Posts Tagged Owusu

Angola v Perfectbit et al: Residual English jurisdiction continues to be impacted by Owusu.

My reporting on [2018] EWHC 965 (Comm) Republic of Angola v Perfectbit et al is a bit overdue – the case came to my attention again recently in the context of a non-EU brief and I am grateful to Allen & Overy having reported it at the time: please refer to their summary for an overview of the issues and decision (concise summary reads ‘Despite an exclusive jurisdiction clause in favour of the Angolan courts, the High Court was satisfied that England was the appropriate forum to hear a claim by the Republic of Angola and Angola’s central bank against several English and non-EU defendants.’).

In short, the EU’s anchor defendants mechanism (Brussel I Recast, Article 8(1) cannot be used to establish jurisdiction against a non-EU defendant: residual conflicts rules apply. However Bryan J at 124 re-emphasises the extended effect of Owusu in cases such as these at issue:

‘The passages I have quoted were quoted by the Court of Appeal in Lungowe v Vedanta Resources plc [2017] EWCA Civ 1528[2017] BCC 787 at paragraphs [114] and [115] with approval. Simon LJ (with whom Jackson and Asplin LJJ agreed) at paragraph [113] also referred to the following observations made by the editors of Dicey and Morris:

“113. At paragraph 12-033, the editors of Dicey note the classic exposition of Lord Goff’s forum non conveniens test in the Spiliada case, but add: Lord Goff could not have foreseen, however, the subsequent distortion which would be brought about by the decision of the European Court in Owusu v Jackson. The direct effect of that case is that where proceedings in a civil or commercial matter are brought against a defendant who is domiciled in the United Kingdom, the court has no power to stay those proceedings on the ground of forum non conveniens. Its indirect effect is felt in a case in which there are multiple defendants, some of whom are not domiciled in a Member State and to whom the plea of forum non conveniens remains open: it is inevitable that the ability of those co-defendants to obtain a stay (or to resist service out of the jurisdiction) by pointing to the courts of a non-Member State which would otherwise represent the forum conveniens, will be reduced, for to grant jurisdictional relief to some but not to others will fragment what ought to be conducted as a single trial … There is no doubt, however, that the Owusu factor will have made things worse for a defendant who wishes to rely on the principle of forum non conveniens when a co-defendant cannot.” ‘

In short, against non-EU defendants whose case is anchored with an EU (England and Wales) defendant, forum non conveniens remains open but has become more unlikely. One issue perhaps under-considered by the English courts is Brussels Recast Article 34’s juncto recital 24 impact of exclusive choice of court in favour of a third State (neutralising Owusu for those specific circumstances) – not powerful enough perhaps in the case of a multitude of defendants.

Case goes to trial.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.4 (International impact of the Brussels I Recast Regulation), Heading 2.2.14.5.2.

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Bento Rodrigues (Samarco dam victims) v BHP Billiton in the English courts. A new CSR marker.

The media have been reporting on a considerable class action lawsuit, underway in the English courts, in the Corporate Social Responsibility /mass torts category.

The class action case was filed against Anglo-Australian company BHP Billiton on behalf of 240,000 individuals, 24 municipal governments, 11,000 businesses, a Catholic archdiocese and about 200 members of the Krenak indigenous community. It concerns victims of the Samarco dam collapse in Mariana three years ago.

I am reporting the case simply to ensure complete overview of the CSR /jurisdiction /applicable law issues reported on the blog. For as I am co-counsel acting for the claimants, I am not in a position to comment on the case until and if legal analysis will be in the public domain.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

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Unilever. Court of Appeal summarily dismisses CSR jurisdiction against mother company, confirming High Court’s approach. Lex causae for proximity again left undiscussed.

Update 21 September 2018 further litigation on similar issues is underway in Gemfield [AAA and others v Gemfields Plc and Montepuez Ruby Mining Limitada]. See overview of issues here.

The Court of Appeal in [2018] EWCA Civ 1532 has confirmed the High Court’s approach in [2017] EWHC 371 (QB) AAA et al v Unilever and Unilever Tea Kenya ltd, holding that there is no good arguable case (the civil law notion of fumus boni iuris comes closes, as Bobek AG notes in Feniks) against Unilever, which could then be used to anchor the case in the English jurisdiction.

Pro memoria: jurisdiction against Unilever is clear, following Article 4 Brussels I Recast. That Regulation’s anchor mechanism however is not engaged for Article 7(1) does not apply against non-EU based defendants. It is residual English private international law that governs this issue.

Appellants appeal in relation to the High Court’s ruling that neither Unilever nor UTKL (the Kenyan subsidiary) owed the appellants a duty of care. Unilever has put in a respondent’s notice to argue that the judge should have found that there was no duty of care owed by Unilever on the additional ground that, contrary to her view, there was no proximity between Unilever and the appellants in respect of the damage suffered by them, according to the guidance in Chandler v Cape Plc. Unilever and UTKL also sought to challenge that part of the judgment in which the judge held that, if viable claims in tort existed against Unilever (as anchor defendant) and UTKL, England is the appropriate place for trial of those claims. Unilever also cross-appealed in relation to a previous case management decision by the judge, by which she declined an application by Unilever that the claim against it should be stayed on case management grounds, until after a trial had taken place in Kenya of the appellants claims against UTKL.

The legal analysis by Sales LJ takes a mere five paragraphs (para 35 onwards). Most of the judgment is taken up by an (equally succinct) overview of risk management policies within the group.

At 35 Sales LJ notes ‘Having set out the relevant factual background in relation to the proximity issue (i.e. whether the appellants have any properly arguable case against Unilever in the light of Chandler v Cape Plc and related authorities), the legal analysis can proceed much more shortly. It is common ground that principles of English law govern this part of the case.

– the ‘common ground’ presumably being lex loci incorporationis.

This is an interesting part of the judgment for I find it by no means certain that English law should govern this part of the case. In one of my chapters for professor Vinuales’ en Dr Lees’ forthcoming OUP book on comparative environmental law, I expand on that point.

The long and the short of the argument is that Unilever did not intervene in the affairs of its subsidiary in a more intensive way than a third party would have done. Reference at 37 is made to the contrasting examples given by Sir Geoffrey Vos in Okpabi, ‘One can imagine … circumstances where the necessary proximity could be established, even absent the kind of specific facts that existed in Vedanta … Such a case might include the situation, for example, where a parent required its subsidiaries or franchisees to manufacture or fabricate a product in a particular way, and actively enforced that requirement, which turned out to be harmful to health. One might suggest a food product that injured many, but was created according to a prescriptive recipe provided by the parent. …’

and, at 38, to the raison d’être of mother /daughter structures,

“… it would be surprising if a parent company were to go to the trouble of establishing a network of overseas subsidiaries with their own management structures it if intended itself to assume responsibility for the operations of each of those subsidiaries. The corporate structure itself tends to militate against the requisite proximity …

– subject evidently to proof of the opposite in the facts at issue (a test seemingly not met here).

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

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Forum non conveniens, lis alibi pendens ex-EU following Brussels I Recast. High Court adopts limiting approach in UCP v Nectrus.

In [2018] EWHC 380 (Comm) UCP Plc v Nectrus Limited Cockerill J takes the same conclusion on the new lis alibi pendens rule ex-EU in the Brussels I Recast, which I had suggested in the Handbook (p.182). A court in a Member State seized of an action other than those based on Articles 4, 7, 8 or 9 cannot refuse jurisdiction in favour of a court based ex-EU.

From Herbert Smith’s summary of the case: Nectrus, a Cypriot company, commenced proceedings in the Isle of Man seeking payment of sums withheld by UCP, an Isle of Man company, on the sale of a company, Candor. UCP then commenced proceedings in England claiming that Nectrus was in breach of an Investment Management Agreement (IMA), the loss being the amount by which the sale consideration of Candor had been reduced, hence the amount withheld on its sale.

The IMA contained a non-exclusive jurisdiction agreement in favour of the English courts. UCP disputed the jurisdiction of the Manx court, but in the event the proceedings continued, indicated they would raise the cause of action relied on in the English proceedings by way of equitable set off. Nectrus disputed their right to do so.

Nectrus disputed the jurisdiction of the English court on the basis that the Manx courts were the most appropriate forum to determine the dispute and were first in time.

Other than for the articles listed above, the CJEU’s findings in Owusu continue to apply. That includes English jurisdiction on the basis of non-exclusive choice of court, covered by Article 25 of the Recast Regulation. Justice Cockerill is entirely correct in unhesitatingly (at 39) rejecting forum non conveniens.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.4 (International impact of the Brussels I Recast Regulation), Heading 2.2.14.5.2.

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Human rights, CSR: Court of Appeal confirms lack of jurisdiction in Okpabi.

Update 16 May 2018 Vedanta have been given permission to appeal to the Supreme Court.

Update 7 March For a great supplement simply refer to Penelope Bergkamp’s post in which she discusses the wider issues of parent liablity v veil piercing etc.

The Court of Appeal, referring powerfully ia to VTB, has confirmed (albeit with dissenting opinion) lack of the English courts jurisdiction in [2018] EWCA Civ 191 Okpabi et al v Shell. I reviewed the High Court’s decision in same here. Plenty of the High Court’s considerations. e.g. (pro inspiratio) joinder under Brussels I Recast, and the optionally distributive lex causae rule under Article 7 Rome II, do not feature in the Court of Appeal’s approach.

The crucial take-away from the judgment is that the English courts do not believe that headquarter instructed mandatory compliance, equates control. This runs along the lines of Scheindlin USDJ’s approach in Apartheid.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

 

 

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Kennedy v National Trust for Scotland. Applying forum non conveniens within the UK. And how to make a case ‘international’.

In [2017] EWHC 3368 (QB) Kennedy v National Trust for Scotland, Eady J considers two important (for this blog at least) issues leading to dicta: when a prima facie domestic case may turn out to be international really; and following his ruling on same, the application of forum non conveniens intra-UK. I reviewed the latter issue, also intra-UK, in my analysis of Cook & McNeil (v Virgin & Tesco).

First the issue of the case being purely domestic or international. It is only when it is the latter, that the Brussels I Recast regime is engaged and, per Owusu, forum non conveniens excluded.

The Claimant, who is domiciled in Scotland, seeks damages and other remedies in this jurisdiction against the National Trust for Scotland in respect of a number of allegations published in both jurisdictions as well as in Italy, France and Brazil. He relies not only on defamation but also on negligence and on alleged breaches of the Data Protection Act 1998. The dispute arises over the Claimant’s attendance at Craigievar Castle in Aberdeenshire on 23 February 2012, when he took a series of photographs of a naked model for commercial purposes. He claims that he did so pursuant to an oral contract, entered into with a representative of the Defendant, which expressly authorised that activity. Some years later, this episode came to the attention of the daughter of Lord Sempill who had gifted the castle to the Defendant (more than 50 years ago) and she protested that it had been used for the purpose of taking nude photographs. Her remarks caught the attention of a journalist who made enquiries and was given a statement by or on behalf of the Defendant on 24 February 2016 which was reported in the Scottish Mail on Sunday of 28 February. Thereafter, the Defendant also issued a press release which denied that the taking of the photographs had been authorised. This was sent to a number of media outlets including a reporter on the (London) Metro newspaper.

Claimant suggests that this is not “a purely domestic case” by referring to re-publication of the defamatory words in France and Italy. At 51 Eady J, with reference to the aforementioned Cook v Virgin Media, suggests the purpose of the regulation, and of the rule of general jurisdiction in particular, is to regularise issues of jurisdiction as between different states, and that no such question arises here, because the only potential competition is between the courts of Scotland and England & Wales (i.e. internal to the United Kingdom). I do not think this is the effect of CJEU precedent, Lindner in particular, as well as Maletic and Vinyls Italia (the latter re Rome I). The potential competition between the England and Scotland only arises if, not because, the Brussels I Regulation does not apply: the High Court’s argument is circular. In Linder and in Maletic, the CJEU upheld the application of Brussels I even though competing jurisdiction elsewhere in the EU was only potential, not actual. Given the potential for jurisdiction with courts in France and Italy, I would suggest the Lindner logic applies.

Eady J though applies forum non conveniens to establish Scotland as the more appropriate forum in the UK, and to stay the English case.

He then obiter (had FNC not applied), at 86 ff suggests the court develop a novel sub-national model of Shevill, such that only courts of the sub-national place where the publisher is domiciled would have jurisdiction to award global damages – and all other courts within the United Kingdom would be restricted to awarding damages for harm occurring within their relevant regions. Importantly, even for post-Brexit use, Eady J suggest the importation of CJEU case-law in applying English law of conflicts is appropriate for Parliament has approved rules in parallel to those under the Recast Regulation.

A little gem of a judgment.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.2.1.

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Bestolov v Povarenkin. On the determination of domicile (and yes, Owusu strikes again).

Many thanks to Andrew Savage and Nick Payne for flagging [2017] EWHC 1968 (Comm) Bestolov v Povarenkin a little while ago, and for sending me copy of the judgment at the time. Apologies for late reporting: frustratingly even at gavclaw we cannot always devote the amount of time to the blog we would wish. Dr Maganaris in the meantime also has summary here.

As readers no doubt are aware, the Brussels I Recast Regulation (Article 62) does not define ‘domicile’: it defers to national private international law on the issue. The Civil Jurisdiction and Judgments Order 2001 establishes that a person is domiciled in England for the purpose of the Brussels Regulation (recast) if: the person is “resident” in England; and (cumulatively) the person has a “substantial connection” to England. Bryan DJ takes us through the relevant (and often colourful) precedent and notes, importantly, at 28 that the consequence of the English rules is that the same person can be resident in two different jurisdictions at the same time. At 44, he summarises with a list of criteria, and decides on the facts of the case that Mr Povarenkin is indeed domiciled in England (the substantial connection test having been more easy to determine than that of residence).

Subsequently the High Court reviews at length whether there was a valid choice of court agreement under Article 25 of the Regulation – which at this jurisdictional stage of the proceedings Bryan DJ decides there was not (choice of law for the relevant contracts being English law, was justifiably not considered definitive in this respect), at least not clearly. Obiter, the judge reviews forum non conveniens, at lenght in fact (and in a very clear way with a keen eye on relevant precedent as well as court practice in England) however he holds both before and after the obiter that evidently given Owusu, forum non conveniens has no calling.

A well written judgment, the approach of which on domicile evidently goes beyond having relevance merely for the English courts: for under the Regulation, courts in other Member States, too, may have to consider whether parties are domiciled in an EU Member State other than their own including, for the time being, the United Kingdom.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.3, Heading 2.2.14.5.

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