Vale SA v BHP Group (UK) Ltd & Anor
[2023] EWCA Civ 1388
Munícipio de Mariana v BHP Group (UK) Limited & Anor
19 October 2023
[2023] EWHC 2607 (TCC)
High Court
Vale lost a jurisdictional challenge but wants to appeal. The court gave them more time to appeal but refused to pause the case entirely. They can use a new expert, but only for specific questions. The main case will continue.
Key Facts
- •Vale's appeal against the dismissal of its jurisdictional challenge
- •Vale's applications for an extension of time to file acknowledgements of service and a stay of Part 20 claims
- •Vale's application to rely on expert evidence of Brazilian arbitration law
- •Directions for the Part 20 claims
- •BHP's offer of undertakings to protect Vale pending appeal
- •The applicability of CPR 11(8) and its interpretation in previous cases
- •The potential for irremediable harm to Vale if a stay is not granted
- •The potential for prejudice to BHP if a stay is granted
- •Vale's application for a stay under section 9 of the Arbitration Act 1996
- •The admissibility of expert evidence on Brazilian law
Legal Principles
CPR 11 governs applications to dispute or challenge a court's jurisdiction.
CPR 11
CPR 11(8) states that filing a further acknowledgement of service constitutes acceptance of jurisdiction.
CPR 11(8)
The court has discretion to extend time for filing acknowledgements of service under CPR 11(7)(b).
CPR 11(7)(b)
The court has case management powers under CPR 3.1(2) and specific power to control expert evidence under CPR 35.4.
CPR 3.1(2), CPR 35.4
The court has discretion to grant a stay pending appeal, considering potential injustice to either party.
Hammond Suddards Solicitors v Agrichem International Holdings Ltd [2001] EWCH Civ 2065
Section 9 of the Arbitration Act 1996 allows for a stay of proceedings if they fall within an arbitration agreement.
Section 9, Arbitration Act 1996
Expert evidence on foreign law is admissible, but experts should not opine on the meaning of contracts.
BNP Paribas SA v Trattamento Rifiuti Metropolitani SPA [2019] 1 CLC 822
Unless the court orders otherwise, an appeal does not stay lower court orders (CPR 52.16).
CPR 52.16
Outcomes
Vale's application for an extension of time to file replacement acknowledgements of service is granted until 1 December 2023.
To allow time for Vale to apply to the Court of Appeal for permission to appeal; avoids Vale implicitly submitting to jurisdiction before appeal.
Vale's application for a stay of the Part 20 proceedings is dismissed.
Balancing the potential harm to Vale against the harm to BHP and claimants if proceedings are delayed. Undertakings offered by BHP mitigate the risk to Vale.
Vale is granted permission to rely on Professor Lee's expert report on questions 1 and 2 (interpretation of arbitration clauses and binding non-signatories) but not question 3 (application of law to facts).
Professor Lee's expertise in Brazilian arbitration law is considered relevant; however, applying law to facts remains the court's role.
Time for Vale to file and serve its Part 20 defence is extended to 4pm on 1 December 2023.
Considering Mr. Caisley's evidence but noting Vale's awareness of the case and access to information.
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