of the Press and Private International Law: Some Common Law Comments’ (2005) 58 CLP 133. The problems of so-called ‘libel tourism’ (see Hartley (2010) 59 ICLQ 25) was one of the factors behind s 9 of the Defamation Act 2013, which provides that, where an action in defamation is brought against a defendant who is not domiciled in an EU Member State, the English court does not have jurisdiction ‘unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement’. Whether this adds anything of substance to the Spiliada test may be questioned: see Bennett, ‘The Defamation Act 2013’ (2012/13) 14 Yb PIL 173.

368 [2013] 2 AC 337; Hare [2013] CLJ 280.

369 Lord Collins in Altimo Holdings & Investments Ltd v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804 at [95].

370 Albon v Naza Motor Trading Sdn Bhd [2007] 1 WLR 2489 (which involved a claim for restitution).

371 Greene Wood & McLean LLP v Templeton Insurance Ltd [2009] 1 WLR 2013.

372 ‘[A] claim is not … properly described as “made in respect of a contract” where the contract in question is not one to which the defendant is party’: Tomlinson LJ in Alliance Bank JSC v Aquanta Corporation [2013] 1 All ER (Comm) 819 at [71].

373 Global 5000 Ltd v Wadhawan [2012] 1 Lloyd’s Rep 239.

374 CPR PD 6B para 3.1(6)(a).

375 Entores Ltd v Miles Far East Corpn [1955] 2 QB 327.

376 Benaim & Co v Debono [1924] AC 514.

377 Entores Ltd v Miles Far East Corpn [1955] 2 QB 327; Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH [1983] 2 AC 34; Brownlie v Four Seasons Holdings Inc [2016] 1 WLR 1814.

378 Apple Corps Ltd v Apple Computer Inc [2004] 2 CLC 720; Conductive Inkjet Technology Ltd v Uni-Pixel Displays Inc [2014] 1 All ER (Comm) 654.

379 Kerr J in BP Exploration Co (Libya) Ltd v Hunt [1976] 1 WLR 788 at 798.

380 Sharab v Al-Saud [2009] 2 Lloyd’s Rep 160.

381 CPR PD 6B para 3.1(6)(b).

382 National Mortgage and Agency Co of New Zealand Ltd v Gosselin (1922) 38 TLR 832.

383 Union International Insurance Co Ltd v Jubilee Insurance Co Ltd [1991] 1 WLR 415.

384 CPR PD 6B para 3.1(6)(c).

385 See Chapter 4.

386 CPR PD 6B para 3.1(6)(d).

387 See paras 2.462.57.

388 Vidal-Hall v Google Inc [2015] 3 WLR 409.

389 Kitechnology BV v Unicor GmbH Plastmaschinen [1994] ILPr 568.

390 Slade LJ in Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 at 437. See also Arab Business Consortium International Finance and Investment Co v Banque Franco-Tunisienne [1997] 1 Lloyd’s Rep 531.

391 King v Lewis [2004] ILPr 31.

392 See paras 2.942.108.

393 See, eg, ABCI v Banque Franco-Tunisienne [2003] 2 Lloyd’s Rep 146; Newsat Holdings Ltd v Zani [2006] 1 Lloyd’s Rep 707.

394 [2004] 2 Lloyd’s Rep 457.

395 [2008] ILPr 27.

396 [2015] EWCA Civ 379.

397 See also Brownlie v Four Seasons Holdings Inc [2016] 1 WLR 1814.

398 See Nabb Brothers Ltd v Lloyds Bank International (Guernsey) Ltd [2005] ILPr 37.

399 See Briggs, ‘Jurisdiction under Traditional Rules’ in Rose (ed), Restitution in the Conflict of Laws (1995) p 49ff.

400 Bowling v Cox [1926] AC 751 and Re Jogia [1988] 1 WLR 484, both of which rely on the now discredited implied contract theory, are of questionable authority in the context of CPR r 6.36.

401 ISC Technologies Ltd v Guerin [1992] 2 Lloyd’s Rep 430.

402 Polly Peck International plc v Nadir (1992) The Independent, 2 September.

403 Witted v Galbraith [1893] 1 QB 577 (a case decided under a former rule which required the proceedings to have been ‘properly brought’ against D1).

404 United Film Distribution Ltd v Chhabria [2001] 2 All ER (Comm) 865. See also The Baltic Flame [2001] 2 Lloyd’s Rep 203; Carvill America Inc v Camperdown UK Ltd [2005] 2 Lloyd’s Rep 457. Gateway (3) does not apply if the substantive proceedings are abroad and the only basis for the court’s jurisdiction over D1 is Civil Jurisdiction and Judgments Act 1982, s 25 (which allows the courts, in certain cases, to grant provisional measures): Belletti v Morici [2009] ILPr 57.

405 See paras 2.1242.126.

406 Multinational Gas and Petrochemical Co v Multinational Gas and Petrochemical Services Inc [1983] Ch 258; Petroleo Brasiliero SA v Mellitus Shipping Inc [2001] 1 All ER (Comm) 993.

407 See Barings plc v Coopers & Lybrand [1997] ILPr 12.

408 Case C–281/02 Owusu v Jackson [2005] ECR I–1383. See paras 2.2652.280.

409 See the discussion in Attorney General of Zambia v Meer Care & Desai [2006] 1 CLC 436; Global Multimedia International Ltd v Ara Media Services [2007] 1 All ER (Comm) 1160.

410 CPR PD 6B para 3.1(1). This paragraph applies only in cases which fall outside the scope of art 1 of the Brussels I Recast (such as where proceedings relate to arbitration).

411 CPR PD 6B para 3.1(10). The presence of assets within the jurisdiction is not a pre-condition for the assumption of jurisdiction under this subparagraph: Tasarruf Mevduarti Sigorta Fonu v Demirel [2007] 1 WLR 2508.

412 CPR PD 6B para 3.1(11) See Re Banco Nacional de Cuba [2001] 1 WLR 2039; Pakistan v Zardari [2006] 2 CLC 667. It has been held that confidential information contained in digital form on a server in England constitutes ‘property located within the jurisdiction’: Ashton Investments Ltd v OJSC Russian Aluminium [2007] 1 Lloyd’s Rep 311.

413 CPR PD 6B para 3.1(12).

414 CPR PD 6B para 3.1(12A).

415 CPR PD 6B para 3.1(17).

416 CPR PD 6B para 3.1(20).

417 See Baghlaf Al Zafer Factory Co BR for Industry Ltd v Pakistan National Shipping Co (No 2) [2000] 1 Lloyd’s Rep 1.

418 Art 31(1) of the Brussels I Recast provides that where proceedings fall within the exclusive jurisdiction of the courts of more than one Member State (for example, where the courts of two Member States have exclusive jurisdiction under the different parts of art 24) any court other than the court first seised is required to decline jurisdiction.

419 Case C–129/92 Owens Bank Ltd v Bracco (No 2) [1994] ECR I–117.

420 Case C–351/89 Overseas Union Insurance Ltd v New Hampshire Insurance Co [1991] ECR I–3317. See Trademark Licensing Co Ltd v Leofelis SA [2010] ILPr 16.

421 In a case where, during the course of proceedings, claims are amended or new claims are introduced, the important moment for the purposes of arts 29 and 30 is when the court was seised of the proceedings as a whole (rather than when a particular claim was initiated): Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG [2014] 1 All ER 590.

422 Art 32(1)(a). In the context of English proceedings, this means that the court is seised when the court issues a claim form at the request of the claimant: CPR r 7.2(1). A claim form is issued on the date entered on the form by the court: CPR r 7.2(2). For the operation of art 32(1), see Debt Collection London Ltd v SK Slavia Praha-Fotbal AS [2011] 1 WLR 866 (in which the claimant in Czech proceedings failed to pay the court fee required under Czech law for service of process on the English defendant).

423 Art 32(1)(b).

424 The jurisdiction of the court first seised is ‘established’ if that court has not declined jurisdiction of its own motion and none of the defendants has contested the court’s jurisdiction prior to submission of their first defence on the merits: Case C–1/13 Cartier Parfums-Lunettes SAS v Ziegler France SA [2014] ILPr 25, para 45.

425 However, if proceedings in the court first seised are properly discontinued, arts 29 and 30 do not prevent proceedings on the same or related matters being brought in other Member States: Internationale Nederlanden Aviation Lease BV v Civil Aviation Authority [1997] 1 Lloyd’s Rep 80.

426 Case 144/86 Gubisch Maschinenfabrik KG v Palumbo [1987] ECR 4861.

427 See Jacob LJ in Football Dataco Ltd v Sportradar [2011] 1 WLR 3049 at [34].

428 Case C–406/92 Owners of the cargo lately laden on board the ship ‘Tatry’ v Owners of the ship ‘Maciej Rataj’ [1994] ECR I–5439, para 41.

429 Case C–111/01 Gantner Electronic GmbH v Basch Expoitatie Maatschappij BV [2003] ECR I–4207, para 26; Case C–39/02 Maersk Olie & Gas A/S v Firma M de Haan en W de Boer [2004] ECR I–9657, para 36.

430 Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG [2014] 1 All ER 590; Barclays Bank plc v Ente Nazionale di Prevedenza [2015] 2 Lloyd’s Rep 527.

431 Case 144/86 Gubisch Maschinenfabrik KG v Palumbo [1987] ECR 4861; Case C–39/02 Maersk Olie & Gas A/S v Firma M de Haan en W de Boer [2004] ECR I–9657.

432 See, eg, Bank of Tokyo-Mitsubishi v Baskan Gida Sanayi Ve Pazarlama [2004] 2 Lloyd’s Rep 395; Underwriting Members of Lloyd’s Syndicate 980 v Sinco SA [2009] 1 All ER (Comm) 272.

433 SET Select Energy GmbH v F&M Bunkering Ltd [2014] 1 Lloyd’s Rep 652.

434 Republic of Haiti v Duvalier [1990] 1 QB 202; The Winter [2000] 2 Lloyd’s Rep 298; Miles Platt Ltd v Townroe Ltd [2003] 1 All ER (Comm) 561.

435 Case 144/86 [1987] ECR 4861.

436 Case C–406/92 Owners of the cargo lately laden on board the ship ‘Tatry’ v Owners of the ship ‘Maciej Rataj’ [1994] ECR I–5439.

437 Case C–406/92 [1994] ECR I–5439.

438 See Case C–351/96 Drouot Assurances SA v Consolidated Metallurgical Industries (CMI Industrial Sites) [1998] ECR I–3075. See also Sony Computer Entertainment Ltd v RH Freight Services Ltd [2007] 2 Lloyd’s Rep 463.

439 Kolden Holdings Ltd v Rodette Commerce Ltd [2008] 1 Lloyd’s Rep 435 (where X Ltd makes a valid legal assignment of its cause of action to Y Ltd, the two companies are ‘the same party’). Compare Mölnlycke Health Care AB v BSN Medical Ltd [2010] ILPr 9.

440 WMS Gaming Inc v B Plus Giocolegale Ltd [2012] ILPr 5.

441 The Nordglimt [1988] QB 183.

442 Case C–406/92 Owners of the cargo lately laden on board the ship ‘Tatry’ v Owners of the ship ‘Maciej Rataj’ [1994] ECR I–5439; Republic of India v India Steamship Co (No 2) [1998] AC 878.

443 Case C–351/89 [1991] ECR I–3317.

444 Case C–438/12 Weber v Weber [2015] Ch 140, effectively confirming the earlier decision of the Court of Appeal in Speed Investments Ltd v Formula One Holdings Ltd [2005] 1 WLR 1936.

445 Art 45(1)(e)(ii).

446 [1994] 1 WLR 588.

447 Case C–116/02 [2003] ECR I–14693.

448 See, eg, JP Morgan v Primacom [2005] 2 All ER (Comm) 764.

449 Case C–116/02 Erich Gasser GmbH v Misat Srl [2003] ECR I–14693, para 68.

450 Brussels I Recast, recital (22). See also European Commission, Brussels I Recast Green Paper, COM (2009) 175 final, pp 5–6; European Commission, Brussels I Recast Proposal, COM (2010) 748 final, para 3.

451 See Hartley, ‘Choice-of-court Agreements and the New Brussels I Regulation’ (2013) 129 LQR 309. For consideration of the question whether art 31(2) of the Recast applies in a case where proceedings in the non-contractual forum are related (but not identical) to the proceedings brought in the contractual forum, see Kenny and Hennigan, ‘Choice-of-Court Agreements, the Italian Torpedo, and the Recast of the Brussels I Regulation’ (2015) 64 ICLQ 197.

452 Art 31(3). Art 31(2) and (3) do not apply to matters referred to in Sections 3 (insurance), 4 (consumer contracts), and 5 (employment contracts): art 31(4).

453 See Mummery LJ in FKI Engineering Ltd v Stribog Ltd [2011] 1 WLR 3264 at [44]. See also Seven Licensing Co Sarl v FFG Platinum SA [2012] ILPr 7.

454 Art 30(3).

455 FKI Engineering Ltd v Stribog Ltd [2011] 1 WLR 3264.

456 Case C–406/92 Owners of the cargo lately laden on board the ship ‘Tatry’ v Owners of the ship ‘Maciej Rataj’ [1994] ECR I–5439.

457 Lord Saville in Sarrio SA v Kuwait Investment Authority [1999] 1 AC 32 at 40–1.

458 See, eg, UBS Ltd v Regione Calabria [2012] ILPr 22.

459 See Advocate General Tesauro in C–406/92 Owners of the cargo lately laden on board the ship ‘Tatry’ v Owners of the ship ‘Maciej Rataj’ [1994] ECR I–5439, para 28.

460 Art 30(1).

461 Art 30(2).

462 Jenard Report, OJ 1979 C59/41.

463 The Maciej Rataj [1991] 2 Lloyd’s Rep 458 (revsd on other grounds [1992] 2 Lloyd’s Rep 552).

464 Centro Internationale Handelsbank AG v Morgan Grenfell Trade Finance Ltd [1997] CLC 870.

465 Lehman Brothers Bankhaus AG I. Ins v CMA CGM [2013] 2 All ER (Comm) 557.

466 See Advocate General Lenz in Case C–129/92 Owens Bank v Bracco (No 2) [1994] ECR I–117, para 76.

467 Cooper Tire & Rubber Co Europe Ltd v Dow Deutschland Inc [2010] 2 CLC 104.

468 JP Morgan v Primacom [2005] 2 All ER (Comm) 764; Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG [2014] 1 All ER 590; Nomura International plc v Banca Monte Dei Paschi Di Siena SpA [2014] 1 WLR 1584; Barclays Bank plc v Ente Nazionale di Prevedenza [2015] 2 Lloyd’s Rep 527.

469 Case 150/80 Elefanten Schuh GmbH v Jacqmain [1981] ECR 1671; Case C–51/97 Réunion Européenne SA v Splietoff’s Bevachtingskantoor BV [1998] ECR I–6511.

470 Art 33(3).

471 Art 34(2).

472 If, however, the New York proceedings had been commenced first, art 33 would be engaged.

473 See paras 2.2702.280.

474 St Pierre v South American Stores (Gath and Chaves) Ltd [1936] 1 KB 382.

475 The Atlantic Star [1973] QB 364 at 382.

476 Société Générale de Paris v Dreyfus Bros (1885) 29 Ch D 239.

477 The Atlantic Star [1974] AC 436; MacShannon v Rockware Glass Ltd [1978] AC 795; The Abidin Daver [1984] AC 398.

478 [1987] AC 460. For a policy-based evaluation of the law, see Fawcett, ‘Trial in England or Abroad: The Underlying Policy Considerations’ (1989) 9 OJLS 205.

479 [1984] AC 50 at 72.

480 Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460.

481 Lord Reid in The Atlantic Star [1974] AC 436 at 453.

482 See, in particular, the speech of Lord Diplock in The Abidin Daver [1984] AC 398 at 411.

483 Brandon LJ in The El Amria [1981] 2 Lloyd’s Rep 119 at 126.

484 In relation to the question whether or not a foreign forum is ‘available’, the basis on which the foreign court may assume jurisdiction is irrelevant: Lubbe v Cape plc [2000] 1 WLR 1545.

485 New Hampshire Insurance Co v Phillips Electronics North America Corpn [1998] CLC 1062; Messier-Dowty Ltd v Sabena SA [2000] 1 WLR 2040; Ark Therapeutics plc v True North Capital Ltd [2006] 1 All ER (Comm) 138.

486 See, eg, The Prestrioka [2003] 2 Lloyd’s Rep 327; Pacific International Sports Clubs Ltd v Soccer Marketing International Ltd [2010] EWCA Civ 753.

487 The Varna (No 2) [1994] 2 Lloyd’s Rep 41; Chase v Ram Technical Services Ltd [2000] 2 Lloyd’s Rep 418.

488 [1984] AC 398.

489 EI du Pont de Nemours & Co v Agnew [1987] 2 Lloyd’s Rep 585.

490 The Olympic Galaxy [2006] 2 Lloyd’s Rep 27; Stonebridge Underwriting Ltd v Ontario Municipal Insurance Exchange [2010] 2 CLC 349; Faraday Reinsurance Co Ltd v Howden North America Inc [2012] 2 CLC 956; Niche Products Ltd v Macdermid Offshore Solutions LLC [2014] FSR 21.

491 Cleveland Museum of Art v Capricorn Art International SA [1990] 2 Lloyd’s Rep 166.

492 See, eg, The Kapetan Georgis [1988] 1 Lloyd’s Rep 352; Smyth v Behbehani [1999] ILPr 584; Crédit Agricole Indosuez v Unicof Ltd [2004] 1 Lloyd’s Rep 196; JSC BTA Bank v Granton Trade Ltd [2011] 2 All ER (Comm) 542; BAT Industries plc v Windward Prospects Ltd [2014] 2 All ER (Comm) 757.

493 The Oinoussin Pride [1991] 1 Lloyd’s Rep 126.

494 [1987] AC 460.

495 Lord Mance JSC in VTB Capital plc v Nutritek International Corpn [2013] 2 AC 337 at [46]. See also Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd [1999] CLC 1270; Zivlin v Baal Taxa [1998] ILPr 106; CGU International Insurance plc v Szabo [2002] 1 All ER (Comm) 83; Wright v Deccan Chargers Sporting Ventures Ltd [2011] ILPr 37; The Golden Endurance [2015] 1 Lloyd’s Rep 266; Teekay Tankers Ltd v STX Offshore & Shipping Co [2015] 2 All ER (Comm) 263.

496 See, eg, Novus Aviation Ltd v Onur Air Tasimacilik AS [2009] 1 Lloyd’s Rep 576; The Lucky Lady [2013] 2 Lloyd’s Rep 104.

497 See Limit (No 3) Ltd v PDV Insurance Co [2005] 2 All ER (Comm) 347.

498 FR Lürssen Werft GmbH & Co KG v Halle [2010] 2 Lloyd’s Rep 20; Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd [2011] 1 CLC 125. Although both these cases went on appeal, the forum conveniens determination was not challenged.

499 Bingham LJ in EI du Pont de Nemours & Co v Agnew [1987] 2 Lloyd’s Rep 585 at 594.

500 See Lord Goff in Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460 at 483.

501 See, eg, Cherney v Deripaska (No 2) [2010] 3 All ER (Comm) 456.

502 See Lord Goff in Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460 at 483. See also The Prestrioka [2003] 2 Lloyd’s Rep 327.

503 Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460.

504 [1989] 2 Lloyd’s Rep 558.

505 [1999] 2 Lloyd’s Rep 249.

506 See also Konamaneni v Rolls-Royce Industrial Power (India) Ltd [2002] 1 All ER 979; Ceskoslovenska Obchodni Banka AS v Nomura International plc [2003] ILPr 20.

507 [1989] 1 WLR 619.

508 Herceg Novi v Ming Galaxy [1998] 4 All ER 238.

509 The Vishva Abha [1990] 2 Lloyd’s Rep 312 (damages limited to £367,500 under South African law; potential liability of £1.5 million under English law); Baghlaf Al Zafer Factory Co BR for Industry Ltd v Pakistan National Shipping Co [1998] 2 Lloyd’s Rep 229.

510 Connelly v RTZ Corpn plc [1998] AC 854. See also Carlson v Rio Tinto plc [1999] CLC 551.

511 Lubbe v Cape plc [2000] 1 WLR 1545.

512 International Credit and Investment Company (Overseas) Ltd v Shaikh Kamal Adham [1999] ILPr 302; Sharab v Al-Saud [2009] 2 Lloyd’s Rep 160; Karafarin Bank v Mansoury-dara [2009] 2 Lloyd’s Rep 289.

513 Irish Shipping Ltd v Commercial Union Assurance Co plc [1991] 2 QB 206; Tiernan v Magen Insurance Co Ltd [2000] ILPr 517.

514 Banco Atlantico SA v British Bank of the Middle East [1990] 2 Lloyd’s Rep 504.

515 See Carter (1989) 60 BYIL 482 at 484–5.

516 Altimo Holdings & Investments Ltd v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804.

517 [1937] 1 All ER 23.

518 Altimo Holdings & Investments Ltd v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804.

519 Askin v Absa Bank Ltd [1999] ILPr 471.

520 Jeyaretnam v Mahmood (1992) The Times, 21 May.

521 Lord Diplock in The Abidin Daver [1984] AC 398 at 411.

522 [1984] AC 50.

523 Lord Wilberforce at 66.

524 See Hill, ‘Jurisdiction in Civil and Commercial Matters: Is There a Third Way?’ (2001) 54 CLP 439. See also Arzandeh, ‘Should the Spiliada Test Be Revised?’ (2014) 10 Journal of Private International Law 89 (arguing that the second stage should be reformulated).

525 Lord Diplock in The Abidin Daver [1984] AC 398 at 411.

526 Equitas Ltd v Allstate Insurance Co [2009] 1 All ER (Comm) 1137; UBS AG v HSH Nordbank AG [2009] 2 Lloyd’s Rep 272.

527 Langley J in OT Africa Line Ltd v Magic Sportswear Corp [2005] 1 Lloyd’s Rep 252 at 258; affd [2006] 1 All ER (Comm) 32.

528 There is, however, a reported case where English proceedings were stayed on the plaintiff’s application, notwithstanding an English jurisdiction agreement: Bouygues Offshore SA v Caspian Shipping Co (Nos. 1, 3, 4 and 5) [1998] 2 Lloyd’s Rep 461.

529 The Chaparral [1968] 2 Lloyd’s Rep 158.

530 For discussion of the position where the parties have agreed to the jurisdiction of a non-Member State and the English court’s jurisdiction is based on the Brussels I Recast, see paras 2.2702.280.

531 The Nile Rhapsody [1994] 1 Lloyd’s Rep 382; The Pioneer Container [1994] 2 AC 324.

532 Mackender v Feldia AG [1967] 2 QB 590; Ingosstrakh Insurance Co Ltd v Latvian Shipping Company [2000] ILPr 164; Konkola Copper Mines plc v Coromin Ltd (No 2) [2002] 2 All ER (Comm) 400.

533 The Rothnie [1996] 2 Lloyd’s Rep 206; Import Export Metro Ltd v Compania Sud Americana de Vapores SA [2003] 1 Lloyd’s Rep 405.

534 BP plc v Aon Ltd [2006] 1 Lloyd’s Rep 549.

535 The Eleftheria [1970] P 94; Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349. See Peel, ‘Exclusive Jurisdiction Agreements: Purity and Pragmatism in the Conflict of Laws’ [1998] LMCLQ 182.

536 The El Amria [1981] 2 Lloyd’s Rep 119; Citi-March Ltd v Neptune Orient Lines Ltd [1996] 1 WLR 1367. See also The MC Pearl [1997] 1 Lloyd’s Rep 566.

537 The Pioneer Container [1994] 2 AC 324.

538 Baghlaf Al Zafer Factory Co BR for Industry Ltd v Pakistan National Shipping Co [1998] 2 Lloyd’s Rep 229.

539 [1979] 1 WLR 1228.

540 Before the civil war, Angolan courts applied Portuguese law and there was a right to appeal to the Supreme Court in Lisbon.

541 Geoffrey Lane LJ at 1241.

542 The Convention has also been signed by the United States and Singapore.

543 Art 1(1). Various matters are excluded, such as family law issues, consumer contracts, and employments contracts: art 1(2).

544 [1979] 1 WLR 1228.

545 For the purposes of s 9 of the Arbitration Act 1996, an agreement that one party, but not the other, may insist on arbitration is an arbitration agreement: Pittalis v Sherefettin [1986] QB 868; NB Three Shipping Ltd v Harebell Shipping Ltd [2005] 1 Lloyd’s Rep 509; Law Debenture Trust Corporation plc v Elektrim Finance BV [2005] 2 Lloyd’s Rep 755. If the court is not satisfied that an alleged arbitration agreement was ever concluded, a stay under the 1996 Act will be refused: Albon v Naza Motor Trading Sdn Bhd [2007] 2 All ER 719. In such a case, the court may, however, grant a discretionary stay under its inherent jurisdiction.

546 S 5.

547 S 5(2)(c).

548 S 5(4).

549 See Zambia Steel and Building Supplies Ltd v James Clark & Eaton Ltd [1986] 2 Lloyd’s Rep 225 (a case decided under the Arbitration Act 1975).

550 S 5(6).

551 S 9(1).

552 Fiona Trust & Holding Corporation v Privalov [2007] 4 All ER 951.

553 Lombard North Central plc v GATX Corp [2012] 1 CLC 884; Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG [2014] 1 All ER 590. But, compare Ryanair Ltd v Esso Italiana Srl [2015] 1 All ER (Comm) 152.

554 S 81(1)(a).

555 For example, claims for breach of competition law under arts 101 and 102 TFEU are arbitrable: Et Plus SA v Welter [2006] 1 Lloyd’s Rep 251; as regards claims under the Companies Act 2008, see Fulham Football Club (1987) Ltd v Richards [2012] Ch 333.

556 S 9(3). See Patel v Patel [2000] QB 551; Bilta (UK) Ltd v Nazir [2010] 2 Lloyd’s Rep 29.

557 Capital Trust Investments Ltd v Radio Design TJ AB [2002] 2 All ER 159.

558 Wealands v CLC Contractors Ltd [1999] 2 Lloyd’s Rep 739.

559 Halki Shipping Corpn v Sopex Oils Ltd [1998] 1 WLR 726.

560 See Swinton Thomas LJ at 761. Even if the case is not one in which a stay is mandatory under the 1996 Act, the court may grant a stay under its inherent jurisdiction: Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334; T&N Ltd v Royal & Sun Alliance plc [2002] CLC 1342; A v B [2007] 1 Lloyd’s Rep 237.

561 See, eg, Stretford v Football Association Ltd [2007] 2 Lloyd’s Rep 31.

562 S 9(4).

563 See Sulamérica Cia Nacional de Seguros SA v Enesa Engelharia SA [2013] 1 WLR 102.

564 Downing v Al Tameer Establishment [2002] 2 All ER (Comm) 545.

565 BDMS Ltd v Rafael Advanced Defence Systems [2015] 1 All ER (Comm) 627.

566 [1893] AC 602.

567 For the distinction between movable and immovable property, see paras 9.19.5.

568 (1861) 29 Beav 246; affd 3 De GF & J 583.

569 [1908] 1 Ch 856.

570 British South Africa Co v Companhia de Moçambique [1893] AC 602; Hesperides Hotels Ltd v Muftizade [1979] AC 508.

571 See, eg, Re Polly Peck International plc (in administration) (No 4) [1998] 2 BCLC 185.

572 The Tolten [1946] P 135.

573 See Hamed v Stevens [2013] ILPr 37.

574 Penn v Lord Baltimore (1750) 1 Ves Sen 444. See the discussion by Wass, ‘The Court’s in Personam Jurisdiction in Cases Involving Foreign Land’ (2014) 63 ICLQ 103.

575 Re Courtney (1840) Mont & Ch 239.

576 Richard West & Partners (Inverness) Ltd v Dick [1969] 2 Ch 424.

577 Re Smith [1916] 2 Ch 206.

578 Deschamps v Miller [1908] 1 Ch 856 at 863.

579 See Razelos v Razelos (No 2) [1970] 1 WLR 392; Hamlin v Hamlin [1986] Fam 11. See also the obiter discussion in R Griggs Group Ltd v Evans [2005] Ch 153.

580 Re Ross [1930] 1 Ch 377; Re Duke of Wellington [1948] Ch 118.

581 British South Africa Co v Companhia de Moçambique [1893] AC 602.

582 An example might be Adams v Clutterbuck (1883) 10 QBD 403 (which concerned a document executed in England conveying shooting rights over moorland in Scotland).

583 See Coin Controls Ltd v Suzo International (UK) Ltd [1999] Ch 33.

584 [2012] 1 AC 208.

585 [1893] AC 602.

586 As regards arts 29, 30, 33, and 34 of the Brussels I Recast, see paras 2.1802.211.

587 See, eg, Mahme Trust Reg v Lloyds TSB Bank plc [2004] 2 Lloyd’s Rep 637; Gomez v Gomez-Moche Vives [2008] 3 WLR 309, affd (without consideration of the forum non conveniens point) [2009] Ch 245.

588 [1992] Ch 72.

589 See Lord Bingham in Lubbe v Cape plc [2000] 1 WLR 1545 at 1562.

590 Re Harrods (Buenos Aires) Ltd was appealed to the House of Lords, which referred a number of questions to the Court of Justice (Case C–314/92), but before the reference was heard the dispute was settled.

591 Case C–281/02 [2005] ECR I–1383. See Briggs, ‘Forum Non Conveniens and Ideal Europeans’ [2005] LMCLQ 378; Hare, ‘Forum non conveniens in Europe: Game Over or Time for “Reflexion”?’ [2006] JBL 157; Harris, ‘Stays of Proceedings and the Brussels Convention’ (2005) 54 ICLQ 933; Peel, ‘Forum Non Conveniens and European Ideals’ [2005] LMCLQ 363.

592 [2002] ILPr 45.

593 For application of the Owusu ruling, see Blue Tropic Ltd v Chkhartishvili [2014] ILPr 33.

594 Gomez v Gomez-Moche Vives [2008] 3 WLR 309.

595 Equitas Ltd v Allstate Insurance Co [2009] 1 All ER (Comm) 1137; UBS AG v HSH Nordbank AG [2009] 2 Lloyd’s Rep 272.

596 Cook v Virgin Media Ltd [2016] ILPr 6.

597 The Xin Yang [1996] 2 Lloyd’s Rep 217; Sarrio SA v Kuwait Investment Authority [1997] 1 Lloyd’s Rep 113.

598 Case C–281/02 [2005] ECR I–1383, para 37.

599 Goshawk Dedicated Ltd v Life Receivables Ireland Ltd [2008] ILPr 50. The issue was subsequently referred to the Court of Justice by the Irish Supreme Court [2009] ILPr 26, but the case was resolved before the reference was heard.

600 [2010] Ch 218. See also the observations in Skype Technologies SA v Joltid Ltd [2011] ILPr 8.

601 [2009] QB 450 at [125].

602 Case C–387/98 [2000] ECR I–9337, para 19.

603 If an agreement confers jurisdiction on the courts of a third state which is a party to the Hague Choice of Court Convention, the courts of Member States are (normally) required by art 6 of the Convention to suspend or dismiss proceedings brought in breach of the agreement. See paras 2.2442.248.

604 There is also a line of cases in which the court has side-stepped having to decide the issue: Karafarin Bank v Mansoury-dara [2009] 2 Lloyd’s Rep 289; Choudhary v Bhattar [2010] 2 All ER 1031; Deutsche Bank AG v Sebastian Holdings Inc [2010] 1 All ER (Comm) 808; Royal & Sun Alliance Insurance plc v Rolls-Royce plc [2010] 2 CLC 84.

605 [2009] 2 All ER (Comm) 735.

606 See also Konkola Copper Mines plc v Coromin Ltd [2005] 2 All ER (Comm) 637 (in which the same view was expressed obiter).

607 This possibility is alluded to (but neither approved nor rejected) by Advocate General Léger in Case C–281/02 Owusu v Jackson [2005] ECR I–1383, para 70.

608 [2012] 1 Lloyd’s Rep 528; De Verneuil Smith, Lasser and Rymkiewicz, ‘Reflections on Owusu: The Radical Decision in Ferrexpo’ (2012) 8 Journal of Private International Law 389; Goodwin (2013) 129 LQR 317.

609 See, eg, Konkola Copper Mines v Coromin Ltd [2005] 2 All ER (Comm) 637.

610 For a conflicting view, see Briggs, ‘Forum Non Conveniens and Ideal Europeans’ [2005] LMCLQ 378; Peel, ‘Forum Non Conveniens and European Ideals’ [2005] LMCLQ 363. See also Droz, Compétence Judiciaire et Effets des Jugements dans le Marché Commun (1972) pp 108–10.

611 If and when the United States becomes bound by the Hague Choice of Court Convention, this scenario will be regulated by the Convention. See paras 2.2442.248. On the Eleftheria test, see para 2.242.

612 By contrast, art 45(1)(d) of the Recast expressly deals with the problem posed by conflicting judgments given by the courts of Member States and third states. See paras 3.1233.126.

613 Collins, ‘Provisional and Protective Measures in International Litigation’ in Essays in International Litigation and the Conflict of Laws (1994) pp 1–188.

614 Regulation (EU) No 655/2014, 2014 OJ L189/59, established a European Account Preservation Order (which shares several of the characteristics of an English freezing injunction); the United Kingdom, however, did not take part in the adoption of the Regulation and is not bound by it or subject to its application.

615 Case C–391/95 Van Uden Maritime BV v Firma Deco-Line [1998] ECR I–7091; Masri v Consolidated Contractors International (UK) Ltd (No 2) [2009] QB 450.

616 See Collins, ‘The Siskina Again: An Opportunity Missed’ (1996) 112 LQR 8.

617 Sch 4 to the Civil Jurisdiction and Judgments Act 1982 (r 16) lays down the same rule for cases where the courts of another part of the United Kingdom have jurisdiction as to the substantive proceedings. Art 35 is not precluded in a case where the other Member State court has exclusive jurisdiction under art 24: Case C–616/10 Solvay SA v Honeywell Fluorine Products Europe BV, unreported.

618 Case C–391/95 Van Uden Maritime BV v Firma Deco-Line [1998] ECR I–7091. But, see the doubts expressed by Petrochilos, ‘Arbitration and Interim Measures: In the Twilight of the Brussels Convention’ [2000] LMCLQ 99.

619 Case C–261/90 Reichert v Dresdner Bank AG (No 2) [1992] ECR I–2149, para 34.

620 Case C–104/03 St Paul Dairy Industries NV v Unibel Exser BVBA [2005] ECR I–3481.

621 Case C–391/95 Van Uden Maritime BV v Firma Deco-Line [1998] ECR I–7091; Case C–99/96 Mietz v Intership Yachting Sneek BV [1999] ECR I–2277. See also Wermuth v Wermuth [2003] 1 WLR 942.

622 See Republic of Haiti v Duvalier [1990] 1 QB 202.

623 Siskina (Owners of cargo lately laden on board) v Distos Compania Naviera SA [1979] AC 210.

624 The power to extend s 25(1) was provided by s 25(3) of the 1982 Act, which was exercised by the introduction of the Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997, SI 1997/302.

625 ETI Euro Telecom International NV v Republic of Bolivia [2009] 1 WLR 665.

626 CPR r 6.36, PD 6B para 3.1(5).

627 Alltrans Inc v Interdom Holdings Ltd [1991] 4 All ER 458.

628 Fourie v Le Roux [2007] 1 WLR 320.

629 For the meaning of ‘good arguable case’ in this context, see Kazakhstan Kagazy plc v Arip [2014] 1 CLC 451. For an example of the judge being ‘just about satisfied’ by the strength of the claimants’ case, see Gloster J in Guerrero v Moterrico Metals plc [2009] EWHC 2475 (QB) at [26].

630 Ninemia Maritime Corpn v Trave Schiffahrtsgesellschaft mbH und Co KG [1983] 1 WLR 1412; Refco Inc v Eastern Trading Co [1999] 1 Lloyd’s Rep 159; Laemthong International Lines Co Ltd v Artis [2005] 1 Lloyd’s Rep 100. If there is no risk of dissipation, an injunction should not be granted: see, eg, Western Bulk Shipowning III A/S v Carbofer Maritime Trading ApS [2012] 1 CLC 954.

631 See Pacific Maritime (Asia) Ltd v Holystone Overseas Ltd [2008] 1 Lloyd’s Rep 371.

632 Civil Jurisdiction and Judgments Act 1983, s 25(2).

633 Joint Stock Company VTB Bank v Skurikhin [2013] 2 All ER (Comm) 418.

634 Crédit Suisse Fides Trust SA v Cuoghi [1998] QB 818; Refco Inc v Eastern Trading Co [1999] 1 Lloyd’s Rep 159.

635 United States of America v Abacha [2015] 1 WLR 1917.

636 Motorola Credit Corpn v Uzan (No 2) [2004] 1 WLR 113.

637 In this type of case, a question arises whether an English judgment on the merits may be refused recognition and enforcement in other countries on the ground of public policy. See Case C–394/07 Gambazzi v Daimler Chrysler Canada Inc [2009] ECR I–2563, discussed at para 3.110.

638 Belletti v Morici [2009] ILPr 57; Mobil Cerro Negro Ltd v Petroleos de Venezuela SA [2008] 1 Lloyd’s Rep 684.

639 Duder v Amsterdamsch Trustees Kantoor [1902] 2 Ch 132.

640 Although the court’s powers under Civil Procedure Act 1997 are limited to premises in England, the court’s inherent jurisdiction is wider: Cook Industries Inc v Galliher [1979] Ch 439. See also Protector Alarms Ltd v Maxim Alarms Ltd [1978] FSR 442; Altertext Inc v Advanced Data Communications Ltd [1985] 1 WLR 457.

641 The power to grant a freezing injunction in relation to foreign assets was first recognised in Babanaft International Co SA v Bassatne [1990] Ch 13.

642 See Lawrence Collins LJ in Masri v Consolidated Contractors International (UK) Ltd (No 2) [2009] QB 450 at [35].

643 Ibid at [59].

644 Ibid at [47].

645 See Dillon LJ in Derby & Co Ltd v Weldon (No 6) [1990] 1 WLR 1139 at 1149.

646 See, eg, May LJ in Derby & Co Ltd v Weldon [1990] Ch 48 at 55.

647 See, however, cases in which this requirement was waived in favour of a public body acting in the performance of a public duty: Securities and Investment Board v Lloyd-Wright [1993] 4 All ER 210; United States Securities and Exchange Commission v Manterfield [2010] 1 WLR 172.

648 See, eg, Boreh v Republic of Djibouti [2015] 3 All ER 577.

649 Kazakhstan Kagazy plc v Arip [2014] 1 CLC 451.

650 Derby & Co Ltd v Weldon (No 6) [1990] 1 WLR 1139.

651 Babanaft International Co SA v Bassatne [1990] Ch 13.

652 Republic of Haiti v Duvalier [1990] 1 QB 202.

653 Rosseel NV v Oriental Commercial Shipping (UK) Ltd [1990] 1 WLR 1387.

654 Crédit Suisse Fides Trust SA v Cuoghi [1998] QB 818.

655 See, eg, Polly Peck International plc v Nadir [1992] 2 Lloyd’s Rep 238; Nomihold Securities Inc v Mobile Telesystems Finance SA [2012] 1 All ER (Comm) 223.

656 Kensington International Ltd v Republic of Congo [2008] 1 Lloyd’s Rep 161.

657 Case C–391/95 [1998] ECR I–7091.

658 Ibid, para 40.

659 Lord Donaldson MR in Rosseel NV v Oriental Commercial Shipping (UK) Ltd [1990] 1 WLR 1387 at 1389.

660 Crédit Suisse Fides Trust SA v Cuoghi [1998] QB 818.

661 Belletti v Morici [2009] ILPr 57; Mobil Cerro Negro Ltd v Petroleos de Venezuela SA [2008] 1 Lloyd’s Rep 684.

662 [1990] 1 QB 202.

663 [2007] 2 Lloyd’s Rep 484.

664 See Tuckey LJ at [49].

665 Although earlier editions strongly supported the decision in Republic of Haiti v Duvalier, the current edition is more equivocal, suggesting that the decision ‘may perhaps be justified’: Dicey, Morris and Collins, The Conflict of Laws (15th edn, 2012) p 275.

666 [2009] QB 450 at [106].

667 Peel (1998) 18 YBEL 689, 698.

668 [2004] 1 WLR 113.

669 In its judgment the Court of Appeal referred to the Van Uden case and it seems that the court would have reached the same decision if the substantive proceedings had been in a Member State.

670 [2013] 1 Lloyd’s Rep 327.

671 See Dadourian Group International Inc v Simms [2006] 1 WLR 2499; Dadourian Group International Inc v Simms (No 2) [2007] 1 WLR 2967.

672 For consideration of the ‘Babanaft proviso’, the mechanism whereby the courts have sought to provide protection for third parties, see Lord Donaldson MR in Derby & Co Ltd v Weldon (Nos 3 and 4) [1990] Ch 65 at 84; Baltic Shipping v Translink Shipping Ltd [1995] 1 Lloyd’s Rep 673; Bank of China v NBM LLC [2002] 1 WLR 844. A reformulated Babanaft proviso is included in the CPR’s model freezing injunction order: CPR PD25.

673 Lawrence Collins LJ in Masri v Consolidated Contractors International (UK) Ltd (No 2) [2009] QB 450 at [47].

674 In an appropriate case, the court may grant an injunction preventing a defendant from relying abroad on a foreign judgment (see Bank of St Petersburg OJSC v Arkhangelsky [2014] 1 WLR 4360) or restraining a defendant from bringing or pursuing arbitration proceedings (Albon v Naza Motor Trading Sdn Bhd (No 4) [2008] 1 All ER (Comm) 351; Republic of Kazakhstan v Istil (No 2) [2008] 1 Lloyd’s Rep 382; Claxton Engineering Services Ltd v TXM Olaj-és Gázkutató Kft (No 2) [2011] 2 All ER (Comm) 128; Excalibur Ventures LLC v Keystone Inc [2011] 2 CLC 338; but, see Weissfisch v Julius [2006] 2 All ER (Comm) 504; Elektrim SA v Vivendi Universal SA (No 2) [2007] 2 Lloyd’s Rep 8).

675 See, eg, Masri v Consolidated Contractors International (UK) Ltd (No 3) [2009] QB 669.

676 Lawrence Collins LJ in Masri v Consolidated Contractors International (UK) Ltd (No 3) [2009] QB 669 at [59]; see also The Golden Endurance [2015] 1 Lloyd’s Rep 266. If the English court is not already seised of the substantive claim against D, the English court may consider the grant of an anti-suit injunction only if D is otherwise amenable to the court’s jurisdiction. In a case governed by the traditional rules, if the defendant does not submit to the court’s jurisdiction and cannot be served with process in England, the claimant may apply for permission to serve process abroad, for example, under CPR PD 6B para 3.1(6)(c), on the basis that the claim is in respect of a contract governed by English law: Schiffahrtsgesellschaft Detlev von Appen GmbH v Voest Alpine Intertrading GmbH [1997] 2 Lloyd’s Rep 279; Steamship Mutual Underwriting Association (Bermuda) Ltd v Sulpicio Lines Inc [2008] 2 Lloyd’s Rep 269; Elektrim SA v Vivendi Holdings 1 Corporation [2009] 1 Lloyd’s Rep 59. For the position where an anti-suit injunction is sought to restrain proceedings brought in breach of an arbitration clause, see AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] 1 WLR 1889. Although it is generally thought that an anti-suit injunction is not one of the types of provisional measure which fall within the scope of art 35 of the Brussels I Recast, in Masri v Consolidated Contractors International (UK) Ltd (No 3) [2009] QB 669 at [66] Lawrence Collins LJ suggested (obiter) that an interim anti-suit injunction qualifies as a provisional measure.

677 See Lord Diplock in British Airways Board v Laker Airways Ltd [1985] AC 58 at 95. For the English courts’ reaction to a foreign anti-suit injunction restraining the commencement of proceedings in England, see General Star International Indemnity Ltd v Stirling Cooke Brown Reinsurance Brokers Ltd [2003] ILPr 19.

678 Castanho v Brown & Root (UK) Ltd [1981] AC 557.

679 Lord Brandon in South Carolina Insurance Co v Assurantie Maatschappij De Zeven Provincien NV [1987] AC 24 at 40. For a summary of the key principles, see Deutsche Bank AG v Highland Crusader Offshore Partners LP [2010] 1 WLR 1023 at [50].

680 Airbus Industrie GIE v Patel [1999] 1 AC 119. If England is not the natural forum, an application for an anti-suit injunction should fail: Oceanconnect UK Ltd v Angara Maritime Ltd [2010] 2 CLC 448.

681 Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871.

682 Lord Goff at 896.

683 Star Reefers Pool Inc v JFC Group Co Ltd [2012] 2 All ER (Comm) 225.

684 Turner v Grovit [2002] 1 WLR 107; Cadre SA v Astra Asigurari SA [2006] 1 Lloyd’s Rep 560.

685 Albon v Naza Motor Trading Sdn Bhd (No 4) [2008] 1 All ER (Comm) 351; Tonicstar Ltd v American Home Assurance Co [2005] Lloyd’s Rep IR 32.

686 Noble Assurance Co v Gerling-Konzern General Insurance Co [2007] 1 CLC 87.

687 Trafigura Beheer BV v Kookmin Bank Co (No 2) [2007] 1 Lloyd’s Rep 669; Masri v Consolidated Contractors International (UK) Ltd (No 3) [2009] QB 669.

688 Clarke LJ in The Western Regent [2005] 2 Lloyd’s Rep 359 at [48].

689 See, eg, Simon Engineering plc v Butte Mining plc (No 2) [1996] 1 Lloyd’s Rep 91.

690 The Golden Endurance [2015] 1 Lloyd’s Rep 266.

691 [1987] AC 871.

692 See Sim, ‘Choice of Law and Anti-Suit Injunctions: Relocating Comity’ (2013) 62 ICLQ 703.

693 See Rix LJ in Star Reefers Pool Inc v JFC Group Co Ltd [2012] 2 All ER (Comm) 225 at [39]–[40].

694 [2002] 1 WLR 107.

695 [2002] 1 WLR 107 at [28].

696 [1986] QB 689.

697 [1999] 1 AC 119 at 140.

698 Tracomin v Sudan Oil Seeds Co Ltd (No 2) [1983] 1 WLR 1026; Sohio Supply Co v Gatoil (USA) Inc [1989] 1 Lloyd’s Rep 588.

699 [1995] 1 Lloyd’s Rep 87. On the question of damages for breach of a dispute-resolution agreement, see Donohue v Armco Inc [2002] 1 All ER 749; Union Discount Co Ltd v Union Discount Cal Ltd [2002] 1 WLR 1517; Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG [2014] 1 All ER 590; Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG (No 2) [2014] 2 Lloyd’s Rep 544; SwissMarine Services SA v Gupta Coal India Private Ltd [2015] 1 Lloyd’s Rep 456. See also the discussion by Briggs (2001) 72 BYIL 446; Yeo and Tan, ‘Damages for Breach of Exclusive Jurisdiction Clauses’ in Worthington (ed), Commercial Law and Commercial Practice (2003) pp 403–31.

700 Cooke J in Compania Sud Americana de Vapores SA v Hin-Pro International Logistics Ltd [2015] 1 Lloyd’s Rep 301 at [35].

701 See, eg, Longmore LJ in OT Africa Line Ltd v Magic Sportswear Corp [2006] 1 All ER (Comm) 32 at [39].

702 Steyn LJ in Continental Bank NA v Aeakos Compania Naviera SA [1994] 1 WLR 588 at 598.

703 The Angelic Grace [1995] 1 Lloyd’s Rep 87. See also Louis Dreyfus Commodities Kenya Ltd v Bolster Shipping Co Ltd [2010] 2 CLC 71; Vitol SA v Capri Marine Ltd [2011] 1 All ER (Comm) 366; Ecom Agroindustrial Corp Ltd v Mosharaf Composite Textile Mill Ltd [2013] 2 All ER (Comm) 983.

704 Royal Bank of Scotland plc v Highland Financial Partners LP [2012] 2 CLC 19.

705 See The Skier Star [2008] 1 Lloyd’s Rep 652 (delay of more than two years; injunction refused); The MD Gemini [2012] 2 Lloyd’s Rep 672.

706 Toepfer International GmbH v Molino Boschi SRL [1996] 1 Lloyd’s Rep 510.

707 Stichting Shell Pensioenfonds v Krys [2015] AC 616.

708 A/S D/S Svendborg v Wansa [1997] 2 Lloyd’s Rep 183.

709 Donohue v Armco Inc [2002] 1 All ER 749. See also Bouygues Offshore SA v Caspian Shipping Co (Nos 1, 3, 4 and 5) [1998] 2 Lloyd’s Rep 461. However, an injunction will normally be granted to restrain proceedings brought in breach of a jurisdiction clause if the goal of having all related disputes determined by a single forum cannot be achieved: Skype Technologies SA v Joltid Ltd [2011] ILPr 8.

710 Royal Bank of Canada v Coöperative Centrale Raiffeisen-Boerenleenbank BA [2004] 1 Lloyd’s Rep 471; Deutsche Bank AG v Highland Crusader Offshore Partners LP [2010] 1 WLR 1023; The MD Gemini [2012] 2 Lloyd’s Rep 672.

711 Sabah Shipyard (Pakistan) Ltd v Islamic Republic of Pakistan [2003] 2 Lloyd’s Rep 571.

712 [2007] 2 All ER (Comm) 813.

713 See Briggs, ‘Who Is Bound by the Brussels Regulation?’ [2007] LMCLQ 433.

714 [2016] ILPr 3.

715 Continental Bank NA v Aeakos Compania Naviera SA [1994] 1 WLR 588.

716 Turner v Grovit [2002] 1 WLR 107.

717 See, eg, Asariotis, ‘Antisuit Injunctions for Breach of a Forum Agreement: A Critical Review of the English Approach’ (1999/2000) 19 YBEL 447.

718 Case C–159/02 [2004] ECR I–3565. For criticism of the decision, see Briggs (2004) 120 LQR 529; Dickinson, ‘A Charter for Tactical Litigation in Europe?’ [2004] LMCLQ 273.

719 See the decision of the first instance judge: [1999] 1 All ER (Comm) 445.

720 [2000] 1 QB 345.

721 [2002] 1 WLR 107.

722 [2002] 1 WLR 107 at [23].

723 Case C–159/02 [2004] ECR I–3565, para 27.

724 Ibid, para 31.

725 OT Africa Line Ltd v Magic Sportswear Corp [2006] 1 All ER (Comm) 32; Midgulf International Ltd v Groupe Chimique Tunisien [2010] 1 CLC 113.

726 See, eg, Through Transport Mutual Insurance Association (Eurasia) Ltd v New India Assurance Co Ltd [2005] 1 Lloyd’s Rep 67.

727 [2007] 1 Lloyd’s Rep 39.

728 [1995] 1 Lloyd’s Rep 87.

729 [2007] 1 Lloyd’s Rep 391 at [25].

730 Case C–185/07 [2009] 1 AC 1138. Perhaps not surprisingly, the Court of Justice’s decision was not warmly received in England; see, eg, Briggs [2009] LMCLQ 161; Fentiman [2009] CLJ 278; Peel (2009) 125 LQR 365. See also Carducci, ‘Arbitration, Anti-suit Injunctions and Lis Pendens under the European Jurisdiction Regulation and the New York Convention’ (2011) 27 Arb Int 171.

731 Case C–185/07 [2009] 1 AC 1138 at [24]–[25].

732 Ibid at [30].

733 [1995] 1 Lloyd’s Rep 87.

734 For consideration of further implications of the West Tankers decision (particularly, in the context of the enforcement of arbitral awards), see African Fertilizers and Chemicals Nig Ltd v BD Shipsnavo GmbH & Co Reederei KG [2011] 2 Lloyd’s Rep 531.

735 Case C–116/02 [2003] ECR I–14693. See paras 2.1952.198.

736 See European Commission, Brussels I Recast Proposal, COM (2010) 748 final.