#3625 - Relationship Between Bir And English Rules Cases - Conflict of Laws

RELATIONSHIP BETWEEN BRUSSELS 1 REGULATION AND ENGLISH NATIONAL RULES

Forum Non Conveniens and the BIR

Owusu v Jackson [2005] (ECJ)

C was domiciled in England; went on holiday to Jamaica, and stayed in a villa lent to him by D, who was also domiciled in England. C suffered physical injury at villa’s private beach, sued D in England along with numerous Jamaican companies allegedly complicit in the injury. Was clear that Court of Appeal could stay proceedings against the Jamaican companies; issue was whether, given that court had Article 2 jurisdiction, they could stay proceedings against D on forum non conveniens grounds. Held:

Where national court has jurisdiction under Article 2, it cannot stay proceedings on grounds that a non-Member State is a more appropriate forum.

Article 2 jurisdiction is unqualified save for where the Regulation expressly provides for this

however Regulation says nothing about declining jurisdiction in favour of non-Member States.

Reasons:

1. Article 2 is mandatory in nature

2. Legal certainty

• where court has Article 2 jurisdiction, allowing stay might be unfair to D

  • i.e. D will wish to be sued in his domicile

  • yet because of forum non conveniens doctrine, he will not know whether court may force him to defend case abroad

3. Aims of Regulation

• Regulation was enacted to harmonise jurisdiction rules for the benefit of the internal market

  • And this is achieved by promoting uniformity and certainty

• however forum non conveniens doctrine is only found in some Member States

  • thus allowing doctrine to override Regulation in only some Member States would adversely affect uniform application of Regulation

  • and thus prevent harmonisation of internal market

Alternative Bases

Equitas Ltd v AllstateInsurance [2008]

English court had Article 23 jurisdiction under an exclusive jurisdiction clause. Held:

• Where jurisdiction clause is exclusive, court has no power to stay on forum non conveniens grounds.

• Article 23 is stronger grounds of jurisdiction than Article 2.

  • Therefore follows that Owusu reasoning must apply in relation to Article 23 as well.

Skype Technologies v Joltid Ltd [2009]

• Where there is exclusive jurisdiction clause, court has no power to stay on forum non conveniens grounds.

• ECJ in Owusu only objected to stays on discretionary grounds.

  • Thus where stay is non-discretionary, Owusu does not prohibit this.

Ferrexpo v Gilson Investments [2012]

Proceedings were brought against English D under Art 2 jurisdiction concerning the validity of resolutions in a Ukranian company. D sought stay in favour of Ukraine. Held:

Stay granted in favour of Ukranian courts.

Reflexive Effect

Article 22, 27+28 BIR have reflexive effect

and Catalyst Investment is incorrect.

Moreover this reflexive effect is not strict

rather English court has discretion to stay in situations where reflexive effect applies

Three reasons for this:

1. No policy reason why reflexive effect should be strict

2. Strict reflexive effect might cause injustice

   e.g. if courts were required to stay even where there was risk C would not receive justice in foreign courts

3. power of court to grant stay where reflexive effect applies derives from English national rules (under which courts have discretion whether to stay)

   i.e. BIR merely grants courts power to decide whether to decline jurisdiction/stay under their own national rules

   however it does not grant the actual power to stay itself

JKN v JCN [2011]

Case was decided under Brussels II Regulation. Issue was whether proceedings in England under Article 3 (BIR II’s equivalent of Article 2) could be stayed at the discretion of English court. Held:

Is neither necessary nor desirable to extend Owusu principle to cases where there are parallel proceedings in a non-Member State.

Reasons:

1. Effet Reflexe argument

• Purpose of BIR is to prevent irreconcilable judgments

• Thus allowing parallel proceedings to go ahead undermines this objective

2. Lacuna argument

• i.e. BIR gives no indication to Member States as to what to do where there are parallel proceedings in non-Member State

• thus must be case that Member States can stay

3. reasoning in Owusu not incompatible with this view

• does not undermine legal certainty

  • i.e. as both parties are aware of the parallel proceedings, and it is in interests of both to only have one set of proceedings

  • this argument dubious

• Coreck Maritime allows judicial discretion where there is no BIR provision for it

  Thus on facts, English proceedings stayed.

Jurisdiction Clauses

Konkola Copper Mines v Coromin [2005] (exclusive clause)

C brought proceedings against an English-domiciled defendant. D sought stay on grounds of exclusive jurisdiction clause in favour of Zambia. Held:

For other reasons, no stay was granted.

Colman J (obiter)

Where contract contains exclusive jurisdiction clause in favour of non-Member State, English courts have discretion to stay proceedings even if they have Art 2 jurisdiction

This because:

1. Reflects objects of Regulation

• i.e. object of Art. 23 is to respect party autonomy

2. Treatment of jurisdiction clauses is a matter for national law

• Schlosser Report on original Brussels Convention envisaged that the treatment of a jurisdiction clause in favour of non-Member State would be determined by that State’s national law

• Thus question of treatment of such jurisdiction clauses is entirely outside scope of Regulation

• If this is case, use of discretion by English court not contrary to Owusu

  • i.e. given question governed by national law, Owusu does not apply at all

3. Need to avoid lacunae

• Is no provision in Regulation for what happens where there is exclusive jurisdiction clause in favour of non-Member State

• No conceptual basis for simply assuming that no respect for party autonomy should be shown here

Winnetka Trading Corp v Julius Bare International [2009] (possibly a non-exclusive clause)

Contract in question had jurisdiction clause in favour of non-Member State (although was not clear whether this was exclusive or non-exclusive). Held:

Where parties have agreed jurisdiction clause in favour of non-Member State, is strong argument for a stay in favour of that court.

1. Decision in Owusu concerned forum non conveniens

2. However where court stays because of a jurisdiction clause, is NOT using doctrine of forum non conveniens

• thus no reason to apply Owusu reasoning to cases of jurisdiction clauses

  On facts, stay of proceedings granted.

Coreck Maritime [2000] (ECJ)

Validity of jurisdiction clause in favour of a non-Member State is governed by applicable law of contract

the applicable law being determined by forum’s choice of law rules.

Does this imply that where court of a Member State decides jurisdiction clause in favour of third State is valid, they have discretion to stay proceedings even if jurisdiction is under BIR?

Antisuit Injunctions

Midland Bank Ltd v Laker Airways [1986]

C, Midland Bank, had lent money to D to form world’s first low-cost airline. However airline went out of business, and D sued C in USA under US antitrust laws. C applied for injunction in English courts preventing D from continuing claim in US. Held:

English court has jurisdiction to grant antisuit injunction.

This because loans between C and D were part of domestic business of banks.

thus took place subject to English law and in an English context

at no time did bank subject loans to scrutiny of US authorities

Here, injunction granted despite fact that this was a ‘single forum case’

I.e. was no possibility of future proceedings in English court on same cause of action (antitrust laws)

Airbus Industrie GIE v Patel [1999]

Lord Goff

See notes.

In Midland Bank, injunction was granted in circumstances where relevant transaction was “overwhelmingly English in character”.

Thus decision was consistent with comity.

Is clear from this case that just because English court is not forum conveniens for claim, does not necessarily mean English court breaches comity by granting antisuit injunction.

British Airways Board v Laker Airways ]1985]

D brought action against C abroad for breach of US antitrust rules. C sought antisuit injunction in UK against US proceedings. Held:

Lord Scarman

Even where there is no equivalent cause of action in England, English court may grant antisuit where D’s claim abroad is so unconscionable it infringes an equitable right of C.

Here, D’s claim in America is under US Antitrust rules

Thus is no equivalent cause of action in UK

i.e. as UK does not have similar antitrust rules

However on facts, D’s claim in US not unconconscionable

Thus no injunction granted

Aerospatiale v Lee Kui Jak [1987]

D (a Brunei national) was a widow, whose husband had been killed by a helicopter crash in Brunei; D sued C (the French helicopter manufacturer) in Texas. D sought an antisuit injunction in Brunei to stop Texas proceedings. Case went to Privy Council. Held:

1. Brunei was the natural forum for D’s claim

   and not Texas

2. Claim in Texas was oppressive

   C claimed that they were not responsible for the crash at all, but rather the company responsible for maintaining the helicopter

   however maintenance company was not subject to jurisdiction of Texas

   Thus C was at a significant procedural disadvantage through being unable to join maintenance company as co-defendant in Texas proceedings

   i.e. as they would have to seek contribution in Brunei after the Texas judgment

3. Would be no injustice caused to D by forcing her to litigate in Brunei

Lord Goff

Even if foreign proceedings cause injustice to C, no antisuit will be granted where forcing D to...