Highland Crusader Offshore Partners LP & Ors v Deutsche Bank AG & Anor [2009] EWCA Civ 725

“This is fascinating. I understand the competing interests, and I particularly am swayed in many personal respects by what Mr Hackney [counsel for DB and DBSI] has just said [about the Texas court not wishing to be known for allowing international forum shopping]. Given that, I’m denying the motions.”

“…Defendants have failed to carry their burden with regard to the forum non conveniens analysis and all of the private and public interest factors set forth in Gulf Oil confirm that Dallas is a far more convenient forum for the parties. Defendants cannot demonstrate, and have presented minimal evidence, that the private or public interest factors weigh in favor of dismissing this case based on forum non conveniens. Plaintiffs have, on the other hand, demonstrated that the Gulf Oil factors weigh in favour of retaining the case in Texas. Moreover, Plaintiffs filed this law suit first, Texas law applies to the majority, if not all, of Plaintiffs’ claims, and the slight burden to Defendants in defending this lawsuit in Dallas is outweighed by the burden the Plaintiffs will suffer if their claims are dismissed and they are forced to prosecute their claims in an English court. As such, it is clear that Plaintiffs’ choice of forum, Dallas, should not be disturbed.”

“Immediate relief is required because Plaintiffs’ counsel in London indicated this afternoon that the Court in London will rule tomorrow, April 3, 2009, before the courts open in Texas and has indicated that it will likely grant an anti-suit injunction against Plaintiffs.”

“As a general rule, before an anti-suit injunction can properly be granted by an English court to restrain a person from pursing proceedings in a foreign jurisdiction in cases of the kind under consideration in the present case [an alternative forum case], comity requires that the English forum should have a sufficient interest in, or connection with, the matter in question to justify the indirect interference with the foreign court which an anti-suit injunction entails. In an alternative forum case, this will involve consideration of the question whether the English court is the natural forum for the resolution of the dispute.”

“If, applying the principles relating to forum non conveniens…, the foreign court could reasonably have concluded that there was no alternative forum that was clearly more appropriate, the domestic court should respect that decision and the application should be dismissed. Where there is a genuine disagreement between the courts of our country and another, the courts of this country should not arrogate to themselves the decision for both jurisdictions…In a case in which the domestic court concludes that the foreign court assumed jurisdiction on a basis that is inconsistent with principles relation to forum non conveniens and that the foreign court’s conclusion could not reasonably have been reached had it applied those principles, it must then go on to the second step of the [Aerospatiale] test [i.e. whether to grant an injunction on the ground that the ends of justice require it].”

“If they are being improperly or unjustly sued in California, why should they not look to their own courts to protect them rather than to the English courts? In English and private international law there can be no objection to the Californian court exercising both its procedural and it substantive jurisdiction over them.”

“In the instant case, on any view, the GOP agreed to submit to the jurisdiction of the English court. Furthermore, it appointed agents for the purpose of service in England, and it agreed to waive any objection that any action brought in England was being brought in an inconvenient forum. It seems to me that it cannot have been the intention of the parties that if proceedings were commenced in England, parallel proceedings could be pursued elsewhere unless there was some exceptional reason for doing so.”

“This may go too far. If this reasoning was adopted in relation to non-exclusive jurisdiction clauses in general, it would mean that non-exclusive clauses could be converted into something close to an exclusive jurisdiction clause by the simple expedient of commencing parallel proceedings in England soon after the commencement of the foreign proceedings. So it is submitted that this aspect of Sabah should be read as specific to the unusual facts of the case, where the foreign proceedings included a claim for an anti-suit injunction to restrain proceedings in the chosen forum.”

“Where the agreement provides for the non-exclusive jurisdiction of the English courts there is no breach of agreement in bringing proceedings abroad and therefore an injunction will not be granted on the basis of breach of an agreement. However, if one party (A) by way of a pre-emptive strike seeks an injunction abroad whereby the other party (B) will be permanently restrained from making any demand under a contract (containing a non-exclusive English jurisdiction clause) in the hope of preventing B from starting proceedings in England, this is a breach of contract and vexatious. An injunction restraining A from continuing the proceedings abroad will then be granted on the basis of vexation or oppression. Moreover, the nature of the jurisdiction clause may be such that, although not exclusive, it does not contemplate parallel proceedings and pursuing proceedings abroad would be vexatious and oppressive. Normally, though, a non-exclusive jurisdiction agreement will contemplate the possibility of simultaneous trials in England and abroad and, if trial is pursed abroad, there will not only be no breach of agreement but also no vexatious or oppressive conduct.”

“i) If a contract contains a non-exclusive jurisdiction clause the parties are taken mutually to have agreed that the country in which jurisdiction may be exercised pursuant to the clause is a convenient forum. ii) Only in exceptional circumstances unforeseeable when the contract was made would it be open to one party to ignore such a jurisdiction clause and to start proceedings for negative relief elsewhere on the basis of a balance of convenience. iii) The commencement in a forum other than that to which the jurisdiction clause refers of proceedings for negative or any relief before the commencement by the other party of proceedings in the agreed forum can normally contribute nothing to ascertaining such balance of convenience, which has to be tested on the assumption that neither party had yet started proceedings in any forum. iv) In cases where it cannot be said that there are any exceptional circumstances unforeseeable at the time when the agreement was made which render an unagreed form materially more convenient than the agreed forum, subject to (v) below, it will be procedurally oppressive for one party to commence proceedings in an unagreed forum either before or after the other party has commenced proceedings in the agreed forum. v) There may be exceptional cases where, in spite of there being no unforeseen circumstances giving rise to a balance of convenience in favour of some other forum, the justice of the case and the interests of all parties so strongly point to the desirability of a trial in an unagreed forum that they outweigh what would otherwise be the oppressive character of a party’s conduct in ignoring the agreed forum.”

“One of the curses of the common law method in the 21st century is unlimited accessibility to authorities, reported and unreported, and apparently unlimited resources for copying them. (See the Practice Direction on Citation of Authorities [2001] 1 WLR 2001) On the other hand, one of the blessings is the availability of up to date and authoritative textbooks on almost every relevant subject, in which the material cases have been sorted out and digested. For my part, at least where I am concerned with common law rather than statute, I find it most helpful to start by looking for a succinct statement of the relevant principle: either in a recent binding decision of the higher courts, if there is one; or, if not, in a leading textbook (or, where available, a Law Commission report). Of course, that is only the starting point. Authorities may be needed to qualify, expand, or merely illustrate the basic principle. However, it is important to be clear for which of those purposes any case is being advanced. Furthermore, where the purpose is to qualify or expand, it is not enough simply to cite an authority, without being able to articulate with reasonable precision the proposition which it is said to support. Occasionally, and exceptionally, the uncertainty of the law in a particular area may require a detailed examination of cases going back over a long period. In such cases, for my part, I welcome all the help I can get. In most disputed areas of the law, it is possible to identify a recent, informed academic treatment of the subject by a recognised authority, with a full discussion of the relevant cases. Proliferation of academic articles is no more welcome than proliferation of authorities. However, an objective academic review can often provide the best framework for the discussion in court, and a useful corrective to the necessarily partisan viewpoint of counsel.”