Posts Tagged Brussels Ia
Nigeria v Shell et al at the High Court. Yet more lis alibi pendens and cutting some corners on case-management.
One does not often see Nigeria sue Shell. Federal Republic of Nigeria v Royal Dutch Shell Plc & Anor  EWHC 1315 (Comm) engages Article 29 Brussels Ia’s lis alibi pendens rule in a period in which (see other posts on the blog) the High Court intensely entertained that section of Brussels Ia. Royal Dutch Shell Plc (RDS) is the anchor defendant for the other EU-domiciled defendants. Quite a few of the defendants are not domiciled in the EU.
The case concerns Nigerian allegations that monies paid by it under an earlier settlement following alleged expropriation, which had led to bilateral investment treaty arbitration under ICSID rules, had been channeled to pay bribes. Nigeria is pursuing the case in the criminal courts in Italy, too.
Nigeria therefore are already pursuing claims in Italy to obtain financial relief against 4 of the defendants including the anchor defendant. Defendants contend that those claims are the same claims as the English ones and that the court should decline jurisdiction in respect of those claims pursuant to A29 BIa. Defendants then further contend that, if the court so declines jurisdiction over the claims against RDS and Eni SpA, the entire proceedings should be dismissed. This is because RDS is the ‘anchor defendant’ under A8(1) BIa in the case of three of the EU-domiciled defendants and under English CPR rules against the other defendants. In the alternative to the application under Article 29, Defendants seek a stay of the proceedings under A30 BIa (related cases) or, in the further alternative as a matter of case management, pending a final determination, including all appeals, of the claim that the FRN has brought in Italy.
Butcher J refers at 41 to the UKSC in The Alexandros, and to Rix J in Glencore International AG v Shell International Trading and Shipping Co Ltd, at 110: ‘broadly speaking, the triple requirement of same parties, same cause and same objet entails that it is only in relatively straightforward situations that art  bites, and, it may be said, is intended to bite. After all, art  is available, with its more flexible discretionary power to stay, in the case of ‘related proceedings’ which need not involve the triple requirement of art . There is no need, therefore, as it seems to me, to strain to fit a case into art .’
Same parties. Per CJEU The Tatry A29 applies to the extent to which the parties before the courts second seised are parties to the action previously commenced. Butcher J correctly holds that the fact that there may be other parties to the second action does not prevent this. Nigeria nevertheless argue that the involvement of the Italian Public Prosecutor in the Italian case, and not in the English case, and its crucial role in the Italian proceedings, means that the proceedings nevertheless are not between the ‘same parties’. Defendants call upon CJEU C-523/14 Aertssen to counter this: there BE and NL proceedings were considered to be caught by A29 even though the BE proceedings concerned criminal proceedings and the Dutch did not.
At 47 Butcher J holds that the prosecutor is not a ‘party’ in the A29 sense and that even it were, it is nevertheless clear from The Tatry that there does not have to be complete identity of the parties to the two proceedings for Article 29 to be applicable. (Ditto Leech J in Awendale v Pixis).
Same cause of action. Nigeria accept that there is no material difference in the facts at issue in the two proceedings, however contends that the legal basis of its claim in England is different.
Butcher J refers to Lord Clarke in The Alexandros, that in order to consider same cause of action, one must look ‘at the basic facts (whether in dispute or not) and the basic claimed rights and obligations of the parties to see if there is coincidence between them in the actions in different countries, making due allowance for the specific form that proceedings may take in one national court with different classifications of rights and obligations from those in a different national court’. Doing that, at 55 he holds that these basic claimed rights in the IT and EN proceedings, which he characterises as being the right not to be adversely affected by conduct of RDS which involves or facilitates the bribery and corruption of the FRN’s ministers and agents, and the right to redress if there is such bribery and corruption’, are the same.
That seems to me an approach which is overly reliant on the similarity of underlying facts. (At 70, obiter, Butcher J splits the claims and suggests he would have held on a narrower similarity of cause of action for some claims and not the others, had he held otherwise on ‘same cause of action’; and at 80 that he would have ordered a stay under Article 30 or on case management grounds on the remainder of the action).
Same object. Nigeria contend that its present proceedings do not have the same objet as the civil claim in the Italian proceedings. It contends that the only claim made in the Italian proceedings is for monetary damages, while in the English action claims are also made of a declaration of entitlement to rescind the April 2011 Agreements, other declaratory relief, an account of profits and tracing remedies.
Butcher J disagrees. Per Lord Clarke in The Alexandros, he holds that to have the same object, the proceedings must have the ‘same end in view’, per CJEU Aertssen at 45 interpreted ‘broadly’. At 61; ‘that ‘end in view’ is to obtain redress for RDS’s alleged responsibility for bribery and corruption…. Further, it is apparent that a key part of the redress claimed in the English proceedings is monetary compensation, which is the (only) relief claimed in the Italian proceedings. On that basis I consider that the two sets of proceedings do have the same objet.’
That the English action also seeks to rescind the original 2011 agreements is immaterial, he finds, for RDS were not even part to those proceedings. Moreover, that aim included in the English action serves to support the argument that if the two sets of proceedings go ahead, (at 64) ‘there would be the possibility of the type of inconsistent decisions which Article 29 is aimed at avoiding’. ‘If the English proceedings were regarded as involving a significantly different claim, namely one relating to rescission, and could go ahead, that would give rise to the possibility of a judgment in one awarding damages on the basis of the validity of the April 2011 Agreements and the other finding that those Agreements were capable of rescission. That would appear to me to be a situation of where there is effectively a ‘mirror image’ of the case in one jurisdiction in the other,..’
At 66 ff Butcher J adopts the to my mind correct view on the application of A29 to proceedings with more than one ‘objet’: one does not look at all claims holistically, one has to adopt a claim by claim approach, in line with CJEU The Tatry. At 68: ‘Difficulties which might otherwise arise from the fragmentation of proceedings can usually be addressed by reference to Article 30..’
At 71 he then concludes that the stay must be granted, and that he has no discretion not to do so once he finds that the conditions of A29 are fulfilled. He also holds that with the case against the anchor defendant stayed, A8(1) falls away. He appreciates at 72 that this may expose Nigeria to limitation issues in the Italian proceedings, however those are of their own making for they were under no obligation to sue in Italy.
At 74 ff Article 30 is considered obiter, and Butcher J says he would have stayed under A29. At 77 he notes the continuing debate on the difference at the Court of Appeal between Privatbank and Euroeco. At 75(2) he summarises the distinction rather helpfully as
‘In the Kolomoisky case, it was decided that the word ‘expedient’ in the phrase ‘it is expedient to hear and determine them together’ which appears in Article 28.3 of the Lugano Convention (as it does in Article 30.3 of the Regulation), is more akin to ‘desirable’ that the actions ‘should’ be heard together, than to ‘practicable or possible’ that the actions ‘can’ be heard together: paras. -. In the Euroeco Fuels case, having referred to the Kolomoisky case, the Court of Appeal nevertheless appears to have proceeded on the basis that the court had no discretion to order a stay under Article 30 when there was no real possibility of the two claims being heard together in the same foreign court’
At 75(5) he then without much ado posits that
‘In any event, even if not under Article 30, there should be a stay under the Court’s case management powers, and in particular pursuant to s. 49(3) Senior Courts Act 1981 and CPR 3.1(2)(f). Such a stay would not, in my judgment, be inconsistent with the Regulation, and is required to further the Overriding Objective in the sense of saving expense, ensuring that cases are dealt with expeditiously and fairly, and allotting to any particular case an appropriate share of the Court’s resources. Given that the Italian proceedings are well advanced, and that after the determination of the Italian proceedings English proceedings may well either be unnecessary or curtailed in scope, there appear good grounds to consider that a stay of the English proceedings will result in savings in costs and time, including judicial time.’
Whether such case-management stay under CPR 3.1(2)(f) is at all compatible with the Regulation in claims involving EU domicileds, outside the context of Articles 29-34 is of course contested and, following Owusu, in my view improbable.
Most important lis alibi pendens considerations at the High Court these days.
(Handbook of) European Private International Law – 2nd ed. 2016, Chapter 2, Heading 18.104.22.168.
Awendale v Pyxis. More Article 29 lis alibi pendens, with focus on ‘same cause of action’, ‘same parties’ and time limits for application.
Awendale Resources v Pyxis Capital Management  EWHC 1286 (Ch) applies Article 29 Brussels Ia’s lis alibi pendens rule.
Awendale is a company incorporated under the law of the Seychelles and Pyxis is a company incorporated under the law of Cyprus. On 7 November 2017 Infinitum Ventures Ltd, a company incorporated in the British Virgin Islands, issued proceedings in Cyprus against Mr Andreas Andreou, Awendale and Pyxis. Awendale entered an appearance and submitted to the jurisdiction of the Cypriot court. On 24 June 2019 Awendale then issued the Claim Form in the current proceedings and on 20 August 2019 Pyxis filed an acknowledgment of service stating that it intended to defend the claim. Pyxis now applies to stay the English Claim on the basis that it and the Cypriot Claim involve the same cause of action between the same parties and that Article 29 is engaged.
At 31 Leech J lists the six issues for determination: i) The same cause of action: Are the English Claim and the Cypriot Derivative Claim “proceedings involving the same cause of action”? ii) The same parties: If so, are the English Claim and the Cypriot Derivative Claim “between the same parties”? iii) Seisin: If so, was the Cypriot court first seised? iv) The scope of Article 29: If so, is Article 29 nevertheless inapplicable because of the jurisdiction clause in relevant Loan Agreements? v) The time of application: Is the operation of Article 29 excluded because the stay application was not filed earlier and in accordance with CPR Part 11. vi) Reference to the CJEU: If Pyxis succeeds on the first four issues but fails on the fifth issue, should the Court consider referring a question to the CJEU?
Leech J first, at 32 ff gets Article 31(2)’s priority rule for choice of court (which I discussed the other day in my review of Generali Italia v Pelagic) out off the way: that is because A31(2) is without prejudice to A26 and as noted, Awendale had submitted to the Cypriot courts.
On the determination of the ‘same cause of action‘, he then refers to The Alexandros, and of course to CJEU Gubisch and The Tatry. A discussion ensues as to whether the Cypriot and English proceedings concern two sides of the same coin, which at 42 Leech J decides they do, with at 43 supporting argument from professor Briggs’ litmus test: actions have the same cause if a decision in one set of proceedings would have been a conclusive answer in the other.
The same parties condition may be a bit more exacting (‘same cause of action’ implies some flexibility), however there need not be exact identity of parties. Here, the issue to hold was whether despite seperate legal personalities, the different interests of Infinitum and Pyxis are identical and indissociable which Leech J held they are to a good arguable case standard (and obiter, at 56, to a substantive standard, too). This condition therefore requires some wire-cutting through corporate interests and true beneficiaries of claims.
At 67 ff then follows an extensive discussion of the impact of the English CPR timing rules on the application proprio motu or not of A29. Reference here was made to the Jenard Report, and a contrario to provisions in BIa (including A33). Leech J holds at 78 that a party who fails to apply to stay proceedings under Article 29 within the time limit in CPR Part 11(4) is deemed to have submitted to the jurisdiction.
Eventually Leech J decides to use his discretion to allow Pyxis to apply for a time extension so as they can apply out of time for a stay of proceedings under A29. Unlike what I first tweeted, the stay has not exactly been granted yet, therefore. But it is likely to be. Pyxis made an undertaking to consent to any stay being lifted if the Cypriot Claim is struck out and Awendale was permitted to apply to set aside the stay if Infinitum fails to take reasonable steps to prosecute or proceed with the Cypriot Claim.
More lis alibi pendens reviews are on their way.
(Handbook of) European Private International Law – 2nd ed. 2016, Chapter 2, Heading 22.214.171.124
This is a short post for archival purposes: I have been looking in vain in the past few weeks for a copy of prof Nuyts’ 2007 study for the European Commission on ‘residual jurisdiction’ (Review of the Member States’ Rules concerning the “Residual Jurisdiction” of their courts in Civil and Commercial Matters pursuant to the Brussels I and II Regulations). It was no longer on the EC’s studies page and the url which many of us have been using in the past no longer works. So here it is. Courtesy of the European Commission and of prof Nuyts.
Enjoy. It has lost nothing of its topical nature.
C-500/18 AU v Reliantco was held by the CJEU on 2 April, in the early fog of the current pandemic. Reliantco is a company incorporated in Cyprus offering financial products and services through an online trading platform under the ‘UFX’ trade name – readers will recognise this from  EWHC 879 (Comm) Ang v Reliantco. Claimant AU is an individual. The litigation concerns limit orders speculating on a fall in the price of petrol, placed by AU on an online platform owned by the defendants in the main proceedings, following which AU lost the entire sum being held in the frozen trading account, that is, 1 919 720 US dollars (USD) (around EUR 1 804 345).
Choice of court and law was made pro Cyprus.
The case brings to the fore the more or less dense relationship between secondary EU consumer law such as in particular the unfair terms Directive 93/13 and, here, Directive 2004/39 on markets in financial instruments (particularly viz the notion of ‘retail client’ and ‘consumer’).
First up is the consumer title under Brussels Ia: Must A17(1) BIa be interpreted as meaning that a natural person who under a contract concluded with a financial company, carries out financial transactions through that company may be classified as a ‘consumer’ in particular whether it is appropriate, for the purposes of that classification, to take into consideration factors such as the fact that that person carried out a high volume of transactions within a relatively short period or that he or she invested significant sums in those transactions, or that that person is a ‘retail client’ within the meaning of A4(1) point 12 Directive 2004/39?
The Court had the benefit of course of C-208/18 Petruchová – which Baker J did not have in Ang v Reliantco. It is probably for that reason that the case went ahead without an Opinion of the AG. In Petruchová the Court had already held that factors such as
- the value of transactions carried out under contracts such as CFDs,
- the extent of the risks of financial loss associated with the conclusion of such contracts,
- any knowledge or expertise that person has in the field of financial instruments or his or her active conduct in the context of such transactions
- the fact that a person is classified as a ‘retail client’ within the meaning of Directive 2004/39 is, as such, in principle irrelevant for the purposes of classifying him or her as a ‘consumer’ within the meaning of BIa,
are, as such, in principle irrelevant to determine the qualification as a ‘consumer’. In Reliantco it now adds at 54 that ‘(t)he same is true of a situation in which the consumer carried out a high volume of transactions within a relatively short period or invested significant sums in those transactions.’
Next however comes the peculiarity that although AU claim jurisdiction for the Romanian courts against Reliantco Investments per the consumer title (which requires a ‘contract’ to be concluded), it bases its action on non-contractual liability, with applicable law to be determined by Rome II. (The action against the Cypriot subsidiary, with whom no contract has been concluded, must be one in tort. The Court does not go into analysis of the jurisdictional basis against that subsidiary, whose branch or independent basis or domicile is not entirely clear; anyone ready to clarify, please do).
At 68 the CJEU holds that the culpa in contrahendo action is indissociably linked to the contract concluded between the consumer and the seller or supplier, and at 71 that this conclusion is reinforced by A12(1) Rome II which makes the putative lex contractus, the lex causae for culpa in contrahendo. At 72 it emphasises the need for consistency between Rome II and Brussels IA in that both the law applicable to a non-contractual obligation arising out of dealings prior to the conclusion of a contract and the court having jurisdiction to hear an action concerning such an obligation, are determined by taking into consideration the proposed contract the conclusion of which is envisaged.
(Handbook of) EU private International Law, 2nd ed. 2016, Chapter 2, Heading 126.96.36.199.
Ships classification and certification agencies. The CJEU (again) on ‘civil and commercial’, and immunity.
I earlier reviewed Szpunar AG’s Opinion in C‑641/18 Rina, on which the Court held on 7 May, confirming the AG’s view. Yannick Morath has extensive analysis here and I am happy to refer. Yannick expresses concern about the extent of legal discretion which agencies in various instances might possess and the impact this would have on the issue being civil and commercial or not. This is an issue of general interest to privatisation and I suspect the CJEU might have to leave it to national courts to ascertain when the room for manoeuvre for such agencies becomes soo wide, that one has to argue that the binding impact of their decisions emanates from the agencies’ decisions, rather than the foundation of the binding effect of their decisions in public law.
I was struck by the reference the CJEU made at 50 ff to the exception for the exercise of official authority, within the meaning of Article 51 TFEU.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 188.8.131.52.1.