Posts Tagged Idemia v Decatur et al

Idemia. Interrelated contracts (including issues of privity) and choice of court.

I was thinking of using [2019] EWHC 946 (Comm) Idemia v Decatur for exam purposes hence beyond an initial Tweet, I am a bit late with reporting. However the judgment consists of 144 paras of pure jurisdictional argument – hence making it useful for oral exam but not for a written one: for where does one start?
This is a typical case of reverse engineering: Decatur (which is an English company) and Tiger (which is incorporated in Bangladesh) have brought an action for the Discount Sums against Idemia in the courts of Bangladesh. Idemia (which is a French company) claims that that action (“the Bangladesh Action”) has been brought in breach of the jurisdiction provisions in the underlying contracts, which confer exclusive jurisdiction upon the competent courts of Geneva, Switzerland. Decatur and Tiger disagree, claiming that the subject matter of the Bangladesh Action is not covered by the jurisdiction provisions on which Idemia relies.
Idemia says that its contractual right to be sued in Switzerland (and nowhere else) means that it cannot be forced to litigate in Bangladesh. As for the courts of Switzerland, Idemia says that the Swiss courts do not have power to issue the anti-suit injunction which it needs to restrain the further prosecution of the Bangladesh Action.
Idemia claims to be entitled indirectly to enforce the jurisdiction provisions on which it relies by enforcing guarantees which Idemia claims that Decatur and Tiger have each given for the other’s obligations under the relevant contracts, and which contain English law and jurisdiction clauses.
At 143 Salter DJ helpfully summarises the lengthy discussions in the judgment:
1 Decatur’s challenge to the jurisdiction succeeds. Idemia’s claim to found jurisdiction upon Decatur’s domicile in England fails, because Decatur has the better of the argument that jurisdiction on that basis (in relation both to the contractual and the tortious claims asserted in the present action) has been prorogued to the courts of Geneva by the jurisdiction provisions of the Decatur Agreement. Idemia has failed to establish a good arguable case that it can found jurisdiction against Decatur on the jurisdiction provisions of the Schedule 6 Document annexed to the Tiger Agreement.
2 Tiger’s challenge to the jurisdiction succeeds. Idemia has failed to establish a good arguable case that it can found jurisdiction against Tiger on the jurisdiction provisions of the Schedule 6 Document annexed to the Decatur Agreement. Idemia has also failed to establish a good arguable case that it can rely upon Decatur as an “anchor defendant”, so as to establish jurisdiction over Tiger as a necessary or proper party.
3 Mr Rahman’s challenge to the purported service on him at York Way succeeds. York Way was not his “last known residence” within the meaning of CPR 6.9 at the material time, since Idemia had been told that he no longer lived there.
4 Mr Rahman’s challenge to the service on him at Morris Place fails. He was validly and effectively served there at his registered “service address”, pursuant to the Companies Act 2006 s 1140, even though he was not at the material time present, domiciled or resident within the jurisdiction. Idemia has therefore succeeded in establishing that the English court has jurisdiction over Mr Rahman on the basis of that service.
5 Mr Rahman’s application for a stay of this action against him on forum non conveniens grounds succeeds. No sufficient factors link the claims made against Mr Rahman in the present action to England. There are, however, substantial connections with Bangladesh. Bangladesh is therefore the forum in which Idemia’s claims against Mr Rahman can most suitably be tried for the interests of all the parties and for the ends of justice.
Geert.
(Handbook of) European private international law, 2nd ed. 2016, much of Chapter 2.

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