Posts Tagged submission
Once in a while I post on State Immunity, one of my favourites sub-themes in same being waiver of immunity, whether by contractual provision or following submission.  EWHC 385 (Comm) certain underwriters at Lloyds et al v Syrian Arabic Republic et al is a good illustration of the latter. How does one serve a state which is evidently in times of political unrest? And has that State submitted to jurisdiction hence waived immunity?
Claimants’ claim in the United States District Court arose from the 1985 hijacking of EgyptAir flight 648 and the loss to which that gave rise. Adam Johnson and colleagues at Herbert Smith alerted me to the case and their review is excellent. Henshaw J held the former issue (service) very practically: DHL evidence of documents having been delivered to the relevant ministry suffices, even if acceptance of the documents is refused.
Assessment of submission was relevant for there is no Treaty between the US and the UK on recognition and enforcement – hence common law applies. In the absence of any Convention or other instrument for mutual recognition of judgments, a foreign judgment in personam can be recognised only if it was delivered by a court which had jurisdiction according to English private international law. That means that the defendant must either have (i) been present in the foreign jurisdiction when proceedings were commenced, (ii) claimed or counterclaimed in those proceedings, (iii) previously agreed to submit to the jurisdiction, or (iv) voluntarily have submitted himself to the overseas court’s jurisdiction (see Rubin and another v Eurofinance SA  1 AC 236 § 7).
In the present case (i)-(iii) do not apply, so Claimants must show that the Defendants submitted to the US court’s jurisdiction. Which Henshaw J held they had. Of particular note for this blog is that he (at 59) rejects much authority for CJEU precedent, particularly C-150/80 Elefanten Schuh, held under the Brussels Convention. Even if Elefanten Schuh were to apply, Henshaw J does not believe it would have led to a different outcome. At 66 follows an extensive list of arguments leading to a conclusion of submission, with particular emphasis on Notices of Appeal, each of which included a merit-based objection to the judgment appealed from but contained no assertion that the US courts lacked jurisdiction by reason of, or that the claims were barred by, sovereign immunity. The simple fact is that Syria at no stage made any such challenge, save very late in the process.
The judgment therefore is interesting firstly for its discussion of CJEU weight in residual conflict of laws; secondly for the Court’s view on submission and sovereign immunity – in my view very much the right one.
Dennis v Tag Group: Speak up, counsel! when contesting injunctions. (And article 24’s jurisdictional rules apply regardless of the domicile of parties).
I reported on submission to jurisdiction in the English legal context in re Golden Endurance, and on the issue of the application of (now) Brussel I Recast’s Article 24’s exclusive jurisdictional rules in Dal Al Arkan. In Dennis v TAG Group  EWHC 919 (Ch) the High Court first of all revisits the issue of submission to jurisdiction in the context of injunction proceedings, and also held that permission for service out of jurisdiction is not required since the (now) Article 24 rules apply regardless of domicile of the parties. Clyde & Co have summary of the facts here.
Mr Dennis was the CEO of the England and Wales incorporated McLaren Technology Group Ltd. He claims he has suffered unfair prejudice as a result of suggested Board resolutions to be passed (and now passed) and relies on purported breaches of the Companies Act 2006, articles of association, shareholder agreement and service agreement to support his petition: this arguably engages Article 24(2) of the Brussels I Recast.
Application for injunctive relief sought to restrain Respondents from placing Plaintiff on garden leave and delegating the authority of the board to an interim committee. At issue first is whether Respondents’ engagement with the injunctive proceedings amounted to submission of jurisdiction. Briggs CR held that it so did: language in isolated correspondence reserving rights as to jurisdiction amounts to nothing if parties keep schtum about it when it really matters: at the injunctive hearings and forms relating to same.
Briggs held that even in the alternative, had there not been submission, Article 24 (I assume what is meant is Article 24(2) given the subject of the claim) applies regardless of the domicile of the parties hence submission is irrelevant (and indeed permission for service out of jurisdiction not required – one assumed to the (insurance) relief of Respindents’ counsel. On that point Dal Arkan had already been confirmed Deutsche Bank AG v Sebastian Holdings Inc & Alexander Vik  EWHC 459 .
A good and attractively concise ruling.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.6.
Another posting for the ‘comparative conflicts /dispute resolution’ binder. In order not to be found to have voluntary appeared (‘submitted to jurisdiction’), civil procedure rules worldwide require defendants to flag their opposition to jurisdiction early on in the proceedings. Indeed at the threshold of the litigation: in limine litis.
In EU law, the Court of Justice ruled in Elefanten Schuh that where civil procedure of the Member States requires a defence on the merits at the very earliest opportunity, such defence does not jeopardise objection to jurisdiction made at the same occasion. (Case-law now reflected in the wording of the Brussels I Regulation and its Recast successor).
There is as yet however no CJEU case-law on what level of interaction with the courts leads to submission.
In England, Zumaz Nigeria v First City  EWCA Civ 567 recently held that application for disclosure does not entail submission: for one may need those very documents to contest jurisdiction.
Thank you RPC for now flagging Shenzhen CTS International Logistics Co Ltd v Dajiang International Investment Co Ltd. The court found that by applying to strike out the claim and seeking security for costs (to include the period after the hearing of the stay application), defendant had invoked the jurisdiction of the Hong Kong courts. As always of course the decision was based on factual merit which RPC’s David Smyth and Hannah Fletcher summarise very well in the posting hyperlinked above.
Beware before you engage with the courts, if you do not wish to be seen as having submitted.
(Handbook of) European Private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.7.
In JEB Recoveries v Binstock,  EWCA Civ 1008, the Court of Appeal (on appeal from the High Court, 2015] EWHC 1063 (Ch)) exhaustively reviewed relevant EU precedent for the determination of the ‘place of performance’ of a contract under Article 5(1) (now 7(1)) of the Brussels I (Recast) Regulation. Kitchin LJ first of all refuses to deal with the alleged submission to jurisdiction by Mr Binstock. The argument was made that, by making and pursuing an application for security for costs, Mr Binstock had submitted to the jurisdiction. The issue was however not raised before the High Court and therefore not sub judice at the Court of Appeal.
Mr Binstock (of casino fame) argued that the contracts at issue were not performed in England, for he himself was domiciled in Spain and the claimant in the case at issue (for most of the relevant contracts, jurisdiction was dismissed at hand) had arguably carried out his contractual arrangements largely from Paris.
Relevant CJEU precedent was C-19/09 Wood Floor Solutions the findings of which Lord Justice Kitchin helpfully summarised as follows:
- ‘…First, the place of performance must be understood as the place with the closest linking factor between the contract and the court having jurisdiction and, as a general rule, this will be at the place of the main provision of the services.
- Secondly, the place of the main provision of the services must be deduced, so far as possible, from the provisions of the contract itself.
- Thirdly, if the provisions of the contract do not enable the place of the main provision of the services to be determined, either because they provide for several places where services are to be provided or because they do not expressly provide for any specific place where services are to be provided, but services have already been provided, it is appropriate, in the alternative, to take account of the place where activities in performance of the contract have for the most part been carried out, provided that the provision of services in that place is not contrary to the parties’ intentions as appears from the contract.
- Fourthly, if the place of the main provision of the services cannot be determined on the basis of the terms of the contract or its performance, then it must be identified by another means which respects the objectives of predictability and proximity, and this will be the place where the party providing the services is domiciled.’
Based upon the place where the services have for the most part been carried out, the Court of Appeal held that JEB has no good arguable case that the place of the main provision of Mr Wilson’s services was England.
A neat application of Article 7(1) and an improved re-phrasing of the CJEU’s own rules.
(Handbook of) EU Private International Law, Chapter 2 Heading 188.8.131.52.,
Golden Endurance v RMA,  EWHC 2110 (Comm), illustrates the attraction of having a unified approach to submission (to jurisdiction), otherwise known as voluntary appearance. In current case, the judgment that needs to be recognised is ex-EU (Moroccan) hence the Brussels I Recast does not apply: English law does. This is in fact exactly why The Hague is working hard at its ‘Judgments’ Convention – not an easy project in my view. As helpfully summarised by Sam Goodman, the court held that a Moroccan judgment would not be recognised in England because the claimant had not submitted to the jurisdiction of the Moroccan court. Although the claimant had appeared in the Moroccan proceedings, it had done so in order to ask the court to stay the Moroccan proceedings in favour of arbitration and had only engaged with the merits as it was obliged to do so under Moroccan law.
Of note is that Phillips J points out that under the relevant English statutory rules, the question arises as to when defending a case on its merits, at the same time as contesting jurisdiction, submission applies: a scenario for which the Brussels I Recast provides specifically in Article 26. An English court does not for this exercise rely on civil procedure rules in the country of origin of the judgment: this surely makes sense for otherwise it would encourage forum shopping by unscrupulous claimants. Instead, whether one has submitted is ‘a question of mixed law and fact’ (at 46) which in this case was decided in favour of the claimant in the English court, ‘the claimant, having requested the dismissal of the claim in Morocco in favour of arbitration proceedings and having done so continually and as its primary response, did not voluntarily appear in the Moroccan courts’ (at 47).(The remainder of the judgment relates to transport law: the ‘Hague Rules’).
(Handbook of) EU private international law, Chapter 2, Heading 2.2.7.
When my tweets on the CJEU are not followed quickly by a blog post, assume I got snowed under. Or that other developments require more immediate analysis. Taser, Case C-175/15, is easily dismissed perhaps as not all that stunning or shocking (puns abound), yet as often, it is worthwhile highlighting what the case does not answer, rather than what it did elucidate.
Taser International, whose seat is in the United States, entered into two non-exclusive distribution agreements with Gate 4. Under those agreements, Gate 4 and its administrator, Mr Anastasiu, undertook to assign to the other contracting party the Taser International trade marks which they had registered, or for which they had applied for registration, in Romania.
Following Gate 4’s and Mr Anastasiu’s refusal to fulfil that contractual obligation, Taser International brought an action before the District Court, Bucharest. Regardless of the existence in those contracts of clauses conferring jurisdiction on a court situated in the US, Gate 4 and Mr Anastasiu entered an appearance before the Romanian court without challenging its jurisdiction. The Court ordered them to undertake all the formalities necessary for the registration of the assignment.
The appeals court seeks clarification as to whether the Brussels I Regulation is applicable to the dispute before it, since the parties elected, for the resolution of their disputes, the courts of a third country. The referring court considers that such a clause conferring jurisdiction on a third country may, for this reason alone, preclude the tacit prorogation of jurisdiction under Article 24 (Article 26 in the Brussels I Recast).
On the assumption, however, that that latter rule is applicable, the referring court seeks to ascertain whether it should, nevertheless, decline jurisdiction on another ground. It also queried whether the exclusive jurisdictional rules of Article 22 are applicable: does a dispute concerning an obligation to assign a trade mark, likely to result in a registration under national law, fall within paragraph 4 of that article.
The CJEU firstly recalled its finding in C-111/09 CPP Vienna Insurance Group: choice of court made per Article 23 (now Article 25) Brussels I, can be overruled by voluntary appearance. The latter in that case simply acts as an amended choice of court. In Taser (at 24) the court now adds that this applies also if that initial choice of court was made ex-EU. The deliberate, later choice, remains a deliberate choice. The Court makes no reference to discussions e.g. in the context of Gothaer, whether the Brussels I Regulation at all should be concerned with choice of court ex-EU or should be entirely indifferent. Arguably, in the Recast Regulation, there is consideration for choice of court ex-EU, in particular in recital 24 combined with Article 33.
Intellectual property lawyers will be disappointed with the Court’s answer to the issue of whether trade mark assignment falls within Article 22(4) [now 24(4)]: Romanian courts in any event had jurisdiction. (at 29).
Plenty left open, therefore. Geert.
(Handbook of) European private international law, 2nd ed. 2016, chapter 2, heading 184.108.40.206, heading 2.2.7 .