“4. No Modication This Agreement is limited to the amendments to the GMRA set forth in [clause] 2 above and shall not constitute a medication, acceptance or waiver of any other provision of the GMRA. 6. Governing Law Paragraph 17 of the GMRA shall apply to this Agreement as if that paragraph were expressly set out herein.”
“11. Although this is not an occasion upon which to consider the merits of any application to challenge the jurisdiction which might be made, or might be capable of being made, it is of course a relevant factor to be weighed when the court is considering its discretion. As it seems to me, there is no very credible basis upon which the jurisdiction of the English court can be challenged. The parties have entered into an agreement which contains a non-exclusive jurisdiction clause. Although the defendants wish to suggest that that agreement was procured by misrepresentation, they do not put forward, as I under it at any rate at this stage, any arguments as to the validity of the agreement to arbitrate which are anything other than simply parasitic upon their challenge to the agreement as a whole. 12. In accordance with the fairly recent decision of the House of Lords in the Fiona Shipping case it is clear that as a matter of English law, the English court would regard itself as having jurisdiction to decide whether or not the challenge by way of misrepresentation, and so forth, could be sustained. The only conceivable argument, as it seems to me, would be likely to be an argument as to whether or not the English court should decline to exercise the jurisdiction which clearly it has which would have to be put on some form of forum non conveniens grounds. 13. As at the time when it behoved the Defendants, under the rules, to issue their application seeking a stay on those grounds they had not even served Deutsche Bank, as opposed to DBSI, with the proceedings in Texas. I should indicate that Deutsche Bank was subsequently served with those proceedings on, I think, 24th December. In consequence Deutsche Bank, as I understand it, has subsequently joined in the forum non conveniens challenge which is made by DBSI in the Texas proceedings, as a result of which the determination of that challenge by the court in Texas has now been postponed beyond the time at which originally it might have been made. 14. Turning to the substance of the matter, what the Defendants say is that if Deutsche Bank prevail in their Texan application there will no lis alibi pendens and it would then be difficult to see on what basis the Defendants could pursue a jurisdiction application in England, by which I think is meant an application to the English court to decline jurisdiction as opposed to a challenge to the jurisdiction application properly so called. That is, of course, true in that if the Texan proceedings are for some reason, to use a neutral term, discontinued, then true it is that there would not appear to be an available alternative forum. But, that, as it seems to me, is no good reason why the Defendants should have delayed making any such application as they thought appropriate, beyond the generous period already afforded to them by the Commercial Court Guide over and above the time allowed by the Civil Procedure Rules … 15. It seems to me, with the greatest respect to Mr Young, who has argued the case for the Defendants, that the existence of the parallel proceedings in Texas would be unlikely in the present circumstances, where there was a non-exclusive English jurisdiction clause, to be a particularly strong factor in any application for a stay which might be brought. In any event, I can see no reason why the Defendants could have regarded themselves as justified in delaying making their application simply because there was a pending application in Texas which might have the result that in due course there would be no parallel proceedings.”
“57.1 The jurisdiction clause itself is impugned in this case. This is so notwithstanding the doctrine of separability. The reason is that the Defendants in this case allege inter alia that the Claimant misrepresented that it would not seek to hold the Defendants to and/or enforce any of the clauses in the GMRAs (see paragraphs 13 to 15 above). The Defendants therefore contend that the Claimant inter alia misrepresented that it would not hold the Defendants to and/or enforce the provisions of the jurisdiction clause.”
“This agreement shall be governed by and construed in accordance with English law and the parties hereby submit to the non-exclusive jurisdiction of the English courts.”
“The policy of the law must nonetheless be to favour the litigation of issues only once, in the most appropriate forum.”
“Where a remedy for a particular wrong is available both in the English … court and in a foreign court, the English … court will, generally speaking, only restrain the plaintiff from pursuing proceedings in the foreign court if such pursuit would be vexatious or oppressive.”
“36. 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. It certainly cannot have been contemplated that convenience could count as a reason for pursing proceedings in a country other than England. In particular, where England has been chosen as a neutral jurisdiction by an entity, Sabah, a Pakistan company with Malaysian shareholders, and the state of Pakistan, it cannot have been contemplated that parallel proceedings would be pursued in the Courts of Pakistan simply on the basis that that forum is a convenient forum. 37. It was thus in my view clearly a breach of contract to seek to prevent Sabah commencing proceedings in the agreed jurisdiction. Furthermore, if Sabah had already commenced proceedings in England before commencement of the proceedings in Pakistan, it would in the context of this particular clause clearly have been vexatious for those proceedings in Pakistan to have been commenced if the only basis for bringing the same was on the ground of forum conveniens. It also seems to me that if proceedings ere commenced in Pakistan simply to attempt to frustrate the jurisdiction clause, such conduct would be contrary to the spirit of the jurisdiction clause and vexatious. … 42. As already indicated, it seems to me that if proceedings had been commenced in England before the GOP commenced their proceedings in Pakistan, then the commencement of such proceedings in Pakistan would be vexatious and oppressive unless the GOP could show some exceptional reason why parallel proceedings were justified. The GOP could not show any exceptional reasons. They rely simply on matters of convenience, all of which would have been in the contemplation of the parties when they agreed the clause that they did. To have sought an injunction to seek to prevent English proceedings being the parallel proceedings in those circumstances would have demonstrated even more clearly that the GOP’s conduct was oppressive and vexatious. Does the fact that the GOP commenced their proceedings first change the position? In my view it does not. The proceedings were commenced, it is plain, a pre-emptive strike, and in the hope of preventing Sabah starting proceedings in the country to which both parties had agreed. The only basis for suggesting that the proceedings should be allowed to continue is that Pakistan is a convenient forum. It simply cannot have been contemplated that if proceedings were commenced in the forum each had agreed as convenient, parallel proceedings would still take place in Pakistan.”