Posts Tagged residual private international law
Thank you Chloe Oakshett for flagging  CSOH 45 BN Rendering Limited v Everwarm Ltd, in which the Commercial Court in Edinburgh considered its jurisdiction to enforce an adjudicator’s award. Bone of contention was choice of court (ditto law) in the underlying contracts in favour of the courts at England (and English law). Both parties are domiciled in Scotland. Relevant works had to be carried out in Scotland. The Brussels I Recast Regulation does not formally apply between them: Scots-English conflicts are not ‘international’ within the meaning of that Regulation.
However Lord Bannatyne (at 16) points out that even for intra-UK conflicts, the Civil Jurisdiction and Judgements Act 1982 (per instruction in section 20(5) a) must be interpreted taking into account the Brussels regime and its application by the CJEU. It is in this context that Case 24/76 Colzani resurfaces: ‘real consent’ needs to be established without excess formality.
At 28 Lord Banatyne lists claimant’s arguments: the party’s contract was not signed by both parties; nevertheless the defender’s subcontract terms and conditions form part of the contract; the subcontract order refers expressly to the defender’s subcontract terms and conditions which includes the jurisdiction exclusion clause and lastly, that express reference meets the test for real consent to the jurisdiction clause.
Put in summary: At 49: Is an express reference in the defender’s subcontract order (sent to the pursuer) to the defender’s subcontract terms and conditions, which contain the jurisdiction clause (which document is unsigned by the pursuer) sufficient to satisfy the test that it is clearly and precisely demonstrated that the parties agreed to the clause conferring jurisdiction on the English courts? Or put another way, in order to satisfy the said test is it not only necessary for there to be an express reference to the defender’s subcontract terms and conditions but for the subcontract order to have been signed by the pursuer to demonstrate that the parties agreed to the clause conferring jurisdiction on the English courts?
The judge considers the answer to the above questions to be question 1, yes and question 2, no – and I believe he is right.
In Ecobank Transnational v Tanoh, the Court of Appeal refused an anti-enforcement injunction because of the applicant’s delay in filing it. Nigel Brook reviews the judgment’s findings on the issue of the anti-enforcement injunction here. The issue in this appeal is whether the High Court was wrong to refuse to grant Ecobank Transnational Incorporated (“Ecobank”), an injunction restraining Mr Thierry Tanoh (“Mr Tanoh”) from enforcing two judgments which he had obtained in Togo and Côte d’Ivoire. In substance the case concerned the relationship between arbitration, proceedings in the court in ordinary, and submission: it is to the latter that I turn my attention in this posting.
The Brussels regime does not apply – at stake is the application of the Civil Jurisdiction and Judgments Act 1982, which reads in relevant section
“33 For the purposes of determining whether a judgment given by a court of an overseas country should be recognised or enforced in England and Wales or Northern Ireland, the person against whom the judgment was given shall not be regarded as having submitted to the jurisdiction of the court by reason only of the fact that he appeared (conditionally or otherwise) in the proceedings for all or any one or more of the following purposes, namely
(a) to contest the jurisdiction of the court;
(b) to ask the court to dismiss or stay the proceedings on the ground that the dispute in question should be submitted to arbitration or to the determination of the courts of another country.”
Whilst the section states that a person shall not be regarded as having submitted by reason only of the facts there mentioned it is silent as to what additional facts are sufficient to establish submission. The Court of appeal confirms the feeling expressed in earlier case-law that Section 33 needs to be applied in parallel with Article 18 of the Brussels Convention, now Article 26 of the Brussels I Recast (and before that, Article 24 in the Brussels I Regulation). That is because Section 33 is largely derived from Article 18 of the Brussels Convention.
In the High Court judgment Burnton LJ said that it would be unfortunate if the principles applied by the courts of England and Wales on whether a litigant had submitted to the jurisdiction of a foreign court in non-EU cases were different from the principles applied by the Court of Justice, and therefore those courts, in cases under the Brussels and Lugano Conventions and now the Judgments Regulation.
In current appeal, Clarke LJ held (at 66) ‘I would go further. The decision of the court in Harada in relation to section 33 was heavily influenced by the decision of the European Court in relation to Article 18 of the Brussels Convention. But, now that section 33 has been interpreted in the way that it has, it cannot be right that it should bear a different meaning in cases outwith the European context.‘
Submission was not found to exist.
Do be aware of the limits to the relevant findings: Section 33 was largely borrowed, it appears, from the Brussels Convention. Many parts of English private international law, statutory or not, are no so borrowed. In those areas, the courts of England happily continue to follow their own course.