I last updated the draft for this post in November….I am hoping somewhat to catch up with posts this week.
In Transworld Payment Solutions U.K. Ltd, Re [2022] EWHC 2742 (Ch) Freedman J refused an application to set aside an order to serve out of jurisdiction. Claimants’ case is that the E&W proceedings arise out of an alleged “VAT carousel fraud”, carried out in England and Wales, by English and Welsh companies. There are concurrent Curaçao proceedings.
Defendants raise a forum non conveniens jurisdictional defence. They submit that the Curaçao court is presently seised as to the issue as to whether the companies were effectively parties to a number of settlement agreements, and the effect of the same. These Settlement Agreements are subject to Curaçao law and contain a Curaçao jurisdiction clause (which is not exclusive). They also submit that the fraud claims will be determined as part of the applications for negative declarations in the Curaçao Proceedings. The Claimants dispute that the fraud claims or the full scope of the fraud claims will be determined in the Curaçao Proceedings.
There are significant areas of dispute between the parties as regards what is in issue in the Curaçao Proceedings. The issue that is of most interest to the blog, is the consideration of applicable law under Rome II. [79] Freedman J notes “VTB [VTB Capital Plc v Nutritek International Corp [2013] UKSC 5] ,was a case where English law (used as a shorthand to refer to the law of England and Wales) was the proper law of the tort, but where the majority of the court nonetheless stayed the action in favour of the matter being more appropriately litigated in Russia.”
A first issue is the catchment area of Rome II’s ‘non-contractual obligations’, to typically common law equitable wrongs including dishonestly assisting breach of trust/fiduciary duty. [83] the judge holds with reference to Dicey, Morris and Collins 16th Ed. that they likely do. [84] The most likely lex causae following Rome II is English law and ‘(I)t seems unlikely that Article 4(3) would apply given the closer connection of any tort or delict with England and Wales rather than with Curaçao or any other country. ‘
The issues will be further discussed at trial and one imagines both Rome I and Rome II will return there. But for now, jurisdiction is going ahead.
Geert.
gavc law - geert van calster 