“It does not follow that a claim for a breach of a separate contract can never arise in connection with the contract in which the clause is contained”
“[67] Over the next few days [which appears, from its context, to be a reference to the days after 20/21 April], [Etihad] and KPMG continued to discuss the financing commitment. In the course of these discussions, [Etihad] suddenly announced that it would only approve a loan for EUR 350 million instead of the EUR 610 million loan that was discussed initially. KPMG subsequently informed [Etihad] that this would require a comprehensive commitment to provide future financial support to Air Berlin in order to attain a positive going concern prognosis for Air Berlin.”
“Non exercise of put options regarding the EUR 125 million 8.5% Guaranteed Convertible Bonds 2017-2019 issued by Air Berlin Finance B.V. and guaranteed by Air Berlin PLC due6 March 2019 with a bondholder put option on29 December 2017 .”
“If the parties have confidence in their chosen jurisdiction for one purpose, why should they not have confidence in it for the other?”
“… one should be slow to attribute to reasonable parties an intention that there should in any foreseeable eventuality be two sets of proceedings. If the parties have confidence in their chosen jurisdiction for one purpose, why should they not have confidence in it for the other? Why, having chosen their jurisdiction for one purpose, should they leave the question which court is to have jurisdiction for the other purpose unspoken, with all the risks that this may give rise to? For them, everything is to be gained by avoiding litigation in two different jurisdictions.”
“[69] In the light of that purpose, the referring court must, in particular, regard a clause which abstractly refers to all disputes arising from contractual relationships as not extending to a dispute relating to the tortious liability that one party allegedly incurred as a result of its participation in an unlawful cartel. [70] Given that the undertaking which suffered the loss could not reasonably foresee such litigation at the time that it agreed to the jurisdiction clause and that that undertaking had no knowledge of the unlawful cartel at that time, such litigation cannot be regarded as stemming from a contractual relationship. Such a clause would not therefore have validly derogated from the referring court’s jurisdiction.”
“[71] By contrast, where a clause refers to disputes in connection with a liability incurred as a result of an infringement of competition law and designates the courts of a Member State other than the Member State of the referring court, the latter ought to decline its own jurisdiction, even where that clause entails disregarding the special rules of jurisdiction laid down in Articles 5 and/or 6 of Regulation No 44/2001.”
“Our commitment is evidenced by our historic support through loans and support on obtaining financing for Air Berlin”
“On this point a jurisdiction clause appearing in the articles of association of a company fulfils this requirement where it covers disputes which have arisen or which may arise in connection with relationships between the company and its shareholders as such.”
“2. Without prejudice to Article 26, where a court of a Member State on which an agreement as referred to in Article 25 confers exclusive jurisdiction is seised, any court of another Member State shall stay the proceedings until such time as the court seised on the basis of the agreement declares that it has no jurisdiction under the agreement.”
“Principle suggests that a finance party may rely on Article 31 (2) in such a case. Such asymmetric agreements, although nonexclusive for the benefit of the ‘beneficiary’ under the clause are exclusive against a counterparty. Article 31 (2) should therefore engage if a counterparty brings proceedings other than in the designated court in breach of its promise to sue only in that court.”
“This court adopts Prof. Fentiman’s theory. There is no reason to avoid applying art. 31.2 to asymmetric clauses, provided that they confer exclusive jurisdiction (which is what the wording of the statute requires), even if it is only in the event that a suit is brought by one of the parties, and the conferral is non-exclusive for the other. If proceedings have been instituted where the conferral of exclusive jurisdiction may have been violated, article 25 applies, as well as art. 31.2; In fact, in this case it may make even more sense to apply the rule so that one of the courts before which complaints dealing with the same issue have been filed may rule first, and to prevent contradictory rulings, which is ultimately what is sought to be avoided. It also makes perfect sense for the “designated” court, i.e., the one that could have exclusive jurisdiction depending on the jurisdiction conferral agreement having a disputed meaning, to, in such case, settle the issue first, especially when the law governing the clause and its interpretation is its national law, as in the case at hand here.”
“He was plainly right not to do so. So far as article 31.2 is concerned, there is, as it seems to me, good commercial reason to focus upon the question whether party seeking to bring proceedings in a court of “another member state” has agreed that the dispute in question is to be subject to the exclusive jurisdiction of a court or the courts of another member state. Nothing in article 31.2 requires that the party relying upon the exclusive jurisdiction clause must itself be under a symmetrical obligation. In those circumstances, I did not call upon Mr Scott to respond to what was said in relation to this suggested proviso.”
“62. There is no warrant, in my judgment, for giving Article 29 of Brussels 1 Recast primacy and treating Article 31(2)as somehow an exception to it. Nor is there any warrant for giving Article 31(2)a narrow meaning. Whatever may have been the legislative history of the first-seized rule in the Brussels Convention and Brussels 1, there is nothing in Brussels 1 Recast indicating this approach. In my view, ordinary principles apply and both articles should be read together and given effect according to their language and purpose. 63. On its face Article 29 (1) is without prejudice to Article 31(2), which can only mean that Article 29 (1) gives way to Article 31 (2)when the latter applies. A similar result obtains with Article 31(2)itself, which is without prejudice to Article 26: generally speaking, if a defendant enters an appearance before a court of a Member State, under Article 26 that court shall have jurisdiction even though an agreement confers exclusive jurisdiction on another court. While "subject to" is used elsewhere in the Regulation to achieve the effect that one article takes precedence over another, the terms "without prejudice to" and "subject to" are to my mind equivalent in the outcome they produce. 64. The natural meaning of the words in Article 31(2)- "an agreement [which] confers exclusive jurisdiction"- to my mind includes asymmetric jurisdiction clauses such as those in the various agreements in this case between the Bank and the defendants. Considered as a whole, they are agreements conferring exclusive jurisdiction on the courts of an EU member state, namely, England. That this applies in respect of a claim by the defendants alone does not detract from this effect. 65. Case 25/78, Nikolaus Meeth v. Glacetal Sarl[1979] CMLR 520 was decided under the first paragraph of Article 17 of the Brussels Convention (the predecessor of Article 25 in Brussels 1 Recast). The case involved a French party and a German party. There the jurisdiction clause provided that if Meeth sued Glacetal, the French court alone had jurisdiction, while if Glacetal sued Meeth, the German courts alone had jurisdiction. 66. The ECJ held that the first paragraph of Article 17 could not be interpreted as having no application to a clause under which two parties to a contract, domiciled in different states, could be sued only in the courts of their respective states. In effect it was an exclusive jurisdiction clause even though which court had exclusive jurisdiction turned on which party sued. 67. For our purposes the reasoning of the ECJ is important: an agreement such as the one it was considering, designating the courts of two states, could still be regarded under the first paragraph of Article 17 as one where a court or courts "of one Contracting State" had "exclusive jurisdiction". The court said: "That wording [of Article 17], which is based on the most widespread business practice, cannot, however, be interpreted as intending to exclude the right of the parties to agree on two or more courts for the purpose of settling any disputes which may arise…[I]t excludes, in relations between the parties, other optional attributions of jurisdiction, such as those detailed [elsewhere in the Convention].” 68. To my mind the case provides further support for the view that where a clause confers exclusive jurisdiction on the court or courts of a Member State when one party sues, the clause will still be an exclusive jurisdiction clause for the purposes of Article 31(2)even where, if the other party to the clause sues, the clause shows the parties to have agreed that jurisdiction is to be conferred differently, or allowed to engage differently. 69. The conclusion that an asymmetric jurisdiction clause cannot be treated as non-exclusive under Brussels 1 Recast is also consistent with the Regulation's aims. There is the aim of party autonomy in Recital 19, although that may be counterbalanced by the aims in Recital 21 of avoiding concurrent proceedings and irreconcilable judgments. But Recital 22, which is the specific background to Article 31(2), is clear: there needs to be an exception to the general lis pendens rule to enhance the effectiveness of exclusive choice of court agreements and to avoid abusive tactics. 70. Thus with the asymmetric jurisdiction clauses in the present case, the defendants agreed to sue only in the courts of one EU Member State, England. Instead, they have enabled another court, the Greek court, to be seized of the matter. It would undermine the agreements of the parties, and foster abusive tactics, if the jurisdiction clauses in these agreements were to be treated not as exclusive, but as non-exclusive. 71. The Hague Convention, in my view, offers no assistance in the characterisation of asymmetric jurisdiction clauses under Article 31(2)of Brussels 1 Recast. There is no reference to the Hague Convention in Brussels 1 Recast, although the drafting of both occurred in tandem and Council Decision 2014/887/EU referred to ensuring coherence between the rules of the EU on the choice of court in civil and commercial matters and those of the Hague Convention. 72. While there is an overlap between the two instruments, however, there are important divergences. Thus there are differences between the two in the formal requirements for exclusive jurisdiction clauses, the Hague Convention in Article 3(c) requiring writing or an accessible form, Brussels 1 Recast in Article 25 allowing agreements to be established on a wider basis, through the practices of the parties or by commercial usage. 73. Further, there is a definition of exclusive jurisdiction clauses in Article 3(a) of the Hague Convention, whereas there is no definition in Brussels 1 Recast. The reporters record that the Diplomatic Session adopting the Hague Convention accepted that the definition in Article 3(a) did not extend to asymmetric jurisdiction clauses, something the reporters themselves do not seem to have regarded as clear. 74. There are good arguments in my view that the words of the definition of exclusive jurisdiction clauses in Article 3(a) of the Hague Convention cover asymmetric jurisdiction clauses. For present purposes, however, there is no need to reach a concluded view on the ambit of the definition. Even if it were to be read as excluding asymmetric jurisdiction clauses, however, that in my view is of no assistance as to the quite separate issue of their characterisation under Article 31(2)of Brussels 1 Recast. 75. There is nothing in my view to Liquimar's submission that the English actions are not brought in this court pursuant to any exclusive jurisdiction agreement or that the exclusive element of such a clause only governs proceedings in Greece. The fact is that the clause confers exclusive jurisdiction on the English court when the defendants sue, they have instituted proceedings elsewhere, and that is why the English actions are being pursued. 76. Nor do I give credence to the argument that characterising asymmetric jurisdiction clauses as conferring exclusive jurisdiction gives rise to unacceptable anomalies. Even if under an asymmetric jurisdiction clause a borrower could deprive a Bank of its right to sue in any competent court by starting proceedings in England, the designated jurisdiction, it would be even more anomalous if Liquimar is correct and by starting proceedings elsewhere than England in breach of what it agreed the borrower could cause proceedings by the Bank in the designated jurisdiction, namely England, to be stayed.” "That wording [of Article 17], which is based on the most widespread business practice, cannot, however, be interpreted as intending to exclude the right of the parties to agree on two or more courts for the purpose of settling any disputes which may arise…[I]t excludes, in relations between the parties, other optional attributions of jurisdiction, such as those detailed [elsewhere in the Convention].”
“So far as the High Court is concerned, puisne judges are not technically bound by decisions of their peers, but they should generally follow a decision of a court of co-ordinate jurisdiction unless there is a powerful reason for not doing so.”
“In an asymmetric agreement, the borrower has promised not to sue anywhere other than the chosen jurisdiction. The question of whether the other party did or did not agree to do the same does not arise when the bank is seeking to enforce the agreement and should be irrelevant. Thus, the point is not so much that “considered as a whole” [asymmetric agreements] are agreements conferring exclusive jurisdiction, as the judge put it in Commerzbank. Rather, each obligation can be considered on its own; the clause includes a promise by the borrower not to sue in any jurisdiction and that promise is capable of being protected by Article 31(2). Each different obligation necessarily falls to be considered separately and the fact that the bank is not under a similar obligation is neither here nor there.”
“Does the first paragraph ofArticle 17 of the Convention permit an agreement under which the two parties to a contract for sale, who are domiciled in different States, can be sued only in the courts of their respective states”
“… it can be recognised that the parties to a contract may stipulate that the courts of two States shall have jurisdiction to settle disputes arising from that contract, provided that each jurisdiction is restricted to a specified class of dispute. In short, there is nothing to preclude the parties, instead of treating all disputes which could arise from their contract as a whole, from dividing them into two or more groups in accordance with criteria which they are free to establish and prescribing the courts of a different State for each group. This is not common but there are no grounds for considering it unlawful.”
“Accordingly, it is merely superfluous to point out that the choice expressed in the clause is fully in accordance with the general system of the Convention: the courts specified are those of the defendant’s country of domicile, as is provided in the first paragraph of Article 2. The only effect of the clause is thus that the jurisdiction based on domicile is rendered exclusive.”
“[5] According to the first paragraph of Article 17 ‘if the parties… have agreed that a court or the courts of a Contracting State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have exclusive jurisdiction’. With regard to an agreement conferring reciprocal jurisdiction in the form in which it appears in the contract whose implementation forms the subject-matter of the dispute, the interpretation of that provision gives rise to difficulty because of the fact that Article 17, as it is worded, refers to the choice by the parties to the contract of a single court of the courts of a single State. That wording, which is based on the most widespread business practice, cannot, however, be interpreted as intending to exclude the right of the parties to agree on two or more courts for the purpose of settling any disputes which may arise. This interpretation is justified on the ground that Article 17 is based on a recognition of the independent will of the parties to a contract in deciding which courts are to have jurisdiction to settle disputes falling within the scope of the Convention, other than those which are expressly excluded pursuant to the second paragraph of Article 17. This applies particularly where the parties have by such an agreement reciprocally conferred jurisdiction on the courts specified in the general rule laid down byArticle 2 of the Convention . Although such an agreement coincides with the scope of Article 2 it is nevertheless effective in that it excludes, in relations between the parties, other optional attributions of jurisdiction, such as those detailed in Article 5 and 6 of the Convention.”
“It is debatable whether [Article 31(2)] can be applied, in terms or by analogy, to other [non-exclusive] jurisdiction clauses, such as clauses for the benefit of only one of the parties. Though there may be reasons to accept this from a policy perspective, the wording of the provision limits its application to those agreements which confer exclusive jurisdiction simpliciter.”
“[14] SinceArticle 14 of the Convention embodies the principle of the parties’ autonomy to determine the court or courts with jurisdiction, the third paragraph of that provision must be interpreted in such a way as to respect the parties’ common intention when the contract was concluded. The common intention was to confer an advantage on one of the parties must therefore be clear from the terms of the jurisdiction clause or from all the evidence to be found therein or from the circumstances in which the contract was concluded.”
“… means an agreement concluded by two or more parties that … designates, for the purpose of deciding disputes which have arisen or may arise in connection with a particular legal relationship, the courts of one Contracting State or one or more specific courts of one Contracting State to the exclusion of the jurisdiction of any other courts.”