The Public Institution for Social Security v Al Rajaan & Ors [2020] EWHC 2979 (Comm)

“The relationship between the Bank and the Client shall be governed exclusively by Swiss law. Any dispute concerning the relationship between the Bank and the Client shall be subject to the exclusive jurisdiction of the Courts of Geneva. An appeal to the Federal Supreme Court of Switzerland is reserved. The place of execution, of jurisdiction, and the place of any debt collection procedures shall be Geneva. The Bank shall nonetheless be entitled to initiate proceedings in the jurisdiction of domicile of the Client or in any other competent jurisdiction.”

“The contractual relationship between the Client and the Bank is subject to Swiss law and is governed by the Global Custody Agreement as well as the Bank’s General Business Conditions (including their subsequent modifications, if any). The Client declares that he expressly agrees to the provisions contained therein. Any dispute concerning the relationship between the Bank and the Client shall be subject to the exclusive jurisdiction of the Courts of Geneva. An appeal to the Federal Supreme Court of Switzerland is reserved. The place of execution, of jurisdiction, and the place of any debt collection procedures shall be Geneva. The Bank shall nonetheless be entitled to initiate proceedings in the jurisdiction of domicile of the Client or in any other competent jurisdiction.”

“Article 1 – Scope These General Business Conditions shall govern the legal relationship between Pictet & Cie (hereinafter “the Bank”) and its Clients. They shall govern existing business relationships upon their taking effect, as well as relationships established thereafter. They shall remain valid regardless of any other standard contractual forms or equivalent documents that the Client may have signed. Further, these General Business Conditions shall remain subject to: – particular agreements entered into between the Bank and the Client; – framework or master agreements among Swiss banks or with foreign banks; – standard practices in certain areas of business, namely stock exchange transactions and matters handled through correspondents in other countries. Article 34 – Governing law The relationship between the Bank and the Client shall be governed exclusively by Swiss law. Article 35 – Place of jurisdiction Any dispute concerning the relationship between the Bank and the Client shall be subject to the exclusive jurisdiction of the Courts of Geneva. An appeal to the Federal Supreme Court of Switzerland is reserved. The place of execution, jurisdiction, and the place of debt collection procedures shall be Geneva. The Bank shall nonetheless be entitled to initiate proceedings in the jurisdiction of domicile of the Client or in any other competent jurisdiction.”

“Article 1 – Scope These General Business Conditions (hereinafter the “General Business Conditions”) govern the legal relationship between Banque Pictet & Cie SA (hereinafter the “Bank”) and the Client. They govern existing business relationships upon their taking effect, as well as relationships established thereafter. These General Business Conditions remain valid even if the Client signs other standard contract forms or other similar documents. Further, these General Business Conditions remain subject to: – particular agreements entered into between the Bank and the Client; – framework or master agreements among Swiss banks or with foreign banks; – standard practices in certain areas of business, asset classes and/or in certain jurisdictions, especially stock exchange transactions and matters handled through correspondents in other countries. … Applicable law The relationship between the Bank and the Client is governed exclusively by Swiss law. Place of jurisdiction Any dispute concerning the relationship between the Bank and the Client is subject to the exclusive jurisdiction of the Courts of Geneva. An appeal to the Federal Supreme Court of Switzerland is reserved. The place of performance, the place of debt collection procedures and the place of enforcement is Geneva. The Bank is nonetheless entitled to initiate proceedings in the jurisdiction of domicile of the Client or in any other competent jurisdiction.”

“This account is subject to the provisions of Luxembourg law and governed by the General Business Conditions laid down by the Banque Pictet (Luxembourg) S.A., which are appended to this application form. The undersigned corporate entity hereby declares that due note has been taken of the General Business Conditions referred to above and, by signing, has approved them.”

“Article 1 – Scope “These General Business Conditions govern the contractual relations between: – Pictet & Cie (Europe) S.A. (hereinafter, "the Bank"), licensed as a credit institution and subject to the supervision of the Luxembourg financial sector monitoring authority, i.e. the Commission de Surveillance du Secteur Financier, of L-1150 Luxembourg, 110, route d'Arlon and its Clients. They apply to business relationships in existence at the time of their coming into force and to business relationships created subsequently. They remain valid even if the Client signs other standard contract forms or other similar documents. Any subsequent amendments hereto shall also be binding upon the Client. The contractual relations between the Bank and the Client are also governed by: – particular agreements entered into between the Bank and the Client; – framework or general agreements concluded between Luxembourg banks or with foreign banks; – customary practices applicable to certain categories of business, especially transactions on the regulated markets or MTF (Multilateral Trading Facilities) and business handled by foreign correspondents” … Article 29 – Judicial competence “The courts of the Grand Duchy of Luxembourg shall have sole jurisdiction in any dispute between the Client and the Bank; however, the latter may initiate legal proceedings in any other jurisdiction(s) which, in the absence of the foregoing election of jurisdiction, would have normally exercised jurisdiction over the Client”

“These signatures are valid for all present and future relationship with the Bank. The entire contractual relationship between the client and Mirabaud & Co shall be governed by the Bank’s present and future General Terms and Conditions. … All legal aspects of the relationship between client and Bank shall be governed exclusively by Swiss law. Place of performance of all obligations of both parties, as well as the exclusive jurisdiction of lawsuits and any other kinds of legal proceedings shall be Geneva. The Bank may sue the client in any competent court at the domicile of the client or any other court having jurisdiction.”

“These General Terms and Conditions shall govern all of the contractual relations between Mirabaud & Cie (hereinafter “the Bank”) and its Clients, subject to any specific agreements and bank practices”. … Clause 19: “All relationships between the Client and the Bank shall be governed by and construed exclusively in accordance with Swiss law. Any disputes which might arise shall be brought exclusively before the Swiss courts at the place of the Bank's head office or the branch where the account was opened, subject to any appeal to the Swiss Federal Tribunal in the cases provided for by law. Nevertheless, the Bank reserves the right to commence proceedings before any other court or competent authority, whether in Switzerland or abroad, in particular before the courts in the place of domicile of the Client. In such case, Swiss law shall remain equally applicable.”

“It should follow that once the law governing the contract has been identified…it is that law which must be used to make the definitive assessment whether the jurisdiction agreement in question is in fact one of the terms of the contract”

“Where the Brussels I Regulation or the Lugano Convention is applicable to the jurisdiction agreement, it is not clear whether the question of incorporation is answered by sole reference to the rules governing formality, or is, or is also, regulated as a matter of substantive law by the lex contractus of the agreement into which it is alleged the term was incorporated. But if the second contract contains words which satisfy the “clear and specific” requirement of the common law, it is unlikely that the result will be different.” “Likewise, if it is contended that a jurisdiction agreement in one contract has been incorporated into another contract, it is not certain whether the issue for decision is one which is entirely governed by Art.23 or by the substantive law of the second contract. In principle, if the issue is understood as one which is essentially contractual in nature, recourse to the law governing the second contract, to identify its terms as including, or not, a jurisdiction agreement is appropriate. If instead the issue is not seen as an essentially contractual one, but is conceived as one which asks whether the party to be bound by it indicated his agreement to the jurisdiction of the particular court, the question is not one for a contractual governing law, but one which is to be determined by recourse only to the formal requirements set out in Art.23 itself. A practical solution may be to conclude that a test which asks whether the material before the court shown [sic] that the jurisdiction was accepted clearly and precisely by the party who is proposed to be held to it will satisfy whichever test is the correct one. In principle, if the agreement on jurisdiction is said to have been incorporated into the second contract, it must be shown that the formalities prescribed for the second contract, by Art.23, have been complied with. In practice, if they are satisfied, it is improbable that there is any further requirement which national law would impose.” 100. Mirabaud cites the following English authorities: i) In Knauf UK GmbH v British Gypsum Ltd [2002] 1 WLR 907 § 61 the Court of Appeal expressly left open the question of whether “a jurisdiction agreement cannot be proved unless it is valid by its proper law as well as by the autonomous test of article 17”. ii) In Bols Distilleries BV v Superior Yacht Services Ltd [2007] 1 WLR 12 there was an issue between the parties as to whether an exclusive jurisdiction clause in favour of the courts of Gibraltar had in fact been agreed, and the Privy Council when determining that issue applied the national law governing the relationship, which was the law of Gibraltar (see in particular § 25). iii) In Africa Express Line Limited v Socofi SA & Plantations Dam SA [2009] EWHC 3223 (Comm) there was a dispute about whether the exclusive jurisdiction clause relied upon by the claimant was incorporated into the contract between the parties. Whilst Christopher Clarke J did not squarely address the legal issue of which law should be applied to determine this question, it appears from his judgment that in substance he regarded this as both an autonomous question and a question of national law (English law on the facts). iv) In JSC Aeroflot v Berezovsky & Ors [2013] EWCA Civ 784 the issue of which law governed the validity of a jurisdiction clause was considered by the Court of Appeal, the choice being between Swiss law and “an autonomous European law regime”

“25 A jurisdiction clause, which serves a procedural purpose, is governed by the provisions of the Convention, whose aim is to establish uniform rules of international jurisdiction. In contrast, the substantive provisions of the main contract in which that clause is incorporated, and likewise any dispute as to the validity of that contract, are governed by the lex causae determined by the private international law of the State of the court having jurisdiction. 26 Next, as the Court has consistently held, the objectives of the Convention include unification of the rules on jurisdiction of the Contracting States' courts, so as to avoid as far as possible the multiplication of the bases of jurisdiction in relation to one and the same legal relationship and to reinforce the legal protection available to persons established in the Community by, at the same time, allowing the plaintiff easily to identify the court before which he may bring an action and the defendant reasonably to foresee the court before which he may be sued (Case 38/81 Effer v Kantner [1982] ECR 825, paragraph 6, and Case C-125/92 Mulox IBC [1993] ECR I4075, paragraph 11). 27 It is also consonant with that aim of legal certainty that the court seised should be able readily to decide whether it has jurisdiction on the basis of the rules of the Convention, without having to consider the substance of the case. 28 The aim of securing legal certainty by making it possible reliably to foresee which court will have jurisdiction has been interpreted in connection with Article 17 of the Convention, which accords with the intentions of the parties to the contract and provides for exclusive jurisdiction by dispensing with any objective connection between the relationship in dispute and the court designated, by fixing strict conditions as to form (see, in this regard, Case C-106/95 MSG [1997] ECR I-0000, paragraph 34). 29 Article 17 of the Convention sets out to designate, clearly and precisely, a court in a Contracting State which is to have exclusive jurisdiction in accordance with the consensus formed between the parties, which is to be expressed in accordance with the strict requirements as to form laid down therein. The legal certainty which that provision seeks to secure could easily be jeopardized if one party to the contract could frustrate that rule of the Convention simply by claiming that the whole of the contract was void on grounds derived from the applicable substantive law.”

“For the sake of completeness I should like to deal briefly with the problem raised by this question of whether, if there is a validly agreed jurisdiction clause pursuant to Article 17, there should be "further examination, under the national substantive law which is applicable in accordance with the conflicts rules of the court hearing the case, of the question whether the jurisdiction clause is validly incorporated in the contract". In the context in which it is put, this question must be answered in the negative. Article 17 is intended to create independent and, therefore, uniform, law in its ambit of application. It conclusively sets out the requirements concerning substantive consensus and the forms necessary to safeguard those requirements. Consequently national provisions with the same function cannot be used simultaneously. The reply to the third question should be in these terms.”

“39. In such circumstances, to refer the assessment as to whether the sub-buyer may rely on a jurisdiction clause incorporated in the initial contract between the manufacturer and the first buyer to national law, as Refcomp and the German and Spanish Governments have suggested, would give rise to different outcomes among the Member States liable to compromise the aim of unifying the rules of jurisdiction pursued by the Regulation, as is clear from recital 2 in the preamble thereto. Such a reference to national law would also be an element of uncertainty incompatible with the concern to ensure the predictability of jurisdiction which is, as stated in recital 11 in the preamble to the Regulation, one of its objectives. 40 Therefore, it is appropriate to revert to the general rule, set out in paragraph 21 of the present judgment, according to which the concept of ‘jurisdiction clause’ referred to in that provision must be interpreted as an independent concept, and to give full effect to the principle of freedom of choice on which Article 23(1) of the Regulation is based.”

“[7] … In view of the consequences that such an option may have on the position of parties to the action, the requirements set out in article 17 governing the validity of clauses conferring jurisdiction must be strictly construed. By making such validity subject to the existence of an ‘agreement’ between the parties, article 17 imposes on the court before which the matter is brought the duty of examining, first, whether the clause conferring jurisdiction upon it was in fact the subject of a consensus between the parties, which must be clearly and precisely demonstrated. The purpose of the formal requirements imposed by article 17 is to ensure that the consensus between the parties is in fact established …” [8] The first question asks whether a clause conferring jurisdiction, which is included among general conditions of sale printed on the back of a contract signed by both parties, fulfils the requirement of a writing under the first paragraph of Article 17 of the Convention. [9] Taking into account what has been said above, it should be stated that the mere fact that a clause conferring jurisdiction is printed among the general conditions of one of the parties on the reverse of a contract drawn up on the commercial paper of that party does not of itself satisfy the requirements of Article 17, since no guarantee is thereby given that the other party has really consented to the clause waiving the normal rules of jurisdiction. It is otherwise in the case where the text of the contract signed by both parties itself contains an express reference to general conditions including a clause conferring jurisdiction. [10] Thus it should be answered that where a clause conferring jurisdiction is included among the general conditions of sale of one of the parties, printed on the back of a contract, the requirement of a writing under the first paragraph of Article 17 of the Convention is fulfilled only if the contract signed by both parties contains an express reference to those general conditions. [11] The second question asks whether the requirement of a writing under the first paragraph of Article 17 of the Convention is fulfilled if the parties expressly refer in the contract to a prior offer in writing in which reference was made to general conditions of sale including a clause conferring jurisdiction. [12] In principle, the requirement of a writing under the first paragraph of Article 17 is fulfilled if the parties have referred in the text of their contract to an offer in which reference was expressly made to general conditions including a clause conferring jurisdiction. This view of the matter, however, is valid only in the case of an express reference, which can be checked by a party exercising reasonable care, and only if it is established that the general conditions including the clause conferring jurisdiction have in fact been communicated to the other contracting party with the offer to which reference is made. But the requirement of a writing in Article 17 would not be fulfilled in the case of indirect or implied references to earlier correspondence, for that would not yield any certainty that the clause conferring jurisdiction was in fact part of the subject-matter of the contract properly so-called.”

“[30] From those decisions I derive the following. (1) Where the jurisdiction clause is included among the general conditions of sale of one of the parties, printed on the back of a contract, the requirement of art 23 is fulfilled only if the contract contains an express reference to those general conditions: see the Estasis Salotti case. (2) Where there is an express reference in the contract itself by way of incorporation of other written terms which include a clause conferring jurisdiction, art 23 is fulfilled even if the party signing did not have a copy of those conditions in their possession or readily available or did not understand what was incorporated: see the Crédit Suisse case [ Crédit Suisse Financial Products v. Société Générale d'Enterprises [1997] CLC 168, CA ]. (3) It is not necessary for there to be a specific reference to the jurisdiction clause itself for the requirements of art 23 to be fulfilled: see the 7E Communications case [ 7E Communications v. Vertex Antennentechnik GmbH [2007] EWCA Civ 140, [2007] 1 WLR 2175 ].”

“28. In the main proceedings, the clause conferring jurisdiction on the English courts is contained in the prospectus, a document produced by the bond issuer. It is not entirely clear from the order for reference whether that clause was included, or expressly referred to, in the contractual documents signed upon the issue of the bonds on the primary market. 29. The answer to the first part of the second question is therefore that, where a jurisdiction clause is included in a prospectus concerning the issue of bonds, the formal requirement laid down in article 23(1)(a) of Regulation No 44/2001 is met only if the contract signed by the parties upon the issue of the bonds on the primary market expressly mentions the acceptance of that clause or contains an express reference to that prospectus, which it is for the referring court to verify. 30. If so, it is also for the referring court to determine whether the contract signed by Redi and Profit upon the sale of the bonds on the secondary market also mentions the acceptance of that clause or contains such a reference. If that is the case, that clause must be regarded as enforceable against Profit. 31. It is only if that is not the case that the second part of the second question arises, namely whether a jurisdiction clause, validly agreed in the contract concluded between the issuer of a bond and the subscriber for that bond, may be enforceable against a third party who acquired that bond from that subscriber, without expressly consenting to that clause, and who has brought an action for damages against that issuer. … 37. … the answer to the second part of the second question is that article 23 of Regulation No 44/2001 must be interpreted as meaning that a jurisdiction clause contained in a prospectus produced by the bond issuer concerning the issue of bonds may be relied on against a third party who acquired those bonds from a financial intermediary if it is established, which it is for the referring to verify, that (i) that clause is valid in the relationship between the issuer and the financial intermediary, (ii) the third party, by acquiring those bonds on the secondary market, succeeded to the financial intermediary's rights and obligations attached to those bonds under the applicable national law, and (iii) the third party had the opportunity to acquaint himself with the prospectus containing that clause.”

“39. As regards a situation such as that at issue in the main proceedings, in which the jurisdiction clause is stipulated in the general conditions, the Court has already held that such a clause was lawful where the text of the contract signed by both parties itself contains an express reference to general conditions which include a jurisdiction clause (see, to that effect, judgments of 16 March 1999 in Castelletti [1999] I.L.Pr. 492, [13], and 20 April 2016 in Profit Investment SIM EU:C:2016:282, [26] and the case law cited). 40. This applies, however, only in case of an explicit reference, which can be controlled by a party applying normal diligence and where it is established that the general conditions containing the jurisdiction clause was actually communicated to the other contracting party (see, to that effect, judgment of 14 December 1976 in Estasis Salotti di Colzani Aimo et Gianmario Colzani v. RÜWA Polstereimaschinen GmbH (24/76) [1976] E.C.R. 1831; [1977] 1 C.M.L.R. 345, [12] ). 41. In the present case, it is apparent from the decision to refer that the jurisdiction clause was stipulated in the general terms and conditions of Technos, themselves contained in the instruments witnessing the contracts between the parties and forwarded upon their conclusion. 42. Therefore, it follows from the above that a jurisdiction clause, such as that at issue in the main proceedings, meets the formal requirements set out in art.23(1) of the Brussels I Regulation.”

“39. It follows from the case law that one of the aims pursued by article 23(1)(c) of Regulation No 44/2001 is to ensure that there is real consent on the part of the persons concerned, so as to avoid jurisdiction clauses, incorporated in a contract by one party, going unnoticed: Mainschiffahrts-Genossenschaft eG (MSG) v Les Gravières Rhénanes SARL (Case C-106/95) [1997] QB 731; [1997] ECR I-911, para 17 and the Castelletti case [1999] ECR I-1597, para 19. 40. The court has added, however, that article 23(1)(c) makes it possible to presume that such consent exists where commercial usages of which the parties are or ought to have been aware exist in this regard in the relevant branch of international trade or commerce: the MSG case, para 19 and the Castelletti case, paras 20 and 21. … 44. The court has added that there is a usage in the branch of trade or commerce in question where, in particular, a certain course of conduct is generally and regularly followed by operators in that branch when concluding contracts of a particular type: the MSG case, para 23 and the Castelletti case, para 26. 45. … The determining factor remains, however, whether the course of conduct in question is generally and regularly followed by operators in the branch of international trade or commerce in which the parties to the contract operate: the Castelletti case, para 27. 46. In that respect, the court has also stated that since article 23 of Regulation No 44/2001 does not contain any reference to forms of publicity, it must be held that, although any publicity which might be given in associations or specialised bodies to the standard forms on which a jurisdiction clause appears may help to prove that a practice is generally and regularly followed, such publicity cannot be a requirement for establishing the existence of a usage: the Castelletti case, para 28.”

“The user of GTCs must give a reasonable opportunity to the client to have access to the GTCs in order to incorporate them into the contract. This opportunity must be given at the latest at the time of the formation of the contract (see below section A.6, as regards GTCs provided at a later point in time). The reasonable opportunity does not mean that the GTCs must be handed over to the client. Whether the client actually read the GTCs or understood them is irrelevant for incorporating the GTCs.”

“Prof Kadner sets out that in order for GTCs to be incorporated into a contract, it is required that they be made available, i.e. access to their content was offered to the other party when the contract was formed. It is essential that the addressee of the GTCs had the opportunity to read them. It does not matter if it in fact read them; what matters is that they could have been read, see Kadner Report §28-29 and the Swiss Federal Supreme Court (“SFSC”) case referred to in section A.1bis column 2. In the case SFSC 139 III 345 cited below at A.1bis (column 2) the SFSC further held: “The ... conditions for the validity of choice of court agreements must be interpreted strictly, and the requirements as to form are therefore very rigid (BGE 131 III 398 E. 6 p. 400; Tilly Russ v Nova, paragraph 14 with references; see also Case C- 159/97 Castelletti v Trumpy Spa [1999] ECR I- 0597, paragraph 48; KILLIAS, choice of court agreements, op. cit, p. 146 et seq.; KROPHOLLER v. HEIN, op. cit., n. 38 on Article 23 EC; REITHMANN v. Martiny, op. cit.) An obligation of the contractual partner to make inquiries must therefore be rejected.” 3 Prof Kuonen, Mabillard, Richa and Romy disagree with Prof Kadner. They note that the relevant test is for the user of the GTCs to "give a reasonable opportunity" to the client to access them and it is no higher than this (i.e. the test is not to make "available" the GTCs). ….”

“An offer was made including the following statement: Appendix: Terms of delivery. ... If you are not aware of our terms and conditions, you can request them from us at any time. The GTCs contained a jurisdiction clause. The Court held: It is for the user to prove that the GTCs were indeed contained in the offer and made available to the other party. The user was unable to provide this proof and could therefore not rely on the jurisdiction clause (para. 1.1.1).”

“However, the applicability of the SS GTCs was not specifically agreed between Steiner and the Defendant for the disputed forwarding contract. However, in agreement with the court of first instance, it must be assumed that they were tacitly used as a basis for the contractual relationship as both parties expected their application to be obvious. From exhibits 1 and 2 of the defence answer, it emerges in particular that the colonial goods import company Steiner had been in a business relationship with the Defendant forwarding company for years and had awarded it four major transport orders in 1946. Steiner used the pre-printed order form of the Defendant for this purpose, the first sentence of which reads: “We transfer to you the following party for transport based on the “General Terms and Conditions” set forth by the Swiss Association of Forwarding Agents.”

“Furthermore, the application of Swiss law in this regard is imposed for another purpose. Under the ”comments” heading, appearing at the top of the holder’s signature, the account opening contract of 18 October 1962 specifies that “the holder of this account declares having received the general conditions of the Banque Commerciale Arabe SA”

“4.2 … when the lease agreement which is sent to the lessee - receipt of which is not contested - mentions that the official form was included in it, the lessor is, according to general experience, presumed to have actually put the lease agreement and the official form in the envelope that was sent if the lessor is able to produce a copy or photocopy of this official form containing the information necessary to the lease in question. It must be admitted that this is a rule of experience (art. 1 para. 2 CC), which results in a reversal of the burden of proof …”

“Assuming that the GTCs were not incorporated upon the formation of the contract, they may still be incorporated at a later stage. The submission of the GTCs by the user to the client, after the contract has been concluded, may be regarded as an offer to modify the initial contract and to integrate the GTCs at this later stage. In this case, the requirements governing the incorporation of the GTCs are the very same as those governing the incorporation of GTCs upon the formation of the contract. The determination whether the GTCs that were incorporated subsequently apply retroactively (i.e. as of the formation of the contract) is a matter of interpretation of the parties’ will. A signature of the amended GTCs is not required for them to be incorporated.”

“30. … (i) I am informed that the general practice was for the Conditions to be handed to the client during an initial meeting with their Relationship Manager, and that the client would generally take the Conditions away. The Pictet Defendants contend that PIFSS would have been given a copy of the Conditions (at the very least) during one of its initial meetings with Banque Pictet. (ii) I understand that prior to October 2007, copies of the Conditions were not attached to the account opening documentation kept on Banque Pictet’s system and/or files. … 31. As regards amendments to the Conditions over the years, I understand from the Head of Legal Search at Banque Pictet that, from 2010, updated versions of the Conditions were sent to private and institutional clients in cases of significant modifications. However, the relevant correspondence for institutional clients (such as PIFSS) was not systematically archived in the bank’s system and/or files. 32. Banque Pictet has identified (at least) two letters sent to PIFSS enclosing current versions of the Conditions, dated 18 May 2012 and 11 January 2017.”

“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 the parties have agreed otherwise. ....” 188. Recast Brussels Regulation Article 25(1) provides: “If the parties, regardless of their domicile, have agreed that a court or the courts of a Member 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 jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. …”

“68. A jurisdiction clause can concern only disputes which have arisen or which may arise in connection with a particular legal relationship, which limits the scope of an agreement conferring jurisdiction solely to disputes which arise from the legal relationship in connection with which the agreement was entered into. The purpose of that requirement is to avoid a party being taken by surprise by the assignment of jurisdiction to a given forum as regards all disputes which may arise out of its relationship with the other party to the contract and stem from a relationship other than that in connection with which the agreement conferring jurisdiction was made: the Powell Duffryn case, para 31. 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 the other's 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.”

“130. ... Ultimately, the court has to consider, in the light of the admissible evidence as a whole, whether the dispute has originated from the legal relationship in connection with which the jurisdiction agreement was concluded. I consider that this is largely a factual question … 131. Accordingly, the test requires identification, by reference to the facts of the case as a whole, of the legal relationship between the parties in connection with which the jurisdiction agreement was concluded. It then requires consideration of whether the dispute originates from that legal relationship or a different one. … 133. It is also important to note that the relevant question is whether the dispute has arisen from the legal relationship in connection with which the jurisdiction agreement was concluded. This is not the same as asking: is the dispute a claim which arises under the terms of contract which creates the legal relationship? At times, it seemed to me that Mr Joseph’s submission which focused on the terms on which money was to be advanced under the loan agreement sought to assimilate the two. But it is in my view clear that a dispute can be within a jurisdiction agreement covered by article 25 even if it does not allege a breach of the particular contract containing the jurisdiction clause. Any other conclusion would mean that noncontractual claims fall outside the scope of an article 25 jurisdiction agreement. This cannot be right as illustrated by Hydrogen Peroxide. A recent illustration of a jurisdiction clause applying to a claim in tort is Airbus [2019] Bus LR 2997. 134. Nor do I accept that Airbus is authority for the proposition that, in order to identify the relevant legal relationship, or to decide whether the dispute originates from that relationship, the court can and should only look at the way in which the claim is formulated in the proceedings (here Germany) which are alleged to have been brought in breach of the jurisdiction clause …”

“149. … If a particular agreement is concluded within the context of a wider legal relationship between the parties, I consider it appropriate to look at that context in considering whether the dispute arises from the legal relationship in connection with which the agreement was concluded. This is the approach taken by the court in Altera [2018] 1 All ER (Comm) 71. Consideration of the context is consistent with the purpose of article 25, namely to prevent a party from being surprised by the referral of the dispute to the chosen tribunal. The contrary approach seems to me to be artificial, since it has the effect of divorcing the agreement containing the jurisdiction clause from its context. It also has the potential to lead to the inapplicability of the jurisdiction clause to the particular dispute, notwithstanding that (given the context) a party could not be taken by surprise. 150. In my view, consideration of the wider context is fully in accordance with Powell Duffryn [1992] IL Pr 300. The court in that case referred to the legal relationship in connection with which the agreement was concluded. As Mr Dicker correctly submitted, that is not necessarily the same as identifying the legal relationship contained in the contract which contains the jurisdiction clause. In some cases, such as Powell Duffryn itself, the only legal relationship will be the contract which contains the jurisdiction clause. But in other cases, depending on the facts, it may be possible to say that the jurisdiction clause was concluded in connection with a wider legal relationship.”

“26. In the light of that case-law, it is appropriate to examine whether that interpretation of Article 23 of Regulation No 44/2001 and the grounds on which it is based are also valid with regard to a jurisdiction clause invoked during a dispute that relates to the tortious liability allegedly incurred by one contracting party as a result of a breach of Article 102 TFEU. 27. That is the case where the alleged anti-competitive conduct has no connection with the contractual relationship in the context of which the jurisdiction clause was agreed. 28. However, while the anti-competitive conduct covered by Article 101 TFEU, namely an unlawful cartel, is in principle not directly linked to the contractual relationship between a member of that cartel and a third party which is affected by the cartel, the anti-competitive conduct covered by Article 102 TFEU, namely the abuse of a dominant position, can materialise in contractual relations that an undertaking in a dominant position establishes and by means of contractual terms. 29. It must therefore be stated that, in the context of an action based on Article 102 TFEU, taking account of a jurisdiction clause that refers to a contract and ‘the corresponding relationship’ cannot be regarded as surprising one of the parties within the meaning of the case-law mentioned at paragraph 22 of the present judgment. 30. In the light of all the foregoing, the answer to the first and second questions is that Article 23 of Regulation No 44/2001 must be interpreted as meaning that the application, in the context of an action for damages brought by a distributor against its supplier on the basis of Article 102 TFEU, of a jurisdiction clause within the contract binding the parties is not excluded on the sole ground that that clause does not expressly refer to disputes relating to liability incurred as a result of an infringement of competition law.”

“57. By entering into a jurisdiction clause, the parties seek, essentially, to confer jurisdiction on a particular court to settle all questions pertaining to the relationship which they have formed, even though they are not always able to foresee and draw up a list of the types of disputes that might arise between them. Were that not so, the function and scope of such a clause would be significantly undermined.”

“must determine how parties, who are hypothetically honest and reasonable, could and should, in good faith, understand the expression of will of the other, on the basis of the circumstances which were or should have been known to each party at the time of receipt of the expression of will of the other. In their assessment Swiss courts will assume that these hypothetical parties are in the same situation and have the same knowledge as the actual parties were and had at the time of the formation of the contract.” iv) The principe de la confiance is derived from the overriding requirement of good faith set out in Article 2 of the Swiss Civil Code (“SCC”): “The principle of good faith … is a fundamental principle under Swiss law. Under Swiss private law, the principle of good faith is anchored in Art 2 of the SCC which provides: “(1) Every person must act in good faith in the exercise of his or her rights and in the performance of his or her obligations. “(1) Every person must act in good faith in the exercise of his or her rights and in the performance of his or her obligations. (2). The manifest abuse of a right is not protected by law…”

“The election of jurisdiction clause should … be considered in light of the principle stating that, in case of doubt, procedural clauses are not interpreted in a restrictive manner, but rather as a means of expressing the parties’ intentions to assign a general jurisdiction to the court …”

“In the case of an arbitration agreement, the Parties waive the decision by state courts in the case of disputes, a waiver, which has considerable consequences, in view of the associated reduction in legal remedies and, in view of the regularly higher costs of the arbitration proceedings compared to State proceedings; in the event of a dispute, it is therefore not easy to assume that such an agreement has been made. If, however, the existence of an arbitration agreement is determined, there is no reason for a particularly restrictive interpretation; in this case, it can be assumed that the Parties would like the Arbitration Court to have full jurisdiction if they already have entered into an arbitration agreement … It should also be noted that even if as is often the case - the arbitration clause is appended to the main contract in a single document, has a significant meaning as a procedural agreement in so far as the Parties can be assumed in case of doubt would have provided for settlement of the arbitration procedure not only for disputes about the fulfilment of their mutual contractual obligations, but also for a possible process about whether their contract was concluded. The arbitration clause therefore does not necessarily share the fate of the main contract …”

“Accordingly, an agreement on the place of jurisdiction only covers legal disputes which have their origin in the legal relationship on the occasion of which the agreement was concluded (Kropholler, European Civil Procedure Law, 7. A. Heidelberg 2002, Art. 23 EuGVO, para. 69). This provision is intended to prevent an economically superior contractual partner from imposing a place of jurisdiction on the weaker party with a single comprehensive clause, even for disputes arising from future contractual relationships that cannot yet be foreseen (Kropholler, ibid.). Furthermore, it should be ensured - irrespective of the economic distribution of power - that the parties know in advance, or at least can estimate, for which disputes they will enter into a jurisdiction agreement (foreseeability; see Donzallaz, The Lugano Convention, Vol. III, Bern 1998, para. 6654; Geimer/Schütze, European Civil Procedure Law, Munich 1997, Art. 17 EuGVÜ para. 156; Killias, The choice of court agreements under the Lugano Convention, Diss. Zurich 1993, 104). In general, the application of a jurisdiction clause is unproblematic if a contractual claim is made in connection with the performance of the contract. In addition, however, the agreement may also cover tortious claims. A will of the corresponding party is assumed - for lack of contrary indications - if the claims in tort compete with the contractual claims and are based on the same factual grounds (Kropholler, Art. 23 Rz. 69 with references; Killias, 106). In individual cases, the scope of a choice of court agreement is determined by its interpretation. c) … The purpose of the jurisdiction clause was - as the applicant can see - to ensure that all disputes arising from the distribution contract would be heard before the courts at the place where the respondent was domiciled. This applies on the one hand to claims arising from breaches of contract, in particular also in connection with the termination of the contract. On the other hand, the intention to prorogue or derogate jurisdiction also had to reasonably refer to certain tortious claims. One might think, for example, of the case where unauthorised acts, e.g. in the form of damage to goods, are committed during the execution of the distribution contract. Due to the close functional connection between the violation of legal interests and the execution of the contract, it appears appropriate in this case in good faith to extend the scope of the jurisdiction agreement to include tortious liability claims. On the other hand, the choice of jurisdiction agreement does not cover disputes arising out of tort or delict which the parties could not reasonably have foreseen when they concluded the contract. This applies to the present case: A dispute concerning “denigration” or disparagement of third parties as a result of the termination of the contractual cooperation is not envisaged by the parties to a distribution contract when agreeing on the jurisdiction clause in good faith.”

“Making tortious claims subject to the jurisdiction clause or, where applicable, the arbitration clause in a contract seems justified only if there is a close connection between the contract and the tort. This may generally be the case if the deficient performance alongside the claim arising from breach of contract also meets the requirements for a tortious claim at the same time. The same should apply if the validity of the contract is to be decided due to unlawfulness of the content and the unlawfulness can be attributed to a party with respect to tortious conduct. If, on the other hand, the tortious act took place outside of or at the time of conclusion of the contract, inclusion must be rejected. The fact that contractual claims can also arise from the tortious conduct does not pose an obstacle to exclusion. Upon conclusion of the contract, the injured party generally did not have to expect a tortious act on the part of the other party. The decision regarding the tortious claim by the selected court or arbitral tribunal does not correspond to the “legitimate expectation” of the party concerned.” (Frank Vischer, “The inclusion of tortious claims in the jurisdiction agreement for the contract”, Festschrift Jayme, 2004) In the course of the article, Professor Vischer indicates that the answer should depend on the parties’ hypothetical will based on objective criteria, and that: “…torts that were committed prior to conclusion of the contract but had effects on the contract, or that were committed upon conclusion of the contract, should generally not be covered by the jurisdiction clause. In this case, the “specific legal relationship” alone is the contract with the exclusion of the tort. This must apply particularly if the injured party had no knowledge of the tort upon conclusion of the contract and the inclusion of the tort would be surprising for the injured contracting party.” and: “Tortious claims from an antitrust violation that was committed before and outside of the contract are not covered by the contractual jurisdiction clause. This applies all the more if the jurisdiction clause was proposed by the defendant in its General Terms and Conditions without explaining the cartel agreement to the other party. In this case, fraud exists with respect to the jurisdiction agreement and could justify setting aside the clause. … The circumstance that the buyer may also have contractual claims in addition to his/her tortious claim against the seller and that no tortious claim would arise without conclusion of the contract would change nothing with regard to the tortious claim’s not being subject to the jurisdiction clause. The violation of antitrust law lies outside of the contract. Upon entering into the agreement in good faith, the buyer could not, and did not have to, expect that he/she was the victim of an illicit cartel of which he was not aware. The placement of the claims arising from this violation within the jurisdiction agreed for the sales contract therefore lies outside of any legitimate expectations.”

“The issue of whether GTCs or the CFC contained therein (included in GTCs) also apply to disputes arising out of pre- contractual dealings, if any, or to alleged unlawful conduct prior to the formation of any contract, is a matter of interpretation of the parties' will pursuant to the principles explained hereinabove … It is commonly accepted that claims based on culpa in contrahendo conduct [fault in the conclusion of a contract] are to be considered as contractual claims and are capable of being covered by the GTCs and the CFCs, respectively.”

“Choice of court agreements raise an interesting problem regarding wrongful acts. 377 Article 5(1) PILA provides that the jurisdiction agreement can be formed only for a specific legal relationship. If a bank intends to apply a jurisdiction clause in favour of the courts of its head office or branch and the unlawful act took place after the jurisdiction clause was formed, can the clause be invoked against the customer of the bank? The answer must be in the negative; as the unlawful act took place after the conclusion of the jurisdiction clause, there can be no question of a "specific legal relationship" which is required for the prorogation clause to be valid under article 5 paragraph 1 of the LDIP. 378 A choice of forum clause which provides to be applied to a future fraud would be contrary to Article 27(2) CC [Article 27 of the Swiss Civil Code protects the personality rights of persons]. In other words, the scope of the choice of court agreement must, in case of doubt, be established on the basis of the theory de la confiance. Only claims arising from the foreseeable performance of the banking relationship are covered by the jurisdiction clause. Thus, in the event of a conspiracy by the bank against the customer, there is no dispute arising from a specific legal relationship, within the meaning of Article 5 paragraph 1 of the LDIP, and the clause extending the jurisdiction in favor of the registered office of the bank is not valid. It will then be necessary to determine the forum having jurisdiction according to the applicable general rules on jurisdiction. “FN 117 See also Art. 132 PILA which provides for a right to choose the application of the law of the forum, after the harmful event. This is the formulation of a general principle which also applies to the choice of forum. The Lugano Convention lays down a rule similar to Article 17 LC in respect of consumer contracts.”

“62. … I accept that much the better argument is that the scope of the Swiss jurisdiction clause is limited to the types of claim that the opposing party could reasonably foresee when entering the contract that contains the jurisdiction clause. … 64. Both experts agree that there is a Swiss law principle of construction that a jurisdiction clause will only cover a claim in tort if those claims arise in connection with the contract that contains the clause. Professor Schwander accepts that there is a difference of views amongst writers on Swiss law as to the necessary degree of connection. He relies on some German authority for a view that the connection need not be close. But in doing so he appears to stray from principles of Swiss law on the construction of jurisdiction clauses and invokes both German law and Article 17 of the Lugano Convention. There is no positive support amongst the authors cited by Professor Schwander for the view that the connection between the contract and the tortious act need only be broad or loose. … 67. … it seems to me that, on the material available to me, “much the better of the argument” on the Swiss law principles of construction and application leads to a narrower construction of the wording of clause 9(b) of the Swiss terms and conditions. I think that the highest Swiss Courts would hold that the phrase “any controversies” must be confined to those controversies that would be foreseen by the parties at the time that they concluded the relevant contract. I think it fair to assume that when the present claimants entered the contracts for the supply of vitamins, they would have assumed that there were no secret cartels on price and market fixing and that the prices that they would have to pay for vitamins were not those fixed by a secret cartel that infringed Article 81.

“(1) The agent is obliged at the principal’s request, which may be made at any time, to give an account of his agency activities and to return anything received for whatever reason as a result of such activities. (2) He must pay interest on any sums which he is late in forwarding to the principal.” “(1) The agent is obliged at the principal’s request, which may be made at any time, to give an account of his agency activities and to return anything received for whatever reason as a result of such activities. (2) He must pay interest on any sums which he is late in forwarding to the principal.”

“… the protection of a customer's pecuniary interests is a main contractual obligation covered by specific statutory provisions, i.e. art. 398 and art. 400 CO. While art. 398 CO provides for the bank's contractual duty of care and loyalty, art. 400 CO provides for the bank's contractual duty to give account of its activities and return anything received to the customer (see hereto section B.8.iv of the Issue 1 Memorandum; see also paras 112- 116 Kadner Report). Consequently, a violation by a bank of a customer's pecuniary interests amounts to a specific contract violation of arts 398 and 400 CO. In particular, the receipt of undisclosed and unaccounted secret commissions ("Retrozessionen") and failure to account for the same, in the manner alleged at para. 13 Kadner Report, would in principal potentially amount to a breach of contract.”

“In order to determine whether a claim based on an alleged tortious conduct falls within the scope of a CFC, the duties set forth in Art. 398 SCO and 400 SCO, in particular the duty of care, are of relevance. In a case of alleged conspiracy and/or commissions in relation with a banking contract, before Swiss courts, a litigant would typically invoke a breach of the contractual duties set forth in Art. 398 and 400 SCO along with non-contractual bases. The alleged tortious conduct would be considered a breach of contract or to be in “connexité” with the contract so that it would be covered by the CFC. In any event, in general terms, the breach of secondary contractual duties constitutes a breach of contract on an equal footing (for the purpose of assessing the scope of CFCs) with the breach of main contractual duties such as Art.398 and 400 SCO.”

“… the fact that allegations of tortious conduct might or might not amount to a breach of the general duty of loyalty under Art. 398 SCO does not mean that the dispute falls within the terms of a CFC: what matters is whether the allegations on which the claim is based are non-contractual in nature, even if they could be alternatively substantiated as a breach of a general duty of loyalty under Art. 398 SCO or any other type of contract: see Obergericht Zürich (High Court of Zürich), ZR 103/2004 p. 261, 262. All that matters is if there is “connexité”, i.e. foreseeability of the claim in its nature and importance (see above section B.8.i and below section B.9). As the Zürich Court stated “the choice of court agreement does not cover disputes arising from tort or delict which the parties could not reasonably have foreseen when they formed the contract” (see above).”

“Insofar as the respondent submits that “an obligation to be owed according to the contract (namely ultimately the observance of the duty of loyalty) has allegedly been breached post-contractually”, it should be noted that the non-contractual nature of the allegations (unfair disparagement and violation of personality rights) is very much to the fore in the present case. Whether the asserted claims could be substantiated on the basis of the allegation of breach of contractual or post-contractual duties of loyalty can be left open (on the question of whether an encroachment on the legal interests of the contractual partner is only relevant under tort law or also under contract law: Middendorf, Retroactive contractual obligations, Freiburg 2002, para. 170 f.).”

“Swiss legal doctrine does not recognise the existence of a general banking contract between bank and client - a kind of framework contract - which is essentially subject to mandate law.” “The doctrine considers that each contractual relationship between bank and client must contain a specific clause and that it is not enough to have one clause contained in the general terms and conditions valid for all contractual relationships.”

“The issue of whether GTCs or the CFC contained therein (included in GTCs) also apply to disputes arising out of pre- contractual dealings, if any, or to alleged unlawful conduct prior to the formation of any contract, is a matter of interpretation of the parties' will pursuant to the principles explained hereinabove … It is commonly accepted that claims based on culpa in contrahendo conduct [fault in the conclusion of a contract] are to be considered as contractual claims and are capable of being covered by the GTCs and the CFCs, respectively.” 270. The experts add that: “Further details are set out in the Mabillard Report (§61-70).”

“66 A Swiss Court would assess the temporal scope (“scope ratione temporis”) of a jurisdiction clause by applying the parties’ actual intention or, subsidiarily, the principle of good faith (i.e. determine how the clause was to be understood by a reasonable person in the position of the parties, based on the clause’s wording, the clause’s context and the overall circumstances it was concluded in, at the moment of the contract’s conclusion). 67 In the present case, the Swiss Court would have regard to the broad formulation of the jurisdiction clauses in the various GTC, including that on their face they encompass any kind of disputes/actions between the bank and its clients, without any apparent limitation as to whether they are based on events that took place before or after the conclusion of the jurisdiction clauses (e.g. “Any disputes which might arise [between the Client and the Bank]”/“in respect of any kinds of actions [between the Client and the Bank]”). 68 That a jurisdiction clause can apply to disputes based on events that took place before the clause’s conclusion is undisputed amongst Swiss scholars including, for example, also unlawful acts stemming from the time before the conclusion of the contract, such as the negotiation phase (i.e. acts of culpa in contrahendo), which are considered to be governed by a contractual jurisdiction clause.”

“1163. However general the terms in which an agreement is worded, it includes only the things on which the parties appear to have intended to contract. 1164. When in a contract a case was mentioned to give an explanation of the obligation, it shall not be deemed that the parties thereby intend to restrict the scope of their contract which, as a matter of right, shall apply to the cases not expressed.”

“Knowledge … 211. … each of the Pictet entities, through at least Mr. Bertherat and Mr. Amouzegar and those working under their supervision, knew that the sums transferred into the above accounts pursuant to the Pictet Scheme were Secret Commissions by reason of the facts and matters pleaded in connection with that scheme. 212. They also knew, by reason of the facts and matters set out in paragraphs 214 to 216 below, that some or all of the sums in paragraphs 205 b – d [non Pictet Scheme payments] were Secret Commissions. 213. Accordingly, the Pictet entities and each of them, through at least Mr. Bertherat and Mr. Amouzegar and those working under their supervision, knew that the bank accounts which they had established and operated for Mr. Al Rajaan and Mr. Nasrallah: a. were wholly (or at least substantially) funded by Secret Commissions or the traceable proceeds thereof; b. were being used to assist and facilitate the payment of Secret Commissions. Particulars of Knowledge 214. The Pictet entities, through at least Mr. Bertherat and Mr. Amouzegar and those acting under their supervision, knew that: a. In respect of the payments from Phoenix’s account at EFG Bank, the payments were from the same corporate party (i.e. Phoenix) as Pictet was, itself, using as a front for the payments of Secret Commissions as pleaded above; b. In respect of the payments from Ozak’s account at EFG Bank, the payments were from the same bank and followed a similar pattern to the Phoenix payments; … 216. Accordingly, if and to the extent that the Pictet Defendants did not have actual knowledge that the transfers in and out of accounts held at Pictet, Pictet Europe, Pictet Asia and Pictet Bahamas were Secret Commissions or the traceable proceeds thereof (by reason of the discussions between Mr. Al Rajaan, Mr. Bertherat and Mr. Amouzegar at the outset of the Pictet Scheme) alternatively, it is to be inferred that they believed this to be the case and deliberately shut their eyes and took no steps to enquire. In fact, they deliberately took such active steps as were necessary to protect the transfers of Secret Commissions from regulatory oversight, and to ensure that the transfers were not the subject of due diligence, so as to conceal and facilitate the payment of Secret Commissions and to protect Mr. Al Rajaan and Mr. Nasrallah from criminal investigation.”

“On 20 January 1997 Mr. Al Rajaan authorised Mirabaud to open custodian account number 500750 with Mirabaud which subsequently came to hold 12 of PIFSS’ investments on which Secret Commissions were paid” and “Between 1997 and about 8 May 2012 the total sum of US$76.9 million was paid by way of Secret Commissions to Mr. Al Rajaan in respect of 28 investments by PIFSS (“the Galmir Funds”). Tables summarising the investments and the payments generated in respect of them are appended as Appendix 1.”

“10. Remuneration connected with the Bank's activities and conflicts of interest The Bank offers its clients a broad range of financial instruments. The Client is aware that the Bank or its subsidiaries may, directly or indirectly, receive from group entities or third parties, payments or other financial benefits for the services performed by the Bank, in particular relating to the sale of investment instruments. These payments are typically calculated on the basis of the volume of the amounts invested in the investment instruments or the volume of transactions carried out for customers. Details of the calculation parameters for these services can be found in the Bank's fee schedule, thereby allowing the Client to calculate the sums that the Bank may receive in this respect. Thus, as indicated in the fee schedule, the maximum remuneration that the Bank may receive, as of the date of publication of these General Terms and Conditions, are as follows, calculated in percentage terms on an annual basis: Money market funds 0.50% Equity funds 1.25% Bond funds 0.75% Asset allocation funds 0.75% Other funds (especially alternative funds and, private equity funds) 1.00% Structured products 2.00% The Client understands and accepts that the Bank may select or recommend certain investment types and instruments, receiving remuneration in return for their sale and that this may constitute a conflict of interest. The Bank has taken steps to best safeguard its clients' interests in cases where this remuneration could result in such a conflict. Should the Bank receive remuneration that, pursuant to Art. 400 of the Swiss Code of Obligations or other legal provisions, should accrue to the Client, it shall waive its right to such remuneration. Furthermore, the Customer acknowledges and accepts that the Bank or its subsidiaries may make payments to third parties, such as independent wealth managers retained by the Client or other intermediaries. This remuneration may be calculated on the basis of the banking commission received by the Bank and debited from the Client as well as on the remuneration paid to the Bank by product providers or on the amount of assets deposited. The Client understands and accepts that this remuneration may constitute a potential conflict of interest. The Bank has taken steps to best safeguard its clients' interests in cases where this third party remuneration could result in a conflict of interests.”

“Galmir … was a wholly-owned subsidiary of the Mirabaud group of companies …and was subject to consolidated supervision by FINMA (the Swiss Financial Market Supervisory Authority). Galmir acted in different capacities in relation to various investment funds depending on the particular contractual framework relating to those funds. These included funds in which the Claimant did not invest. Galmir was remunerated in accordance with the relevant contractual framework for acting in those capacities in respect of those funds. Galmir had further received dividends paid by entities in which it held a shareholding interest. Such payments were common in the investment fund industry. Investments in funds of this kind usually generated a variety of commissions and/or fees payable to various parties. In most cases, the relevant fees were set out in the prospectuses which not uncommonly expressly provided for them or payments derived from to be paid on to other parties. In many instances, in relation to various funds, including funds in which the Claimant did not invest, these fees were payable to or routed through Galmir. Mirabaud’s practice was to provide clients (including the Claimant) - who were not subject to a discretionary management agreement - with all the necessary information on the funds, including the prospectuses, before the investment was made. The Claimant had therefore been provided with information regarding the fees that would be paid in relation to the funds in which it invested. Accordingly, the Claimant was aware of the existence of these payments. To the extent that any claims are asserted against Mirabaud itself in relation to commission payments to and/or from Galmir, such payments were and were expressly envisaged to be, paid in the course of the banking relationship between the Claimant and Mirabaud, as set out in the Mirabaud GTCs. … … Between 2011 and 2013-2014, Galmir’s activities were reduced and ultimately taken over by Mirabaud Asset Management Europe S.A. (“MAM Europe”), which was formed in 2010 and gradually took over Mirabaud’s asset management activities.”

“On 27 May 2014, US$27 million was paid from the Chulani account to an account of Mr Al Rajaan at Citibank purportedly for the purchase of real estate in the USA. It is to be inferred based on the co-incidence of timing and the quantum of the payment that this transfer was enacted immediately after Mr Al Rajaan had been tipped off by Mr Bertherat and/or others subordinate to him that the preceding day the Swiss criminal authorities had written to Pictet asking for the first time whether Mr Nasrallah and/or Phoenix had received commissions relating to PIFSS.”

“98. Between 1997 and about 8 May 2012 the total sum of US$76.9 million was paid by way of Secret Commissions to Mr. Al Rajaan in respect of 28 investments by PIFSS (“the Galmir Funds”). Tables summarising the investments and the payments generated in respect of them are appended as Appendix 1. 99. Such payments were, at the direction of Mirabaud, acting through Mr. Mirabaud, made to Silvery Bay through Mirabaud’s wholly owned Bahamian subsidiary Galmir. 100. In addition, further payments of US$2.1million were made, at the direction of Mirabaud, to Mr. Al Rajaan either via Silvery Bay or directly from Galmir, in connection with investments made by PIFSS which (pending disclosure) PIFSS infers to have been unauthorised benefits received by Mr. Al Rajaan in connection with the Mirabaud Scheme.”

“Where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims 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.”

“(11) The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and jurisdiction must always be available on this ground save in a few well defined situations in which the subject matter of the litigation or the autonomy of the parties warrants a different linking factor… (12) In addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close link between the court and the action or in order to facilitate the sound administration of justice. … (15) In the interests of the harmonious administration of justice it is necessary to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given in two member states.”

“34 In that regard, the jurisdiction provided for in article 2 of Regulation No 44/2001, namely that the courts of the member state in which the defendant is domiciled are to have jurisdiction, constitutes the general principle and it is only by way of derogation from that principle that that Regulation provides for special rules of jurisdiction for cases, which are exhaustively listed, in which the defendant may or must, depending on the case, be sued in the courts of another member state: see Reisch Montage AG v Kiesel Baumaschinen Handels GmbH (Case C-103/05) [2006] ECR I-6827, para 22, and the case law cited. 35 Moreover, it is settled case law that those special rules on jurisdiction must be strictly interpreted and cannot be given an interpretation going beyond the cases expressly envisaged by Regulation No 44/2001: the Reisch Montage case, para 23, and the case law cited. 36 As stated in the eleventh recital in the Preamble to Regulation No 44/2001, the rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and jurisdiction must always be available on that ground save in a few well defined situations in which the subject matter of the litigation or the autonomy of the parties warrants a different linking factor.”

“70 … the fact that one claim is governed by one system of law and another claim is governed by a different system of law does not, without more, mean that the judgments on each claim in different jurisdictions would be irreconcilable. Not only does the court have to look more closely to see to what extent the two systems of law are seeking to achieve the same result on a given set of facts (in which case different conclusions on the applicable system of law in different jurisdictions might well mean the judgments were irreconcilable) but, even if they do diverge in their purpose or intent, that is not necessarily determinative against irreconcilability. Whilst it is a factor pointing away from irreconcilability, it is only one factor to be considered. 71 … on a proper analysis of the Gard Marine [2011] I.L.Pr. 10 case, Thomas L.J. is not saying that, if the claims were governed by different systems of law, that would be conclusive against judgments being irreconcilable in every case. Quite apart from the fact … that the point was not one the Court of Appeal actually had to decide, it does not seem to me that Thomas L.J. was saying that if different systems of law had applied, that would be conclusive against divergence or irreconcilability. He was only saying that the fact that different systems of law led to a different result would not of itself lead to irreconcilability. … 74 … whilst the fact that the participations were both governed by English law was one of the factors which led Thomas L.J. to conclude that there was a risk of irreconcilable judgments, it was by no means the only factor and the factual overlap clearly had a considerable influence. In my judgment, this demonstrates that the fact that the two claims are governed by different systems of law is not determinative against the risk of irreconcilable judgments within the meaning of art.6(1). It depends upon all the circumstances. 75 Obviously, in a case where the claims against the anchor defendant and the non-domiciled defendant are being made by the same claimant, if the evidence on the jurisdiction application were that whatever factual conclusions are reached by each court, the different systems of law will lead to a different result, that would militate strongly against any conclusion that there is a risk of irreconcilable judgments. Equally, if the evidence were that, on any given set of factual conclusions, the two systems of law, despite their differences, would arrive at the same result, that would suggest that despite the different systems of law applied to the claims being made by the claimant, there is a risk of irreconcilable judgments.”

“In Freeport PLC v Arnoldsson, at paragraphs 40 - 41, the court cited Roche Nederland but went on to observe that it is for the national court to assess whether there is a connection between the different claims involving a risk of irreconcilable judgments if the claims were determined separately and, in that regard, it is for the court to take account of “all the necessary factors in the case file”, which may, but need not necessarily, involve taking into consideration the legal bases of the actions. This suggests that there is no single formula for determining whether the connection is such as to give rise to a risk of irreconcilable judgments if the claims were determined separately. Whatever the precise legal bases of the claims, it is necessary for the court to examine their essence in the relevant factual context and assess whether their nature and interrelationship are such that, if tried separately, there would be a risk of essentially incompatible judgments, so as to make it expedient in the interests of justice for them to be heard together. Whether the overlap between the claims is such as to have that effect is inevitably a fact specific question.”

“As regards its purpose, the rule of jurisdiction in art.6(1) of Regulation 44/2001, first, meets, in accordance with recitals 12 and 15 in the preamble to that regulation, the wish to facilitate the sound administration of justice, to minimise the possibility of concurrent proceedings and thus to avoid irreconcilable outcomes if cases are decided separately.”

“110. I move on then to what I regard as the sole question to be answered so far as Holdings is concerned: has Aeroflot demonstrated a “good arguable case” in the sense that it has shown that it has “the better of the argument” that there is a connection between the different claims brought before the English court so that “…there would be a risk of irreconcilable judgments if those claims were determined separately…”? To determine this question, the national court must “take account of all the necessary factors in the case file”, which may require it to take into consideration also the legal bases of the actions brought before the court. In my view Aeroflot has plainly satisfied this test. The “anchor” claim of Aeroflot to establish the English court's jurisdiction is that against the individual defendants and that case is based on an allegation of a conspiracy. The anchor claim relies primarily on breaches of Russian law. That claim will remain before the English court, despite the removal of the claims against Services and Cyprus if my views are shared by my colleagues. 111. The Amended Particulars of Claim allege that Holdings is a party to this same conspiracy: see paragraphs 24 and 25. Factual issues about whether Mr Glushkov and Mr Berezovsky were parties to a conspiracy and whether they controlled Forus companies and used those companies to further their fraudulent aims affect both the claim against the individual defendants and against Holdings. All the claims are primarily based on breaches of Russian law, although the precise bases of the claim in Russian law against Holdings may be different from that against the individual defendants. In my judgment there is the necessary context of “the same situation of law and fact” referred to by the ECJ in Freeport plc v Arnoldsson, such that there is a risk that if the case against Holdings were tried in Luxembourg and those against the individual defendants in England, there may be irreconcilable judgments. I deliberately emphasise the word “risk”