“19.3 Waiver of objections The Guarantor irrevocably agrees to waive any objection to any court specified in this Clause, whether on the grounds of venue, or on the grounds that the forum is not appropriate. The Guarantor further irrevocably agrees that a judgment of any court specified in this Clause shall be conclusive and binding upon it and may be enforced in the courts of any other jurisdiction. 19.4 Consent The Guarantor consents generally to the giving of any relief and the issue of any process, in any proceedings brought under this Clause. This includes the grant of any judgment or order, and its enforcement against any asset.”
“Middle East trader FAL Oil, in talks with creditors on$700 million in debt, on the cusp of hiring a chief restructuring officer to keep the faltering discussions on track …. United Arab Emirates-based FAL, … has been forced to … shut its trading operations in Singapore and London …. FAL Oil which has closed its office in Singapore and halved its staff in London.”
“On an application for any interim relief under subsection (1) the court may refuse to grant that relief if, in the opinion of the court, the fact that the court has no jurisdiction apart from this section in relation to the subject-matter of the proceedings in question makes it inexpedient for the court to grant it.”
“114. The issue in this case arises because, on the face of it, the only fetter placed upon the otherwise apparently unlimited powers which the court has as a result of the combination of s.37 of the Supreme Court Act, s.25 of the CJJA, and Rule 6.20 of the CPR is its power to refuse to grant relief if its absence of jurisdiction apart from s.25 makes such grant ‘inexpedient’. It is plain that, in relation to the grant of worldwide relief, the jurisdiction is based on assumed personal jurisdiction; as such it has the potential for extra-territorial effect in the case of non-residents with assets abroad. Thus it is likely that the jurisdiction will prove extremely popular with claimants anxious to obtain security against defendants in disputes yet to be decided where they cannot obtain it in the court of primary jurisdiction or the court of the defendants’ residence or domicile, which courts are the natural fora in which to make such applications. There is thus an inherent likelihood of resort to the English jurisdiction as an ‘international policeman’, to use the phrase employed by Moore-Bick J, in cases of international fraud. We would do nothing to gainsay, and indeed would endorse, the observations of Millett LJ in Cuoghi to the effect that international fraud requires courts, within the limits of comity, to render whatever assistance they properly can without the need for express provision by an international convention requiring it. However, even in the case of Article 24 of the Brussels Convention it has been made clear that: ‘… the granting of provisional or protective measures on the basis of Article 24 is conditional on, inter alia, the existence of a real connecting link between the subject matter of the measures sought and the territorial jurisdiction of the contracting state of the court before which those measures are sought.’ see (Van Uden Maritime B.V v Kommanditgesellschaft In Firma Deco-Line[1999] 2 WLR 1181 at 1210 para 40).’ Further, in so far as ‘police’ action is concerned, policing is only practicable and therefore expedient if the court acting in that role has power to enforce its powers if disobeyed. In that respect the principle in Derby v Weldon already quoted plainly has application and is apt to be applied in cases of this kind.” ‘… the granting of provisional or protective measures on the basis of Article 24 is conditional on, inter alia, the existence of a real connecting link between the subject matter of the measures sought and the territorial jurisdiction of the contracting state of the court before which those measures are sought.’ see (Van Uden Maritime B.V v Kommanditgesellschaft In Firma Deco-Line[1999] 2 WLR 1181 at 1210 para 40).’ Further, in so far as ‘police’ action is concerned, policing is only practicable and therefore expedient if the court acting in that role has power to enforce its powers if disobeyed. In that respect the principle in Derby v Weldon already quoted plainly has application and is apt to be applied in cases of this kind.” vi) Thus, where there is every reason to suppose that an order made against a foreign defendant, with tenuous links to the jurisdiction, will be disobeyed and that, if that should occur, no real sanction would exist to enforce compliance, then it likely to be inexpedient to make far-reaching worldwide freezing and disclosure orders against such a defendant under section 25; see paragraph 125 of Motorola v Uzan; see also Mobil Cerro Negro Ltd. v Petroleos de Venezuela SA (supra) at paragraphs 119 and 155. vii) The fact that the court hearing the substantive proceedings has no jurisdiction or procedural power to make a worldwide freezing order or disclosure orders does not render it inexpedient for the English court, acting in its ancillary capacity, to do so; see per Millett LJ inCuoghi at page 829 D-E; and per the Court of Appeal inMotorola v Uzan paragraph 119. viii) As stated by the Court of Appeal inMotorola v Uzan, paragraph 115, there are five particular considerations which the court should bear in mind, when considering the question whether it is inexpedient to make an order under section 25: “First, whether the making of the order will interfere with the management of the case in the primary court e.g. where the order is inconsistent with an order in the primary court or overlaps with it …. Second, whether it is the policy in the primary jurisdiction not itself to make worldwide freezing/disclosure orders. Third, whether there is a danger that the orders made will give rise to disharmony or confusion and/or risk of conflicting inconsistent or overlapping orders in other jurisdictions, in particular the courts of the state where the person enjoined resides or where the assets affected are located. If so, then respect for the territorial jurisdiction of that state should discourage the English court from using its unusually wide powers against a foreign defendant. Fourth, whether at the time the order is sought there is likely to be a potential conflict as to jurisdiction rendering it inappropriate and inexpedient to make a worldwide order. Fifth, whether, in a case where jurisdiction is resisted and disobedience to be expected, the court will be making an order which it cannot enforce.”