“I. Summary Description of Conduct The APPLICANTS acknowledge that information raised by their commercial team in Brazil on the citrus market, in particular with independent oranges producers and traders, may have been shared with competitors in the context of sectoral discussions about this market, as well as equivalent information obtained from the market by its competitors during the period investigated. […] IV. Association The conduct referred to in Clause I may have occurred at sectoral meetings at the Associação Brasileira de Exportadores de Cítricos (ABECITRUS) or any other occasional contacts in Brazil. V. Duration of Conduct It is understood that this conduct lasted in sporadic moments during the period from January 7, 1999 to January 24, 2006.”
“1. For the purposes of this Regulation, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its: (a) statutory seat; (b) central administration; or (c) principal place of business.”
“61. Such administrative services as AASA requires are provided under a Master Services Agreement dated4 April 2011 by AOL, whose employees are based in South Africa. It covers company secretarial services, finance and performance management services, tax services, treasury services, corporate communications services and corporate finance services. It also covers Executive Director Services, which comprise … “ leadership, advice and support which may include but not be limited to: Regulatory affairs; transformation; corporate communications; government relations; strategic implementation; and protection of shareholder interests ie attending Board meetings, Strategy sessions ”
“34. The parties were correct to accept that the wording of Article 60 must be given an “autonomous” meaning, that is a meaning not based on the canons of construction of any particular Member State's system of law. In order to consider the correct interpretation of the wording it is necessary to look at the objectives of the Regulation as a whole, particularly as noted in the preambles to the Regulation, as well as the context of Article 60 within the Regulation and any official commentary on the text that is relevant. 35. Paragraph 11 of the preamble of the Regulation states that the “ rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant's domicile… ”
“…The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction”. … 37. It is clear that Article 60(1) is drafted so that a company … may have three different locations of domicile for the purposes of the Regulation, because, for that purpose, the domicile of a company may be the place of its “statutory seat” or its “central administration” or its “principal place of business”
“7. In my view, the problem should be expressed in different terms. The concept of central management is difficult to pin down. Even where it designates the place at which the board of directors meets, it is not sufficient to provide a satisfactory connecting factor. As has been noted (J.-M. Rivier, " General Report: The Fiscal Residence of Companies ," Studies on International Fiscal Law, vol. LXXIIa (1987), pp. 47, 75): "Owing to the progress made by means of communication, it is no longer necessary to arrange formal board meetings. The telephone, telex and telecopier enable each director to state his point of view and to take part in the decision-making without being physically present in a given place. The board meetings each director will attend via television will soon form part of [a company's] everyday life. The board of directors can meet in a place chosen arbitrarily, which bears no real relation with the decision centre of the company." The place in which the board of directors meets cannot therefore constitute the sole criterion making it possible to designate with certainty in each case the place in which the central management is located. That designation cannot be arrived at by means of a formal legal assessment which does not take account of a number of factual elements the respective scope of which may vary according to the type of company involved. 8. In order to determine whether the transfer of the central management and control of a company constitutes establishment within the meaning of the E.E.C. Treaty it is therefore necessary to take into consideration a range of factors. The place at which the management of the company meets is undoubtedly one of the foremost of those factors, as is the place, normally the same, at which general policy decisions are made. However, in certain circumstances those factors may be neither exclusive nor even decisive. It might be necessary to take account of the residence of the principal managers, the place at which general meetings are held, the place at which administrative and accounting documents are kept and the place at which the company's principal financial activities are carried on, in particular, the place at which it operates a bank account. That list cannot be regarded as exhaustive. Moreover, those factors may have to be given different weight according to whether, for example, the company is engaged in production or investment. In the latter case, it may be perfectly legitimate to take account of the market on which the company's commercial or stock exchange transactions are mainly carried out and the scale of those transactions.”
“a) establish the company’s regulations and goals; b) establish the corporate governance relations; c) approve and ensure the execution of the company’s yearly budget proposal, as well as changes to it, and declare it fulfilled at the end of the fiscal year; d) establish the institutional guidelines for the company’s management; e) elect Executive Officers and any of their substitutes who will be part of the Executive Board, which will manage the company for the members, according to the Board of Directors’ institutional regulations; f) authorize, as per each case, the grant of suretyships, indorsements or any other guarantees for third parties, as per Clause 11 below.”
“8.2. The Executive Board, composed of managers, members or non-members elected by the Board of Directors, with representation powers found in the respective designation acts, in this case with the designation of Executive Officer, to whom it will fall the duty of using the corporate name as per Article 1,064 of the Brazilian Civil Code. 8.3. The actions of the managers who will compose the Executive Board will be carried out within the limits of their authority, as determined by the Articles of Organization and obligate the company, as per the exact terms of Article 47 of the Brazilian Civil Code.”
“No manager, regardless of level or degree or competence, may exceed the value limits established in budgets, plans or schedules determined by the Board of Directors. 8.6.1. In these budgets, plans or schedules, for each expense item, there will be the supervision of the Officer exercising the financial duties and approval by the respective Officer of each company department. If, at any moment, the respective Officer of the department notices that the expenses may exceed their financially expected amounts, the aforementioned Officer will be notified and the expenses will be submitted to the Board of Directors for approval. 8.6.2. If, eventually, in order to exceed this restriction, an officer formalizes the same negotiation in several instruments in amounts lower than the limit, but whose sums exceed it, the company may deem the negotiations invalid, terminating the contracts, as this act may be considered a serious employee error within the terms of the law and as established in item 8.5 above. …”
“a) Determining the company’s institutional and strategic policies and guidelines; b) Determining the company’s investment policies, deciding on the Executive Board’s proposals; c) Calling for and presiding over members’ meetings; d) Propose changes in the Articles of Organization to the Members’ Meeting; e) Electing and removing any officers that will make up the Executive Board and any other company manager; f) Proposing an increase in capital by issuing new membership shares, due to either investments or profit appropriation; g) Deciding on the acquisition and sale of real estate, mortgage or any other charges on company properties; and on granting suretyships, always for the benefit of the company, appointing officers to take the appropriate acts; h) Deciding on the amount and form of the Directors’ pay; i) Deciding the amount and form of the Officers’ pay and their materials as per Article 1,071 and its paragraphs; j) Authorizing the opening and closing of bank accounts by an attorney designated in the Members’ Meeting, and their usage may be attributed to attorneys specially appointed by the Board of Directors, being granted special and specific authority to do so and always acting in pairs; k) The Board of Directors may establish that specific accounts or negotiations with banks and/or financial institutions may only be used or implemented as per prior statement by a Director, according to each case; l) Deliberating on taking Executive Board accounts, proposing the usage of the results to the Members’ Meeting; m) Approving or executing the company’s yearly budget proposal, or the budget corresponding to another period, and its changes; n) Determining that the budget was met at the end of the fiscal year; o) Proposing the merger, consolidation and dissolution of the company, or the termination of its state of liquidation; p) Authorizing the request for court-supervised reorganization or out-of-court reorganization; q) Authorizing the company to issue monthly, quarterly, or semi annual budget sheets and use them as basis to determine the distribution of then-existing profits, or in anticipation of eventual profits; r) Choosing or removing independent auditors (Article 142, paragraph IX, Law 6,404/76).”
“10.2 The company’ ordinary management is incumbent upon the Executive Board, by Executive Officers, who are responsible for implementing the Board of Directors’ deliberations. 10.3. The Executive Board will meet on a quarterly basis, regardless of convocation. Its meetings will be recorded in minutes that will properly reproduce its decisions and that will be submitted to the appraisal of the Board of Directors. The Board of Directors may, at any time, convene an extraordinary meeting of the Board of Directors, establishing the agenda for this meeting. 10.4. Execution of deliberations of the Executive Board will be the responsibility of the Executive Officers, with each one acting within the scope of his area of activity and, according to the acts of his designation … 10.5. The Executive Board, by a joint act of the Executive Officer who is exercising the financial attributions and the Executive Officer who is exercising the powers of legal defense, will grant the term of office to the attorneys-in-fact appointed at the Partners’ Meeting, as established in Clause 7, item 7.1, letters “a,” “b, “c,” and “d”, above.”
“10.6. In this regard, it will be the responsibility of the Executive Officers: a) To proceed in accordance and in strict compliance with legality and demand that everyone in the company: managers, employees, contracted third parties, fulfill, and require the fulfillment of the legality and juridicity of all acts, enforcing the laws, regulations, contracts, conventions, and agreements; b) To follow the institutional guidelines given by the Board of Directors; c) To ensure strict compliance with the rules for the defense of competition, accounting for the consequences of non-compliance in the areas of their responsibility; d) To ensure strict compliance with labor standards; safety, medicine, hygiene, and health at work standards; accounting for the consequences of non-strict observance in the areas of their responsibility, e) To ensure strict compliance with fiscal, tax and social security rules, accounting for the consequences of non-strict compliance in the areas of their responsibility; f) To ensure strict compliance with legislation for the protection, preservation, and use of soil and natural resources and the environment, accounting for the consequences of non- strict observance in the areas of their responsibility; g) To establish the organizational and functional structure for staff under their supervision, in the area of their Board and submit it to the Board of Directors for approval so that it becomes effective; h) To appoint Managers, Supervisors, and Coordinators to carry out assignments in the area of operation of their Board, determining their functions; i) To admit and dismiss personnel employed by the company in the area of responsibility of their Board, always following the plans, projects and policies of labor relations approved by the Board of Directors, being responsible for the good standing and legality of these acts; j) To hire service providers, individuals, or legal entities, for activities in the area of responsibility of their Board, always following the plans, projects, and policies of labor relations and service provision approved by the Board of Directors, being responsible for the good standing and legality of these acts; k) To by themselves, or by a proxy appointed, always respecting indications formulated at the Partners’ Meeting (Clause 7, item 7.1., letters “a” to “d”) and the private powers of the Board of Directors, represent the company, actively and passively before any of the powers of the Republic, States, and Municipalities, in any of their agencies, ministries, departments, secretariats, offices and sub-offices, including before, local governments, public and mixed economy companies, public service concessionaires, institutes, including social security, administrative courts, and similar bodies; l) To appoint attorneys-in-fact, always respecting indications formulated at the Partners’ Meeting (Clause 7, item 7.1., letters “a” to “d”) and representatives, for acts related to or arising from their field of activity in the company, granting them and establishing the powers and scope of representation; m) No administrator, of any level, may hire or authorize contracting with providers or suppliers of goods or services with individuals who are relatives up to the third degree of employees of the company, or, in case of legal entity provider, who are administrators of it, with the Officers, Managers, Supervisors or Coordinators knowing of the existence of any such hiring being obliged to suspend the execution of that contract, if it is in the area of responsibility or administration, and immediately report the fact to the Board of Directors. … n) The acts of creation, alteration, modification, and extinction of establishments, branches, offices, and representations will be decided in a joint meeting between Officers, one being the Officer of the area where the establishment in question is inserted, the Officer who is exercising the financial attributions, and the Officer who is exercising the legal defense attributions, who will be responsible for implementing the decision taken, which will be appropriately recorded in the minutes of this Officers’ meeting and registered in the trade registry bodies. ... 10.7. The Officers are, individually, responsible for those who are included in the act of their election and their Instrument of Investiture.”
“Throughout my life, Sucocítrico Cutrale has always been and remains a family business, created, built and run strategically, firstly by my father and later by the family, which today incorporates my wife, my two sons and my daughter. Since the beginning, the company was formally and effectively directed by my father, who established the broad corporate strategy; and by the directors and employees of each individual business, who managed the operational and commercial day to day decisions.” “My responsibility since 2008 has been chairing meetings of the company's Family Board. The Family Board typically meets three or four times per year and consists of myself, my wife and my sons and daughter.”
“10. On a day to day basis, Sucocítrico Cutrale is run by a team of senior executives (the “Executive Board”) and, below them, a senior management team. They are all full-time, highly qualified and highly experienced senior professional managers with a lot of experience working for Sucocítrico Cutrale - they are experts in their respective areas of responsibility 11. The Executive Board is of course ultimately responsible to the Family Board, whose role it is to oversee the business in the interests of its shareholders. 12. As a member of the Family Board, I am one of five family members responsible for formal governance and oversight. Since becoming unwell in late 2018, I have been much less involved in such matters but before that, I would consult with some members of the Executive Board from time to time - particularly when I was in Brazil - and, together with the other Family Board members, set the broad strategy and direction of Sucocítrico Cutrale’s business. Since late 2018, my role has been almost entirely confined to attending Family Board meetings a few times a year. 13. The Family Board usually formally meets about 3 or 4 times a year with the Executive Board and on fewer occasions without the Executive Board. At the meetings involving the Executive Board, we consult with the executives on key strategic issues and their issues and their views as to how we tackle them. When the executives do not join, one or more of the Family Board will usually have spoken to them beforehand. It is then for us as the Family Board to discuss any proposals - for example, setting budgets or business objectives for the coming quarter. There are also some matters that require formal board approval for legal reasons, and we deal with those matters and minute them at our meetings (for example, real estate transactions, delegations of authority and amendments to the Articles of Association). 14. I have attended Family Board meetings in person in Orlando, London, Sao Paulo and Araraquara over the past two years. We are, however, often not all in the same place at Family Board meetings and we often do them by phone or by video conference. Sometimes we don’t all join a meeting, because of other commitments, and when that happens authority is sometimes delegated to particular members of the Family Board if necessary. 15. Outside of formal meetings with the executives, conversations also take place between members of the Family Board and some of the executives. These discussions are to make sure the Family Board is aware of what is happening on the ground so the Family Board can exercise proper governance and oversight. While members of the Family Board may express views in these discussions for the relevant executives to take into account, the general purpose is not for the Family Board to participate in day-to-day decision making, which is the responsibility of the executives and their teams. 16. Before I fell ill in November 2018, I would speak to different people at different levels of frequency: a. Before late 2018, I was the family member most focused on the finances, and I would speak to Mr José Luiz Cervato, the Finance Director (now retired), to talk about the financial performance of Sucocítrico Cutrale against the budget, every week or so; and b. I would also sometimes speak to other members of the Executive Board, but usually less frequently and not with any predictable regularity. How often we had these discussions depended on their individual role and the issues I wanted to talk about, and sometimes simply whether we happened to cross paths with Sucocítrico Cutrale premises (although discussions that took place when we simply crossed paths tended to be more social that professional). 17. Since falling ill in November 2018, I have had only a handful of conversations with executives, and my sons José Luis Júnior and José Henrique have stepped into my shoes on this. 18. Whilst my sons will sometimes be updated on Sucocítrico Cutrale’s day-to-day performance by way of discussion with the executives, increasingly, automated software tools are being used to make it easier for the management team in Brazil to keep the Family Board and Executive Board members updated on the company’s performance. It is not the job of the Family Board to analyse all such information, but it is made available to enable the Family board to exercise oversight. 19. I turn now to address some remarks that Mr Evans makes … about matters he says I undertake from Burlingtown’s offices in London: a. I do not manage Sucocítrico Cutrale’s bank accounts. This is the responsibility of Sucocítrico Cutrale’s Finance Director and his team, who are based in Brazil; and b. I do not negotiate contracts with buyers or producers, or conduct business with the other enterprises on behalf of Sucocítrico Cutrale. This is the responsibility of Sucocítrico Cutrale’s Executive Directors and their teams, who are based in Brazil. 20. I see Mr Evans presumes that my daughter, Graziela Cutrale, carries out certain activities related to Sucocítrico Cutrale, including the handling of the companies current account and making business decisions relating to Sucocítrico Cutrale …, from Burlingtown’s offices in London. This is not correct, Graziela has no role in the daily operations of Sucocítrico Cutrale. As I note above, the Finance Director and his team manage the company’s banks accounts, from which over 60,000 payments are made by Sucocítrico Cutrale every month. 21. Sucocítrico Cutrale has over 20,000 employees and had an annual turnover of more than one billion US dollars in 2019. The suggestion that I single-handedly control a business of that size and am primarily responsible for making the key decisions is ludicrous - I don’t know how one person could perform such a role, especially at 74 years of age with health issues. 22. My family also has many other businesses around the world, as was indicated in my previous statement; it simply would not be possible for the family (let alone one individual) single-handedly to make the key decisions necessary for the running of each one of those businesses. To run these businesses well and successfully, with more than 40,000 employees in 24 countries, we have to have high quality local executives and managers who are experts in their fields and have the power and responsibility to make the decisions. In the ordinary way, those executives and managers are subject to the board oversight and governance that exists in any normal business of this scale.”
“30. In overseeing my portfolio of business interests, I rely heavily on my wife Rosana, and my sons and daughter, José Luis Cutrale Jnr, José Henrique and Graziela. 31. José Henrique started working at Sucocítrico Cutrale in Brazil in 1988. He remains a member of the Family Board. He is predominantly based in the United States of America, where he manages the family's business interests there (including Citrus Products Inc). 32. Graziela became a part of the family business in 2006, when she moved to the United Kingdom and started running the Burlingtown UK Limited distribution business where she is Managing Director. Like José Henrique, Graziela remains a member of the Family Board. 33. José Luis Júnior began working at Sucocítrico Cutrale in Brazil in 1987. He was initially Junior Assistant of the Executive Board. My wife Rosana, José Henrique, Graziela, José Luis Júnior and myself are now the members of the Sucocítrico Cutrale Family Board. José Luis Júnior is based in Switzerland. 34. My sons and my daughter were born in and spent their childhoods in Brazil. 35. I have residential properties that I use in Araraquara and Sao Paulo (Brazil), Orlando (United States) and London (United Kingdom). In a typical year I probably spend around 100 days in the United States, 100 days in Brazil and 90 days in the United Kingdom, with the balance of my time being spent in other countries. ...”
“45. Operational decisions relating to Sucocítrico Cutrale are made by the company’s management, which is comprised of a senior management team and various area managers. In total, Sucocítrico Cutrale’s management team consists of approximately 60 employees. 46. As at the final date of my role as Finance Director of Sucocítrico Cutrale, being31 May 2020 , in addition to myself, Sucocítrico Cutrale’s senior management team consisted of: (a) Valdir Guessi (Agricultural Director); (b) Otavio Gottardi Abujamra (Industrial Director); (c) Marcio Ramos Soares de Queiroz (Legal Director); (d) Fernando Cardoso (Director of Import and Export); (e) Carlos Otero de Oliveira (Director of Labour Relations); and (f) José Roberto Ambrosio (Fruit Procurement Director). 47. Examples of operational decisions under the remit of the senior management team include: (a) the acquisition of raw-materials, agricultural inputs and services; (b) executing agreements for buying oranges; (c) decisions about salary increases and promotions; (d) the issuance of powers of attorney for representation of the company in Court or before the Government; (e) the issuance of insurance agreements and loan agreements; and (f) commercialising products in the domestic market and in the international market (insofar as Sucocítrico Cutrale sells directly to final customers, as described above) and executing the related agreements. 48. Such decisions are almost exclusively made in Araraquara, where … Sucocítrico Cutrale’s management team is based. 49. Sometimes, prior to pursuing a particular course of action, I or other members of the Sucocítrico Cutrale management team contacted a member of the Cutrale family and we operated within the general business plan agreed with the Family Board (Board of Directors) ... However, the vast majority of operational decisions were made without first consulting a member of the family. 50. In my role, I typically spoke with a member of the Cutrale family around once per week. 51. Members of the senior management team spoke with each other several times over the course of a typical day, both in meetings and on an ad hoc basis as required in the course of our work. Strategic and/or entrepreneurial decisions 52. Strategic and/or entrepreneurial decisions relating to Sucocítrico Cutrale are referred to the company’s boards. Sucocítrico Cutrale has two boards, namely: (a) The Family Board (also referred to as the Board of Directors of Sucocítrico Cutrale) - which consists of José Luis Cutrale, Rosana Falconi Cutrale, José Luis Cutrale Júnior, José Henrique Cutrale and Graziela Cutrale. (b) The Executive Board - which, until my departure on31 May 2020 , consisted of me and the members of the company’s senior management team listed at paragraph 46 above. … 57. Meetings involving both the Family Board (Board of Directors) and the Executive Board have taken place approximately three or four times each year for the past three years. Of the 12 meetings held since 2016, four have been held in Brazil, four have been held in London, and four have been formally in Orlando (with the location chosen in each case depending on where was most convenient for the family members attending). ... 58. Meetings of the Executive Board are held weekly and are generally not minuted. As noted at paragraph 51 above, prior to my departure on31 May 2020 , I and the other members of the company’s senior management team (who make up the Executive Board) also spoke with each other several times over the course of a typical day, both in meetings and on an ad hoc basis. 59. Examples of meetings that take place including members of the Executive Board include: (a) the regular planning meeting of the management teams responsible for agricultural, procurement and processing issues. This meeting is attended by Executive Directors of Sucocítrico Cutrale and relevant members of their staff. The purpose of this meeting is to organize the flow of oranges according to the available volumes, quality and requirements of customers. These meetings take place once a week almost exclusively at the Sucocítrico Cutrale headquarters in Araraquara. (b) daily operational meetings among Executive Directors and managers regarding subjects such as finance, supply and legal issues. 60. On the whole, and with the above in mind, it is my view that the overwhelming majority of the decision-making in relation to Sucocítrico Cutrale takes place in Brazil. In the case of strategic and/or entrepreneurial issues that are referred to the Family Board (Board of Directors), decision-making may take place outside Brazil if it is more convenient for the members of the Family Board (Board of Directors) to meet elsewhere. As noted in paragraph 57 a minority of Sucocítrico Cutrale’s Family Board (Board of Directors) meetings take place in London.” 59. In his second witness statement, Mr Cervato said on this topic: “14. The operational decisions taken by Sucocítrico Cutrale’s Executive Board in Brazil enable the company to function. They cover a broad range of activities necessary for the company’s operations, and a few specific examples are as follows: a. purchasing and coordinating the raw materials and industrial equipment required to run the processing plants (see, for example, the redacted purchase contract and service agreement in relation to underwater maintenance signed by Otavio Gottardi Abujambra, at JC2-[29]-[63]; b. the running of the complex logistics network (see, for example, the redacted contract for the supply of gas, signed by Otávio Gottardi Abujambra, at JC2-[64]-[73]); c. the ongoing assessment of the business’s facility requirements and, where necessary, the purchase and leasing of property and development of real estate (see, for example, the redacted contract for the purchase of rural property, signed by Valdir Guessi, at JC2- [74]-[93]); d. the construction and maintenance of buildings (see, for example, the redacted construction service agreement, signed by Otávio Gottardi Abujambra, at JC2-[94]-[124]); e. coordinating collective labour protection for employees (see, for example, the redacted collective labour agreement, signed by Carlos Otero de Oliveira, at JC2-[125]-[151]); f. ensuring the wellbeing of employees and coordination of human resources matters (see, for example, the redacted contract for health insurance, signed by Carlos Otero de Oliveira, at JC2-[152]-[215]); g. carrying out necessary financing activities (see, for example, the redacted guaranteed account contract, signed by me, at JC2-[216]- [244]); and h. coordinating the internal audit function and engaging with external auditors (see, for example, the redacted external audit proposal, signed by me, at JC2-[245]-[264]). 15. All research, preparation, negotiation and execution associated with such activities is likewise the responsibility of the company’s management team in Brazil. I describe these as “operational” matters but these activities are obviously essential to the commercial success of the company and involve decisions necessary for the company to develop, adapt and prosper in a competitive market. 16. As I explained in Cervato-1, in the vast majority of cases, operational decisions are made by Sucocítrico Cutrale’s management team without any prior consultation with the Family Board ... For completeness, I noted in Cervato-1 that members of the Sucocítrico Cutrale management team would “sometimes” consult the Family Board prior to making decisions ... Mr Evans, however, asserts that members of the Family Board “were consulted in relation to the administration of Sucocítrico on a frequent basis”... This overstates and mischaracterises the involvement of the Family Board in the day-to-day running of the company. ... 17. There are several reasons why the executive board in Brazil do not consult the Family Board members as frequently as Mr Evans implies. The main reason is that it would be impractical to involve the Family Board members in such a manner given Sucocítrico Cutrale’s scale. I provided a detailed description of the scope of Sucocítrico Cutrale’s business and the scale of its operations in Brazil in Cervato-1 ... Another important reason is that the company’s management team in Brazil is often confronted with the need to take decisions quickly. It would be impossible to operate the business successfully and efficiently if it was necessary to involve the Family Board in all such decision making, which in any event would not make sense, having an experienced, qualified executive board with the necessary powers to run the business. Strategic and/or entrepreneurial decisions 18. In Cervato-1, I observed that certain decisions, which I described as “strategic and/or entrepreneurial decisions”, are referred to the company’s boards - i.e. the Executive Board and the Family Board ... I then proceeded to provide a summary of their respective functions, and a description of when, where and how they meet ... 19. The Executive Board, I noted, meets weekly and has a broad range of responsibilities under Sucocítrico Cutrale’s Articles of Association, including responsibility for financial, supply of raw materials, orange juice production, labour, hygiene, health and safety, tax, social security, regulatory and legal matters ... It also has broad residual powers vested in it as the body responsible for the “ordinary administration of the company”. 20. The Family Board, I noted, meets less regularly - around three or four times a year with the Executive Board also present … and once or twice a year for each of the last three years without the Executive Board present … I believe that at meetings without the Executive Board present the Family Board largely deal with matters where the Articles of Association or Brazilian law require approval from the Family Board. 21. The Family Board has a broad range of responsibilities under Sucocítrico Cutrale’s Articles of Association …. In contrast to the Executive Board, however, the functions attributed to the Family Board are generally matters of governance and oversight, with its primary roles being to: a. set overall parameters within which the Executive Board and management team in Brazil may run the business (including objectives, policies and governance rules); and b. sign off on matters that require the approval of the Family Board for statutory and legal reasons (such as the opening and closing of bank accounts, the granting of guarantees, sureties and endorsements, mergers and acquisitions, amendments to the company’s Articles of Association and certain real estate transactions). 22. While certain members of the Family Board are updated regularly regarding the business (as discussed further below), the Family Board’s main involvement from a decision-making perspective concerns certain key strategic decisions. Moreover, the Family Board’s involvement with respect to these decisions would usually be reserved for the final stages of the decision-making process, when information has already been collected and the feasibility of the proposed decision has been considered by the relevant members of the Executive Board, at which point the decision would be discussed with members of the Family Board and presented at a formal board meeting. 23. If I were to summarise the relationship between the Executive Board and the Family Board, I would describe the Executive Board as the body that actually makes decisions, and the Family Board as an oversight body that sets the overall parameters within which such decisions are made and authorises them where specifically necessary. That is not to say that members of the Family Board do not interact with members of the Executive Board and express views in the context of those discussions (as explained further below), but I reject any suggestion that decision-making is controlled by the Family Board more generally or that the business is in fact run by the Family Board.”
“In terms of how this is achieved in practice, members of the Family Board will often be updated on Sucocítrico Cutrale’s performance by means of telephone calls or face-to-face discussions (almost always in Brazil). Increasingly, however, automated software tools are being used to make it easier for the management team in Brazil to provide information on the company’s performance to the Family Board members.” (§ 34) 62. Mr Abujamra, the Industrial Director, states: “14. In brief. … my role as Industrial Director of Sucocítrico Cutrale involves supervising the entire industrial process for the manufacturing of orange juice and orange by-products. This role includes: a. supervision of product quality at all stages of the production process; b. production planning and control; c. planning and control of transport logistics from the juice processing plants to the shipping ports of Santos and Guarujá; d. control of the maintenance of existing facilities and equipment; e. proposal and implementation of improvement and expansion projects relating to the industrial process; f. responsibility for any unforeseen restoration projects (for example, where damage is caused to a processing plant); and g. responsibility for budgeting with respect to those areas falling within the industrial process (for example, budgeting for the maintenance of the processing plants). 15. As Industrial Director, I report to Sucocítrico Cutrale’s Board of Directors, which I will refer to as the “Family Board” for the purposes of this statement. My role involves both formal reporting to, and consultation with, the Family Board. 16. José Henrique Cutrale is my primary contact within the Family Board. Since my appointment as Industrial Director, José Henrique Cutrale has always been the member of the Family Board who deals with matters relating to the industrial operations of the business. … 18. In my role, decisions normally made by me may include, by way of example: a. negotiating the purchase of industrial equipment; b. determining the quantity of oranges to be processed at a given processing plant; c. determining the extent to which rail or road logistics should be used for transporting our products; d. resolving unforeseen events - for example, there was recently a fire at one of our processing plants, which resulted in the need to determine the appropriate adjustments to our industrial process in the short term and to ensure that appropriate remedial steps were taken immediately, such as restoration of the damaged plant; e. determining which processing plants should open and when for the season; and f. determining the staffing required for the factories and terminals. … 21. … I can confirm that for the area of the business for which I am responsible, the vast majority of operational decisions are made without first consulting a member of the Cutrale family.”
“Any place within the jurisdiction where the corporation carries on its activities; or any place of business of the company within the jurisdiction.”
“50. If, contrary to my finding, registering and opening a UK establishment is insufficient then the next question is whether STX has a place of business in the UK as a matter of fact having regard to all the evidence. 51. The authorities show that “ any place of business ” is to be construed broadly. It extends to a place where the overseas company conducts business activities, even if incidental. For example, in South Sea India Shipping Corp Ltd v Export-Import Bank of Korea[1985] 1 WLR 585 a Korean bank established an office in London for the purposes of gathering information on the United Kingdom, providing information on the activities of the bank for the purpose of promoting economic relations, and conducting other liaison activities. The Court of Appeal concluded that the company had established a place of business in the United Kingdom, even though it did not conclude any banking transactions in London. On the other hand, “ an address with which the company has no more than a transient or irregular connection ” will not be sufficient. See the Lakah Group case at [41] per Gray J as endorsed by the Court of Appeal at [8] (of the subsequent judgment). … 53. In my judgment the evidence as a whole does establish that STX was carrying out business activity and had a place of business at the material time. In particular: (1) In its OS IN01 form STX declared that it had opened a UK establishment as from12 February 2014 which was conducting the business of a “liaising office”
“…. when Mr Cutrale is in London, he manages his business interests, in part, from the Park Lane Address. Cutrale suffered health complications in 2018 and now works restricted hours, so I see him less than I used to. When Cutrale is at the Park Lane Address, I predominantly speak to him about Burlingtown, including Chiquita, general economic matters and sometimes his personal affairs, as this is all I have sight of …”
“(2) An individual is domiciled in the United Kingdom if and only if – (a) he is resident in the United Kingdom; and (b) the nature and circumstances of his residence indicate that he has a substantial connection with the United Kingdom. […] (6) In the case of an individual who – (a) is resident in the United Kingdom, or in a particular part of the United Kingdom; and (b) has been so resident for the last three months or more, the requirements of sub-paragraph (2)(b) … shall be presumed to be fulfilled unless the contrary is proved. (7) An individual is domiciled in a state other than a Regulation State if and only if— (a) he is resident in that state; and (b) the nature and circumstances of his residence indicate that he has a substantial connection with that state.”
“I accept Miss Deal's submission that the claimant has not been staying in hospital as a substitute for her home as might be the case if, for example, a person is detained under theMental Health Act 1983 . In my view the fact that the transfer to hospital took place across national borders is in some ways liable to distract attention away from the natural way of looking at things. Take, for example, a person who lives in England, who is badly injured in an accident in England and has to spend a long time in hospital for treatment in England. The natural way of looking at their residence would be to say that it was still their home, not that the hospital had become their home. That is where he or she was living and that is where he or she would move back to as soon as the need for treatment in hospital has come to an end. In the present context too in my view the claimant was not resident at the hospitals concerned and therefore was not resident at the material date in England and Wales.” ii) When considering the meaning of ‘ordinary residence’, Lord Scarman in R v Barnet LBC, Ex p Shah[1983] AC 309 (cited in Tugushev at § 123) noted that: “All that the law requires is that there is a settled purpose. This is not to say that the “propositus” intends to stay where he is indefinitely; indeed his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family, or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.”
“In High Tech International v Oleg Vladimirovich Deripaska[2006] EWHC 3276 (QB) reliance was placed upon the above passage in relation to the visits of Mr Deripaska, an extremely wealthy Russian citizen domiciled in Russia who was also alleged to be domiciled in England. Although he owned two valuable homes in England (one in Weybridge and one in Belgrave Square), his visits were almost always for business purposes and were described as “flying visits”
“In the final analysis, the true meaning of ‘substantial’ is gathered from its consequences. A connection to the United Kingdom is ‘substantial’ if it suffices to make it appropriate that the courts of the United Kingdom exercise general jurisdiction, without the possibility of being able to stay proceedings in favour of a forum conveniens elsewhere, in any and all civil and commercial proceedings brought against the defendant. Bearing in mind the formidable consequences of finding that an individual has a domicile in the United Kingdom, the word ‘substantial’ is not to be interpreted as though it means ‘not a lot more than minimal’.”
“I am not persuaded that Yugraneft has much the better of the argument on whether at the date of the issue of the claim form Mr Abramovich was resident in England and Wales. On the contrary it appears to me that, despite his ownership of Chelsea and his property in Lowndes Square, he was resident in Russia and not in England. Purchases of expensive property in England which, in the case of a man of ordinary wealth, would suggest settlement here, may have no such significance to someone for whom money is no object. Mr Abramovich’s use of the Lowndes Square property (intended to become a single property) does not indicate that in November 2007 it was his usual or settled place of abode. It was not then the place in which, even for limited periods, he habitually and normally resided for a settled purpose. It was a place to which he came when visiting London largely in order to indulge his extravagant hobby of owning a football club and watching it play football. Those visits were in 2007 limited in number and short in length. I do not ignore the position in 2005 and 2006 when the number of full days spent in England was higher (between 67 - 110), as was the average number of full days (1.40 - 2.68). But even then the stays were intermittent and, on average, short lived. Further the “numbers game”, which disputants in this area decry and then play or find themselves forced to play, does not take into account the changing circumstances of Mr Abramovich’s life and of his visits which, certainly by November 2007 were far from indicating sufficient permanence, continuity, or settlement to constitute residence.”
“In High Tech [ High Tech International v Deripaska[2006] EWHC 3276 (QB) ] (para 30), Eady J noted that the independent actions of an individual’s family should not be taken to affect the assessment as to whether that individual is resident in England. That must particularly be so, it is submitted, in the case of someone who, at the date at which residence is to be determined, was a former wife.”
“A person domiciled in a State bound by this Convention may also be sued: 1. 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”
“1. Where jurisdiction is based on Article 4 or on Articles 7, 8 or 9 and an action is pending before a court of a third State at the time when a court in a Member State is seised of an action which is related to the action in the court of the third State, the court of the Member State may stay the proceedings if: (a) it is expedient to hear and determine the related actions together to avoid the risk of irreconcilable judgments resulting from separate proceedings ; (b) it is expected that the court of the third State will give a judgment capable of recognition and, where applicable, of enforcement in that Member State; and (c) the court of the Member State is satisfied that a stay is necessary for the proper administration of justice. …”
“(23) This Regulation should provide for a flexible mechanism allowing the courts of the Member States to take into account proceedings pending before the courts of third States, considering in particular whether a judgment of a third State will be capable of recognition and enforcement in the Member State concerned under the law of that Member State and the proper administration of justice. (24) When taking into account the proper administration of justice, the court of the Member State concerned should assess all the circumstances of the case before it. Such circumstances may include connections between the facts of the case and the parties and the third State concerned, the stage to which the proceedings in the third State have progressed by the time proceedings are initiated in the court of the Member State and whether or not the court of the third State can be expected to give a judgment within a reasonable time. That assessment may also include consideration of the question whether the court of the third State has exclusive jurisdiction in the particular case in circumstances where a court of a Member State would have exclusive jurisdiction.”
“… it seems to me that the words of the article itself militate against the suggested limitation. The actions, to be related, must be ‘so closely connected that it is expedient to hear and determine them together’ to avoid the risk of irreconcilable judgments resulting from separate proceedings. To my mind these wide words are designed to cover a range of circumstances, from cases where the matters before the courts are virtually identical … to cases where although this is not the position, the connection is close enough to make it expedient for them to be heard and determined together to avoid the risk in question. … I am of the view that there should be a broad commonsense approach to the question whether the actions in question are related, bearing in mind the objective of the article, applying the simple wide test set out in article 22 and refraining from an over-sophisticated analysis of the matter.”
“While I recognise that the impossibility of these proceedings being consolidated with the Italian proceedings is a factor militating against a stay under Article 30, I consider that in the present case it is outweighed by other considerations, and in particular by: (i) the degree of relatedness of the two proceedings; (ii) the reality of the risk of inconsistent decisions; (iii) the fact that the Italian proceedings are now considerably more advanced than the English proceedings; and (iv), which is connected with (iii), the fact that the Italian Courts and Italian legal teams are now immersed in the facts of the matter.”
“connections between the facts of the case and the parties and the third State concerned, the stage to which the proceedings in the third State have progressed by the time proceedings are initiated in the court of the Member State and whether or not the court of the third State can be expected to give a judgment within a reasonable time.”
“In Owens Bank Ltd v Bracco (Case C-129/92 )[1994] QB 509 , at paras 74-79, Advocate General Lenz identified a number of factors which he thought were relevant to the exercise of the discretion. They can I think briefly be summarised in this way. The circumstances of each case are of particular importance but the aim of Article 28 is to avoid parallel proceedings and conflicting decisions. In a case of doubt it would be appropriate to grant a stay. Indeed, he appears to have approved the proposition that there is a strong presumption in favour of a stay. However, he identified three particular factors as being of importance: (1) the extent of the relatedness between the actions and the risk of mutually irreconcilable decisions; (2) the stage reached in each set of proceedings; and (3) the proximity of the courts to the subject matter of the case. In conclusion the Advocate General said at para 79 that it goes without saying that in the exercise of the discretion regard may be had to the question of which court is in the best position to decide a given question.”
“III. It is important to bear in mind that, for several years, the claimants have signed contracts for the sale of oranges, always with the object of future harvests. Contracts signed between 2001 and 2005 are in force, covering subsequent years, including this one in progress. As a consequence, they have secured the acquisition by the claimant of all annual production, according to the price established in the adjustment, regardless of the variations verified in the national and international market. It is evident that the price fixed in legal transactions of that nature takes into account the guarantee that sellers enjoy, protected from any fall in the price of the product on the market. That is to say, the claimants do not run the risks, which naturally the rural producers are subject to, of suffering with the reduction of the price due to the variations of the market and, still more, of not being able to buy for the harvest and to see it totally lost. It is a natural consequence of this situation - as well as in all those in which the risk is reduced or removed - that the profit obtained from the business is lower than that obtained, should they choose to sell the production each year. That is why, except for situations of extreme disparity in values and evident imbalance between the contracting parties, linked to unpredictable events, the revision of the values originally set is not allowed, under the risk of unbalancing the parameters of the executed deal. In other words, with the exception of an unpredictable and extraordinary event, sellers cannot have in their favour both the guarantee of purchase of the harvest and the contractually fixed price, and the possibility of revising the price, if higher than that practiced in the market. In this case, the event pointed out by the claimants as extraordinary, to justify the nullity of some and the termination of other contracts, would be the practice, by the defendant, of illicit adjustments with other industries producing concentrated juices, in order to direct, the favour of them, the price of oranges, preventing free competition in the market. Even before 1995, the effective date of the claim for the annulment of adjustments, similar events occurred, which is why the defendant was faced with accusations of forming a cartel with the other industries in the sector. The issue, therefore, is not a new one and was previously resolved in favour of the defendant, by government agencies charged with ensuring the good practices of national and international trade. Now, once again, there are complaints made by a director of the defendant, who withdrew from it, in the sense that, for a long time, the concentrated juice industries have been manipulating the orange-producing market, directing the formation of prices, always, obviously, to the disadvantage of farmers. If, for the purposes of market control and inspection, within the remit of CADE and SDE, the charges may lead to the adoption of punitive measures to the defendant, I have several considerations that apply with respect to the claimants. Since 1995, they have signed contracts with the defendant, aware that it was accused of manipulating and directing fruit prices. Obviously, they could choose to sell oranges according to different types, without targeting them to the concentrated juice industry. But no! They chose to have an annual sale guarantee for the harvest, even though it was less than what they could get on the market at the time of the harvest, because, evidently, they did not want to take any risks. The subsequent conduct of, after having ensured the destination of consecutive harvests, not wanting to obtain a higher price for the fruit, as if they had taken the typical risk of selling according to different modality, should not be worthy of judicial support.”
“1. For the purposes of this Section, a court shall be deemed to be seised: (a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the claimant has not subsequently failed to take the steps he was required to take to have service effected on the defendant …”
“In cases decided in connection with the Brussels II Regulation, but which seem suitable for generalisation, the approach has been to ask whether national law imposes any specific conditions upon service, or simply provides that service must take place without further specification of time. In the former, failure to comply with conditions would sacrifice priority; in the latter, late, or even very late, service would not amount to breach of a specific rule regulating service, and would not lead to the loss of priority.”
“59. … the fact that the Brazilian courts have not so far consolidated the Brazilian actions does not of itself mean that they are not related claims or that they could not be consolidated at a later date (to date I understand that consolidation of the actions - at least those involving Sucocítrico Cutrale - has simply not been considered). Even if the cases are not consolidated in accordance with the discipline of article 55 of the CPC, it does not follow that they could not be case-managed together to avoid the risk of irreconcilable judgments between those actions. 60. As regards the overlap between the Brazilian claims and the London claims there are, similarly, obvious links. … 61. Annexed to this report is a table setting out various extracts from the pleadings in the Brazilian actions which demonstrate the extent to which the claimants bringing them are relying on almost identical causes of action to their counterparts in the London Claims. … 62. Taking this into account, it is definitely not “inconceivable” that the London Claims, if they were to be presented in Brazil, would be consolidated with the Brazilian proceedings (as Justice Peluso opines). The Brazilian Courts could ensure consistency of judgments through either a direct consolidation under article 55, or by ensuring that the claims are actively case managed alongside the other cases to promote consistent outcomes. The Brazilian courts in any event also have specific tools to co-ordinate decision making in the absence of the consolidation of cases more generally as noted above (including via the IRDR process and the consolidation of appeals). 63. Finally, I note, Justice Peluso did not mention that the rule at article 113 of the 2015 CPC which gives judges the ability to limit the number of claimants in a given action is not applicable to class actions. There is no doubt in my mind that the London Claims could, therefore, were they brought in Brazil, be heard as a single action.”
“48. The second factor seems to me however to be the most important one in this particular case, namely the stage reached in each set of proceedings. The stage in the Swedish proceedings is a long way behind these. It will be between one and two and a half years before jurisdiction is resolved there, two courts already having refused jurisdiction. It will be perhaps between three and five years before the substantive litigation in Sweden is resolved, if it ever gets off the ground. 49. Meanwhile, Office Depot's claims against the defendants here will be becalmed if the stay is granted. If instead they proceed, they will be completed in what is likely to be less than two years - with a three to four week trial that both sides agree will be required. It would indeed be justice denied for Office Depot to be required to start these proceedings again against the defendants three to five years down the line, many years after the cartel ended with all the evidential implications of that time lag. In my judgment, the exceptional circumstances of this case make it highly undesirable for the proceedings to be delayed here.”
“1. Where related actions are pending in the courts of different States bound by this Convention, any court other than the court first seised may stay its proceedings. 2. Where these actions are pending at first instance, any court other than the court first seised 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.”
“ 1. Where jurisdiction is based on Article 4 or on Articles 7, 8 or 9 and proceedings are pending before a court of a third State at the time when a court in a Member State is seised of an action involving the same cause of action and between the same parties as the proceedings in the court of the third State, the court of the Member State may stay the proceedings if: (a) it is expected that the court of the third State will give a judgment capable of recognition and, where applicable, of enforcement in that Member State; and (b) the court of the Member State is satisfied that a stay is necessary for the proper administration of justice. …”
“75 I have however been much more troubled by the absence of any particular focus by the judge upon the fact that, in this case, the anchor defendant, Vedanta, had by the time of the hearing offered to submit to the jurisdiction of the Zambian courts, so that the whole case could be tried there. This did not, of course, prevent the claimants from continuing against Vedanta in England, nor could it give rise to any basis for displacing article 4 as conferring a right to do so upon the claimants. But it does lead to this consequence, namely that the reason why the parallel pursuit of a claim in England against Vedanta and in Zambia against KCM would give rise to a risk of irreconcilable judgments is because the claimants have chosen to exercise that right to continue against Vedanta in England, rather than because Zambia is not an available forum for the pursuit of the claim against both defendants. In this case it is the claimants rather than the defendants who claim that the risk of irreconcilable judgments would be prejudicial to them. Why (it may be asked) should that risk be a decisive factor in the identification of the proper place, when it is a factor which the claimants, having a choice, have brought upon themselves?”