Posts Tagged Asymmetric
Fasten your seatbelts. Etihad v Flöther (Air Berlin) puts limits of EU law in applying Article 25 in the spotlight. On ‘particular legal relationship’ in choice of court, and asymmetric jurisdiction clauses in applications for stay.
 EWHC 3107 (Comm) Etihad v Air Berlin (officially: Etihad Airways v Prof Dr Lucas Flöther, who is the insolvency practitioner for Air Berlin) raises the issues of whether the relevant dispute arises in connection with the “particular legal relationship” between the parties, as required by Article 25 Brussels Ia, and the question whether so-called “asymmetric” jurisdiction clauses fall within Article 31 of Brussels Recast, an issue which I reviewed at the time of Commerzbank v Liquimar. (This in the very week that Michiel Poesen and I received copy of Mary Footer’s edited volume on optional choice of court, with our Chapter on Belgium).
Those reading this post and the judgment had better hold on – for this is more than just a quick safety briefing – the required ‘good arguable case’ standard is responsible for the extensive discussion of the issues, perhaps not entirely in line with the instruction for conciseness per the Supreme Court in Vedanta.
Etihad acquired a 2.99% stake in Air Berlin in August 2011 and, in December 2011, increased its shareholding to 29.21% pursuant to an agreement governed by English law and contained an exclusive jurisdiction clause in favour of the English courts. Between 28 and 30 April 2017, Etihad entered into a number of agreements for the purposes of providing Air Berlin with financial support. One of these was a facility agreement which contains the discussed jurisdiction clause:
33.1.1 The courts of England have exclusive jurisdiction to settle any disputes arising out of or in connection with this Agreement (including a dispute relating to non-contractual obligations arising from or in connection with this Agreement, or a dispute regarding the existence, validity or termination of this Agreement) (a “Dispute“).
33.2.2 The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.
33.1.3 This Clause 33 is for the benefit of the Lender only. As a result, the Lender shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Lender may take concurrent proceedings in any number of jurisdictions.
In a letter dated 28 April 2017 from Mr James Hogan, the then President and CEO of Etihad Aviation Group PJSC, to the directors of Air Berlin (the “Comfort Letter”), which provided as follows:
“For the purposes of the finalisation of the financial statements of Air Berlin plc for the year ended 31 December 2016, having had sight of your forecasts for the two years ending 31 December 2018, we confirm our intention to continue to provide the necessary support to Air Berlin to enable it to meet its financial obligations as they fall due for payment for the foreseeable future and in any event for 18 months from the date of this letter. Our commitment is evidenced by our historic support through loans and obtaining financing for Air Berlin”.
In German proceedings, started first, Air Berlin advances two alternative claims against Etihad under German Law: i) A claim for breach of the Comfort Letter on the basis that the Comfort Letter is legally binding. ii) Alternatively, if the Comfort Letter is not legally binding, a pre contractual claim in culpa in contrahendo, on the basis that Etihad used its negotiating power during the negotiations between the parties to avoid providing a clearly binding statement whilst, at the same time, inspiring the trust of Air Berlin that it would adhere to the commitment in the Comfort Letter.
Clearly Air Berlin considers the comfort letter a separate ‘agreement’ or ‘contract’ to which the widely formulated choice of court and law provisions of the Facility Agreement do not apply.
In the English proceedings, Etihad seeks the following declarations:
a) The claims made and declarations sought in the German Proceedings are subject to the exclusive jurisdiction of the English court within Article 25 of the Judgments Regulation, because, on its true construction, they are within the scope of the exclusive jurisdiction clause contained in the 2017 €350m Facility Agreement (the one with the jurisdiction clause discussed above);
b) The claims made and declarations sought in the German Proceedings are governed by English Law on the true construction of the governing law clause in the Facility Agreement, an implied agreement between the same parties and/or the application of Rome I and/or Rome II;
c) The Claimant is not liable for breach of the Comfort Letter, as alleged in the German Proceedings, because that letter, on its true construction, did not create a legally binding promise to provide financial support to Air Berlin;
d) The Claimant is not liable on the basis of culpa in contrahendo, as alleged in the German Proceedings, because the facts and matters relied on in the German Proceedings do not give rise to a cause of action known to English law; and
e) Further, and in any event, the Claimant is not liable to the Defendant as alleged by the Defendant in the German Proceedings.
On Article 25 the list of authority was of course very long. On Article 31, reference was made for background in particular to Commerzbank AG v Liquimar Tankers Management Inc. in which Cranston J supported as I discussed at the time, the cover of asymmetric choice of court by Article 31.
On Article 25, the
I. first point to discuss
was whether the choice of court agreement in the facilities agreement extended to the comfort letter. Etihad puts forward adopting the broad, purposive and commercial approach to interpreting such clauses which it suggests has been mandated by the English authorities, concluding the dispute arises out of or in connection with that agreement. Air Berlin emphasises that application of the standard of proof must take into account the EU law requirement that an exclusive jurisdiction clause under Article 25 must be “clearly and precisely” demonstrated.
At 56 ff Jacobs J first reiterates the jurisdiction clause relied upon, contained in the Facility Agreement, which is expressly governed by English law. Clause 32 of that agreement provides: “This Agreement and all non-contractual obligations arising from or connected with it are governed by English law”. The question of whether, as a matter of contractual interpretation, the clause conferring jurisdiction extends to claims in respect of the Comfort Letter and the related claims advanced in the German proceedings is to be determined by reference to English law. This may surprise uninitiated readers first reading Article 25 and relevant recitals, however to those with conflicts insight it will be well known that Article 25 merely scratches on the surface of the contractual depth of choice of court.
At 69 he sums up the principles (with reference to Fiona Trust), discusses them at length, and summarises at 102:
(i) the width of the jurisdiction clause in the Facility Agreement, (ii) the fact that the Comfort Letter was part of the overall support package where all relevant agreements between Etihad and Air Berlin were governed by English law with English jurisdiction clauses, (iii) the close connection between the Comfort Letter and the Facility Agreement in terms of the genesis of the Comfort Letter, (iv) Etihad’s good arguable case that the Comfort Letter did not create contractually binding obligations and was ancillary to the Facility Agreement, (v) the absence of any competing jurisdiction clause in any of the agreements within the support package, and the existence of English law and jurisdiction clauses in the relevant agreements as part of that package, and (vi) the reasonable foreseeability of disputes which required consideration of the Comfort Letter in conjunction with the Facility Agreement – all lead to the conclusion that the parties intended disputes arising in relation to the Comfort Letter to fall within the jurisdiction clause of the Facility Agreement.
Conclusion on this issue, at 109: ‘interpreting the jurisdiction agreement in the Facility Agreement as a matter of English law, there is a good arguable case that (i) the jurisdiction clause in the Facility Agreement is applicable to the Comfort Letter and any non-contractual claim in connection therewith, and (ii) the claim commenced by Air Berlin in Germany falls within the scope of that clause.’
On Article 25, the
I. second point to discuss at 110 ff was the requirement in Article 25 for the dispute to arise “in connection with a particular legal relationship” – a condition which Etihad must meet separately from the above conclusion that as a matter of English law, the claims made in Germany fell within the scope of the jurisdiction agreement in the Facility Agreement. Arguments here to some extent overlap with the strength or otherwise of the connection between the Facility Agreement and the Comfort Letter, discussed above. Reference here clearly was made to Airbus and the CJEU in Powell Duffryn. In the latter the CJEU held ‘”This requirement aims to limit the effect of an agreement conferring jurisdiction to disputes originating from the legal relationship in connection with which the agreement was concluded. It seeks to prevent a party from being surprised by the referral to a specified court of all disputes which arise in the relationships which it has with the other party and which may originate in relationships other than that in connection with which the agreement conferring jurisdiction was concluded”. The principles of Powel Duffryn were also followed in the equally seminal CDC case.
At 134 ff Jacobs J dismisses the argument that the way in which a particular claim is formulated in the foreign proceedings is determinative of the issue of whether the dispute arises in relation to a particular relationship. Rather: ‘it is obviously necessary to look at the nature of the claim made in those foreign proceedings. It is clear that what is then required is for the court to consider the substance of the claim that is made.’ At 136 ff he lists the arguments leading him to the conclusion that there is ‘no doubt that the dispute concerning the Comfort Letter can fairly (and certainly to a good arguable case standard) be said to originate from [the borrower /lender] relationship.’
The final issue to consider then was Article 31(2): “2. Without prejudice to Article 26, where a court of a Member State on which an agreement as referred to in Article 25 confers exclusive jurisdiction is seised, any court of another Member State shall stay the proceedings until such time as the court seised on the basis of the agreement declares that it has no jurisdiction under the agreement.”
The issue is therefore whether the jurisdiction clause in the present case is a clause which “confers exclusive jurisdiction” within the meaning of Article 31(2). A related question is whether the English court can properly be described as being “seised on the basis of” such exclusive jurisdiction agreement within the meaning of Article 31 (2). Air Berlin says “no” to both questions (on the first, purely on the basis of the clause being asymmetric), and Etihad says “yes”.
Reference is made to Codere, Commerzbank, leading to a firm finding that the clause is exclusive in casu, for it is (in prof Fentimann’s words) ‘exclusive against a counterparty’ and in Louise Mellett’s words (ICLQ, referenced in the judgment)
‘”In an asymmetric agreement, the borrower has promised not to sue anywhere other than the chosen jurisdiction. The question of whether the other party did or did not agree to do the same does not arise when the bank is seeking to enforce the agreement and should be irrelevant. Thus, the point is not so much that “considered as a whole” [asymmetric agreements] are agreements conferring exclusive jurisdiction, as the judge put it in Commerzbank. Rather, each obligation can be considered on its own; the clause includes a promise by the borrower not to sue in any jurisdiction and that promise is capable of being protected by Article 31(2). Each different obligation necessarily falls to be considered separately and the fact that the bank is not under a similar obligation is neither here nor there.”
(Further scholarship discussed includes Dickinson and Lein, and Ahmed; the Hague Convention is also discussed obiter, with reference to Clearlake and update 28 November 2019 as Sarah McKibbin notes Jacobs J suggesting obiter ‘Like Cranston J and Merrett, I consider that there are good arguments that the rules in the Hague Convention are engaged by an asymmetric clause.’ .
Reference to the CJEU on the Article 31 issue, requested by Air Berlin, is dismissed, something which may have to be reconsidered by the Court of Appeal. But even on the Article 25 discussion (I am thinking in particular of the relevance or not of the formulation of the claim), more CJEU authority in my view would be welcome.
(Handbook of) European Private international law, 2nd ed. 2016, Ch.2, Heading 2.2.9, Heading 22.214.171.124.1, Heading 126.96.36.199.
LIC Telecommunications et al v VTB Capital et al. High Court suggests autonomous EU approach to asymmetric choice of court. Also discusses contract and tort distinction, and abuse of process.
In  EWHC 1747 (Comm) LIC Telecommunications et al v VTB Capital et al Moulder J suggests an unorthodox interpretations of Article 25 of the Brussels Ia Regulation. (Note also her very critical view at 22 of one of the experts, whom she found having confused his role as expert with a role as advocate). Much of the lengthy judgment is devoted to intricate discussions of Luxembourgish corporate law (hence the need for expert evidence) and the jurisdictional issues are, somewhat illogically, discussed towards the end of the judgment, at 245 ff.
Maze, one of the defendants, acts as a manager of V2 pursuant to a directorship agreement dated 26 May 2015 (the “Directorship Agreement”). It relies on the effect of clause 19 of the Directorship Agreement and submitted that claims against it are subject to the exclusive jurisdiction of the courts of Luxembourg pursuant to Article 25 Brussels Ia. Clause 19 provides:
“for the benefit of the Manager, the Shareholder and the Company hereby irrevocably, specially and expressly agree that the courts of Luxembourg city have jurisdiction to settle any disputes in connection with this Agreement and accordingly submits to the jurisdiction of the courts of Luxembourg city. Nothing in this clause limits however the rights of the Manager to bring proceedings against the Company in connection with this Agreement in any other court of competent jurisdiction or concurrently in more than one jurisdiction.”
The clause is asymmetric aka hybrid aka unilateral. (See e.g. my discussion of Rothschild etc.). These clauses as I have noted elsewhere highlight the clear insufficiency of Brussels Ia’s new lex fori prorogati (including renvoi) rule for choice of court. Which court has been prorogated, hence also lex fori prorogati, is not clear when the clause is asymmetric.
Moulder J discusses  EWHC 161 (Comm) Commerzbank v Liquimar Tankers as precedent: I reviewed it here and signalled at the time that it would not be the last we would hear of the issue. In that case Cranston J held ‘There is nothing in Article 25 that a valid jurisdiction agreement has to exclude any courts, in particular non EU Courts. Article 17, penultimate paragraph, of the Brussels Convention recognised asymmetric jurisdiction clauses. To my mind it would need a strong indication that Brussels 1 Recast somehow renders what is a regular feature of financial documentation in the EU ineffective.‘ I was never taken by that conclusion viz the Brussels Convention: its Article 17 reference to a party having ‘benefit’ from choice of court does not relate entirely to the same discussion on asymmetric clauses (Peralla v Codere  EWHC 1182 (Comm) which I discussed here illustrates that difference).
At any rate I disagree with Moulder J’s statement at 254 that
It is now common ground that it is a question of autonomous EU law and not a question of national law. (It was I believe accepted that the proviso “unless the agreement is null and void as to its substantive validity” refers to issues such as capacity, fraud and mistake, not whether particular kinds of “choice of court” agreements are permitted under the Regulation).
Asymmetric clauses are the first example often given when highlighting the limited cover of Article 25 Brussels I a (and the need for certainty on the lex causae for choice of court). There is no autonomous interpretation there at all. I do agree however with the conclusion at 261: that Luxembourg courts, applying EU law, would not uphold such clauses was not made out on the evidence. Luxembourgish courts at least when they apply Luxembourgish law, generally uphold the validity of asymmetric choice of court.
At 263 ff then follows discussion of Article 7(1) and 7(2). Much of the authority discussed has been reviewed on this blog. (Including Bosworth (Arcadia) which in the meantime has been held by the CJEU but without the contract /tort element – the CJEU found against a contract of employment). Moulder J holds that Article 7(2) is engaged, not 7(1), and on the former discusses locus delicti commissi with reference to JSC BTA Bank v Khrapunov. At 295: it is not sufficient that there are meetings in England to implement the conspiracy, it is the making of the agreement in England which is to be regarded as the harmful event. Claimants have not supplied a plausible evidential basis that the agreement was made in England. Their evidence is consistent with a case that the conspiracy was implemented in England but that is not sufficient.
As for locus damni, at 298: Even though the share purchase agreement was under English law, it is the loss of the shares in the Luxembourg company which is the pleaded damage not the agreement to sell or the auction. The Vivacom group consists of Bulgarian telecommunications companies which were held by InterV through Viva Luxembourg Bulgaria EOOD (paragraph 3 of the Agreed List of Agreed Issues). Locus damni is Bulgaria, perhaps Luxembourg. But not England.
Finally, abuse of process considerations are linked to English procedural law (whether claims should have been brought sooner).
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.9, Heading 188.8.131.52, Heading 184.108.40.206 .
Asymmetric clauses, exclusivity, torpedoes and lis alibi pendens: The High Court in Commerzbank v Liquimar Tankers.
Many of the issues in  EWHC 161 (Comm) Commerzbank v Liquimar Tankers were also raised in Perella v Codere, albeit there, as I reported, obiter. In current case, they were very much dicta, and they amount to the English courts viewing (properly constructed) asymmetric clauses as being exclusive. As such they fall under the new anti-torpedo provisions of Article 31(2).
Applications of defendants Liquimar Tankers (registered in Liberia but with head office in Athens) are being made in the course of proceedings in London by Commerzbank in two separate actions in relation to the repayment of loans which the Bank extended for the building of a number of ships. There are ongoing proceedings taken by the defendants against the Bank in Piraeus, Greece concerning the same and/or related issues.
The Liquimar guarantee contained a governing law and an asymmetric jurisdiction clause, which was essentially similar in the other loan agreements. It provided:
“16 Law and Jurisdiction
16.1 This Guarantee and Indemnity shall in all respects be governed by and interpreted in accordance with English law.
16.2 For the exclusive benefit of the Lender, the Guarantor irrevocably agrees that the courts of England are to have jurisdiction to settle any disputes which may arise out of or in connection with this Guarantee and Indemnity and that any proceedings may be brought in those courts.
16.3 Nothing contained in this Clause shall limit the right of the Lender to commence any proceedings against the Guarantor in any other court of competent jurisdiction nor shall the commencement of any proceedings against the Guarantor in one or more jurisdictions preclude the commencement of any proceedings in any other jurisdiction, whether concurrently or not.
16.4 The Guarantor irrevocably waives any objection which it may now or in the future have to the laying of the venue of any proceedings in any court referred to in this Clause and any claim that those proceedings have been brought in an inconvenient or inappropriate forum, and irrevocably agrees that a judgment in any proceedings commenced in any such court shall be conclusive and binding on it and may be enforced in the courts of any jurisdiction …”.
Article 31(2) of the Brussels I Recast reads:
‘where a court of a Member State on which an agreement as referred to in Article 25 confers exclusive jurisdiction is seized, any court of another Member State shall stay the proceedings until such time as the court seized on the basis of the agreement declares that it has no jurisdiction under the agreement.’
Cranston J held that the concept of ‘exclusivity’ should be autonomously interpreted under the Brussels I (Recast) regime. He did not however refer for preliminary reference to the CJEU: as such, the High Court’s finding continues to be vulnerable until we have precedent from Luxembourg. The judgment as a whole is worth a read – readers in for concise summary, please refer to Herbert Smith’s analysis.
Summing up is done in para 70, with justifiable emphasis on parties’ and the Regulation’s intentions (but as noted with considerable reference to precedent and principles of statutory interpretation): Thus with the asymmetric jurisdiction clauses in the present case, the defendants agreed to sue only in the courts of one EU Member State, England. Instead, they have enabled another court, the Greek court, to be seized of the matter. It would undermine the agreements of the parties, and foster abusive tactics, if the jurisdiction clauses in these agreements were to be treated not as exclusive, but as non-exclusive.’
Of note is also the discussion on the role of recitals (eg. at 69; also at 77 ff). Justice Cranston’s arguments are supported by reference to a number of recitals. Defendant in my view has a valid point in principle where they argue at 77 that ‘a recital cannot constitute a rule when it is not reflected in the words of Article 31(2).‘ (Although they were wrong on substance).
A subsidiary argument in the case also merits further attention. Defendants argue that Article 25 requires the parties to have designated the courts of a Member State to enable the law applicable to the substantive validity of a jurisdiction clause to be identified and to provide certainty as to the forum in which a putative defendant can expect to be sued. That, they submit, is not achieved by a clause which designates the courts of all other competent states, including those of non-Member States, outside the territorial competence of the EU, which could mean suits in multiple jurisdictions. Although the argument could be phrased more precisely, I do agree with it: in the absence of a nominatim lex contractus for the choice of court clause specifically, the new lex fori prorogati rule in Article 25 Brussels I Recast, combined with recital 20 (yet again the troublesome habit of EU private international law to include substantive rules in recitals only) does create a vacuum in the case of hybrid, asymmetric or even non-exclusive choice of court.
An important case. Not the last we have heard of the issues.
(Handbook of) European Private international law, 2nd ed. 2016, Ch.2, Heading 2.2.9, Heading 220.127.116.11.1, Heading 18.104.22.168.
Assymetric jurisdiction clauses. Their existence and (obiter) their neutralising effect in Perella v Codere.
Apologies for late posting. I had tweeted and linked and done all sorts of other things when the judgment came out but as readers tell me, that is not quite the same as a review on this blog.
Walker J decided Peralla v Codere  EWHC 1182 (Comm) at the end of July. His views on Article 25 and exclusivity in the event of asymmetric jurisdiction clauses, are very much dicta. On their neutralising effect under Article 31, he suggested obiter. Let me explain. The jurisdiction clause which Perella alleged to have been breached by Codere comprises a single sentence of a clause of their letter of engagement. That sentence states:
“[Codere] agrees for the benefit of [Perella] that the courts of England wil have non-exclusive jurisdiction to settle any dispute which may arise in connection with this engagement.”
Codere sued in Spain alleging breach of contract. Perella countersues in England. The English proceedings are very much necessitated by one or two awkward consequences of the wording of Article 31 of the Brussels I Recast. This Article was specifically included to neutralise the torpedo which the Court of Justice had armed in its Gasser judgment, C-116/02: following Gasser, lis alibi pendens applies even if there is exclusive choice of court and a court other than the court assigned in that clause, has been seized. The Brussels I Recast neutralises the torpedo but only if there is exclusive court of choice, and if the court designated by that clause has been seized.
The first consideration in the case was whether the clause was exclusive. It was pertinently not. Perella suggested the language indicates that the benefit to be conferred upon Perella is an entitlement to insist that Codere must regard itself as bound by the exclusive jurisdiction of the English courts. Walker J (at 30) rejects this justifiably: it would have been simplicity itself verbatim to indicate exclusivity. As Ken Kaar notes, the inclusion of ‘for the benefit of’ is an old, now redundant boilerplate provision in choice of court: in the original Brussels and Lugano Conventions, ‘If the agreement conferring jurisdiction was concluded for the benefit of only one of the parties, that party shall retain the right to bring proceedings in any other court which has jurisdiction by virtue of this Convention.’ This proviso meant there was plenty of discussion in court whether only one party had procured such benefit, lest one state in so many words that it had. The current version of the Brussels I Recast (and the 2001 version before it) and Lugano 2007 have both dropped the provision, and it would be best dropped from the boilerplate clause, too.
Having held that the clause was not exclusive, the Court could have stopped there. Obiter however Walker J offered his view on whether Article 31(2)’s protection extends to asymmetric choice of court clauses – the notion of which I have reported on before. Walker J (at 18) suggests that it does. The party invoking Article 31(2) pointing to an exclusive forum which the counterparty who is suing elsewhere, had committed itself to, need not be itself subject to a symmetric duty only to sue in that court. The point has not been argued before the CJEU yet, but I agree that the High Court’s position is the correct one, with the important caveat of course that such clause needs to be valid in accordance with the lex fori prorogati. This also means that asymmetric clauses where such lex cannot be identified, would have trouble disarming the recalcitrant party’s torpedo.
Well, we are going to miss this type of judgment following Brexit. Better make conflict of laws part of the continuing relations with the UK.
(Handbook of) European Private international law, 2nd ed. 2016, Ch.2, Heading 2.2.9, Heading 22.214.171.124.1, Heading 126.96.36.199.