Posts Tagged anti-suit

W v L. Brussels IIa and forum non conveniens ex-EU.

When I reported [2019] EWHC 466 (Fam) V v M, I suggested that forum non considerations there, moot given that eventually jurisdiction of the English courts was upheld, would resurface in further cases. They have. [2019] EWHC 1995 (Fam) W v L eventually went much the same way as V v M.

The Brussels BIIa Regulation applies when determining the question of jurisdiction regardless of whether there is an alternative jurisdiction in a non-member state (Re A (Jurisdiction: Return of Child) [2014] 1 AC 1 , later confirmed in CJEU UD v XB C-393/18 PPU [2019] 1 WLR 3083 ). Brussels IIa has an intra-EU forum non conveniens regime (applied in C‑428/15, Child and Family Agency, on which I report here).

Art 8(1) of BIIa provides that the courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.

MacDonald J at 30 posits that where the English court does have jurisdiction under Art 8 BIIa but there are proceedings also in a third party non-member state (here: Jordan) the issue becomes one of forum conveniens – which he subsequently discusses following the Spiliada criteria. In V v M to which current judgment refers at 34, Williams J reflected on whether forum non at all has calling following (he held it does; not convincingly). MacDonald J in current case first at 30 simply seems to accept such application. Then at 38 holds he need not decide this issue here (counsel had suggested the issue was in fact covered by Brussels Ia and the precedent value of Owusu therefor clear) for even if forum non conveniens has to be decided, it clearly points to England.

In conclusion, therefore: the issue still has not been settled and will, again, return.

Geert.

 

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Tigipko. High Court minded to extend CJEU’s Turner anti-suit prohibition to 1996 Hague Convention parties and family law.

Not all of [2019] EWHC 1579 (Fam) RJ v Tigipko is easily understood. Detail is kept private and proceedings were conducted in camera for evident reasons. The case concerns an earlier order to return a child from the Ukraine, which was followed up by an unsuccessful appeal to the Ukrainian courts to recognise this order under the 1996 Hague convention. Application in England now is to beef up the return order.

What is of interest to the blog is the consideration of action against the maternal grandfather. From the little detail in the judgment one can infer that he is complicit in the parental kidnapping. What exactly is being asked from him is not made clear however it is not quite like an anti-suit but rather (at 21) ‘a mandatory injunction requiring a party to commence and act in a foreign suit in a certain way, which is an order.’ Here, at 20, Mostyn J would seem to be minded to apply CJEU C-159/02 Turner v Grovit to Hague Convention States.

That, I would suggest, is a bold move not supported by either authority or spirit of EU law. Full argument on it will be heard later.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.1.

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Airbus v Generali et al: The Court of Appeal on the intensity of review of choice of court under Article 25. Clear echoes of Turner v Grovit and West Tankers.

Update 17 October 2019 for a related issue in a German case, awarding the German party costs for having to defend a US procedure in spite of parties’ agreement to litigate in Germany, see the German federal court, BGH , Urteil vom 17.10.2019 – III ZR 42/19, as flagged by Tobias Lutzi (and discussed by Giesela Ruhl here).
(Apologies for the odd formatting in this post: I tried to debug this but failed. I am not wasting too much time trying, for I assume most of you do not visit the blog to enjoy its design qualities).
In [2019] EWCA Civ 805 Airbus v Generali et al CJEU authority in West Tankers clearly echoes. I had hoped to review the case much sooner after my Tweet reporting it a few days after the judgment came out. That delay does have the advantage that Clyde & Co in the meantime have analysis to which I am happy to refer.

The claimant in this action and the respondent to the appeal, Airbus, claims declarations (1) that it is not liable to the defendant insurers for losses incurred in relation to an incident which occurred on 29 September 2013 in which an aircraft which it had manufactured sustained damage when landing in Rome and (2) that proceedings commenced against it by the defendants in Italy have been commenced contrary to the terms of an English exclusive jurisdiction clause. The clause in question is contained in an Airframe Warranties Agreement dated 8 July 2010 (“the Warranties Agreement”) concluded between (among others) Airbus and the defendants’ insured, the Italian airline company Alitalia. The issue on this appeal is whether the English court has jurisdiction over these claims by virtue of the jurisdiction clause. Moulder J held that it does and the defendant insurers (henceforth “the appellants”) now appeal.

Appellants contend, in outline, that the jurisdiction clause is of limited scope and does not extend to Airbus’s claims in this action, that the claim for a negative declaration falls within an arbitration clause in a different agreement, a Purchase Agreement dated 31 October 2005 which provides for ICC arbitration in Geneva, and that their own proceedings in Italy under articles of the Italian Civil Code are not within the scope of either clause. They say in addition that they cannot be in breach of an exclusive jurisdiction clause to which, as insurers, they were never parties and that, regardless of the true construction of the clause, there is no basis on which the English court can make a declaration against them (essentially, per Turner v Grovit and West Tankers).

Males LJ at 49: The standard of proof to be applied in determining whether the English court has jurisdiction under Article 25 of the Brussels Recast Regulation is that of a good arguable case. Kaifer Aislimentos was discussed as relevant authority. However, at 52: ‘sometimes it will be sensible, when a question of law arises on an application to challenge jurisdiction, for the court to decide it rather than merely deciding whether it is sufficiently arguable.’  Discussion of the contractual construction of the choice of court clause then follows at 62 ff and concludes in favour of a wide application in casu.

At 77 ff: The question whether the appellants’ claim in Italy falls within the scope of the English jurisdiction clause. Males LJ notes correctly that this depends on the nature of the claim brought in Italy, not on the defences which may be or have in fact been raised by Alitalia. At 82 he fairly swiftly concludes that even though the Italian claim is for breach of non-contractual obligations under articles of the Italian Civil Code, it is sufficiently connected to the Warranties Agreement to be within the scope of the exclusive jurisdiction clause. At 83 therefore: the commencement and pursuit of the Italian proceedings was contrary to the terms of that clause and that the English court has jurisdiction to determine that claim.

That then brings us to the discussion of what the English courts might potentially do to assist the party relying on the choice of court clause – given the unavailability of anti-suit per West Tankers. Noteworthy is that the new lis alibi pendens rule protecting choice of court following Brussels Ia, seemingly was not deployed or discussed in the Italian proceedings – at any rate there is no reference to any such discussion in the Court of Appeal judgment (other than perhaps at 84 which seems to suggest that amendment of claims brought the issue to the surface and this may not yet have been the case at the time of the discussion of the Italian proceedings).

A statement by the English courts finding infringement of the clause, would not just have an impact on cost rulings but would also ground a delictual claim. At 97 Males LJ settles the discussion whether such a declaration might be possible: ‘I can see no valid basis on which West Tankers can be distinguished. If it is held that commencement of the Italian proceedings by Alitalia would have been a breach of the jurisdiction clause in the Warranties Agreement, it follows that their commencement by the appellant insurers is a breach of an equivalent obligation in equity which Airbus is entitled to enforce and that the English court has jurisdiction to grant a declaration to say so.’

Interesting and highly relevant authority.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Heading 2.2.2.10.2.,  Heading 2.2.9, Heading 2.2.9.4.

 

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V v M. Forum non conveniens in family matters ex-Brussels IIa and Hague Convention parties.

In [2019] EWHC 466 (Fam) V v M, Williams J refused both an application for a stay on the basis of forum non conveniens of English proceedings in favour of proceedings in India, and an anti-suit injunction. Applicant mother is V and the respondent is the father M. They are engaged in litigation in England and in India in respect of their son. The English limb of the proceedings is the mother’s application for wardship which was issued on or about the 16 October 2018, and which includes within it application for the summary return of the child from India to England.

India is (obviously) neither a Brussels IIa party nor the 1996 Hague child Protection Convention. Brussels IIa contains a forum non-light regime (as Brussels Ia now does, too): see e.g. Child and Family Agency v J.D. Whether more general forum non is excluded following Owusu v Jackson per analogiam, has not reached the CJEU however as Williams J notes at 22 ‘the trend of authority in relation to the ‘Owusu-v-Jackson’ points towards the conclusion that the power to stay proceedings on forum non-conveniens grounds continues to exist in respect of countries which fall outside the scheme of BIIa or the 1996 Hague Child Protection Convention.’

Given that eventually he upholds jurisdiction of the English courts, the point is moot however may be at issue in further cases.

At 48 ff the various criteria for forum non were considered:

i) The burden is upon the applicant to establish that a stay of the English proceedings is appropriate.

ii) The applicant must show not only that England is not the natural or appropriate forum but also that the other country is clearly the more appropriate forum.

iii) In assessing the appropriateness of each forum, the court must discern the forum with which the case has the more real and substantial connection in terms of convenience, expense and availability of witnesses. In evaluating this limb the following will be relevant;

a) The desirability of deciding questions as to a child’s future upbringing in the state of his habitual residence and the child’s and parties’ connections with the competing forums in particular the jurisdictional foundation

b) The relative ability of each forum to determine the issues including the availability of investigating and reporting systems. In practice, judges will be reluctant to assume that facilities for a fair trial are not available in the court of another jurisdiction but this may have to give way to the evidence in any particular case.

c) The convenience and expense to the parties of attending and participating in the hearing and availability of witnesses.

d) The availability of legal representation.

e) Any earlier agreement as to where disputes should be litigated.

f) The stage any proceedings have reached in either jurisdiction and the likely date of the substantive hearing.

g) Principles of international comity, insofar as they are relevant to the particular situation in the case in question. However public interest or public policy considerations not related to the private interests of the parties and the ends of justice in the particular case have no bearing on the decision which the court has to make.

h) The prospects of success of the applications.

iv) If the court were to conclude that the other forum was clearly more appropriate, it should grant a stay unless other more potent factors were to drive the opposite result; and

v) In the exercise to be conducted above the welfare of the child is an important (possibly primary), but not a paramount, consideration.

 

Conclusion is that on clear balance England is the natural and appropriate forum and India is not clearly the more appropriate forum.

At 50, the anti-suit injunction was considered premature (Williams J suggests that had it been a commercial matter, it may not have been): ‘Assuming that a stay application can be made and that some form of judicial liaison can be commenced to enable this court and the Indian court to work cooperatively to solve the riddle of competing applications in our respective courts, it is in my view wholly premature to grant such an injunction. That situation might fall to be reconsidered if no progress can be made and in particular if the father embarked upon a rear-guard action to play the Indian courts to delay the resolution of matters. However we are far from that position as yet.’

Note the comity considerations here, reflecting on the potential judicial co-operation between India and England, advanced here given the interest of the child (less likely for purely commercial cases, one assumes).

Geert.

 

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The Hague Judgments project rolls on. And a quick note on [2018] FCA 549 Kraft Foods v Bega Cheese.

Update 22 February 2019 for a most excellent and critical paper by Ronald Brand calling for the  2019 Judgments Project Conference to be aware of all options for international harmonisation in the area see here.

Kraft Foods v Bega Cheese [2018] FCA 549 was signalled to me by Michael Mitchell back in early May – now seems a good opportunity briefly to report on it. The Federal Court of Australia issued an anti-arbitration injunction to restrain a multinational food conglomerate from pursuing arbitration in New York. Kraft had pursued litigation in Australia which not only sought to restrain the respondent from certain radio and television advertising, but also sought final relief including damages.

Parties had agreed to mediate and arbitrate under the dispute resolution provisions of a Master Agreement for licensing of IP. Bega had acquired certain rights from Mondelez (a company in the Kraft group), including certain trademark rights that Kraft had licensed to Mondelez pursuant to the Master Agreement.

Of interest to the blog is the myriad number of issues that led the Court to issue the injunction, among others the fact that what was sought included interim relief, the position of which when it comes to enforcement is not entirely clear in the New York Convention. Throw intellectual property, mediation as well as arbitration, common law doctrine principles such as the Aldi rule in the mix, and the jurisdictional soup becomes quite attractive as well as complex. Precisely why intellectual property is hotly debated in the Hague Judgments project and likely to be excluded from it.

That latter brings me to the second part of the blog title: the HCCH have issued a Revised Draft Explanatory Report, and a document on the possible exclusion of anti-trust matters from the Convention as reflected in Article 2(1)(p) of the 2018 draft Convention. Both signal the continuing difficulty of the roll-out of the Hague Process, as well as continued intent to let the train roll into its end destination; although one wonders how many wagons will have been left behind en route.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016. Chapter 2.

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Qingdao Huiquan: Anti-suit injunction against a non-party to exclusive choice of forum (particularly: arbitration).

Thank you 20 Essex Street for flagging (and analysing)  [2018] EWHC 3009 (Comm) Qingdao Huiquan, granting anti-suit against a foreign litigant who is not a party to an exclusive choice of forum agreement (in particular: arbitration agreed in a settlement agreement). The third party, SDHX, is engaging in proceedings in China, and is related to one of the parties to the settlement agreement.

SDHX appeal to privity of contract is tainted by its invoking elements of the settlement agreement in the Chinese proceedings. Under relevant authority, this was ground for Bryan J to issue aint-suit against it.

A classic cake and eating it scenario, one could say: at 36: ‘I have had particular regard to the fact that it is clear from the Settlement Agreement that SDHX is indeed seeking to rely upon the terms of the Settlement Agreement in advancing its claims in the Chinese proceedings and that, in doing so, therefore, it has to take the burden of the arbitration clause, if an arbitration clause be a burden,..as well as the benefits that it seeks to derive from that agreement.’ (Update 19 April 2019 a principle known as equitable estoppel which was recently also applid by the South Carolina Supreme Court in Wilson ea v Willis ea 2019 WL 1549924 on wich more here).

eEvidently Brussels I Recast is not engaged.

Geert.

European private international law, second ed. 2016, Chapter 2, Heading 2.2.2.10.

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Nori Holdings: High Court holds that West Tankers is still good authority even following Brussels I Recast. (Told you so).

In [2018] EWHC 1343 (Comm) Nori Holdings v Otkritie  Males J follows exactly the same line as mine in commenting on West Tankers – specifically the bodged attempt in Brussels I Recast to accommodate the concerns over West Tankers’ sailing the Brussels I ship way too far into arbitral shores.

For my general discussion of the jurisdictional /arbitration issues see here. A timeline:

  • When the Council came up with its first draft of what became more or less verbatim the infamous recital 12 I was not enthusiastic.
  • When Wathelet AG in his Opinion in Gazprom suggested recital 12 did overturn West Tankers, I was not convinced. (Most of those supporting this view read much into recital 12 first para’s instruction that the Regulation does not impede courts’ power ‘from referring the parties to arbitration’).
  • Indeed the CJEU’s judgment in Gazprom did not commit itself either way (seeing as it did not entertain the new Regulation).
  • Cooke J was on the right track in Toyota v Prolat: in his view the Recast did not change West Tankers.
  • Males J confirms: West Tankers is still good authority. At 69 ff he does not just point out that Wathelet was not followed by the Court. 92 ff he adds five more reasons not to follow the suggestion that West Tankers has been overruled. He concludes ‘that there is nothing in the Recast Regulation to cast doubt on the continuing validity of the decision in West Tankers (Case C-185/07) [2009] AC 1138 which remains an authoritative statement of EU law’.

I agree.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Heading 2.2.2.10.2.

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