Update May 2017. Judgment upheld on appeal.
Jack J, considers not just the issue of dépeçage under Rome I (here: an attempt at distinguishing applicable law for regulatory as opposed to purely contractual issues) but also, albeit briefly the new lis alibi pendens /related actions regime of Articles 33-34 Brussels I Recast. (In a much more succinct way than Zavarco).
At 73 in particular: ‘I am doubtful whether any part of the [FNC] doctrine survives in cases where this Court has jurisdiction under the Brussels I-Recast Regulation. [reference to Owusu]. Instead the extent to which this Court can and should say the current proceedings is likely to be limited by Arts 33 and 34 of Brussels I-Recast.’ This is an interesting reflection on Article 34 Brussels I Recast, despite inevitable parallel particularly experienced by common law courts, not amounting to a forum non conveniens light.
Continued then at 74 ff:
‘However, I do not need to determine that issue. Gibraltar is a perfectly appropriate venue for the determination of the dispute between the parties. The business of Bwin Gibraltar is run from here. All the parties reside here. The misrepresentations relied on were made in Gibraltar or London. Most of the lay witnesses are either in Gibraltar or in Europe.
75. It is true that the New Jersey courts will be more familiar with New Jersey gaming law. However, given that a trial there would be with a civil jury, that may not be such an advantage. In terms of disclosure of documents from the DGE, this is neutral in my
judgment. If the proceedings continue in Gibraltar, the parties can apply in the federal courts of New Jersey…for disclosure of documents…
76. In my judgment, neither Gibraltar nor New Jersey is a forum non conveniens. In exercising my discretion as to whether to grant an anti-suit injunction, I consider that there is nothing substantial to weigh against Bwin Gibraltar’s contractual entitlement not to be sued in New Jersey. Accordingly, I will grant an anti-suit injunction.’
A further, brief, consideration of Article 34.
(Handbook of) European Private International Law – 2nd ed. 2016 , Chapter 2, Heading 22.214.171.124.