Ca Indosuez (Switzerland) SA v Afriquia Gaz SA & Anor
[2023] EWCA Civ 1072
Cosimo Borrelli & Ors v Mutaz Otaibi & Ors
20 May 2024
[2024] EWHC 1148 (Comm)
High Court
A company sued in England argued that a contract required the case to be heard in Luxembourg. The English court agreed and paused the case in England because the suing companies hadn't been completely honest about a contract when they first asked the court for permission to sue the Luxembourg company. The judge allowed the suing companies to try again, but only if they followed the rules properly this time. The case against other companies involved in the dispute could continue in England.
Key Facts
- •Application to set aside an order granting permission to serve the Amended Claim Form and Particulars of Claim out of the jurisdiction on the 23rd defendant (FFISA), a Luxembourg Securitisation Vehicle.
- •Application for permission for re-amendments to the Claim Form and amendments to the Particulars of Claim.
- •Claims against various defendants, including allegations of conspiracy, dishonest assistance, breach of trust, and knowing receipt.
- •Claims relate to several transactions, including investment in 'E-Notes', loan transactions, property transactions, artwork dealings, and unauthorized fees.
- •The central issue is the applicability of jurisdiction clauses in the Subscription Agreements and Conditions governing the issuance and subscription of 'Aviation Notes' to the claims against FFISA.
- •Allegations of non-disclosure of relevant jurisdiction clauses to the court in the initial application.
Legal Principles
Hague Convention 2005, Article 6: Requires the English court to suspend or dismiss proceedings if an exclusive jurisdiction clause applies.
Hague Convention 2005
Interpretation of jurisdiction clauses under the Hague Convention 2005: The court must interpret the clause according to the governing law of the contract.
Hague Convention 2005, Explanatory Report
Duty of full and frank disclosure in without notice applications: Applicant must disclose material facts, including potential difficulties or arguments the other side might raise.
Tugushev v Orlov [2019] EWHC 2031 (Comm)
Principles of contractual interpretation under Luxembourg law: Focus on the actual common intention of the parties, considering both intrinsic and extrinsic evidence.
Expert Reports of Professor Gilles Cuniberti and Ms Clara Mara-Marhuenda
Outcomes
Set aside the Order of Knowles J insofar as it affects FFISA.
Failure to disclose material facts about jurisdiction clauses to Knowles J.
Re-granted permission to serve FFISA out of the jurisdiction, dispensing with re-service, but only on terms to prevent limitation benefits from the non-disclosure.
Serious failure to comply with the duty of full and frank disclosure, but mitigating circumstances considered.
Stayed the proceedings against FFISA.
Claims against FFISA fall within the jurisdiction clause of the Subscription Agreements, necessitating a stay under Article 6 of the Hague Convention 2005.
Granted permission to re-amend the Claim Form and amend the Particulars of Claim against defendants other than FFISA (subject to the removal of an inappropriate passage).
Consent from other affected parties.