“32. GOVERNING LAW This Agreement and all non-contractual obligations arising from or connected with it are governed by English law. 33. ENFORCEMENT 33.1 Jurisdiction 33.1.1 The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to non-contractual obligations arising from or in connection with this Agreement, or a dispute regarding the existence, validity or termination of this Agreement) (a “Dispute”). 33.1.2 The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary. 33.1.3 This Clause 33 is for the benefit of the Lender only. As a result, the Lender shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Lender may take concurrent proceedings in any number of jurisdictions.”
“1. Without prejudice to Article 31(2), where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. … 3. Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.”
“1. Where actions come within the exclusive jurisdiction of several courts, any court other than the court first seised shall decline jurisdiction in favour of that court. 2. Without prejudice to Article 26 [which deals with submission to the jurisdiction by entry of an appearance], where a court of a Member State on which an agreement as referred to in Article 25 confers exclusive jurisdiction is seised, any court of another Member State shall stay the proceedings until such time as the court seised on the basis of the agreement declares that it has no jurisdiction under the agreement. 3. Where the court designated in the agreement has established jurisdiction in accordance with the agreement, any court of another Member State shall decline jurisdiction in favour of that court.”
“(22) However, in order to enhance the effectiveness of exclusive choice-of-court agreements and to avoid abusive litigation tactics, it is necessary to provide for an exception to the general lis pendens rule in order to deal satisfactorily with a particular situation in which concurrent proceedings may arise. This is the situation where a court not designated in an exclusive choice-of-court agreement has been seised of proceedings and the designated court is seised subsequently of proceedings involving the same cause of action and between the same parties. In such a case, the court first seised should be required to stay its proceedings as soon as the designated court has been seised and until such time as the latter court declares that it has no jurisdiction under the exclusive choice-of-court agreement. This is to ensure that, in such a situation, the designated court has priority to decide on the validity of the agreement and on the extent to which the agreement applies to the dispute pending before it. The designated court should be able to proceed irrespective of whether the non-designated court has already decided on the stay of proceedings. This exception should not cover situations where the parties have entered into conflicting exclusive choice-of-court agreements or where a court designated in an exclusive choice-of-court agreement has been seised first. In such cases, the general lis pendens rule of this Regulation should apply.”
“For the purpose of the finalisation of the financial statements of Air Berlin plc for the year ended31 December 2016 , having had sight of your forecasts for the two years ending31 December 2018 , we confirm our intention to continue to provide the necessary support to Air Berlin to enable it to meet its financial obligations as they fall due for payment for the foreseeable future and in any event for 18 months from the date of this letter. Our commitment is evidenced by our historic support through loans and support on obtaining financing for Air Berlin.”
“(i) A claim for breach of the Comfort Letter on the basis that the Comfort Letter is legally binding. (ii) Alternatively, if the Comfort Letter is not legally binding, a pre-contractual claim in culpa in contrahendo, on the basis that Etihad used its negotiating power during the negotiations between the parties to avoid providing a clearly binding statement whilst, at the same time, inspiring the trust of Air Berlin that it would adhere to the commitment in the Comfort Letter.”
“These two areas of the case were, for all relevant purposes, separate; certainly once it had been accepted, as Air Berlin accepted in its written submissions (whilst reserving its position on a possible appeal), that an asymmetric clause is a jurisdiction agreement falling within Article 25. There was therefore no material overlap between the arguments advanced on these two areas of the case.”
“I therefore conclude that, interpreting the jurisdiction agreement in the Facility Agreement as a matter of English law, there is a good arguable case that (i) the jurisdiction clause in the Facility Agreement is applicable to the Comfort Letter and any non-contractual claim in connection therewith, and (ii) the claim commenced by Air Berlin in Germany falls within the scope of that clause.”
“3. The Comfort Letter was clearly part of the Support Package with the Facility Agreement and the judge was clearly right to conclude as he did that the dispute here has arisen from the legal relationship in connection with which the jurisdiction agreement in the Facility Agreement was concluded. The contentions in grounds 6 and 7 that he was wrong to do so are unarguable. … 7. On any view the judge was right to conclude that there was a good arguable case that the Comfort Letter was governed by English law and that as a matter of English law it was not binding so that it could be viewed as ancillary to the Facility Agreement, from which it followed that the dispute under it was within the scope of the jurisdiction clause. The applicant has no real prospect of persuading this Court to the contrary. 8. Despite the ingenuity of the arguments in the applicant’s Skeleton Argument, the applicant has no real prospect of success on grounds 2 to 9.”
“The Judge was wrong in law to conclude that the English court is not obliged to stay its proceedings under Article 29 of the Brussels Recast and erred in concluding that the provisions of Article 31(2) of Brussels Recast apply to the asymmetric clause in the Facility Agreement.”
“Such factual disputes as existed were within a very narrow compass, and the factual evidence did not significantly advance matters beyond what was apparent from the contemporary documents.”
“(14) A defendant not domiciled in a Member State should in general be subject to the national rules of jurisdiction applicable in the territory of the Member State of the court seised. However, in order to ensure the protection of consumers and employees, to safeguard the jurisdiction of the courts of the Member States in situations where they have exclusive jurisdiction and to respect the autonomy of the parties, certain rules of jurisdiction in this Regulation should apply regardless of the defendant’s domicile. (15) The rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile. Jurisdiction should always be available on this ground save in a few well-defined situations in which the subject-matter of the dispute or the autonomy of the parties warrants a different connecting factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction.” jurisdiction.”
“(19) The autonomy of the parties to a contract, other than an insurance, consumer or employment contract, where only limited autonomy to determine the courts having jurisdiction is allowed, should be respected subject to the exclusive grounds of jurisdiction laid down in this Regulation.”
“The same need for continuity applies as regards the interpretation by the [CJEU] of the 1968 Brussels Convention and of the Regulations replacing it.”
“Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.”
“Persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out in Sections 2 to 7 of this Chapter.”
“ “Prorogation” is a term of Scots law used to translate, accurately, the same French term. It means “the extension of the jurisdiction of a judge or court to cases which do not properly come within it.” ”
“(1) If the parties, regardless of their domicile, 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, unless the agreement is null and void as to its substantive validity under the law of that Member State. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. The agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing; (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.”
“(5) An agreement conferring jurisdiction which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. The validity of the agreement conferring jurisdiction cannot be contested solely on the ground that the contract is not valid.”
“This Convention shall apply in international cases to exclusive choice of court agreements concluded in civil or commercial matters.”
“an agreement concluded by two or more parties that meets the requirements of paragraph (c) and designates, for the purpose of deciding disputes which have arisen or may arise in connection with a particular legal relationship, the courts of one Contracting State or one or more specific courts of one Contracting State to the exclusion of the jurisdiction of any other courts.”
“A court of a Contracting State other than that of the chosen court shall suspend or dismiss proceedings to which an exclusive choice of court agreement applies unless – (a) the agreement is null and void under the law of the State of the chosen court; (b) a party lacked the capacity to conclude the agreement under the law of the State of the court seised; (c) giving effect to the agreement would lead to a manifest injustice or would be manifestly contrary to the public policy of the State of the court seised; (d) for exceptional reasons beyond the control of the parties, the agreement cannot reasonably be performed; or (e) the chosen court has decided not to hear the case.”
“This Convention shall not affect the application of the rules of a Regional Economic Integration Organisation [such as the EU] that is a Party to this Convention, whether adopted before or after this Convention – (a) where none of the parties is resident in a Contracting State that is not a Member State of the Regional Economic Integration Organisation; (b) as concerns the recognition or enforcement of judgments as between Member States of the Regional Economic Integration Organisation.”
“Derogations from and exceptions to the treaty or other legislation must be strictly construed. It has also been said that they cannot be given a meaning that goes beyond what they expressly provide; that they cannot be interpreted in such a way as to extend their effects beyond what is necessary to safeguard the interest which they seek to secure; and that their scope must be determined in the light of the aims pursued by the measure containing them.”
“Exceptions must as a general rule be strictly construed and cannot take precedence over general and unconditional rules. Exceptions to fundamental treaty provisions or other rules cannot be given a scope which would exceed their objectives.”
“In the present case, I accept that Article 31(2) can be viewed as an exception to Article 29. It is clear that the lis pendens rule in Article 29 is subject to and qualified by the provisions of Article 31(2). However, both of these provisions must be viewed in the context of Recital (22) of Brussels Recast, and the “aims pursued by the measure containing them”
“62. There is no warrant, in my judgment, for giving article 29 of Brussels I Recast primacy and treating article 31(2) as somehow an exception to it. Nor is there any warrant for giving article 31(2) a narrow meaning. Whatever may have been the legislative history of the first seised rule in the Brussels Convention and Brussels I, there is nothing in Brussels I Recast indicating this approach. In my view, ordinary principles apply and both articles should be read together and given effect according to their language and purpose. 63. On its face article 29(1) is without prejudice to article 31(2), which can only mean that article 29(1) gives way to article 31(2) when the latter applies.”
“Article 17 If the Parties, one or more of whom is domiciled in a Contracting State, have, by agreement in writing or by an oral agreement evidenced in writing, agreed that a court or the courts of a Contracting 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 exclusive jurisdiction. … If the agreement conferring jurisdiction was concluded for the benefit of only one of the parties, that party shall retain the right to bring proceedings in any other court which has jurisdiction by virtue of this Convention.”
“The way in which that provision is to be applied must be interpreted in the light of the effect of the conferment of jurisdiction by consent, which is to exclude both the jurisdiction determined by the general principle laid down in Article 2 and the special jurisdictions provided for in Articles 5 and 6 of the Convention. In view of the consequences that such an option may have on the position of the parties to the action, the requirements set out in Article 17 governing the validity of clauses conferring jurisdiction must be strictly construed. By making such validity subject to the existence of an “agreement” between the parties, Article 17 imposes on the court before which the matter is brought the duty of examining, first, whether the clause conferring jurisdiction upon it was in fact the subject of a consensus between the parties, which must be clearly and precisely demonstrated. The purpose of the formal requirements imposed by Article 17 is to ensure that the consensus between the parties is in fact established.”
“13. It should be pointed out in the first place thatArticle 17 of the Convention … allows the parties, within the limits laid down by the second paragraph of that provision, to choose by mutual agreement a court or the courts of a Contracting State. The parties may thus confer jurisdiction on courts which would not have jurisdiction under the general or special provisions of the Convention or exclude the jurisdiction of courts which would normally have jurisdiction under those rules. According to the first paragraph of Article 17, the jurisdiction of a court or courts designated by a jurisdiction clause is exclusive, whilst the third paragraph of that article maintains the right of the party for whose benefit the clause was agreed to institute proceedings in any other court having jurisdiction under the Convention. 14. SinceArticle 17 of the Convention embodies the principle of the parties’ autonomy to determine the court or courts with jurisdiction, the third paragraph of that provision must be interpreted in such a way as to respect the parties’ common intention when the contract was concluded. The common intention to confer an advantage on one of the parties must therefore be clear from the terms of the jurisdiction clause or from all the evidence to be found therein or from the circumstances in which the contract was concluded. 15. Clauses which expressly state the name of the party for whose benefit they were agreed and those which, whilst specifying the courts in which either party may sue the other, give one of them a wider choice of courts must be regarded as clauses whose wording shows that they were agreed for the exclusive benefit of one of the parties.”
“106. The 1988 Convention lays down that a prorogation clause that meets the requirements of the Convention always confers exclusive jurisdiction on the designated court or courts. But under the laws of some of the States bound by the Convention - under English law in particular - the parties will often agree a choice of forum clause on a non-exclusive basis, leaving other courts with concurrent jurisdiction, and permitting the plaintiff to choose between several forums; and English case-law has accepted that a non-exclusive clause constitutes a valid choice of forum under the Convention. On a proposal from the United Kingdom delegation, the ad hoc working party re-examined the question of the exclusive effect of a choice of forum clause, and reached the conclusion that, since a clause conferring jurisdiction was the outcome of an agreement between the parties, there was no reason to restrict the parties’ freedom by prohibiting them from agreeing in the contract between them that a non-exclusive forum should be available in addition to the forum or forums objectively available under the Convention. A similar possibility was in fact already provided for, though within certain limits, by the 1988 Convention, Article 17(4) of which allowed a choice of forum clause to be concluded for the benefit of only one of the parties, who then retained the right to bring proceedings in any other court which had jurisdiction by virtue of the Convention, so that in that case the clause was exclusive only as far as the other party was concerned. That provision was obviously to the advantage of the stronger party in the negotiation of a contract, without producing any significant gain for international commerce. The 1988 Convention has now been amended to give general recognition to the validity of a non-exclusive choice of forum clause, and at the same time the provision in the 1988 Convention that allowed a clause to be concluded for the benefit of one party only has been deleted. 107. Article 23 does still give preference to exclusivity, saying that the agreed jurisdiction “shall be exclusive unless the parties have agreed otherwise”
“That wording, which is based on the most widespread business practice, cannot, however, be interpreted as intending to exclude the right of the parties to agree on two or more courts for the purpose of settling any disputes which may arise. This interpretation is justified on the ground that Article 17 is based on a recognition of the independent will of the parties to a contract in deciding which courts are to have jurisdiction to settle disputes falling within the scope of the Convention, other than those which are expressly excluded pursuant to the second paragraph of Article 17. This applies particularly where the parties have by such an agreement reciprocally conferred jurisdiction on the courts specified in the general rule laid down byArticle 2 of the Convention .”
“In my view the validity of a clause of this nature can be recognised without misgivings. Indeed, it is probable that no doubt would have arisen if the clause had been worded differently; that is, if it had prescribed that each party could be sued only before the courts of his domicile (or perhaps the State of which he is a national: in the present case the two links coincide). In those circumstances an identical intention would have been expressed in such a way as to emphasise the concern of the parties to establish a single criterion as being decisive: the domicile (or the nationality) of the defendant. Nevertheless, quite apart from the foregoing, it can be recognised that the parties to a contract may stipulate that the courts of two States shall have jurisdiction to settle disputes arising from that contract, provided that each jurisdiction is restricted to a specified class of dispute. In short, there is nothing to preclude the parties, instead of treating all disputes which could arise from their contract as a whole, from dividing them into two or more groups in accordance with criteria which they are free to establish and prescribing the courts of a different State for each group. This is not a common step but there are no grounds for considering it unlawful.”
“The rationale for the new rule in Article 32(1) [of Brussels Recast] is party autonomy. Recital (22) explains that the new rule was introduced “in order to enhance the effectiveness of choice-of-courts agreements and to avoid abusive litigation tactics”
“The Austrian court was the designated court in an exclusive jurisdiction agreement. Nevertheless, proceedings were first taken in Italy by the Italian party. The subsequent proceedings commenced in the designated court by the Austrian party meant that the Austrian court was second seised. The European Court of Justice held that the designated (Austrian) court had to await the decision of the non-designated (Italian) court as to whether the latter had jurisdiction. If the Italian court decided that it had jurisdiction, the court second seised would have to decline jurisdiction in its favour. The outcome is sometimes referred to as the “Italian torpedo”.”
“The efficiency of choice of court agreements needs to be improved. Currently, the Regulation obliges the court designated by the parties in a choice of court agreement to stay proceedings if another court has been seised first. This rule enables litigants acting in bad faith to delay the resolution of the dispute in the agreed forum by first seising a non-competent court. This possibility creates additional costs and delay and undermines the legal certainty and predictability of dispute resolution which choice of court agreements should bring about.”
“With respect to choice of court agreements, there was a large support from stakeholders and Member States to improve the effectiveness of such agreements. Among the various ways to achieve that objective, preference was expressed for granting priority to the chosen court to decide on its jurisdiction. Such a mechanism would largely accord with the system established in the 2005 Hague Choice of Court Agreements Convention, thus ensuring a coherent approach within the Union and at international level were the Union to decide to conclude the 2005 Convention in the future.”
“196. The effect of Air Berlin's arguments, however, is that this reversal of Erich Gasser, and the aims set out in Recital (22) are only partially achieved; so that the Italian torpedo remains fully effective in the context of very widely-used asymmetric clauses. I consider that there can be no logical justification for this difference in approach. In the present case, Air Berlin entered into an agreement that proceedings that it commenced would be brought exclusively in England; it had no option to bring proceedings elsewhere, and Air Berlin agreed not to bring such proceedings elsewhere. It is accepted that such clauses are effective under Article 25 of Brussels Recast. The clauses are therefore entitled to be enforced like any other jurisdiction clause. 197. Given that the parties had agreed on the exclusivity of the English courts for proceedings brought by Air Berlin, Air Berlin’s argument leads to the conclusion that, in relation to a jurisdiction clause of this type, party autonomy should not be respected; that the effectiveness of choice of court agreements should not be enhanced; and that the chosen court does not have priority to decide on the validity of the agreement and the extent to which the agreement applies to the pending dispute. It is in my view not possible to see why these conclusions should follow simply because the clause leaves open the possibility that, in relation to another “group” of disputes, namely those where Etihad may wish to begin proceedings, the parties agreed that Etihad was not confined to the jurisdiction of the English courts.”
“There is nothing in the Brussels Recast itself which indicates, let alone makes clear, that asymmetric clauses are being treated differently to other exclusive jurisdiction clauses, with the consequence that the parties’ agreement on exclusivity for particular disputes should fall outside the aims identified in Recital (22). Moreover, once it is accepted that asymmetric clauses are within Article 25 as a matter of EU law – so that any national laws which may cast doubt on the validity of such clauses are not relevant – it makes little sense to say that the effectiveness of such clauses should be decided in the first instance by a non-designated court, if first seised.”
“Arguably, the solution is to draw a distinction between a jurisdiction clause and the distinct agreements it may comprise. It is coherent to say that asymmetric clauses are to be classified as non-exclusive, in so far as they do not confine proceedings to a single court. However, such clauses contain separate exclusive and non-exclusive jurisdiction agreements, whereby the counterparty’s agreement to sue in the designated court is exclusive, and the “beneficiary’s” agreement to sue in that court is non-exclusive.”
“If X and Y agree to the jurisdiction of the English courts, for example, X alone has the right to sue in any other court of competent jurisdiction. Suppose therefore that Y launches a preemptive strike in Germany, and X replies by suing in England. Is Article 31(2) engaged, or does Gasser still prevent X from relying on the agreement? If such agreements are not protected by Article 31(2), there remains the potential for a party to an asymmetric agreement to disable the agreement by launching a pre-emptive strike in its preferred court. Principle suggests that a finance party may rely on Article 31(2) in such a case. Such asymmetric agreements, although non-exclusive for the benefit of the “beneficiary” under the clause, are exclusive against a counterparty. Article 31(2) should therefore engage if a counterparty brings proceedings other than in the designated court in breach of its promise to sue only in that court.”
“In that case, the Spanish court was first seised of proceedings commenced by Codere in September 2015. The English court was second seised of proceedings commenced by Perella in December 2015. The Spanish court granted a stay of proceedings which had been commenced by Codere in breach of an asymmetric clause, pending determination by the English court of an application by Codere to challenge the jurisdiction of the English court. In granting the stay, the judge relied upon and applied the approach advocated by Professor Richard Fentiman… .”
“He was plainly right not to do so. So far as article 31.2 is concerned, there is, as it seems to me, good commercial reason to focus upon the question whether [a] party seeking to bring proceedings in a court of “another member state” has agreed that the dispute in question is to be subject to the exclusive jurisdiction of a court or the courts of another member state. Nothing in article 31.2 requires that the party relying upon the exclusive jurisdiction clause must itself be under a symmetrical obligation.”
“Even if this case were not covered by pre-existing authority, I would have no difficulty in saying that Article 31(2) applies in the present case.”
“71. The Hague Convention, in my view, offers no assistance in the characterisation of asymmetric jurisdiction clauses under Article 31(2) of Brussels I Recast. There is no reference to the Hague Convention in Brussels I Recast, although the drafting of both occurred in tandem and Council Decision 2014/887/EU referred to ensuring coherence between the rules of the EU on the choice of court in civil and commercial matters and those of the Hague Convention. 72. While there is an overlap between the two instruments, however, there are important divergences. Thus there are differences between the two in the formal requirements for exclusive jurisdiction clauses, the Hague Convention in Article 3(c) requiring writing or an accessible form, Brussels I Recast in Article 25 allowing agreements to be established on a wider basis, through the practices of the parties or by commercial usage. 73. Further, there is a definition of exclusive jurisdiction clauses in Article 3(a) of the Hague Convention, whereas there is no definition in Brussels I Recast. The reporters record that the Diplomatic Session adopting the Hague Convention accepted that the definition in Article 3(a) did not extend to asymmetric jurisdiction clauses, something the reporters themselves do not seem to have regarded as clear. 74. There are good arguments in my view that the words of the definition of exclusive jurisdiction clauses in Article 3(a) of the Hague Convention cover asymmetric jurisdiction clauses. For present purposes, however, there is no need to reach a concluded view on the ambit of the definition. Even if it were to be read as excluding asymmetric jurisdiction clauses, however, that in my view is of no assistance as to the quite separate issue of their characterisation under article 31(2) of Brussels I Recast.”
“It was agreed by the Diplomatic Session that, in order to be covered by the Convention, the agreement must be exclusive irrespective of the party bringing the proceedings. So agreements of the kind referred to in the previous paragraph [i.e. asymmetric agreements] are not exclusive choice of court agreements for the purposes of the Convention.”
“I did not consider that there was any force in this argument. It was rejected by Cranston J in paragraph [75] of his judgment, and in my view, he was right to do so. Etihad has seised the English court for the simple reason that the agreement provides for the exclusivity of the English court in relation to proceedings commenced by Air Berlin, and Etihad has brought the present proceedings on the basis of that agreement. There is no difficulty in saying that, in those circumstances, the English court is “seised on the basis of the [exclusive jurisdiction] agreement”