Deutsche Bank AG London Branch v Petromena ASA [2013] EWHC 3065 (Comm)

[2013] EWHC 3065 (Comm)Case No 2012 FOLIO 842
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/10/2013
Before
LADY JUSTICE GLOSTER
Between
DEUTSCHE BANK AGClaimantLONDON BRANCHClaimant
Mr Richard Handyside QC and Mr David Murray (instructed by Allen & Overy LLP) for ClaimantMr David Wolfson QC and Mr Henry Forbes Smith (instructed by Quinn Emanuel) for DefendantHearing Hearing dates: Monday 4 th March 2013
JudgmentLady Justice Gloster :Introduction
[1]This is an application by the First Defendant, Petromena ASA (“Petromena”), for a declaration that this Court has no jurisdiction over this Claim. By the action, the Claimant, Deutsche Bank AG (“DB”), seeks declarations of non-liability in respect of claims which Petromena has brought against DB in Norway. The issue is where Petromena’s claims should proceed.[2]In summary, Petromena submits that its claims cannot be heard in England and should continue in Norway on the basis that: i) the English Court does not have jurisdiction under Article 5 of the Lugano Convention The relevant Lugano Convention is the 2007 Convention, which came into force as between the MemberStates of the European Union and Norway on 1 January 2010. (“the Convention”); Petromena’s claims fall to be characterised as contractual for the purposes of the Convention, and England is not the place of performance of the obligation in question under Article 5.1; even if (as DB contends) Petromena’s claims are to be characterised as tortious, rather than contractual, the harmful event did not occur in England for the purposes of Article 5.3; ii) in any event, even if Article 5 conferred jurisdiction on the English court, that jurisdiction is ousted in favour of Norway under Article 23, because the claims fall within the scope of a Norwegian exclusive jurisdiction agreement contained in a loan agreement dated 22 May 2006 pursuant to which Petromena issued certain bonds ("the Loan Agreement").[3]DB, on the other hand, contends that its action should continue in England on the grounds that: i) Article 5.1 of the Convention does not apply, since the claims sought to be asserted by Petromena, are plainly claims in tort/delict and not contractual; accordingly, the English Court has jurisdiction under Article 5.3 on the basis that the place where the harmful event alleged by Petromena occurred was England; ii) the Norwegian jurisdiction clause is irrelevant since the claims made by Petromena against DB do not arise out of, or in connection with, the Loan Agreement; the causes of action asserted by Petromena are founded upon an allegation that DB assumed the role of an adviser to Petromena, in addition to its role as bondholder; and it is DB's alleged assumption of that role of adviser to Petromena, rather than any term of the Loan Agreement, that is said to have given rise to the various duties that were allegedly breached.

The relevant provisions of the Convention

[4]In so far as material, the relevant provisions of the Convention provide as follows: “General provisions Article 2 1. Subject to the provisions of this Convention, persons domiciled in the State bound by this Convention shall, whatever their nationality, be sued in the courts of that State….. Special jurisdiction Article 5 A person domiciled in a State bound by this Convention may, in another State bound by this Convention, be sued: 1.(a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be: - in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered, - in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided,(c) if subparagraph (b) does not apply then subparagraph (a) applies; ……. 3. in matters relating to tort, delict or quasi-delict, in the courts of the place where the harmful event occurred or may occur; ……. 5. as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place in which the branch, agency or other establishment is situated; Article 2 Special jurisdiction Article 5 (b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be: - in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered, - in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided, (c) if subparagraph (b) does not apply then subparagraph (a) applies; Prorogation of jurisdiction Article 23 1. If the parties, one or more of whom is domiciled in a State bound by this Convention, have agreed that a court or the courts of a State bound by this Convention 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. Such jurisdiction shall be exclusive unless agreed otherwise….."

Factual background

[5]The basic facts were not materially in dispute for purposes of this hearing. Rather the dispute between the parties focused upon how Articles 5 and 23 applied to those facts. I summarise the undisputed facts as follows.[6]At all material times, Petromena was a holding company registered in Norway which undertook no operational activity of its own. It had four wholly owned subsidiaries, Petromena Limited, PetroRig I Pte Ltd, PetroRig II Pte Ltd and PetroRig III Pte Ltd. The first of these subsidiaries was registered in Cyprus and the other three were registered in Singapore. Petromena Limited owned an oil drilling ship (SS Petrolia), and the other subsidiaries were the owners of oil rigs which were being constructed for them at the Jurong Shipyard in Singapore. Petromena was listed on the Oslo Stock Exchange, but it is now in bankruptcy in Norway. It raised funds to finance the construction of oil rigs through its subsidiaries, which are now also in bankruptcy. Petromena was represented in the relevant events by its director, Mr Berge Gerdt Larsen, and by its managing director, Mr Lars Moldestad, both based in Norway.[7]DB is a German financial institution incorporated under the laws of Germany. It has a London branch, registered in London as such ("DB London"). Under English law, the place of registration of DB London, DB London is not a separate legal entity from DB. The complaints made by Petromena against DB, all relate to the alleged conduct of DB London. DB London was represented in the relevant events by Mr Ivan Capriello and Mr Håkan Wohlin. Mr Capriello is a structured credit trader and, at the time, was a director in DB London's Credit Solutions Group. He was based in London at DB London's office at 1 Great Winchester Street. From time to time Mr Capriello was assisted by Mr Wohlin, who was then the Co-Head of the Western Europe Desk in the Debt Capital Markets team and covered inter alia the Nordic market.[8]In about May 2006, Petromena issued a series of bonds ("the Bonds") in the amount of NOK 2 billion in order to raise funds that would be lent or contributed by Petromena to PetroRig 1 Pte Ltd and PetroRig II Pte Ltd in order to part-finance the rigs that were to be constructed for them. The terms of the Bonds were contained in a Loan Agreement dated 22 May 2006 (which I have already defined as "the Loan Agreement") between Petromena as borrower and Norsk Tillitsmann ASA ("Norsk Tillitsmann"), a Norwegian company based in Norway, as trustee ("the Loan Trustee") on behalf of the holders of the Bonds ("the Bondholders").[9]Clause 21.1 of the Loan Agreement contained a Norwegian jurisdiction and choice of law clause in the following terms:
“Disputes arising out of or in connection with the Loan Agreement which are not resolved amicably, shall be resolved in accordance with Norwegian law and in the Norwegian courts.”
[10]By purchasing Bonds, Bondholders acceded to and became bound by the Loan Agreement (including the Norwegian exclusive jurisdiction clause). The Loan Agreement provided on page 3:
“Through their subscription in the Loan the Bondholders have acceded to the Loan Agreement (i.e.): * The Bondholders are bound by the terms of the Loan Agreement provided that information about the accession was given in the subscription documents. …”
[11]Clauses 3 and 4 of the Loan Agreement provided for the Bonds to be listed on the Oslo Stock Exchange and registered with Verdipapirregisteret (‘VPS’), a Norwegian depositary. The Bonds were registered with VPS, but in fact were never listed or traded on any Norwegian stock exchange. Sales of the Bonds were settled through the Euroclear trading platform, based in Brussels, Belgium.[12]The Loan Agreement provided that Bondholders could not sue Petromena directly to enforce the Bonds, but could only recover the Bonds through action taken by the Loan Trustee. Thus clause 15.5 provided that ‘the individual Bondholder cannot of his own accord recover his bond(s) directly from the Borrower’. However, the holder(s) of at least 10% of the Bonds had the right under clause 17.1(b) to call a Bondholder meeting and the holder(s) of at least 20% of the Bonds had the right under clause 15.3(a) to require the Loan Trustee by written demand to accelerate the Bonds on a defined Event of Default.[13]In the autumn of 2008, the Petromena Group was facing considerable financial difficulties, in that significant additional funding was required in order to complete the three rigs that were under construction in Singapore. At this time, DB, through DB London, was the holder of approximately 26.3% of the Bonds, which were trading well below par.[14]In or around November 2008 Mr Capriello was asked by his superiors at DB London to take over responsibility for managing a portfolio of distressed assets owned by DB London, which included approximately 26.3% of the Bonds. DB London performed an internal analysis with a view to identifying the best way to maximise its recovery in respect of its holding of the Bonds. It concluded that the optimal course would be for Petromena to obtain further funding to enable the rigs to be completed and put into operation.[15]Mr Wohlin approached Petromena in December 2008, stating that he was "responsible for debt capital markets in Europe for [DB], based in London", and indicating that DB was supportive of Petromena’s desire to complete the construction of the rigs and to put them into operation, since, despite the steep fall in Petromena's bonds prices, DB believed in Petromena's role in the long-term future of the ultra-deepwater market. Mr Wohlin stated that DB might be willing to provide additional debt financing in order to fill Petromena's short-term liquidity shortfall and to complete the rigs. Petromena referred DB London to its financial advisers, Pareto Securities A/S ("Pareto"). In February 2009 DB London's holding was increased to 33.4%.[16]Thereafter, various discussions and communications took place between DB London and Pareto (and/or Petromena) regarding the possibility of DB London participating in a new US$100 million bond issued by Petromena, which would have had a different priority ranking from the Bonds themselves. However, no such additional funding was ever agreed to be, or was in fact, provided by DB, whether through its London branch or otherwise.[17]According to Mr Capriello (and to some extent this evidence may be in dispute) on 26 March 2009, one of the Bondholders alerted other Bondholders (including DB London) that it had been approached by a broker, Fearnley Fonds ASA ("Fearnley"), with an unsolicited offer to purchase its Bonds. After discussions between DB London, and certain other Bondholders, and the discovery that the broker was acting for Seadrill, a major Norwegian oil drilling company and a competitor of Petromena, DB London and the other Bondholders each conditionally agreed to sell their respective Bonds to Fearnley. According to Mr Capriello, the decision to sell DB London's Bonds was made by him in London, after taking instructions from his superiors in London. DB London's sale of its Bonds was made to a Bermuda affiliate of Seadrill, through the Euroclear system. According to Petromena, the agreement for sale was made without notice to Petromena.[18]On 2 April 2009, DB London, in its capacity as Bondholder, sent by email a written letter to Norsk Tillitsmann, the Loan Trustee, making a demand in writing for the purposes of clause 15.3(a) of the Loan Agreement requiring the Loan Trustee immediately to declare the entire remaining Loan, including accrued interest and costs, to be in default and due for payment. Other Bondholders made similar requests. In response, on 3 April 2009, Norsk Tillitsmann, as Loan Trustee, accelerated the Bonds and declared the entire outstanding amount in default and payable in accordance with clause 15.3 of the Loan Agreement.[19]The three rigs which were under construction were sold between 26 June 2009 and 8 December 2009, and Petromena subsequently went into bankruptcy in Norway on 21 December 2009.

Chronology of the various proceedings in Norway and in England

[20]On 29 December 2011, Petromena issued proceedings against DB before the Oslo Conciliation Board in Norway. Norwegian procedural law required that Petromena's claims be submitted to a Norwegian conciliation board before they were filed in court. The Norwegian conciliation proceedings apparently had a lis pendens effect under Norwegian law: only at the end of the conciliation process may the claimant (or the defendant) bring the claim (or negative claim) in the Norwegian courts.[21]In the Conciliation Board proceedings, Petromena claimed compensation from DB of more than NOK7.36 billion (equivalent to approximately US$800 million). Petromena’s claim was, in summary, as follows: i) In or about winter 2008/2009, DB (acting through its London Branch): a) advised Petromena in connection with obtaining additional funding and/or sought to facilitate the obtaining of such funding; and/or b) engaged itself as financial adviser to Petromena; and/or c) was given access to confidential information regarding Petromena’s financial and/or commercial circumstances; and/or d) provided investment services to Petromena (notwithstanding that DB’s London Branch was (allegedly) not entitled to offer cross-border services from England to Norway). ii) In performing some or all of the above roles (and/or by reason of some or all of the matters there referred to), DB: a) assumed and/or owed a duty to advise Petromena and/or to act as financial adviser to Petromena and/or to exercise reasonable care and skill in advising Petromena when acting as financial adviser to it; b) owed a duty of loyalty to Petromena and/or a duty to avoid conflicts between its own interests and those of Petromena and/or a duty not to give priority to its own interests over those of Petromena; c) owed a duty of confidentiality and/or secrecy to Petromena; d) was subject to the requirements of “good business conduct” pursuant to the Norwegian Securities Trading Act and/or Directive 2004/39/EC; and e) was subject to a requirement under the Norwegian Securities Trading Act not to misuse inside information and/or a requirement not to employ unreasonable business methods in trading in financial instruments. iii) DB acted in breach of some or all of the above duties and/or requirements and thereby caused loss and damage to Petromena.[22]In answer to the Oslo Conciliation Board proceedings, DB filed a submission to the effect that those proceedings should be discontinued on the grounds that they were unsuitable for conciliation before the Board, both in terms of the amount claimed and complexity. On 20 June 2012, the Oslo Conciliation Board determined that the claim was not suitable for conciliation and made an order that the proceedings before it be discontinued. Petromena was then free to sue in the Norwegian courts.[23]On 21 June 2012, DB issued the Claim Form in the present proceedings ("the English proceedings"). DB was apparently unaware at that time of the order for discontinuance which had been made by the Oslo Conciliation Board on the previous day. By its Claim Form DB sought declarations of non-liability in relation to the allegations that had been made by Petromena in the proceedings before the Oslo Conciliation Board. The claim form recited the allegations made in the Oslo Conciliation Board proceedings and sought declarations in the following terms:
“(a) save as expressly set out in the Loan Agreement, the Claimant has assumed no obligation, duty or other responsibility, whether of a contractual, tortious, fiduciary or other nature to the First and/or Second Defendants, alternatively that any such duty, obligation or responsibility undertaken by the Claimant to the First and/or Second Defendants has been lawfully performed and discharged without breach; and/or (b) the Claimant has not caused and/or is not liable to the First and/or Second Defendants (whether in contract or tort, under statute or otherwise) in respect of any loss or damage that they (or either of them) have suffered, including, but not limited to, as a result of the failure of the First Defendant to obtain additional funding or to secure a restructuring of its indebtedness, or as a result of the Claimant’s instruction to Norsk Tillitsmann to declare an event of default in respect of the 9.75% Bond.”
[24]On 5 September 2012, Petromena filed proceedings against DB before the Oslo DistrictCourt ("the Oslo proceedings") which made substantially the same claims as had been made in the proceedings before the Oslo Conciliation Board. Petromena was apparently unaware at this time of the existence of the English proceedings, as these were not served upon Petromena until 21 September 2012.[25]The writ in the Oslo proceedings contained the same allegations, summarised by DB in its Claim Form in the English proceedings (by reference to the allegations made in the Oslo Conciliation Board proceedings), in respect of which DB seeks a declaration of non-liability. The writ also contained various statements as to the basis of the Norwegian court’s jurisdiction over Petromena's claim. As can be seen from the extracts which I have cited below, Petromena based its assertions as to jurisdiction solely upon the basis of Article 5.3 of the Convention (leaving aside the position under Norwegian domestic law). Thus, for example, in the Oslo writ Petromena asserted:
“1.1 Subject-matter – Background This case concerns a claim for damages from Petromena …, under bankruptcy…… against [DB].. as [their] financial adviser, based on the general law of non-contractual damages ……. Petromena maintains that the company would have been able to arrange these supplementary financing if [DB] had complied with its responsibility as financial advisor and acted loyally, including not selling their bonds in 9.75 loan at the time in question. Petromena will claim that [DB], as their financial adviser and as bondholder, acted with negligence giving rise to entertaining liability in relation to Petromena, and the bank is thus liable to cover Petromena's losses due to this negligent behaviour. 1.2.1 Legal venue As this is a dispute between a Norwegian and a German joint-stock company for damages outside contract, the legal venue – and thus which country’s court has competence to consider and decide in this matter – is determined by the Lugano Convention. As this is a claim for damages outside contract[tortious damages], legal proceedings must be instituted at the place where the harmful event occurred ... cf. The Lugano Convention Art. 5.3 and the Dispute Act Section 4-5.3. The damage arose in Norway through DB’s advice, actions and omissions in relation to Petromena, a Norwegian joint-stock public company with its registered place of business in Norway. DB’s negligent actions lead to the termination of Petromena’s bond loan, a loan subject to Norwegian law. The effects of the harmful event definitively occurred in Norway, whereby Petromena, a Norwegian joint-stock public company with shares quoted on the Norwegian Stock-Exchange, lost the majority of its assets through the bankruptcy, which was instituted in Oslo and where the bankruptcy proceedings are still in progress. Based on the above, Petromena presumes that Oslo is the correct forum for the legal proceedings against DB. 5.1 Claim for damages Petromena will assert that DB has acted negligently in relation to Petromena, and that the bank through its negligent actions has caused a financial loss for the company, equivalent to the total value of the company. In accordance with the general law of tortious damages, the claim for damages is conditional on Petromena substantiating that there is a basis of liability, i.e. a liability-inducing act or omission on the part Petromena of DB.” [Emphasis added.]
[26]DB challenged the jurisdiction of the Norwegian court on lis pendens grounds, relying on its issuance of the English proceedings. On 19 February 2013, the Norwegian court upheld DB’s challenge and stayed the Norwegian proceedings under Article 27.1 of the Lugano Convention. The Norwegian court agreed with DB that: i) The discontinuation of the Norwegian conciliation process ended the lis pendens effect, so that the Norwegian court was first seised on 5 September 2012 and not earlier, on 29 December 2011, when the conciliation began. This was the effect of the Norwegian Supreme Court decision in Aftenposten(2012). ii) The English and Norwegian proceedings involved the same parties, such that DB (the defendant in Norway) and DB London (the claimant in England) are one and the same legal entity, so that a ruling in England is against, and is binding on, DB. iii) The English and Norwegian proceedings involve the same cause of action, in that DB’s negative claim mirrors Petromena’s positive claim.[27]I was told that Petromena intends to appeal the Norwegian court’s decision and to persuade the higher Norwegian courts, including the Norwegian Supreme Court if need be, that Aftenposten was wrongly decided. Petromena intends to argue that the Norwegian conciliation proceedings and the Norwegian court proceedings are the same ‘proceedings’ under Article 30.1, so that the Norwegian courts were seised on 29 December 2011 and were thus seised first, ahead of the English court. Petromena contends that Aftenposten necessarily has the consequence that every defendant to Norwegian proceedings may be able to shift the proceedings to another European forum by seeking negative declaratory relief abroad during the compulsory conciliation process. Petromena expects that the whole appeal process will take up to 12 months.[28]Under Article 27.1, the Norwegian proceedings have been stayed pending this court’s decision on jurisdiction. If this court finds that it has jurisdiction, and the Norwegian decision stands on appeal, the claim will continue here; but if this court finds that it does not have jurisdiction, the proceedings will continue in Norway.

Petromena's submissions in relation to the issue of jurisdiction

[29]Petromena's position in relation to the issue of jurisdiction has materially changed over time. As I have already mentioned, in its writ in the Oslo proceedings, Petromena’s position was that the Norwegian courts had jurisdiction over its claim solely upon the basis of Article 5.3 of the Convention (leaving aside the position under Norwegian domestic law) on the grounds that Petromena's claim was a negligence "claim for damages outside contract[tortious damages]"; see pages 2 and 3 of the Oslo writ quoted above.[30]Given the formulation of the facts of the claim in the Oslo writ, and the terms of Article 5.3, it was, as Mr Richard Handyside QC, leading counsel for DB, submitted, perhaps not surprising that Petromena originally characterised its claims against DB as relating to tort, delict or quasi-delict. The essence of those claims, as set out in the writ in the Oslo proceedings, was that DB, through its London branch (i.e. DB London), had voluntarily taken on the role of financial adviser to Petromena, and that DB had breached various duties that it assumed or owed to Petromena in its capacity as financial adviser. There was no suggestion in the Oslo writ that the claims made therein arose out of, or in connection with, any contract between the parties, whether the Loan Agreement, or otherwise. On the contrary, as the emphasised words quoted from the Oslo writ show, the claim was for damages "outside contract [tortious damages]". Accordingly, there was no attempt by Petromena in the Oslo proceedings to rely upon either Article 23 of the Lugano Convention in order to confer jurisdiction on the Norwegian court pursuant to the jurisdiction clause contained in that agreement, or upon Article 5.1 on the grounds that the dispute involved "matters relating to a contract".[31]However, from the date of the issue of Petromena's jurisdictional challenge to the English proceedings, Petromena changed its position. Although the way in which Petromena presented its various arguments vacillated over the course of three witness statements served by Petromena's solicitor, Richard East (a partner in Quinn Emanuel Urquhart & Sullivan UK LLP), by the date of the actual hearing of Petromena's jurisdictional challenge, Mr David Wolfson QC and Mr Henry Forbes Smith, Petromena's leading and junior counsel, presented its case as follows. Article 5.1 - "matters relating to a contract"[32]Petromena's primary argument (contrary to the assertions made in its writ in the Oslo proceedings) was that the claims which it has made in those proceedings, and the mirror English proceedings issued by DB, were properly to be characterised not as matters relating to tort, delict or quasi-delict within the meaning of Article 5.3, but rather as "matters relating to a contract" within the meaning of Article 5.1. In consequence Petromena contended that the English court did not have jurisdiction because England was not “the place of performance of the obligation in question” for the purposes of Article 5.1, but rather Norway was. In detail, Petromena submitted as follows in relation to the issue as to whether its claims related to a contract: i) The burden was on DB to show a good arguable case that the jurisdictional facts in Article 5 existed. This meant that DB had to have a much better argument than Petromena on the material before the court: Canada Trust Co v. Stolzenberg (No 2) [1998] 1 WLR 547, 555G per Waller LJ, affirmed [2002] 1 AC 1, 13H per Lord Steyn; Bols Distilleries v. Superior Yacht Services [2007] 1 WLR 12, [28] per Lord Rodger; and approved in a different context AK Investment CJSC v. Kyrgyz Mobil Tel Ltd [2011] UKPC 7, [2011] 1 CLC 205, [71] per Lord Collins. ii) Article 5 could apply to negative declarations. In Boss Group Ltd v. Boss France SA [1997] 1 WLR 351, the Court of Appeal held that a claim for a declaration of non-liability in contract was a matter relating to contract under Article 5.1. In Folien Fischer AG v. Ritrama SpA (C-133/11) [2013] ILPr 1, the ECJ held that a claim for a negative declaration of non-liability in tort was a matter relating to tort under Article 5.3. Of course, a party seeking negative declaratory relief may itself deny the jurisdictional facts in Article 5: thus DB may say there was no obligation, tort, or harm. However, DB was still able to establish a good arguable case that the jurisdictional facts in Article 5 existed. As Saville LJ said in Boss Group at 357B, DB could for this purpose rely on Petromena’s contentions: ‘the plaintiffs establish a good arguable case by relying on the fact that this is what the defendants are contending against them’. iii) In applying Article 5, therefore, the focus was on the claims advanced by the defendant (Petromena). It did not matter how weak or strong Petromena’s claims were: for jurisdictional purposes, the sufficient strength of the claims was confirmed by DB’s decision to seek a negative declaration in respect of them. What mattered was whether Article 5 would permit Petromena to pursue its claims in England assuming them to be well-founded. iv) DB must have much the better of the argument that Article 5 would be satisfied if Petromena sued here. If the matter were finely balanced, or if Petromena had the better of the argument, jurisdiction should be declined. Because it was an exception to the general rule under Article 2 (under which jurisdiction was based on the domicile of the defendant), Article 5 was to be interpreted restrictively; see Kalfelis v. Bankhaus Schröder Műnchmeyer Hengst & Co [1989] ECR 5565, [19]; Somafer SA v. Saar-Ferngas AG [1978] ECR 2183, 2191, [7]. v) Articles 5.1 and 5.3 were mutually exclusive: in relation to any particular claim, one or the other might apply, but not both; thus in Kalfelis at [17] the ECJ defined the scope of Article 5.3 so as to be exclusive of the scope of Article 5.1; see also: Agnew v. Länsforsäkringsbolagens AB [2001] 1 AC 223 (a Lugano Convention case), where Lord Woolf said at 244H-245A: “It is accepted that if this case falls within article 5(1) it does not fall within article 5(3). It is not possible for the same issue to be classified under both heads.”; per Staughton LJ in Source Ltd v. TUV Rhineland [1998] QB 54, at 63G; and per Kenneth Rokison QC (sitting as a Deputy High Court Judge) in Alfred Dunhill Ltd v. Diffusion Internationale de Maroquinerie de Prestige sarl [2002] AER (Comm) 959, at 962F, who said: “It was common ground that, as is clearly established by the authorities, and, in particular, the European Court decision in [Kalfelis] and the recent House of Lords decision in [Agnew], Article 5.1 and Article 5.3 are mutually exclusive, and to the extent to which the claim falls within Article 5.1, as a matter relating to a contract, it cannot also fall within Article 5.3. … the claimant in such cases does not have a choice.” vi) Accordingly, the court’s first task was to determine whether Petromena’s claims were to be characterised as ‘matters relating to contract’ within the meaning of Article 5.1. So far as this was the case, the existence of special jurisdiction was exclusively determined by Article 5.1, and Article 5.3 was irrelevant. It was only so far as Petromena’s claims were not ‘matters relating to contract’ under Article 5.1 that Article 5.3 might potentially apply. vii) While all of Article 5 should be interpreted restrictively, some parts should be interpreted more restrictively than others. In so far as Article 5.1 identified a narrower range of venue than Article 5.3, this supported giving Article 5.1 a wider interpretation and Article 5.3 a correspondingly narrower one. viii) As the ECJ stated in Jakob Handte & Co GmbH v. Soc. Traitements Mécano-Chimiques des Surfaces [1992] ECR I-3967, [10] the phrase "matters relating to a contract" in Article 5.1 was to be given an autonomous meaning, having regard to the objectives and the general scheme of the Convention, in order to ensure as far as possible a uniform application of the Convention in all the Contracting States. Accordingly, how the claim was characterised as a matter of national law (i.e. whether as contractual or tortious) was not dispositive of how it was characterised under the Convention. ix) The essential test was that an obligation which was freely entered into by one party to another was a ‘contractual obligation’ under Article 5.1, regardless of whether it was a ‘contractual obligation’ under national law. Putting the matter negatively, the ECJ said in Handte at [15]: “It follows that the phrase ‘matters relating to a contract’ within the meaning of Article 5(1) of the Convention should not be understood to cover a situation where there is no obligation freely entered into by one party to another.” Likewise, putting the matter positively, the ECJ said in Engler v. Janus Versand GmbH [2005] IL Pr 8, [51]: “Accordingly, the application of the rule of special jurisdiction provided for matters relating to a contract in Art. 5(1) presupposes the establishment of a legal obligation freely consented to by one person towards another and on which the claimant’s action is based.” x) Although Article 5.1 required an obligation voluntarily entered into by one party towards the other, it did not require the conclusion of a contract. Thus in Engler, the ECJ said at [45]: “it must be stated at the outset that, as it appears from its very wording, Article 5(1) of the Brussels Convention does not require the conclusion of a contract.” Likewise, in Fonderie Officine Meccaniche Tacconi spa v. Heinrich Wagner Gmbh [2002] ECR I-7357, the ECJ said at [22]: “Moreover, while Article 5(1) of the Brussels Convention does not require a contract to have been concluded, it is nevertheless essential, for that provision to apply, to identify an obligation, since the jurisdiction of the national court is determined, in matters relating to a contract, by the place of performance of the obligation in question.” And in Ilsinger v. Dreschers [2009] ECR I-3916, the ECJ said at [57] that Article 5.1 might encompass pre-contractual or quasi-contractual situations. xi) Moreover Article 5.1 did not even require any agreement between the parties in any relevant sense: it might apply where the defendant by unilateral acts towards the claimant freely assumed an obligation, even if that obligation was imposed by mandatory rules of law. This was confirmed by the cases of Engler and Ilsinger. In Ilsinger the ECJ noted at [53] that Article 15 required a concluded contract, and said at [57] that Article 5.1 might apply even without a concluded contract, because Article 5.1 could apply to pre-contractual or quasi-contractual situations: “such a situation would at most be liable to be classified as pre-contractual or quasi contractual and might therefore, where appropriate, be covered solely by Article 5(1) …, a provision which must be acknowledged as having, on account of its wording and position in the scheme of [the Regulation], a broader scope than that of Article 15 thereof"; (see, by analogy, with regard to the Brussels Convention, Engler, at paragraphs 44 and 49). xii) The provision of financial advice (as Petromena alleged was given in this case) was addressed in Civil Jurisdiction and Judgments, Briggs & Rees, 5th Ed (2009) at paragraph 2.153 (pages 223-224). In particular Mr Wolfson QC placed reliance on the following passage in relation to liability for negligent misstatement under the rule in Hedley Byrne & Co Ltd v. Heller & Partners Ltd: “As to the second, it may be necessary to distinguish cases where the parties are in a relationship equivalent to privity, where advice was given directly by the defendant to the claimant (such as was the case in Hedley Byrne), from those where the claimant is a stranger to the advice-giving-and-receiving relationship, albeit that it is foreseen and predictable that he will rely on the advice primarily given to another. In the former case, it is only the absence of consideration which prevents the relationship being contractual as a matter of substantive English law: it is strongly arguable that the relationship between the parties would satisfy the definition in Handte. In the latter case, it is much less clear, as the relationship between the parties is constituted less directly. But if one were to accept that the basis for the imposition of Hedley Byrne liability is that the defendant has voluntarily accepted the risk, or voluntarily assumed liability in relation to the third party, then the foundation exists for the argument that the matter is one which falls comfortably within the autonomous definition of matters relating to a contract offered in Handte.” xiii) This was obviously right. Where a defendant provided advice directly to the claimant without consideration, giving rise to liability under Hedley Byrne, a claim for negligent advice fell within Article 5.1 regardless of the fact that, as a matter of substantive English law, the claim arose in tort rather than contract. Requirements for consideration were exactly the kind of national detail which Handte makes irrelevant to the autonomous concept of contract in Article 5.1. xiv) In the present case, Petromena’s main claim was that Deutsche Bank breached, not an obligation to take reasonable care in providing advice, but an obligation of loyalty arising from the provision of advice. This obligation of loyalty essentially encompassed the related obligation to avoid a conflict of interest by prioritising Petromena’s interests over its own interests as Bondholder. Although arising under Norwegian law, this obligation of loyalty was akin to a fiduciary obligation under English law. In relation to claims for breach of fiduciary duty, Briggs & Rees stated at paragraph 2.153 (page 225): “Jurisdiction in an action to enforce fiduciary duties may be thought to raise further difficulties. It cannot be reasoned that claims to enforce fiduciary duties fall outside Article 5(1), by reasoning that fiduciary duties arise in equity rather than from the common law of contract, for such insular distinctions within substantive law are most unlikely to have been replicated in the autonomous jurisdictional scheme of the Regulation. Nor can it be argued, it is submitted, that because fiduciary duties are imposed by equity on a defendant who has placed himself in a position where those duties are owed, then they are not to be seen as having been freely undertaken. The better view [footnote: But one which is believed to be free from authority] is that if they result from a relationship which was freely entered into, such as between agent and principal, company and office-holder, or solicitor and client, their enforcement is, for jurisdictional purposes, within Article 5(1). If, by contrast, they are imposed on a defendant who has, without the agreement of the claimant, placed himself in a position where equity requires him to act as a fiduciary, such as an accomplice to another’s breach of trust, the case will not fall within Article 5(1). ” This was clearly correct, although, as, noted above, Engler and Ilsinger showed that the claimant’s agreement might not always be required: a unilateral undertaking towards the claimant might also fall within Article 5.1 without the need for agreement. xv) In addition to its claim for breach of an obligation of loyalty, Petromena also sought compensation for harm caused by providing advice without a licence contrary to the Norwegian Securities Trading Act, or for misuse of confidential information. The German Supreme Court (Bundesgerichtschof) decision in Re Asset Management showed that such claims might fall within Article 5.1.

Article 5.1 - place of performance of the obligation in question

[33]Petromena's submissions in relation to the place of performance of the obligation in question were as follows: i) Once the court had decided that a claim fell within Article 5.1, the focus of inquiry turned to the place of performance of the obligation in question. Article 5.1 conferred special jurisdiction on the courts of that place. In this case, that did not, however, mean England. ii) This was a case of the provision of services in the form of advice. Petromena maintained that Deutsche Bank provided it with financial advice, and as a result, came under obligations of loyalty which were breached. Under Article 5.1(b), the courts of the place where the advice was provided had Article 5.1 jurisdiction. Article 5.1(b) provided that ‘in the case of the sale of goods’, the courts in the place where the goods ‘were delivered or should have been delivered’ had Article 5 jurisdiction, while ‘in the case of the provision of services’, the courts in the place where the services ‘were provided or should have been provided’ had Article 5.1 jurisdiction. iii) That was so regardless of which party was the claimant or what obligation had been breached: Car Trim GmbH v. KeySafety Systems Srl [2010] Bus LR 1648, [50]. iv) In Car Trim, the ECJ said at [60] that in the case of sale of goods, the ‘place of delivery’ was the place where the goods were physically transferred to the purchaser at their final destination; not where the goods were produced or handed to a carrier for transmission. Similarly, in the case of provision of services in the form of advice, the ‘place of provision’ is the place where the advice was received, not where it was uttered or put into circulation. In this case, the advice was received in Norway; it was provided in Norway, and the courts of Norway therefore had Article 5.1 jurisdiction. The advice was not provided in England, and, as such, the English courts had no jurisdiction. Article 5.3 "matters relating to tort, delict or quasi-delict"[34]Petromena's secondary argument was as follows: i) Because Articles 5.1 and 5.3 were mutually exclusive, in so far as Petromena’s claims fell within Article 5.1, they could not fall within Article 5.3. ii) However, even if (contrary to Petromena’s primary submission), some or all of Petromena’s claims fell outside Article 5.1, and therefore within Article 5.3, Article 5.3 still did not confer jurisdiction on the English court. iii) That was because Article 5.3 conferred special jurisdiction on the courts of the place where the harmful event occurred. In Handelskwekerij GJ Bier NV v. SA Mines de Potasse d’Alsace [1976] ECR 1735, [1978] QB 708, the ECJ said at [24-25] that the ‘harmful event’ meant either(1) the damage itself (the so-called "first limb of Bier"), or(2) the event giving rise to the damage (the "second limb of Bier"), with the result that the courts of the place where the damage occurred, and of the place where the event giving rise to the damage occurred, will both have jurisdiction, with the claimant being entitled to choose between them. iv) There was no suggestion of Petromena having suffered any damage in England; it was irrelevant for the purposes of this argument whether the damage had been suffered in Norway or elsewhere. The first limb of Bier therefore did not confer jurisdiction on the English court. v) Accordingly the only question was whether the second limb of Bier conferred jurisdiction on the English court: i.e. whether England was the place of the ‘event giving rise to the damage’. vi) Whilst the first limb of Bier might potentially confer jurisdiction on the courts of more than one country, the second limb of Bier could not. In other words, where the damage occurred in more than one country, the courts of each country might have Article 5.3 jurisdiction under the first limb of Bier; but where the events giving rise to the damage were spread across state borders, the damage caused would be held to be localised in a single state which alone would have Article 5.3 jurisdiction under the second limb of Bier. vii) A centre-of-gravity approach applies to the second, but not the first, limb of Bier; see Shevill v. Presse Alliance SA [1995] ECR I-0415; Minster Investments Ltd v. Hyundai Precision & Industry Co Ltd [1988] 2 Lloyds Rep 621; Domicrest v Swiss Bank Corpn [1999] QB 548. viii) However, the place where the defendant acted was not always the place of the event giving rise to the damage. The purpose of Article 5 was to confer special jurisdiction on courts having a ‘particularly close connection’ to the case: Martin Peters Bauunternehmung Gmbh v Zuid Nederlandse Aannemers Vereniging [1984] 2CMLR 605 at [11]. This suggested that, as Shevill and Minster confirm, the centre-of-gravity aspect of the second limb of Bier was to be used wisely to confer jurisdiction on the courts of the place where in substance the events giving rise to the damage had occurred. The event which was the ‘origin of the damage’ was not necessarily the earliest event in the chain: nor was it necessarily the place from where the defendant implemented that plan or where the plan found fruition and effect. The court had to look at the events as a whole and to ask, as Steyn J did in Minster, where in substance the events giving rise to the damage occurred. Briggs & Rees at paragraph 2.189 (page 279) cautiously supported this: “if the events took place in more Member States than one, it may be difficult to identify the court with special jurisdiction under the second limb of Bier [the event giving rise to the damage]. A centre-of-gravity approach may commend itself to the Court more than it did in relation to the case of multi-state damage, but it is too early to tell.” ix) In the present case, the event giving rise to the damage was first, DB’s sale of the Bonds to Seadrill, and more proximately, DB’s demand to the Loan Trustee to accelerate all the Bonds by letter dated 2 April 2009. Those events had a multinational dimension. The fact that the acceleration demand was sent by DB by email from outside Norway (if that is where the email was sent from) to the Loan Trustee in Norway did not change the reality that, in substance, the acceleration demand was an event which occurred in Norway. From the start, DB’s conduct in this case was overwhelmingly directed at Norway, and the foreign aspects of the story were always insignificant. It did not matter where the letter of 2 April 2009 was sent from: whether by email from London, Stockholm, St Lucia or Timbuktu was irrelevant. It does not matter where DB was when it decided to sell the Bonds, whether in London, Brussels, Frankfurt or on a conference call on a plane. What mattered was that those steps, like the advice which preceded them, were (as intended) communicated to Norway and (again as intended) took effect in Norway. x) The second limb of Article 5.3 could only confer jurisdiction on one court: it was intended to confer jurisdiction on a court with a close connection to the facts, and it would be bizarre for that court to be anything other than Norway. In summary, therefore, even if Article 5.3 applied, the English court did not have jurisdiction because neither the event giving rise to the damage, nor the damage itself, occurred in England. Article 23 - the exclusive jurisdiction clause in the Loan Agreement xi) Petromena's third submission was that, even if the English court did have jurisdiction under Article 5, such jurisdiction was ousted under Article 23 because Petromena's claims fell within the scope of the Norwegian jurisdiction clause contained in clause 21 of the Loan Agreement. In particular: a) DB London's acceleration demand dated 2 April 2009 (which was the event which breached DB’s duty of loyalty and gave rise to the damage in this case) was expressly an act done under clause 15.3(b) of the Loan Agreement. Thus the question of DB’s liability to Petromena for sending the acceleration demand was subject to the exclusive jurisdiction of the Norwegian courts under Article 23. b) Jurisdiction and arbitration agreements were intended to have an extremely broad scope and to act comprehensively to resolve disputes which arose between the parties, without argument about what disputes were, and were not, covered. The House of Lords so held for arbitration agreements in Fiona Trust & Holding Co v. Privalov [2007] UKHL 40, [13] [AB21], and the same approach was to be taken to jurisdiction agreements: see e.g. UBS AG v. HSH Nordbank AG [2009] EWCA Civ 585, [82] per Lord Collins. c) Accordingly, any dispute between Petromena and DB concerning the Bonds fell within the scope of the Norwegian jurisdiction clause. That was so regardless of whether the legal restriction alleged by Petromena to have been imposed on DB’s right to sell and accelerate the Bonds free from liability derived from the terms of the Loan Agreement or from other obligations or provisions of law. Such argument applied to all the claims which Petromena pursued, since they all related to the Bonds (including advice about the Bonds). Given that the parties only made one jurisdiction agreement, the law gives it the broadest possible effect. d) Accordingly, Norway was where DB and Petromena agreed to litigate this claim, and the English court must decline any jurisdiction it might otherwise have had under Article 5.[35]A belated attempt was made by Petromena to reconcile the inconsistency between the positions which it had taken respectively in Norway and England. On 27 February 2013, some hours after Petromena’s skeleton argument had been served, DB received a two-page witness statement from one of Petromena’s Norwegian lawyers, in which it was said that, despite how the claim had been put in the Oslo writ, Petromena intended to contend before the Norwegian court “so far as necessary” that its claim against DB is one of “concurrent liability in tort and contract”, thus entitling the Norwegian court to exercise jurisdiction under Article 5.1 of the Convention.

DB's submissions in relation to the issue of jurisdiction

[36]In broad summary, Mr Richard Handyside QC and Mr David Murray, leading and junior counsel for DB, submitted as follows.

Article 5.1 - "matters relating to a contract"

[37]Article 5.1 of the Lugano Convention did not apply to the factual circumstances of Petromena's claims. In particular: i) It was accepted that the expression “matters relating to a contract”, as used in Article 5.1 had an autonomous meaning. Petromena’s central contention was that, where an alleged obligation had been “freely entered into”, it would be regarded for the purposes of Article 5.1 as contractual. Whilst it was true that, in general (though not invariably: see, e.g., Civil Jurisdiction and Judgments, Briggs & Rees, 5th Ed (2009) at paragraphs 2.150 and 2.151), it was necessary, in order for a claim to fall within Article 5.1, that the obligation in question should have been “freely entered into” (an expression that the ECJ has used many times since its decision in Jakob Handte & Co GmbH v. Soc. Traitements Mécano-Chimiques des Surfaces [1992] ECR I-3967, [10]), it did not follow that, merely because an obligation had been "freely entered into", such obligation was be regarded, for jurisdictional purposes, as contractual; satisfaction of that requirement was not by itself sufficient. ii) While Article 5.1 did not require the conclusion of a contract which was valid under any particular system of national law, it did require that the obligation in question should have arisen by virtue of an agreement (see, e.g. Briggs & Rees at paragraph 2.149). The claim advanced in the Norwegian proceedings was not premised on any form of agreement between DB and Petromena: rather, Petromena alleged that, essentially, DB foisted itself upon Petromena and undertook unilaterally to act as its “advisor”, in order to mitigate its own exposure to Petromena’s bonds. This was clear from the Oslo writ, in which not only was the claim advanced solely in tort (and any contractual claim was expressly disavowed), but also from the factual allegations that, for example, DB acted “on its own initiative” (page 2) and had “taken on” a role as financial advisor (page 8). Thus it was not alleged that DB was acting pursuant to any form of agreement between the parties: there was no allegation that Petromena accepted any kind of offer from DB, and there was no explanation as to what the terms of any alleged agreement might have been. Further, although the absence of consideration did not necessarily mean there was no contract, it was still relevant to the proper characterisation of the parties’ relationship that DB was not to be paid for its alleged “services”. iii) Petromena's argument that Article 5.1 did not in fact require an agreement between the parties was not supported by any authority. The only authorities cited by Petromena for this proposition were the decisions of the ECJ in Engler v. Janus Versand GmbH [2005] IL Pr 8, [51] and Ilsinger v. Dreschers [2009] ECR I-3916. Those two cases actually said nothing of the sort, and were in fact contrary to the submission made by Petromena. In Engler it was part of the court’s reasoning, in concluding that Article 5.1 was engaged, that the recipient of the unilateral offer made in that case had expressly accepted it (see paragraphs 55 and 56 of the judgment), and Ilsinger did not in fact concern Article 5.1 at all, but Article 15 (which related to consumer contracts); the brief remark in paragraph 57 of the judgment (relied upon by Petromena) that “pre-contractual or quasi-contractual” claims “might ... where appropriate” fall within Article 5.1 cannot be interpreted as saying that there was no requirement under Article 5.1 for an agreement between the parties.

Article 5.1 - place of performance of the obligation in question

[38]In any event, however, even if Petromena were correct to say that the claims it sought to pursue in Norway were “matters relating to a contract” and therefore within the scope of Article 5.1, “the place of performance of the obligation in question” was, plainly, England. In particular: i) Petromena’s case was that jurisdiction in this case was governed by the second indent of Article 5.1(b) of the Convention, because the alleged contract was one for the provision of services (namely financial advice). This meant that “the place of performance of the obligation in question” was the place “where, under the contract, the services were provided or should have been provided”. ii) Petromena’s argument was not that the alleged contract itself stipulated where the alleged services were to have been provided; rather, its argument was that the issue under Article 5.1(b) was “where the advice was provided”; Petromena's submission that this was Norway, because there was “where the advice was received, not where it was uttered or put into circulation” based upon an unconvincing analogy with contracts for the sale of goods, and the case of Car Trim GmbH v. KeySafety Systems Srl [2010] Bus LR 1648, [60] was ill-founded. iii) The correct approach was that laid down in the decision of the ECJ in Wood Floor Solutions Andreas Domberger GmbH v Silva Trade SA[2010] ECR I-2121, in particular at [33]. That case held that, in order to decide in which state the services were provided for the purposes of Article 5.1(b), the task was to identify “the place of the main provision of services” by the service-provider. iv) In the present case, it was not in dispute that those individuals within DB alleged to have been responsible for providing advice to Petromena (or performing the other duties alleged) were based primarily in London, although they also worked elsewhere on occasion. London was where DB carried out its alleged work on behalf of Petromena. Insofar, therefore, as the alleged contract can be said to have itself provided for a place of performance, that place must have been England. It certainly was not Norway (and nor was this contended by Petromena). v) Even if it were the case that the “place of the main provision of services” could not be deduced from the alleged contract itself, the remainder of the reasoning in Wood Floor pointed clearly to England. In paragraph 40 of its judgment the ECJ said that, in such a case: “If the provisions of a contract do not enable the place of the main provision of services to be determined, either because they provide for several places where services are provided, or because they do not expressly provide for any specific place where services are to be provided, but the agent has already provided such services, it is appropriate, in the alternative, to take account of the place where he has in fact for the most part carried out his activities in the performance of the contract, provided that the provision of services in that place is not contrary to the parties’ intentions as it appears from the provisions of the contract. For that purpose, the factual aspects of the case may be taken into consideration, in particular, the time spent in those places and the importance of the activities carried out there. It is for the national court seised to determine whether it has jurisdiction in the light of the evidence submitted to it.” vi) Applying this reasoning to the facts of this case as they appeared from the evidence before the court, it was clear (and in any event undisputed) that the place where DB for the most part carried out its activities in the performance of the alleged contract was London. The relevant DB employees spent the overwhelming majority of their time in London, and carried out nearly all of their activities there. It was immaterial that Petromena may have received DB’s advice in Norway. The focus, according to the ECJ, was where the relevant work was done by the provider of the service. The location of the recipient of the service was insignificant. vii) For these reasons, therefore, even if the claim were properly to be characterised as contractual for the purposes of Article 5.1, the English court had special jurisdiction over it pursuant to Article 5.1(b).

Article 5.3 - "matters relating to tort, delict or quasi-delict"

[39]DB's primary submission remained that the English Court had jurisdiction under Article 5.3 of the Convention, on the basis that the place where the harmful event alleged by Petromena occurred was England. In particular Mr Handyside QC submitted: i) The claims sought to be asserted by Petromena in the Oslo proceedings, in respect of which DB claimed a declaration of non-liability in the English proceedings, clearly fell within the scope of Article 5.3. Those claims were plainly claims in tort/delict: this was clear, in particular, from paragraphs 1.2.1, 1.2.2,5.1 and 6.2.1 of the writ in the Oslo proceedings. ii) The words “the place where the harmful event occurred” in Article 5.3 had an autonomous meaning. They permitted the claimant to choose to sue(1) in the courts for the place where the damage occurred, or(2) in the courts for the place of the event giving rise to the damage: see Briggs & Rees, paragraph 2.183, citing Handelskwekerij GJ Bier NV v SA Mines de Potasse d’Alsace (Case 21/76) [1976] ECR 1735. iii) DB relied upon the second limb of the Bier test, i.e. the courts for the place of the event giving rise to the damage. The place of the event giving rise to the damage was to be understood in the sense of enquiring where that event originated: as Briggs & Rees put it (at paragraph 2.188), the focus is on the event at the start, rather than at the end, of the story. iv) A clear analogy could be drawn in the present case with the approach taken by Rix J in Domicrest v Swiss Bank Corpn [1999] QB 548. In that case Rix J considered the application of Article 5.3 of the 1988 Lugano Convention There was no difference between the wording of Article 5.3 in the 1988 Lugano Convention and the 2007 Lugano Convention. to a claim based on negligent mis-statement. After reviewing the authorities, Rix J held (at 567H-568C) that the place where the harmful event giving rise to the damage occurred in a case of negligent mis-statement was the place where the mis-statement originated, rather than the place where the mis-statement was heard or acted upon. Rix J reasoned: “Although it may be argued that in the case of instantaneous communications and perhaps especially in the case of telephone conversations the mis-statement occurs as much where it is heard as where it is spoken, nevertheless it remains true as it seems to me that it is the representor’s negligent speech rather than the hearer’s receipt of it which best identifies the harmful event which sets the tort in motion. To prefer receipt and reliance as epitomising the harmful event giving rise to the damage in the case of negligent mis-statement is, I think, to ignore the fact that the plaintiff also has the option of suing in the courts of the place where the damage occurs – which is quite likely to be at the place of receipt and reliance.” v) In the present case, the place where the harmful event occurred was England. England was the place where the relevant individuals at DB who were alleged to have acted as advisers to Petromena were based and from where they operated; and it was also the place where any breach of their (alleged) duties would have taken place. It was relevant to note that, consistent with DB’s analysis, Petromena alleged in terms in its Oslo writ that DB rendered its services from London: see paragraphs5.2 and 5.4.2 of the writ. vi) Accordingly, for those reasons, the English Court had jurisdiction over the present proceedings under Article 5.3. Petromena’s submission in paragraph 9 of Mr East's first statement that there was no connecting factor linking the proceedings with England was wrong. Article 23 - the exclusive jurisdiction clause in the Loan Agreement[40]DB submitted that the Norwegian jurisdiction clause contained in clause 21 of the Loan Agreement was irrelevant. Petromena's argument that the present proceedings fell within the scope of the clause was not only inconsistent with what was stated in Petromena’s writ in the Oslo proceedings, but was also misconceived. The claims made by Petromena against DB did not arise out of or in connection with the Loan Agreement. The causes of action asserted by Petromena were not founded upon any provision of the Loan Agreement. Rather, they were founded upon an allegation that DB assumed the role of an adviser to Petromena, in addition to its role as bondholder. It was DB’s (alleged) assumption of the role of adviser to Petromena, rather than any term of the Loan Agreement, that was said to have given rise to the various duties that were allegedly breached. The words “arising out of or in connection with” were not without limits. DB’s claims in the present proceedings fell well outside them. Petromena’s contention that the Norwegian Courts have jurisdiction under Article 5.3 was wrong[41]DB also submitted that, although it would not be appropriate for this Court to rule upon the jurisdiction of the Norwegian courts, Petromena’s attempt to rely, in the Oslo writ, upon Article 5.3 of the Convention to confer jurisdiction upon the Norwegian courts, was without foundation. DB so submitted on the basis that the loss claimed by Petromena was derived from the loss of value of the drilling contracts that it claimed would have been performed using the rigs; however, the evidence showed that the rigs were not owned by Petromena, but were owned by subsidiaries of Petromena that were incorporated in Singapore or Cyprus; further, the drilling contracts were entered into by another company, Larsen Oil and Gas UK Inc, on behalf of Petromena’s rig-owning subsidiaries.[42]Mr Handyside QC submitted that, as Mr East confirmed in his second witness statement, Petromena’s own alleged loss was based upon the (alleged) diminution in value of its shareholdings in its subsidiaries, which was in turn caused by the insolvency of the subsidiaries and the sale of their rigs. Mr Handyside submitted that Petromena’s indirect loss was not jurisdictionally significant – in other words, it did not ‘count’ for the purposes of Article 5.3: see Briggs & Rees, paragraph 2.184, citing Dumez France SA v Hessische Landesbank (Case C-220/88) [1990] ECR I-49. Mr Handyside submitted that it followed that Article 5.3 could not confer jurisdiction upon the Norwegian courts and that, accordingly, Petromena should have brought any proceedings against DB either in England pursuant to Article 5.5 of the Convention or in Germany pursuant to Article 2. Discussion and determination Article 5.1 - "matters relating to a contract"

Discussion and determination

[43]It was effectively common ground that the burden was on DB to show a good arguable case that the jurisdictional facts upon which it relied for the purposes of demonstrating that the English Court had jurisdiction existed (whether under Article 5.1 or Article 5.3) and that this meant that DB had to have a much better argument than Petromena on the material before the court for this purpose. As Lord Rodger said in Bols Distilleries v. Superior Yacht Services [2007] 1 WLR 12, at [28]:
“…it appears to be Board that, if the standard of "a good arguable case" is properly understood and applied, there is no risk that the effectiveness of the Regulation will be impaired. The rule is that the court must be satisfied, or satisfied as it can be having regard to the limitations which an interlocutory process imposes, that factors exist which allow the court to take jurisdiction. In practice, what amounts to a "good arguable" case depends on what requires to be shown in any particular situation in order to establish jurisdiction.”
See also per Toulson LJ (as he then was) in WPP Holdings Italy v. Benatti [2008] 1 Lloyds Rep 396, at [37] - [44].[44]It was likewise not in contention between the parties that DB, as a claimant seeking declaratory relief as to its non-liability, is entitled to rely on the jurisdictional facts which Petromena was asserting against DB in the Norwegian proceedings, notwithstanding that DB denies the claim. It is, however, instructive to bear in mind what Saville LJ said in Boss Group at 357B in this respect (in relation to a case where the plaintiff was seeking to establish the English court's jurisdiction on the basis of Article 5.1, notwithstanding that it denied that any such contract existed):
“To my mind there are “matters relating to a contract” in the present case. There is a lively dispute between the parties as to whether there is a contract between them under which the defendants are the exclusive distributors for the plaintiffs in France. It is true that the plaintiffs, who seek to sue here, are asserting that no such contract exists, but equally the defendants are asserting the contrary. In my judgment, the fact that it is this way round does not make the article inapplicable. Article 5(1) is not confined to actions to enforce a contract or to obtain recompense for its breach, but refers generally to “matters relating to a contract.”
The defendants submit that assertions are not enough, since the court must be satisfied that the essential prerequisites for jurisdiction exist. Building on this, they submit that it is incumbent on a plaintiff to satisfy the court at least that there is a “good arguable case” that such prerequisites do exist, and rely on authorities such as New England Reinsurance Corporation v. Messoghios Insurance Co. S.A. [1992] 2 Lloyd's Rep. 251 for that proposition. Since the plaintiffs are claiming that there was no contract, the defendants submit that it inevitably follows that the plaintiffs cannot fulfil this requirement. I agree with the premise on which this argument is based, but to my mind the conclusion does not follow. The article allows a party to be sued in matters relating to a contract in the courts for the place of performance of the obligation in question. That party in the present case is the defendants. It seems to me that it is entirely illogical and wrong for that party to assert that there is a contract and that the plaintiffs have broken it (which is what the defendants have done in France, where they have themselves relied on article 5(1)) whilst simultaneously contending the contrary here in order to avoid the application of article 5(1). To my mind, in a case such as the present, the plaintiffs establish a good arguable case that there is a matter relating to a contract by relying on the fact that this is what the defendants are contending against them. Unless the defendants withdraw their contentions (which they have not done) it seems to me that they cannot challenge the jurisdiction on the basis that they should not be sued here because there is (contrary to those contentions) no contract. Once one has removed the self-contradictory stance taken up by the defendants, it seems to me that it is self-evident that there are matters “relating to a contract” between the parties.”[45]The present case is not on all fours with Boss Group since:(a) Petromena is now additionally contending that there was indeed a contract between the parties (and intends so to argue in the Oslo proceedings);(b) DB itself in its claim form is seeking a negative declaration that it has no contractual liability; and(c) as the authorities referred to in paragraph 32 (v) above demonstrate, and as Mr Handyside accepted, Articles 5.1 and 5.3 are mutually exclusive, so that, if the case falls within Article 5.1, it necessarily does not fall within Article 5.3, because it is not possible for the same issue to be classified under both heads.[46]Although I was originally tempted to do so, on the grounds that, at the time that jurisdiction was seised by the English court, the only basis upon which Petromena had formulated its claims was in tort, I do not propose to conclude that Petromena is bound by its characterisation of its claims in the Oslo proceedings and thus precluded from arguing the point that the existence of special jurisdiction is exclusively determined by Article 5.1. The correct characterisation of a claim for the purposes of the Convention must necessarily be an objective one which is reached by the court determining the jurisdiction issue. Nonetheless, necessarily Petromena’s original, and apparently firm, view as to the nature of its claims is a factor which I have taken into account in my characterisation of its claims.[47]As was common ground, the expression "matters relating to a contract", as used in Article 5.1 of the Convention, has an autonomous meaning. But my analysis of the European Court authorities does not go anywhere near to supporting Petromena’s assertion that Petromena's claims are to be characterised as "matters relating to a contract". While Article 5(1) does not require the conclusion of a contract which is valid under any particular system of national law, it does require that the obligation in question should have arisen by virtue of an agreement. Petromena's contention that, where an alleged obligation was "freely entered into", that requirement is sufficient for the purposes of Article 5.1, is not sustainable; its approach would annihilate the difference between contractual and tortious obligations. Moreover none of the authorities cited support the proposition.[48]Thus in Handte a manufacturer sold a piece of machinery to a buyer, who had sold it on to a sub-buyer. When the machine proved to be unfit for the purpose for which it had first been sold, the sub-buyer sued the manufacturer in the French courts, where the claim was held to be a contractual one. But the ECJ disagreed on the basis that there was no "undertaking freely entered into by one party in relation to another". As explained in Briggs & Rees at paragraph 2.14:
“In Handte the manufacturer had not, so far as he knew, entered into any form of undertaking to or with the sub-buyer, with the result that the sub-buyer’s relationship with him, and claim against him, was not one which related to a contract. That was so even though the original contract of sale had triggered the dispute, and the claim in some sense 4 related to it, and even though the French courts would have understood the claim of the sub-buyer to have been contractual in nature. It follows that “matters relating to a contract” will describe cases which can be said to be founded on an agreement between claimant and defendant. However, it does not necessarily follow that every case in which there is such an agreement, or involves the voluntary assumption of a risk by one in relation to another, proceedings between the parties are to be seen, for special jurisdictional purposes, as brought in a matter relating to a contract. At a general level, the decision in Handte may be thought to have been supported by the distinction found in civilian systems between contractual and non-contractual obligations 5. In French law in particular there is a distinction between “contracts, or obligations arising from agreement in general”,1 “obligations which arise without agreement”.2 It is, therefore, part of the infrastructure of French law to distinguish between obligations which arise from the agreement the parties made (which are seen as being contractual), and those where the law attaches consequences to the act of a person (which are seen as being non-contractual). 4Cf for a very different approach to a rule worded similarly, Greene Wood & McLean LLP v Templeman Insurance Ltd [2009] EWCA Civ 65, [2009] 1 CLC 123. 5 That article 5(1) is confined to the law of obligations appears to follow from the decision in C-261/50 Reichert v Dresdner Bank (No 2) [1992] ECR I-2149, discussed at paras 2,172 et seq., below, for the further view, that Rome I and Rome II regulations divide the whole of the law of obligations into contractual and non-contractual, see below para 2,172. 1 Covered by Articles 1101-1369 of the Civil Code. 2 Covered by Articles 1370-1386.”
[49]In other words, as emphasised by Briggs & Rees, the critical feature is that the obligation assumed has to be based, or founded, upon some sort of consensual agreement, notwithstanding that it may not be a contractually binding one. In Handte the Court effectively held that in the absence of any agreement or "contractual link" between seller and sub-purchaser, the case did not relate to a contract for the purposes of Article 5.1 notwithstanding that the point in issue related to whether the machinery was fit for the purpose for which it had originally been sold.[50]Nor do the other cases cited by Mr Wolfson assist Petromena's submission that these were claims which should be characterised as "matters relating to a contract" and that Article 5.1 does not in fact require an agreement between the parties. In Engler, the essence of the Court's reasoning was that the claimant was the recipient of a unilateral prize offer made by the defendant in circumstances where, if the offer was accepted by the claimant’s conduct in claiming the prize, a contractual type-relationship would come into existence between the parties, which was sufficient to engage Article 5.1; see paragraphs 51-56. Indeed, paragraph 56 could be read as suggesting that only from the moment of acceptance of the offer in such a case was Article 5.1 engaged. But that latter factual point (i.e. whether or not a unilateral offer had actually been accepted) is not an essential one for the purposes of Mr Handyside’s argument that no assistance can be derived in the present case from Engler.[51]Likewise no assistance can in my view be derived Ilsinger. That was a case which did not concern Article 5.1, but rather Article 15 (which relates to consumer contracts). It concerned a unilateral offer to pay a prize which had been notified to the claimant consumer and which she had accepted by sending off the coupon attached to the offer to the mail order company - a situation where the Court considered that there had indeed been a concluded contract (which was a necessary prerequisite for the purposes of Article 15). The remark upon which Mr Wolfson relied was in paragraph 57 of the judgment, where the Court was contrasting the situation in the case before it, where a contract had been concluded, with one where, in a similar situation involving an offer of a prize, no contract had actually been concluded. The Court said:
“In that latter case, such a situation would at least be liable to be classified as pre-contractual or quasi contractual and might therefore, where appropriate, be covered solely by Article 5.1 all that regulation [ Regulation No 44/2001], a provision which must be acknowledged as having, on account of its wording and its position in the scheme of that regulation, a broader scope than that of Article 15 thereof (see, by analogy, with regard to the Brussels Convention, Engler, paragraphs 44 and 49).”
However, that statement cannot in my view be regarded as laying down a rule that there is no requirement under Article 5.1 that there should be some sort of actual or envisaged agreement or consensus between the parties, which gives rise to the relevant obligation, albeit that the agreement itself may be at the pre-contractual stage or not contractually concluded.[52]The claim advanced in the Norwegian proceedings is not based on any form of agreement between DB and Petromena, whether contractual or otherwise. The claim is rather that DB foisted itself upon Petromena and undertook unilaterally to act as its “advisor”, in order to mitigate its own exposure to Petromena’s bonds. The essence of the claim is that DB London became active (along with other bondholders) in Petromena’s restructuring discussions with the Loan Trustee in relation to the possibility of a refinancing to fund the completion of the construction of one or both of the rigs, and that such participation in some way gave rise to an obligation imposed upon DB not to sell its Bonds. That this was the substance of the claims was supported by the correspondence between the parties which was in evidence before me. The facts, whether as pleaded by Petromena in the Oslo proceedings, or asserted by its witness statements in the English proceedings, simply do not rely upon allegations that DB was acting pursuant to any form of agreement between the parties or that Petromena accepted any kind of offer from DB. Moreover, as Mr Handyside submitted, whilst the absence of consideration is not necessarily fatal to the engagement of Article 5.1, it is nonetheless relevant to the proper characterisation of the parties' relationship that DB was not to be paid for its alleged "services".[53]In conclusion, neither the formulation of Petromena’s claim in the Oslo proceedings, nor the evidence before this Court, in any way supports Petromena’s assertion that its claim falls to be characterised as one involving "matters relating to a contract". The mere fact that DB, in its claim form, sought to include a negative declaration that it had no liability in contract cannot, in my view, on its own bring the claim within Article 5.1.[54]Nor, contrary to Mr Wolfson's submissions, is this, in my judgment, a case where, on the case as pleaded in the Oslo proceedings, or as amplified in the evidence before me, there is any genuine parallel liability in both contract and in tort, such as that referred to by Briggs & Rees at paragraph 2.153 and quoted above. Whilst Briggs & Rees suggest, in the second limb of the passage cited that, in the context of negligent misstatement (such as was the case in Hedley Byrne), where there is "privity" - i.e. direct contact - between the advice-giver and advice-recipient, Article 5.1 is engaged, no authority is supported for the proposition, which was in effect the high watermark of Mr Wolfson's case in this context. Furthermore, apart from the absence of any pleading of an agreement between the parties, this was not a negligent misstatement case.[55]Petromena’s last-minute attempt to assert that it will seek to rely upon both alleged contractual, as well as tortious, claims in the Oslo proceedings cannot detract from the fact that, at the time the English court was first seised, Petromena’s claims were fairly and squarely grounded in tort. Whilst I accept (without deciding the point) that this is not ultimately determinative, it nonetheless is a factor which I have relied upon in reaching my conclusion.

Article 5.1 - place of performance of the obligation in question

[56]But, even on the assumption that I were wrong in reaching the conclusion that Article 5.1 was not engaged, I accept Mr Handyside's alternate submission that, for the purposes of Article 5.1, the place where the services were provided under the "contract" alleged by Petromena was England.[57]The case of Wood Floor Solutions, relied upon by DB, establishes inter alia the following propositions relevant to the identification of the place where services are deemed to have been provided: i) that where there were several places in different member states for the delivery of services, the "place of performance" must be understood as being the place with the closest linking factor between the contract and the court having jurisdiction; see paragraph 22 and paragraphs 31-33 of the judgment; ii) that, in accordance with the objectivesofproximity and predictability established by the Convention, the court within the jurisdiction of which the place of the main provision of services was situated was, as a general rule, the one which had jurisdiction to hear and determine all the claims arising from the contract; see paragraphs 31-33; iii) that, so far as possible, the place for the main provision of services was to be deduced from the provisions of the contract itself; see paragraph 38; iv) that, if the terms of the contract did not enable the place of the main provision of services to be determined, either because they provided for several places where services were to be provided, or because they did not expressly provide for any specific place where such services were to be provided, it was appropriate, in the alternative, to take account of the place where the service provider had in fact for the most part carried out his activities in the performance of the contract, provided that the provision of services in that place was not contrary to the parties' intentions as they appeared from the provisions of the contract; for that purpose, the factual aspects of the case might be taken into consideration, in particular, the time spent in those places and the importance of the activities carried out there; and it was for the national court seised to determine whether it had jurisdiction in the light of the evidence submitted to it; see paragraph 40; v) that, if the place for the main provision of services could not be determined on the basis of the provisions of the contract itself, or on the basis of its actual performance, the place must be identified by another means which respected the objectives of predictability and proximity of the Convention; in those circumstances it was necessary to consider, as the place of the main provision of the services provided, the place where the agent was domiciled; that place could always be identified with certainty and was therefore predictable; moreover it had a link of proximity with the dispute since the agent would in all likelihood provide a substantial part of the services there; see paragraphs 41-42.[58]Since there is no evidence of any contract having been concluded in the present case, nor of any term prescribing where performance is to take place, the provisions of the contract provide no assistance in this respect. What the evidence before this Court does clearly show, however, is that the place where DB for the most part carried out its activities in relation to the matters in issue in the proceedings was London. The relevant DB employees spent the overwhelming majority of their time in London, and carried out nearly all of their activities there. I accept Mr Handyside's submission that it is immaterial that Petromena may have received DB’s alleged "advice" in Norway. The focus, according to Wood Floor Solutions, is where the relevant work was done by the provider of the service. The location of the recipient of the service is insignificant.[59]Accordingly, even if, contrary to my primary conclusion, DB's claim is to be characterised as raising "matters relating to a contract" for the purposes of Article 5.1, I conclude that the English court has special jurisdiction over the claim pursuant to the second indent of Article 5.1 (b).

Article 5.3 "matters relating to tort, delict or quasi-delict"

[60]It necessarily follows from my conclusion in relation to Article 5.1 that both DB's claim for negative declaration and Petromena’s claims in the Oslo proceedings fall within Article 5.3 - there can, in my view, be no doubt that they are claims in tort/delict.[61]The issue which arises for the court's determination is whether, for the purposes of Article 5.3, DB can establish that England is "the place where the harmful event occurred", so as to engage the jurisdiction of the English court. It was common ground that these words had an autonomous European meaning.[62]It was also common ground that, in the light of Bier, a claimant was entitled to choose to sue either(a) in the courts for the place where the damage occurred; or(b) in the courts for the place of the event giving rise to the damage; see Briggs & Rees, paragraph 2.183. There was no question here of Petromena having suffered any damage in England, and thus the debate in the evidence as to where Petromena had in fact allegedly suffered damage was irrelevant. There was thus no issue as to whether the first limb of Bier was engaged - it demonstrably was not. The issue for the court's determination was whether DB could successfully argue that the second limb was engaged and that England was the place where the event giving rise to the damage had (allegedly) occurred.[63]The first factor which I take into account is that, in its writ in the Oslo proceedings, Petromena clearly alleges that DB renders its services from London; see, for example, paragraphs 5.2 and 5.4.2 of the writ. The second factor which I take into account is that, on my reading of the relevant e-mail correspondence in evidence before me, it is obvious that all communications from DB formally emanated from DB London, irrespective of where the sender of the particular e-mail was on the particular date; for example, the summary of the indicative term sheet in relation to DB’s proposed underwriting of a new $100 million bond, appended to Mr Wohlin's e-mail dated 20 January 2009, (in addition to stating that the indicative term sheet was "intended for information and discussion purposes only and is not an offer, advice, recommendation or commitment of any kind") made it absolutely clear that the proposal was one emanating from DB London and that the term sheet was "not intended to, and shall not give rise to, any legally binding obligations on the part of Deutsche Bank AG, London branch and/or its affiliates" and that it should be governed by and construed in accordance with English law.[64]None of the cases relied upon by Mr Wolfson persuaded me that England was not the place where the event giving rise to the damage had (allegedly) occurred, even applying the standard that DB had to demonstrate that it had the much better argument than Petromena on the material before the court.[65]Mr Wolfson submitted that, where the damage occurred in more than country, the courts of each country might have Article 5.3 jurisdiction under the first limb of Bier; but, under the second limb of Bier, where the events giving rise to the damage were spread across state borders, the damage caused would be held to be localised in a single state which alone would have Article 5.3 jurisdiction, and that a "centre of gravity approach" would be applied to identify the relevant state with jurisdiction. On the other hand, Mr Handyside submitted that none of the cases established that, under the second limb of Bier, only one court could have jurisdiction. I do not consider that, for the purposes of this application, it is necessary for me to resolve this issue of European law. On either basis, the cases relied upon by both counsel support the proposition that, in the particular circumstances of this case, the events giving rise to the damage, for the purposes of the second limb of Bier, occurred in England.[66]Thus: i) In Shevill v. Presse Alliance SA the Court of

Justice held that:

“In the case of a libel by a newspaper article distributed in several Contracting States, the place of the event giving rise to the damage, within the meaning of those judgments, can only be the place where the publisher of the newspaper in question is established, since that is the place where the harmful event originated and from which the libel was issued and put into circulation.”; see paragraph 24 of the judgment. ii) In Dumez France SA the Court of Justice said at paragraph 17: “It is only by way of exception to the general rule whereby jurisdiction is attributed to the courts of the defendant's domicile that Title II, 2, attributes special jurisdiction in certain cases, including the case envisaged by Article 5.3 of the Convention. As the court has already held ([Bier] paragraphs 10 and 11), those cases of special jurisdiction, the choice of which is a matter for the plaintiff, are based on the existence of a particularly close connecting factor between the dispute and courts other than those of the defendant’s domicile, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings." iii) In Domicrest v Swiss Bank Corpn [1999] QB 548 Rix J (as he then was) held at page 567 H: “Applying that formula, it seems to me that the place where the harmful event giving rise to the damage occurs in a case of negligent mis-statement is, by analogy with the talk of defamation, where the mis-statement originates. It is there that the negligence, even if not every element of the tort, is likely to take place; and for that and other reasons the place from which the myths-statement is put into circulation is as good a place in which to plant jurisdiction as the place where the miss-statement is acted on, even if receipt of alarms are essential parts of the tort. For these purposes it seems to me that there is no difference between a written document and or other instantaneous communication sufficient to distinguish between such cases.”
He then went on to state what I have quoted above when rehearsing Mr Handyside's submissions. iv) I am satisfied that, consistent with the above authorities, the events giving rise to the damage, for the purposes of the second limb of Bier, occurred in England. The allegedly "harmful events" clearly originated there. If indeed DB London had been subjected to obligations of loyalty, or to take reasonable care, or was subject to restrictions on its activities pursuant to the Norwegian Securities Trading Act, such that its ability to demand an acceleration of repayment of the Bonds, or its ability to sell the Bonds to Seadrill, was restricted, those obligations and restrictions would necessarily have to have taken effect in England. There is no doubt in my mind that "the centre of gravity" of DB London's operations, activities and alleged breaches of duty, which have given rise to Petromena's claims, was London. Likewise there is no doubt in my mind that the court having a ‘particularly close connection’ to the case is the English court: see Martin Peters at [11]. I accordingly conclude that the place where in substance the events giving rise to the damage had occurred was in England.

Article 23 - the exclusive jurisdiction clause in the Loan Agreement

[67]I accept Mr Handyside's submission that the exclusive jurisdiction clause in the Loan Agreement has no relevance to the present dispute. The current dispute does not relate to anything arising out of or in connection with the Loan Agreement. There is nothing in the formulation of Petromena's claims in the Oslo writ, or as amplified in the English proceedings, which suggests that DB's alleged breaches of duty are in contravention of, or amount to breaches under, the provisions of the Loan Agreement. Rather, the causes of action asserted by Petromena are founded on an allegation that DB assumed the role of an adviser to Petromena, in addition to the former's role as bondholder. As Mr Handyside submitted, the words "arising out of or in connection with" in the jurisdiction clause must be construed as subject to some sort of limitation.[68]Accordingly I reject Petromena's argument based on the exclusive jurisdiction clause in the Loan Agreement.

Petromena’s contention that the Norwegian Courts have jurisdiction under Article 5.3 was wrong

[69]I do not consider that it is appropriate for me to rule upon the issue as to whether the Norwegian Courts have any jurisdiction. That is a matter exclusively for the jurisdiction of those courts. Accordingly I do not address Mr Handyside's submissions in relation to this issue further.

Disposition

[70]It follows that I dismiss Petromena's application for a declaration that the English court has no jurisdiction to hear this claim.

Cited in 1 later judgment