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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Mar -Train Heavy Haulage Ltd v Shipping.Dk Chartering A/S (t/a Frank&tobiesen A/S) & Ors [2014] EWHC 355 (Comm) (20 February 2014) URL: http://www.bailii.org/ew/cases/EWHC/Comm/2014/355.html Cite as: [2014] EWHC 355 (Comm) |
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QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
MAR-TRAIN HEAVY HAULAGE LIMITED |
Claimant |
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- and - |
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SHIPPING.DK CHARTERING A/S (TRADING AS FRANK&TOBIESEN A/S) and four others |
Defendants |
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John Kimbell (instructed by Hill Dickinson) for the Claimant Respondent
Hearing dates: 13 December 2013 and 27 January 2014
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Crown Copyright ©
Judge Mackie QC:
The contracts
"Scope of Supply:
ཉ Support Siemens on budgetary inquiries
ཉ Assist Siemens in developing technical solutions
ཉ Assist Siemens in preparing feasibility studies for the various projects
ཉ Supply Siemens with full (or partly [sic]) transport solutions and execution thereof, including all necessary logistical planning, documentation, negotiations with sub-contractors/authorities/agents etc for various projects"
Mar-Train's invoices – sent to ALS
ALS's invoices – sent to F&T
The first English and the Danish proceedings
Article 23- the approach to an application
"1. If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either:
(a) in writing or evidenced in writing; or
(b) in a form which accords with practices which the parties have established between themselves; or
(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned."
"In practice, what amounts to a 'good arguable case' depends on what requires to be shown in any particular situation in order to establish jurisdiction. In the present case, as the case law of the Court of Justice emphasises, in order to establish that the usual rule in art 2(1) is ousted by art 23(1), the claimants must demonstrate 'clearly and precisely' that the clause conferring jurisdiction on the court was in fact the subject of consensus between the parties. So, applying the 'good arguable case' standard, the claimants must show that they have a much better argument than the defendants that, on the material available at present, the requirements of form in art 23(1) are met and that it can be established, clearly and precisely, that the clause conferring jurisdiction on the court was the subject of consensus between the parties."
"[35] I turn to the Brussels Regulation. The general rule under the Regulation is that jurisdiction is generally to be based on the defendant's domicile. The underlying principle is that it must always be so based, save in well-defined situations in which the subject matter of the litigation or the autonomy of the parties requires a different linking factor: see recital (11) to the Regulation. A further principle (see recital (15)) is that it is necessary to minimise the possibility of concurrent proceedings.
[36] Article 23, which requires a consensus between the parties that a particular court is to have jurisdiction, like its predecessor art 17 of the Brussels Convention, is based on the autonomy of the parties. Its material part provides:[and he then sets out the text]
[37] The purpose of art 23 is to ensure that the parties have actually consented to the choice of jurisdiction. The decisions of the ECJ (now the CJEU) make it clear that, to be effective for the purpose of art 23, an agreement to confer jurisdiction must establish consensus between the parties 'clearly and precisely': Estasis Salotti di Colzani Aimo e Gianmario Colzani snc v Rüwa Polstereimaschinen GmbH Case 24/76 [1976] ECR 1831 and Galeries Segoura SPRL v Socieìteì Rahim Bonakdarian Case 25/76 [1976] ECR 1851.
[38] There is, however, a measure of flexibility. Although (see Iveco Fiat SpA v Van Hool NV Case 313/85 [1986] ECR 3337) the ECJ stated that 'the sole purpose of the formal requirement [in art 23] is to ensure that the consensus between the parties is in fact established', an oral agreement conferring jurisdiction can suffice. This will be so where the oral agreement is later confirmed in writing by one party and the other party has raised no objection in sufficient time: see Berghoefer GmbH & Co KG v ASA SA Case 221/84 [1985] ECR 2699. Briggs on Civil Jurisdiction and Judgments (5th edn, 2009) ed Rees, p 178 states that the formal requirements 'are a means to an end, and are not an end in themselves', and—
'[t]he only question, sight of which must not be lost, is that the formal requirements are there to ensure that there was consensus. If the consensus can be clearly and precisely established by other means, they serve no additional function, and there is no further need to consider them.'
[39] Secondly, written consensus may exist in the absence of a binding contract: see Fentiman International Commercial Litigation (2010) para 2.40, giving a non-binding memorandum and an unsigned version of a contract which requires a signature as examples.
[40] Despite this measured flexibility, the jurisprudence of the ECJ regards the departures from the general rule of domicile-based jurisdiction, including art 23, as derogations. In that sense they are regarded as exceptions to the general rule, although to regard jurisdiction based on art 23 as exceptional may (see Fentiman International Commercial Litigation (2010) para 2.42) risk placing an obstacle to giving effect to party autonomy.
[41] There are also statements that departures from the general rule of domicile-based jurisdiction should be strictly construed (see Estasis Salotti v Rüwa Case 24/76 [1976] ECR 1831 (para 7) and Bank of Tokyo-Mitsubishi Ltd v Baskan Gida Sanayi ve Pazarlama AS [2004] EWHC 945 (Ch) at [191], [2004] 2 Lloyd's Rep 395 at [191] per Lawrence Collins J, as he then was) and interpreted in 'keeping with the spirit of certainty'. This means they should be interpreted so as to ensure that they are only applicable in clear cases and without having to delve into the merits of the underlying dispute: see Trasporti Castelletti Spedizioni Internazionali SpA v Hugo Trumpy SpA Case C-159/97 [1999] ECR I-1597 (paras 48–49). This last point has particular relevance when what is under consideration is an inquiry at the interlocutory stage in a case such as this one where there is a sharp conflict of evidence."
Is there a good arguable case that Mar-train contracted with ALS on RHA 1998 terms and that F&T contracted with ALS on BIFA terms?
Did ALS act as F&T's agent when it contracted with Mar-Train?
The terms used by the parties in making their contract
Any description used or adopted by the parties in relation to the contracting party's role
The course of any dealings between the parties
The nature and basis of charging
Other factors said to be relevant – the Witness Evidence and the First English Proceedings
Agency- Decision
Unilateral consent
"At the hearing I drew the parties' attention to a recent article of Professor Briggs ("The subtle variety of jurisdiction agreements" in [2012] LMCLQ 364: see 376 – 381.) which further discusses these (amongst other) issues and which, for my part, I find as persuasive as it is characteristically robust. For present purposes the important arguments are, first, that "the parties" in art 23 means the parties to the litigation, not necessarily to a contract, so one is immediately not concerned with the substantive validity of a contract for the purposes of deciding whether the conditions in art 23 have been satisfied. Secondly, Professor Briggs reaffirms his previously expressed view that the ECJ "has gone out of its way" to emphasise that the jurisdictional validity and effect of a jurisdiction clause is to be assessed by reference to the requirements of the Article, not any national law, whether it be the putative applicable law of the contract or some other law. Thirdly, the agreement of a party is not bilateral or contractual, but unilateral. And the tests of whether there has been the necessary unilateral agreement are those set out in art 23, viz a "written manifestation of consent" or some other sufficiently formal act of agreement, as laid down in the Article. Fourthly, however, there may be an autonomous principle by which one party cannot rely on the written manifestation of consent by the other party, because to do so would be an exercise of bad faith. (I take this to be the effect of fn 87. But none of the cases referred to advance the present argument, including the decision of the Court of Appeal in Sherdley v Nordea Life and Pensions SA [2012] EWCA Civ 88, [2012] 2 All ER (Comm) 725, [2012] NLJR 293.) Professor Briggs expressed doubts on whether, despite contrary statements in the Deutsche Bank case, the European approach to consent to jurisdictional clauses is based on the doctrine of "separability". However, I think I am bound by what this court held in that case, so that I must proceed on the basis that the doctrine of "separability" is now uncontroversial as a matter of EU law."
Conclusion