‘carried out convergent actions aimed to attribute to Eni and Shell companies the 50% each of the exploration rights on block 245 in Nigeria as return for the payment of the sum of$1,092,040,000 in favor of Malabu company (referable to Dan Etete) alleged owner of the rights on the block 245, being agreed, in course of the negotiations for the purchase of the block, that such amounts, net of the sums retained by the said Etete (about$300 million used by Dan Etete for his own benefit and for the benefit of several other beneficiaries in order to purchase real estate properties, airplanes, armored cars, etc.) were destined, as confirmed in fact, to the remuneration: ➢ of Goodluck Jonathan, President of Nigeria, and of other members of the Nigerian government holding the offices at the time – specifically the Minister of Oil Diezani Alison Madueke and the [Attorney General], Muhammed Adoke Bello ➢ of other Nigerian public officials such as the National Security Advisor Aliyu Gusau … ➢ of the former [Attorney General] Christopher Bajo Oyo (sic), for his role in the rearrangement of the OPL 245 license to Malabu on November 30th, 2006 and the following activity as ‘advisor’ ➢ and in part retained by intermediaries and in part paid back in favor of Eni’s and Shell’s directors …’
‘By way of summary, the FRN’s claims arise out of the purported acquisition by a Shell/Eni consortium in 2011 of an oil exploration licence known as OPL 245, previously owned by Malabu. That acquisition was, as more particularly set out below, part of a fraudulent and corrupt scheme (referred to in shorthand as the ‘Scheme’) that involved the payment of bribes (via Malabu, EVP and [International Legal Consulting Ltd (‘ILCL’)] to corrupt FRN officials and former officials. Shell and Eni knew of, participated in and assisted in the Scheme. It is the FRN’s case that the Scheme also involved (or at least intended) the payment of bribes (via Malabu, EVP and ILCL) to Shell and/or Eni executives.’
‘Article 29. 1. Without prejudice to Article 31(2), where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. 2. In cases referred to in paragraph 1, upon request by a court seised of the dispute, any other court seised shall without delay inform the former court of the date when it was seised in accordance with Article 32. 3. Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court. Article 30. 1. Where related actions are pending in the courts of different Member States, any court other than the court first seised may stay its proceedings. 2. Where the action in the court first seised is pending at first instance, any other court may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof. 3. For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.’
‘(i) The phrase “same cause of action” in Article [29] has an independent and autonomous meaning as a matter of European law; it is therefore not to be interpreted according to the criteria of national law: see Gubisch at para. 11. (ii) In order for proceedings to involve the same cause of action they must have ‘le même objet et la même cause’
“The expression “legal rule” or “rule of law” appears to mean the juridical basis upon which arguments as to the facts will take place so that, in investigating “cause” the court looks at the basic facts (whether in dispute or not) and the basic claimed rights and obligations of the parties to see if there is coincidence between them in the actions in different countries, making due allowance for the specific form that proceedings may take in one national court with different classifications of rights and obligations from those in a different national court.” (iv) Identity of objet means that the proceedings in each jurisdiction have the same end in view: see The Tatry at para. 41, Gantner Electronic GmbH v BaschExploitatie Maatschappij BV (Case C111/01)[2003] ECR I-4207 at para 25, Primacom at para. 42 and Sinco at para. 24. (v) The assessment of identity of cause and identity of object is to be made by reference only to the claims in each action and not to the defences to those claims: see Gantner at paras 24-32, where the CJEU said this in relation to Article 21 of the Brussels Convention: “… in order to determine whether two claims brought between the same parties before the courts of different Contracting States have the same subject-matter, account should be taken only of the claims of the respective applicants, to the exclusion of the defence submissions raised by a defendant.”
‘… on a proper construction ofArticle 21 of the Convention , where two actions involve the same cause of action and some but not all of the parties to the second action are the same as the parties to the action commenced earlier in another contracting state, the second court seised is required to decline jurisdiction only to the extent to which the parties to the proceedings before it are also parties to the action previously commenced; it does not prevent the proceedings from continuing between the other parties.’
‘It appears to us that, in the language of the European Court of Justice, the same facts and rule of law form the basis of each proceedings. Although in England the plaintiffs are asserting that the same underlying agreement gave rise to different legal consequences from which different obligations and, therefore, different legal remedies flowed, the cause would appear to be the same in both countries.’
‘Accordingly, it appears that art 21 can apply to proceedings in part, and that art 22 may be applicable to a part of proceedings to which art 21 is not applicable. Although The Tatry was concerned with proceedings which involved different parties, I would infer that the same principle – that art 21 can apply to proceedings in part – can also apply where proceedings involve different claims. If some of the claims brought in the different proceedings were based on the same cause of action and had the same subject matter, but other claims did not, then art 21 would be engaged in respect of the former, but not in respect of the latter. In those circumstances, it appears to me that the court second seised would have to decline jurisdiction under art 21 in respect of the former claims only, although it would have to consider whether art 22 should also lead it to dismiss the latter claims (on the basis that there would be consolidation in the first court), or to assist its proceedings in order to await the outcome of the proceedings in the court first seised. I note that a similar view was expressed in The Tatry by Advocate General Tesauro, at para 18 of his opinion.’
“It is necessary to enable the Court to fulfil its own obligations to ensure fair process underArticle 6 of the European Convention on Human Rights . It is the necessary corollary of the Court being prepared to depart from the principle that it will hear both sides before reaching a decision, which is a basic principle of fairness. Derogation from that basic principle is an exceptional course adopted in cases of extreme urgency or the need for secrecy. If the court is to adopt that procedure where justice so requires, it must be able to rely on the party who appears alone to present the evidence and argument in a way which is not merely designed to promote its own interests, but in a fair and even-handed manner, drawing attention to evidence and arguments which it can reasonably anticipate the absent party would wish to make. It is a duty owed to the court which exists in order to ensure the integrity of the court’s process.”
‘… the court should not consider the supporting affidavit as though it were marking an examination paper, deciding one way or the other merely on the basis of the extent to which the affidavit could have been improved. The primary question should be whether in all the circumstances the effect of the affidavit is such as to mislead the court in any material respect concerning its jurisdiction and the discretion under the rule.’
‘[180] On an application without notice the duty of the applicant is to make a full and fair disclosure of all the material facts, ie those which it is material (in the objective sense) for the judge to know in dealing with the application as made: materiality is to be decided by the court and not by the assessment of the applicant or his legal advisers; the duty is a strict one and includes not merely material facts known to the applicant but also additional facts which he would have known if he had made proper enquiries: Brink’s Mat Ltd v Elcombe[1988] 1 WLR 1350 , 13561357. But an applicant does not have a duty to disclose points against him which have not been raised by the other side and in respect of which there is no reason to anticipate that the other side would raise such points if it were present. [181] These principles have long been applied to applications for permission to serve out of the jurisdiction: see e.g. The Hagen[1908] P 189 , 201. In that context it has been held that it would not be reasonable to expect an applicant for permission to serve out to anticipate all the arguments or points which might be raised against his case: see Electric Furnace Co v Selas Corpn of America[1987] RPC 23 , 29. A failure to refer to arguments on the merits which the defendant might raise at trial should not generally be characterised as a “failure to make full and fair disclosure”, unless they are of such weight that their omission may mislead the court in exercising its jurisdiction under the rule and its discretion whether or not to grant permission: BP Exploration Co (Libya) Ltd v Hunt[1976] 1 WLR 788 , 788-789, approved in the Electric Furnace case[1987] RPC 23 , 29.’