“(a) The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.”
“(b) As Lord Kinnear's formulation of the principle indicates, in general the burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay (see, e.g., the Societe du Gaz case, 1926 S.C.(H.L.) 13, 21, per Lord Sumner; and Anton, Private International Law (1967) p. 150). It is however of importance to remember that each party will seek to establish the existence of certain matters which will assist him in persuading the court to exercise its discretion in his favour, and that in respect of any such matter the evidential burden will rest on the party who asserts its existence. Furthermore, if the court is satisfied that there is another available forum which is prima facie the appropriate forum for the trial of the action, the burden will then shift to the plaintiff to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country (see (f), below).”
“In my opinion, the burden resting on the defendant is not just to show that England is not the natural or appropriate forum for the trial, but to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum. In this way, proper regard is paid to the fact that jurisdiction has been founded in England as of right (see MacShannon's case [1978] A.C. 795, per Lord Salmon); and there is the further advantage that, on a subject where comity is of importance, it appears that there will be a broad consensus among major common law jurisdictions. I may add that if, in any case, the connection of the defendant with the English forum is a fragile one (for example, if he is served with proceedings during a short visit to this country), it should be all the easier for him to prove that there is another clearly more appropriate forum for the trial overseas.”
“(d) Since the question is whether there exists some other forum which is clearly more appropriate for the trial of the action, the court will look first to see what factors there are which point in the direction of another forum. These are the factors which Lord Diplock described, in MacShannon's case [1978] A.C. 795, 812, as indicating that justice can be done in the other forum at "substantially less inconvenience or expense." Having regard to the anxiety expressed in your Lordships' House in the Societe du Gaz case, 1926 S.C. (H.L.) 13 concerning the use of the word "convenience" in this context, I respectfully consider that it may be more desirable, now that the English and Scottish principles are regarded as being the same, to adopt the expression used by my noble and learned friend, Lord Keith of Kinkel, in The Abidin Dover [1984] A.C. 398, 415, when he referred to the "natural forum" as being "that with which the action had the most real and substantial connection." So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction (as to which see Credit Chimique v. James Scott Engineering Group Ltd., 1982 S.L.T. 131), and the places where the parties respectively reside or carry on business.”
“(e) If the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action, it will ordinarily refuse a stay; see, e.g., the decision of the Court of Appeal in European Asian Bank A.G. v. Punjab and Sind Bank [1982] 2 Lloyd's Rep. 356. It is difficult to imagine circumstances where, in such a case, a stay may be granted.”
“(f) If however the court concludes at that stage that there is some other available forum which prima facie is clearly more appropriate for the trial of the action, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless not be granted. In this inquiry, the court will consider all the circumstances of the case, including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions. One such factor can be the fact, if established objectively by cogent evidence, that the plaintiff will not obtain justice in the foreign jurisdiction; see the The Abidin Daver [1984] A.C. 398, 411, per Lord Diplock, a passage which now makes plain that, on this inquiry, the burden of proof shifts to the plaintiff. How far other advantages to the plaintiff in proceeding in this country may be relevant in this connection, I shall have to consider at a later stage.”
“Availability of the foreign forum. The first limb of the Spiliada test requires it to be shown that the foreign forum is ‘‘available’’ as well as being more appropriate for the trial of the action. A foreign court will be considered to be ‘‘available’’ to a claimant if by the time of the application for a stay, it would be open to the claimant to institute proceedings against the defendant before that court. This requirement means that the foreign court must have jurisdiction (personal and subject matter) to determine the claimant’s claim. An undertaking by the defendant to submit to the jurisdiction of a foreign court can make the foreign court available even though it would not have been so without the undertaking.”
“Availability and advantage distinguished. Once availability is determined, factors that go to the practicability of pursuit of the claim in the foreign forum are normally better considered under the second limb of the Rule, which focusses on whether the claimant is being deprived of a legitimate advantage in bringing a suit in England. This applies equally to the question whether the claimant will be able in practice to fund the action. The same is true of submissions that it would be difficult for the claimant to manage or supervise the process of litigation; or that the claimant would not obtain a fair trial; or that the remedy which is sought would be unavailable in the foreign court; or that because of the foreign court’s choice of law rules, the claimant would lose in the foreign court. Similarly, the impact, if any, of a time-bar that might be applied by the foreign court to preclude the claimant’s proceedings is addressed under the second limb of the test. That said, the line which divides the two limbs of Spiliada from each other is neither completely impermeable, nor drawn in such a way that there are no factors which do not appear on both sides of it: from time to time a court will locate under one limb of Spiliada material which, arguably at least, might more comfortably belong to the other. But when it is recalled that the overall test is one which asks what the interests of justice require, and when it is remembered that the analysis in Spiliada is designed to manage, rather than constrain that test, it will rarely be a matter of legitimate complaint that this has happened.”
“The standard for establishing the forum conveniens is high. A defendant seeking a stay of proceedings must not merely show that the English court is not the optimal forum for resolution of the dispute, but that there is an alternative court which is ‘clearly or distinctly more appropriate’. This reflects the fact that, having competence by virtue of service in the jurisdiction, the court is self-evidently an appropriate forum. It also avoids the risk a court might too readily decline to exercise a jurisdiction established as of right by the claimant.”
“20. I accept that there are instances in the authorities when the word “appropriate” and the word “natural” in relation to forum are used interchangeably. Indeed Lord Goff himself could be said to be doing so, even in the judgment in The Spiliada, in the passage at 478C, to which I have already referred but will quote in full below, where he spells out what is involved at the “second stage”
“[94] Leaving aside questions as to the burden of proof, at common law the forum conveniens doctrine requires the English court to decide whether its jurisdiction or that of the suggested foreign court is the more suitable as a forum for the determination of the dispute between the parties. The traditional way in which this question has been framed speaks of the ‘forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice’ (per Lord Collins in AK Investment CJSC v Kyrgyz Mobil Tel Ltd[2011] UKPC 7 ,[2011] 4 All ER 1027 ,[2012] 1 WLR 1804 (at [88]), adopting the language of Lord Goff in Spiliada Maritime Corp v Cansulex Ltd, The Spiliada[1986] 3 All ER 843 ,[1987] AC 460 ). The requirement in complex litigation to define, at the outset, what is ‘the case’ to be tried runs the risk that the court will by choosing a particular definition prejudge the outcome of the forum conveniens analysis, as the Court of Appeal decided had occurred at first instance in Re Harrods (Buenos Aires) Ltd[1991] 4 All ER 334 ,[1992] Ch 72 ; rvsg[1991] BCLC 69 ,[1992] Ch 72 . Harman J had characterised ‘the case’ as a petition under the English Companies Act for relief for unfair prejudice in the conduct of the affairs of an English registered company, which made it ‘blindingly obvious’ to him that England was the appropriate forum. But the company carried on business entirely in Argentina. The matters complained of all occurred there, where there was a parallel jurisdiction to provide relief under Argentinian legislation. So the Court of Appeal preferred Argentina as the appropriate forum. Like the Court of Appeal in the present case, we therefore prefer for present purposes to identify the dispute between the parties as the matter to be tried, lest reference to ‘the case’ should introduce undue formalism into the analysis of a question of substance.”
“It is common ground that the factors connecting this action with the Argentine forum are strong and obvious. All the economic, logistical and management considerations which loom large in any substantial action point strongly towards Argentina. The company carried on business, and the acts complained of were done, there not here. The witnesses are there, not here, and in the main speak Spanish, not English, a significant matter in an action where credibility is very much in issue. The documents and records are there, not here, and are in Spanish, not English. The court there would bring to the evaluation of factual evidence a familiarity with local conditions which a court here would necessarily lack. Expert evidence would be needed here which would not be needed there. The court there would be much better placed to assess the significance of related proceedings which have already taken place there. While an English court called on to try this case would no doubt do so as best it could, the difficulties would in my view be such as to make the reliability of the outcome problematical.”
“The judge was powerfully impressed by the fact that the Argentine court cannot afford the buy-out relief claimed by the minority shareholder undersection 459 of the Companies Act 1985 . As I understand him, he regarded this as a very weighty factor connecting this action with the English forum. I think this matter more properly falls for consideration at the second stage of the Spiliada test when (the greater appropriateness of another forum having been established) it is necessary to consider whether justice requires that a stay should not be granted and whether it appears that one party cannot obtain justice in the foreign forum. In applying this test it cannot of itself be enough that some difference exists between English law or procedure and those of the foreign forum because such will always be the case (and was, for example, in de Dampierre v. de Dampierre [1988] A.C. 92). The test must be applied as one of substance, not legal technicality.”
“If I have correctly characterised the substance of this action, it seems to me exaggerated to hold that the minority shareholder cannot obtain substantial justice in Argentina. If successful, it will not obtain an order for purchase of its shares by the majority shareholder at a price uplifted to take account of loss caused by the majority shareholder's conduct. Uncontradicted evidence of Argentine law does, however, establish that the minority shareholder may if successful recover against the majority shareholder damages for loss caused by the majority shareholder's deceit or negligence. The majority shareholder is directly liable for negligent or unlawful handling of the company's business. There is nothing in the evidence to suggest that the damages recoverable by the minority shareholder would not include compensation for loss sustained on sale of the company's business or assets during winding up, even though the minority shareholder had asked for the company to be wound up, if the request for winding up were shown to be a direct result of the majority shareholder's conduct. Nor, as it seems to me, is there evidence to support the judge's proposition (however true in this country) that sale of a company's assets by a liquidator would be likely to produce a depreciated price in Argentina; much might turn on an Argentine liquidator's power to continue the company's business until it could be profitably sold as a going concern. On the facts of this case, I can see no reason why the relief obtainable in England is significantly better than the relief obtainable in Argentina and the evidence falls far short of showing that it would be unjust to confine the majority shareholder to its remedies in Argentina. The alternative relief sought by the minority shareholder in its petition, the winding up of the company, may be granted in either forum; the only difference is that an English order will be ineffective in Argentina (where it matters) whereas an Argentine order will be effective there. And an Argentine winding up order will of course sever the minority shareholder's relations with the majority shareholder and the company.”
“Once it is appreciated, we say, picking up an earlier submission of mine that, the true dispute in this case concerns loss suffered by the consortium banks in India, than [then] the fact that the claimant companies were not litigants in India is neither here nor there.”
“The requirement in complex litigation to define, at the outset, what is ‘the case’ to be tried runs the risk that the court will by choosing a particular definition prejudge the outcome of the forum conveniens analysis, as the Court of Appeal decided had occurred at first instance in Re Harrods (Buenos Aires) Ltd[1991] 4 All ER 334 ,[1992] Ch 72 ; rvsg[1991] BCLC 69 ,[1992] Ch 72 .”
“1. The revised draft does not involve the Defendants undertaking actively to participate in any Indian proceedings, including by the filing of Defences – which you will appreciate could affect any subsequent enforcement steps. This is a matter which is relevant to whether India is a more appropriate forum than England and Wales. 2. In a similar vein, the revised draft does not involve the Defendants undertaking to give evidence in person in any proceedings in India, as would ordinarily be the case in this jurisdiction. Again, this is relevant to whether India is a more appropriate forum than England and Wales. 3. The revised draft does not refer to all of the English Court Claim Numbers reflecting the proceedings related to the Claimant Companies which have been issued and served against the Defendants. 4. We remain concerned that the revised wording does not adequately protect our clients in circumstances where the manner in which any claims might be advanced in India has not been explored. The Defendants only propose to submit in respect of claims “as presently advanced”, including any “variation” in the claims “for the purposes of advancing the said claims as civil claims in India” and any amendments permitted in India thereafter. Our clients are concerned that any claim in India might need to be entirely or substantially reformulated, and it is far from clear to us whether any such changes would constitute a “variation” of the claims that are “presently advanced”
“(1) When an application is filed under section 94 or section 95- (a) an interim moratorium shall commence on the date of the application in relation to all the debts and shall cease to have effect on the date of admission of such application; and (b) during the interim-moratorium period- (i) any legal action or proceeding pending in respect of any debt shall be deemed to have been stayed; and (ii) the creditors of the debtor shall not initiate any legal action or proceedings in respect of any debt.” (a) an interim moratorium shall commence on the date of the application in relation to all the debts and shall cease to have effect on the date of admission of such application; and (b) during the interim-moratorium period- (i) any legal action or proceeding pending in respect of any debt shall be deemed to have been stayed; and (ii) the creditors of the debtor shall not initiate any legal action or proceedings in respect of any debt.”
“In view of the above, the effect of the order dated January 07, 2022 of NCLT, Ahmedabad would be the imposition of an interim moratorium which would have the effect of staying or barring any action or proceeding, including by the Indian Consortium Banks, in respect of any debt against the First Defendant.”
“Under the IBC, ‘debt’ is defined as a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt 48: (i) ‘Financial debt’ is defined in section 5(8) of the IBC. It extends to a variety of debts including, e.g., “money borrowed against the payment of interest”;49 and (ii) ‘operational debt’ is defined as “a claim in respect of the provision of goods or services including employment or a debt in respect of the [payment] of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority”.”
“So to the first limb of Spiliada. The first requirement is that the forum which the defendant proposes as being clearly more appropriate than England for the trial be available for the resolution of the dispute between the parties.67 There are potentially three aspects to availability; and depending on how many of them are properly seen as part of the definition of ‘availability’ (the better view is that only the first of the three is part of ‘availability’), the defendant will have the burden of proof in relation to all of them. The first requirement is that the foreign court must be shown 68 to have personal jurisdiction over the defendant. 69 In a case in which the defendant is otherwise present or resident within the territorial jurisdiction of the foreign court, or has contractually submitted in advance to its jurisdiction, it will be likely (but it must still be established) that the foreign court is one whose jurisdiction is available to the claimant. 70 In such a case, the claimant will have been, and will be, able to bring proceedings in the foreign court; it may be otherwise if the defendant has judicial immunity from suit under the law applied by the foreign court. 71”
“Availability and advantage distinguished. Once availability is determined, factors that go to the practicability of pursuit of the claim in the foreign forum are normally better considered under the second limb of the Rule, which focusses on whether the claimant is being deprived of a legitimate advantage in bringing a suit in England. This applies equally to the question whether the claimant will be able in practice to fund the action. The same is true of submissions that it would be difficult for the claimant to manage or supervise the process of litigation; or that the claimant would not obtain a fair trial; or that the remedy which is sought would be unavailable in the foreign court; or that because of the foreign court’s choice of law rules, the claimant would lose in the foreign court. Similarly, the impact, if any, of a time-bar that might be applied by the foreign court to preclude the claimant’s proceedings is addressed under the second limb of the test. That said, the line which divides the two limbs of Spiliada from each other is neither completely impermeable, nor drawn in such a way that there are no factors which do not appear on both sides of it: from time to time a court will locate under one limb of Spiliada material which, arguably at least, might more comfortably belong to the other. But when it is recalled that the overall test is one which asks what the interests of justice require, and when it is remembered that the analysis in Spiliada is designed to manage, rather than constrain that test, it will rarely be a matter of legitimate complaint that this has happened.”
“I agree that, prima facie, the courts of Iraq would be the natural forum and – subject to the Claimant’s submissions about the security position – if I had been persuaded that there was no immunity, I would have been minded to grant a stay. But things are not equal. The second stage of the Spiliada formula has to be invoked. Justice cannot and will not be done in Iraq because of the First Defendant’s immunity. Justice requires that the English court should accept jurisdiction. In view of my decision on immunity (and my decisions in parts 10.2 and 10.3 of this Judgment) it seems to me that this submission is unanswerable.”
“We await an update from the Defendants regarding the Indian law evidence (if any) which they think may be needed at the December hearing. We also note the letter from Jones Day of yesterday's date, which enclosed a memorandum of Indian law on which their clients wish to rely at the October hearing [the Dua Memorandum]. We will respond to this by way of separate letter, and reserve the Claimants' rights in this regard in the interim.”
“While the IBC does include provisions which are similar to some of the provisions of the (UK)Insolvency Act 1986 listed in paragraph 8 of the Letter, these provisions are applicable to applications made and reliefs sought in the context of companies and other corporate entities which are undergoing a corporate insolvency resolution process or a liquidation process under the IBC.”
“My clients have confirmed to me that they did not leave India to avoid Indian criminal proceedings. They have explained to me that Mrs Sonia Mehta has not lived in India on a permanent basis since around 2004; Mr Suraj Mehta left India in around 2008/2009 and Mr Jatin Mehta began to make arrangements to leave India well before he was notified of any Indian criminal proceedings against or involving him. This is apparent from the fact that by November 2012, Mr Mehta had received his St Kitts and Nevis passport, which required an application to be made some months earlier (a matter which Mr Mehta has confirmed to me to the best of his recollection). A copy of Mr Jatin Mehta's original St Kitts and Nevis passport, which was issued on30 November 2012 , was (as set out at paragraph 32.4 above) provided to Eversheds on15 June 2022 (a copy of the passport is at page 115).”
“The fact is that the JD Respondents have resided in England since 2018 and now have firm roots in England. The JD Respondents have confirmed to me that they have not left this jurisdiction since arriving in 2018. The First and Second Respondents' grandchildren, with whom I am told they have a close relationship, attend school in England and have recently been registered to attend school for the next academic year (September 2022). My clients have specifically informed me that they have no intention of leaving this jurisdiction.”
“64. A number of different courts have endeavoured to summarise what the investigation into ‘the proper place’ is designed to achieve. Whilst these comments are useful guidance, there is a danger in investing them with too much significance, and to lose sight of the Spiliada test itself. Mr Collins referred to the judgment of Gloster LJ in Erste Group Bank AG v JSC ‘VMZ Red October’ and others[2015] EWCA Civ 379 (at 149) where she criticised the judge below for failing to stand back and ask “the practical question where the fundamental focus of the litigation was to be found ”
“The concept behind the phrases ‘the forum’ and ‘the proper place’ is that the Court is looking for a single jurisdiction in which the claims against all the Defendants may most suitably be tried.” “65. In my view, that observation has a particular resonance in the present case. This was, on the Appellants’ case, an international fraud. It arose out of critical misrepresentations made in England about the onward sale of the shares in an Indian company (Hermes) to a company (EMIF) domiciled in Mauritius, without revealing the fact that the ultimate purchaser, a German company (Wirecard) was going to pay much more for the same shares. There was never going to be one jurisdiction which would emerge as the only candidate for the hearing of this claim. The issue is whether, in all the circumstances, and taking a realistic approach to the numerous jurisdictions that might potentially be involved, the Appellants have demonstrated that England and Wales is clearly the place where the claims against all the Defendants may most suitably be tried.” “The concept behind the phrases ‘the forum’ and ‘the proper place’ is that the Court is looking for a single jurisdiction in which the claims against all the Defendants may most suitably be tried.”
“CIVIL SUIT UNDER ORDER VII RULE 1 AND 2 CIVIL PROCEDURE CODE, 1908 SEEKING COMPENSATION AND DAMAGES IN RESPECT OF TORTIOUS CONDUCT AND ACTIONS OF THE DEFENDANTS WHO IN CONSPIRACY WITH EACH OTHER HAVE CAUSED INJURY, LOSS AND DAMAGE TO THE PLAINTIFF.”
“The same principle is applicable whether or not there are other relevant proceedings already pending in the alternative forum: see The Abidin Daver [1984] A.C. 398, 411, per Lord Diplock. However, the existence of such proceedings may, depending on the circumstances, be relevant to the inquiry. Sometimes they may be of no relevance at all, for example, if one party has commenced the proceedings for the purpose of demonstrating the existence of a competing jurisdiction, or the proceedings have not passed beyond the stage of the initiating process. But if, for example, genuine proceedings have been started and have not merely been started but have developed to the stage where they have had some impact upon the dispute between the parties, especially if such impact is likely to have a continuing effect, then this may be a relevant factor to be taken into account when considering whether the foreign jurisdiction provides the appropriate forum for the resolution of the dispute between the parties.”
“The authorities show that, although the court should be cautious before allowing the jurisdictional position of a minor player to dictate where the dispute as a whole must be tried, the desirability of preventing the fragmentation of proceedings can be a powerful factor which may in an appropriate case outweigh factors connecting the claim to another jurisdiction.”
“1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur. 2. However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply. 3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.”
“My Lord, there were three points, as far as I was aware. The first dealt with the letter at {G/128/1}. And my point, which was correctly identified by my learned friend, was that the centre of gravity of the alleged money laundering had shifted from the claimant companies, as it had previously been suggested, to monies within Emirates Gold and that a material part of that money we're told -- but not told the amount -- was then transferred back to Winsome and Forever Precious. Now, my learned friend said: well, my Lord, this just means adding an Indian group of recipients to a long list of other recipients. But, my Lord, that is not an answer to the point that we're making about transfers back to Winsome and Forever Precious. That has a significant bearing on where the investigation needs to be focused in this case, because these are the companies who are alleged to have lost money, as a consequence of trading, by way money went out to layer 1 companies and never came back. And that Winsome and Forever Precious were just left with liabilities, which they proved by claims in the UAE. But if, in fact, they've received money from a layer 1 company, Al Mufied, that calls into question why that isn't trading, my Lord, which is what the first defendant has indicated at all times is the nature of the relationship between Winsome and Forever Precious and the layer 1 companies. And, my Lord, the defendants don't accept the premise of the alleged fraud. And that's going to have to be investigated. And that requires an analysis of what, in fact, happened; and that can only, realistically, occur in India.”
“This was, on the Appellants’ case, an international fraud. It arose out of critical misrepresentations made in England about the onward sale of the shares in an Indian company (Hermes) to a company (EMIF) domiciled in Mauritius, without revealing the fact that the ultimate purchaser, a German company (Wirecard) was going to pay much more for the same shares. There was never going to be one jurisdiction which would emerge as the only candidate for the hearing of this claim. The issue is whether, in all the circumstances, and taking a realistic approach to the numerous jurisdictions that might potentially be involved, the Appellants have demonstrated that England and Wales is clearly the place where the claims against all the Defendants may most suitably be tried.”