“Infringement against good morals (bonos mores) Whoever intentionally caused damages to another against good morals (bonos mores) is liable to compensate them.”
“Any agreement made in advance which excludes or limits liability from intentional conduct or gross negligence shall be null and void.”
“is not linked by any particular legal relationship with the shareholder or shareholders who nominated him or her to the Board, nor is he or she certainly a representative of them.”
“[Mr Karonis], assisted by the other [Directors], has planned and implemented a series of wrongful actions concerning the administration, operation, business activities and transactions of Viva, as well as the relationship with the supervisory authorities of Viva, in order to: (a) on the one hand, purposefully and systematically deprive [JPM] of any ability to exercise influence over Viva, through the exercise of its statutory and contractual rights, in accordance with the Articles of Viva, Law 4548/2018, and the SHA; and (b) on the other hand, deprive [JPM] of its economic rights in Viva.”
“An agreement to indemnify and hold harmless contains within it by necessary implication an implied term not to sue. It meets any or all of the well known tests for implication of terms. It would be absurd to allow Deepak to sue ICI with the consequence that ICI sues Davy and Davy then have to sue Deepak for acting in breach of art. 10.10.3 by suing ICI.” iii) That conclusion receives some impetus from the effect of Article 15 of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (“Rome II”) which provides that the law applicable to a non-contractual obligation will govern “the grounds for exemption from liability, any limitation of liability and any division of liability”
“[A] situation may arise in which the defendant relies on the terms of a contract in answer to a claim made against it otherwise than for breach of contract. If a term contained within a contract between the claimant and defendant purports to exclude or restrict the defendant’s liability, the question arises as to whether that term can be successfully pleaded as a defence to a claim based (for example) on a tort/delict which is governed, under the Rome II Regulation, by a law different from that which governs the contract. In principle, this question should be taken to be concerned with ‘the grounds for exemption from liability’ or ‘limitation of liability’, which must, in accordance with Art.15(b) of the Rome II Regulation, be addressed under the law applicable to the non-contractual obligation and not the law applicable to the contract. If, however, the law to which Art.15(b) points recognises the possibility that a contractual term may offer a defence to the non-contractual claim, the law applicable to the contract must then be referred to in order to determine any matters incidentally in dispute concerning the validity and interpretation of that contract (for example, whether the liability falls within the scope of an exclusion clause).”
“Under Art 15(b), the law applicable to a non-contractual obligation under the Rome II Regulation will determine whether liability with respect to that non-contractual obligation may be excluded or limited by a prior agreement between the parties or by a unilateral act. The agreement in question may be embodied in a contract between the parties or may be expressed or implied in circumstances where there is no intent to create a legally binding relationship, for example in the case of participants in sporting activities. If the law applicable under the Rome II Regulation requires a contract, the validity and construction of any contract will be a matter for the law applicable to that contract under the Rome I Regime. Otherwise, the effectiveness of an agreement or other act in excluding or limiting liability will be a matter for the law that applies under the Rome II Regulation, without prejudice to the possibility that a contracting party may argue that the commencement of proceedings based on a non-contractual obligation constitutes a breach of contract entitling it to a remedy.” iv) That choice of law outcome is capable of having a negative impact on attempts by parties to agreements with an international operation but governed by English law to regulate their mutual liabilities (or those of related parties) in tort, in circumstances in which the English law of contract is not itself sufficient to make English law the applicable law of the non-contractual obligation in issue (see [180]-[182] below). However, those consequences will be avoided to the extent that the provision limiting or restricting non-contractual liability in the English law contract is interpreted as a promise not to bring proceedings to assert such a liability. For example footnote 167 to [34-019] of Dicey provides: “In some cases, the bringing of a non-contractual claim may be argued to involve a breach of contract, in which case the law applicable to the contract may apply directly to determine whether, for example, that claim may be restrained by an injunction (see, e.g. National Westminster Bank Plc v Utrecht-America Finance Co[2001] EWCA Civ 658 , [2001] 3 All E.R. 733; National Westminster Bank Plc v Rabobank Nederland[2007] EWHC 1742 (Comm) , [2008] 1 Lloyd’s Rep. 16).”
“that first part has the contractual function of prohibiting actions against the servants or agents of the carrier, a prohibition which can be enforced by the carrier by injunction: see Nippon Yusen Kaisha v International Import & Export Co Ltd (‘The Elbe Maru’) [1978] 1 Ll Rep 206.” viii) The Court of Appeal ([2001] CLC 696, Morritt VC, Chadwick and Rix LJJ) agreed ([116]), although Rix LJ noted that he was concerned only with what the text in question was seeking to do, not with its effectiveness as a promise not to sue. ix) Before those courts, possibly due to the failure to spot the unintentional omission of some of the words in the relevant clause, the argument proceeded on the basis that if the clause took effect only as an agreement not to sue and not as an exclusion, it could not avail the shipowner on privity of contract grounds. x) However, in the House of Lords, that conclusion was reversed. Lord Bingham at [24] stated: “Colman J[2000] 1 Lloyd's Rep 85 , 99-100 interpreted this provision as a covenant nottosue, enforceable by injunction, such as was considered in Nippon Yusen Kaisha v International Import and Export Co Ltd (The Elbe Maru)[1978] 1 Lloyd's Rep 206 . All three members of the Court of Appeal[2001] 1 Lloyd's Rep 437 , 461, para 116; 471, para 169; 476, para 201 agreed with him. Given this unanimity of opinion, one is reluctant to disagree. But it is in my judgment impossible to spell a covenant nottosue out of the language of this clause, as the Court of Appeal found it to be in Gore v Van der Lann[1967] 2 QB 31 . The language construed in The Elbe Maru was strikingly different.”
“[I]n my opinion, and I understand it to be that of all your Lordships, part (1) simply cannot be read as a covenant not to sue. It does not say that the shipper is not to sue the third party. It says that he shall not be under any liability. A similar point arose in Gore v Van der Lann … in which the plaintiff contracted with the Liverpool Corporation that their bus drivers would not be liable to her for any damage however caused. The corporation did not purport to contract as agent for the drivers and when the plaintiff sued a driver it was conceded that he could not rely upon the exemption … But the corporation intervened to claim that the contract was a covenant not to sue the drivers which they could enforce. The Court of Appeal rejected this argument, saying that the agreement could not be construed as containing such a covenant. So it seems to me that either part (1) is a contract of exemption between shipper and third party or it is wholly ineffective. In my opinion it is the former.” xiii) Lord Hobhouse at [145] stated “as regards the argument that the first part of the second paragraph of clause 5 should be construed as a contract not to sue, I do not consider that this is a possible construction of the wording.”
“I do not consider that the distinction drawn by the judge between a right of action and a contractual defence can in this context be sustained. Section 1(6) of the 1999 Act effectively provides that for the purposes of the Act no such distinction shall be drawn. In the language of ss. 1(6) and 8(1)(a) the third party availing himself of the exclusion is the equivalent of his enforcing a term in the contract. The question therefore whether the right to ‘enforce’ the exclusion is subject to the arbitration clause cannot be resolved simply by characterising it, rightly, as a contractual defence.”
“42.1 Except as expressly provided otherwise in this Agreement in respect of a dispute resolution mechanism, any Party may give notice of any Dispute (a Dispute Notice) to all of the other Parties. The Dispute Notice shall include a detailed description of the Dispute, against whom it is addressed and any steps taken by the Parties to resolve it. Within 10 Business Days of receipt of the Dispute Notice, those against whom the Dispute is not addressed shall notify the Party who sent the Dispute Notice if they wish to be involved in the Dispute and if so, in what capacity. 42.2 Following the Dispute Notice, the Parties, or such of them against whom the Dispute is addressed, Parties who respond to the Dispute Notice or otherwise declare themselves to be interested in the Dispute, shall attempt in good faith to resolve the Dispute through a face-to-face meeting or telephone conference call within 15 Business Days after the date that the Dispute Notice was received under Clause 42.1 (or such longer period as may be agreed in writing between the Parties) (the First Resolution Period). The Parties shall meet at least on one occasion in this period. Consent to a first meeting proposed by one Party shall not be unreasonably withheld by the others. The Parties’ Representatives shall have full authority to engage in these negotiations and to enter into any settlement agreement on the Parties’ behalf. 42.3 If the Parties are unable to resolve the Dispute by amicable negotiation within the First Resolution Period, the Dispute shall be referred to the respective Dispute Representatives of the parties within 15 Business Days after the end of the First Resolution Period. The Dispute Representatives shall attempt in good faith to resolve the Dispute through a face-to-face meeting or telephone conference call within 10 Business Days after the date on which it was referred to them in writing (or such longer period as may be agreed in writing between the Parties). The Dispute Representatives shall meet at least on one occasion in this period. Consent to a first meeting proposed by one Dispute Representative shall not be unreasonably withheld by the Dispute Representatives. The Dispute Representatives shall have full authority to engage in these negotiations and to enter into any settlement agreement on the parties’ behalf. 42.4 Except to obtain interim or provisional relief or where expressly provided otherwise in this Agreement, neither Party may bring any proceedings under Clause 42.5 in relation to any Dispute until the procedure in Clauses 42.1 to 42.3 (inclusive) has been followed. 42.5 Except as expressly provided otherwise in this Agreement in respect of a dispute resolution mechanism, the English courts shall have exclusive jurisdiction in relation to all Disputes. For these purposes, each party irrevocably submits to the jurisdiction of the English courts and waives any objection to the exercise of that jurisdiction. Each party also irrevocably waives any objection to the recognition or enforcement in the courts of any other country of a judgement delivered by an English court exercising jurisdiction pursuant to this Clause. 42.6 Each party irrevocably consents to service of process or any other documents in connection with proceedings in any court by facsimile transmission, personal service, delivery at any address specified in this Agreement or any other usual address, mail or in any other manner permitted by the law of the place of service or the law of the jurisdiction where proceedings are instituted, including but not limited to service to any party’s agent for service of process in accordance with Clause 43. 42.7 Each party acknowledges that each of WRL and JPM may be irreparably harmed by any breach of the terms of this Agreement and that damages alone may not necessarily be an adequate remedy. Accordingly, each of WRL and JPM shall be entitled to seek the remedies of final or interim injunction, specific performance and other equitable relief, or any combinations of these remedies, for any potential or actual breach of its terms. 42.8 The provisions of Clauses 42.1 to 42.4 (inclusive) shall not apply in respect of any Disputes in relation to Schedule 15.”
“Dispute Representative means in the case of each party, such individual nominated in writing in the case of JPM and WRL to each other party as soon as possible following the date of this Agreement and in the case of any other party as soon as possible after adherence to the terms of this Agreement”. iii) Once again, this contemplates that the parties to clause 42 are JPM, WRL and those who adhere to the terms of the SHA, which, in context, means someone who has executed a Deed of Adherence. iv) Clause 42.4, which mandates the following of the tiered process save in limited cases, states “neither Party may bring any proceedings under Clause 42.5 in relation to any Dispute until the procedure in Clauses 42.1 to 42.3 (inclusive) has been followed”
“There is no express language in the agreement to the effect that … the exclusion is subject to the arbitration clause. … [T]hat result can only be achieved by way of inference. It is however to impute to the parties a really very far-reaching intention if it is to be inferred that they positively intended to bring about the result that third parties would be bound by the outcome of arbitration proceedings which they had not themselves initiated in order to secure a benefit apparently conferred upon them by the agreement. … [T]he consequences are so far-reaching that very clear language is I think required to bring about the result that the right of a third party to avail himself of an exclusion clause in an agreement to which he is not party is in turn subject to an arbitration clause in the same agreement.”
“Therefore, the obligation owed in tort by Aon to LaMia of which the Individuals claim the benefit is one which is conditioned or restricted by LaMia's contractual agreement not to bring such claims other than in the courts of England and Wales. It may be said that this does not make the obligation a contractual one … Nevertheless, it seems to me that if, as I have held, the underlying obligation in the present case is conditioned by the jurisdiction agreement, then a claim to enforce that obligation should be treated as one that is subject to an obligation in equity not to sue in a non-contractual forum, which is the basis of the ‘quasi-contractual’ anti-suit cases.”
“I shall now consider the position of Mansel which is also a party to the Lagos proceedings. Mansel is a wholly owned subsidiary of the claimant. It acted at all times solely as the claimant's agent. In Nigeria to all intents and purposes it stands in the shoes of the claimant. In my view, Horn Linie v Pan Americana … is authority for the proposition that an exclusive jurisdiction clause can cover the claims made against an agent in such circumstances so as to bring such a claim properly within the ambit of the anti-suit injunction. In my view the claimant has made out a good case including both principal and agent in the terms of the injunction in the present case.”
“Whether or not the pursuit of DBSI amounts to a breach of clause 5, it does seem at the very least arguable that the principles of The Hornbay, to which I referred above, and whose applicability, as I have indicated, Mr Allen QC did not challenge, apply. In that case an anti-suit injunction was granted by Morison J, in circumstances in which the defendants unsuccessfully resisted a claim by shipowners in London, the contractual forum, for an anti-suit injunction, when, in order to seek to avoid the consequences of a jurisdiction clause, their claim in Colombia, which related to the contract, was brought in proceedings, not against the shipowners, but against the shipowners' agents.”
“I conclude it to be at least strongly arguable, as set out above, that DBSI are engaged by the non-exclusive jurisdiction clause and became a party to it. However, quite apart from that, I am satisfied that the principles in The Hornbay entitle me to conclude that, in practice, the action in Texas, so far as it concerns joinder of agents or servants of the Claimant for the purpose of enforcing relief in connection with the contract, all of which would be justiciable in the United Kingdom, that the injunction should relate also to suit against DBSI. The same principle would apply to Mr Newell as a servant or agent. No substantive ground has been put forward as to why or whether there is any claim against him which is not in reality one made against his principals/employers and in connection with the Agreements and Transactions, and in the light of The Hornbay I grant an injunction in favour of the Claimant and DBSI in relation to pursuit of Mr Newell also.”
“Quite apart from any desire or obligation to pay an indemnity or a contribution to Messrs Hall and Griffiths, I am satisfied that what Mr Nicholls describes as the obvious reputational damage for RBS resulting from the making of a claim as to what Messrs Hall and Griffiths have allegedly done during their employment, in itself gives RBS a sufficient interest. I would accordingly conclude that to restrain the Texas Proceedings, not only against RBS, but also against Messrs Hall and Griffiths, falls within the ambit of the exclusive jurisdiction clause and/or is a proper consequence of it.”
“I am satisfied, as was Hamblen J, that there is jurisdiction to make such an order in order to avoid the arbitration clause being frustrated and circumvented. It is obvious, not least from the fact that the Trustee wished to continue with the very same Request for Instruction proceedings, to which the Companies and David Bannai had been joined, against them, even after the grant of the injunction by Walker J, that if no such order is made and the arbitration proceedings commenced between the Trustee and the Claimant, the Israeli proceedings would continue against the Companies in parallel, for the relief which the Trustee seeks in relation to transfers of ownership and declarations of interest in the assets, leading to oppressive litigation on two fronts and to no purpose. There is an analogy that can be drawn with the case of The Hornbay[2006] 2 Lloyd's Law Rep 44 (where there was not an arbitration clause but an exclusive jurisdiction clause), where the Claimants were entitled to restrain proceedings not only against them but against their agents.”
“Deliberate infliction of loss contra bonos mores A person who deliberately causes loss to another in a manner which contravenes good morals is obliged to compensate the other for the loss.”
“The claimant may serve the claim form on the defendant outside of the United Kingdom where, for each claim made against the defendant to be served and included in the claim form – … (b) a contract contains a term to the effect that the court shall have jurisdiction to determine that claim; or (c) the claim is in respect of a contract falling within sub-paragraph (b).”
“The claimant may serve the claim form on the defendant outside of the United Kingdom where each claim made against the defendant to be served and included in the claim form is a claim which the court has power to determine under the 2005 Hague Convention, and the defendant is a party to an exclusive choice of court agreement conferring jurisdiction on that court within the meaning of Article 3 of the Hague Convention.”
“The claimant may serve the claim form on the defendant outside of the United Kingdom where, for each claim made against the defendant to be served and included in the claim form: (a) the court has power to determine that claim under the 2005 Hague Convention, and the defendant is a party to an exclusive choice of court agreement conferring jurisdiction on that court within the meaning of Article 3 of the 2005 Hague Convention; or (b) a contract contains a term to the effect that the court shall have jurisdiction to determine that claim.”
“Finally, it may be relevant to note that the fact that proceedings have been brought for ASI relief by reference to a contract to which either the applicant, the respondent, or both are said not to be parties also has the potential to raise issues as to the proper basis for serving applications for such relief out of the jurisdiction. In order to remove any scope for doubt on this issue so far as claims to enforce exclusive jurisdiction clauses are concerned, the Civil Procedure Rules Committee has approved an amendment toCPR 6.33 (2B) to provide that a claimant may serve a claim form on a defendant outside the jurisdiction where ‘for each claim made against the defendant to be served and included in the claim form … the claim is in respect of a contract’ which ‘contains a term to the effect that the court shall have jurisdiction to determine the claim’ (on the basis that the width of the words ‘in respect of’ will address any issues which might otherwise arise from the quasi-contractual nature of such ASI applications).”
“The new r.6.33(2B)(c) also appears to have the effect that a claim form can be served out of the jurisdiction without the court’s permission not merely where the claim falls within a jurisdiction clause in the contract (or, as appears to be intended, would do so if the claimant and defendant were both parties to that contract) but also where the claim is ‘in respect of’ a contract containing such a clause. This could be interpreted to apply more broadly than to claims seeking an anti-suit injunction given the breadth of the phrase ‘in respect of’ ….”
“There is no dispute that Navig8 have (at least) a sufficiently strong argument for present purposes that the contracts evidenced by the bills of lading are, under English private international law, governed by English law. The question is whether they have a good arguable case that the claim for an injunction is “in respect of” them. In my judgment they do not. In Alliance Bank JSC v Aquanta[2012] EWCA Civ 1588 , where claims were brought in fraud by claimants who alleged that they were induced to make security contracts governed by English law, Tomlinson LJ, giving the judgment of the court, said (at para 71) that ‘unless the claimant is suing in order to assert a contractual right or a right which has arisen as a result of non-performance of a contract, his claim is not in this context properly to be regarded as one made in respect of a contract’. When this test is applied, the claim for an injunctive relief on the grounds that foreign proceedings are vexatious or oppressive falls outside paragraph 3.1(6)(c): no contractual right is asserted and no right resulting from any (actual or threatened) non-performance of a contract is asserted.”
“To the extent that any issue had arisen as to the availability of these arbitration specific gateways so far as applications under the vexation and oppression jurisdiction are concerned (and none was raised), where an EJC or arbitration agreement governed by English law is a central feature of the alleged vexation and oppression, which in essence involves a complaint of improper circumvention of that agreement, I would note thatCPR Practice Direction 6B para 3.1(6)(c) applies where a claim is “in respect of” a contract governed by English law, words of obvious width on which I commented in the QBE case.”
“General rule 1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur. 2. However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply. 3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.” ii) Article 14: “Freedom of choice 1. The parties may agree to submit non-contractual obligations to the law of their choice: … (b) where all the partes are pursuing a commercial activity, also by an agreement freely negotiated before the event giving rise to the damage occured. The choice shall be expressed or demonstrated with reasonable certainty by the circumstances of the case and shall not prejudice the rights of third parties. 2. Where all the elements relevant to the situation at the time when the event giving rise to the damage occurs are located in a country other than the country whose law has been chosen, the choice of the parties shall not prejudice the application of provisions of the law of that other country which cannot be derogated from by agreement.” … (b) where all the partes are pursuing a commercial activity, also by an agreement freely negotiated before the event giving rise to the damage occured. The choice shall be expressed or demonstrated with reasonable certainty by the circumstances of the case and shall not prejudice the rights of third parties. iii) Article 16: “Overriding mandatory provisions Nothing in this Regulation shall restrict the application of the provisions of the law of the forum in a situation where they are mandatory irrespective of the law otherwise applicable to the non-contractual obligation.”
“Article 4(3) is an exception/exceptional in these senses but in my view, there is no additional test of exceptionality and it is therefore not necessary for the court to be satisfied, for example, that the facts of the case are also exceptional or unusual in nature before applying Article 4(3). What is required is the application of the words of Article 4 with an awareness of the aims of Rome II. The aim of Articles 4(1) and (2) in particular, is to achieve certainty. They will provide the answer in a given case unless they can be displaced. But [Rome II] also aims ‘to bring a degree of flexibility, enabling the court to adapt the rigid rule to an individual case so as to apply the law that reflects the centre of gravity of the situation’ through Article 4(3), albeit this provision will only operate in a clear and obvious case.”
“This Agreement and any non-contractual obligations arising out of, or in connection with, it shall be governed by, and interpreted in accordance, with English law.” ii) For this clause to avail the Directors for Article 14 purposes, it must form part of a contract to which they are parties with JPM (cf. Article 14(1), “the parties may agree …”). iii) For reasons I have given earlier, the Directors are not parties to clause 41 of the SHA as such, nor are they given rights under the 1999 Act in relation to that clause (cf. clause 38.6). iv) Is it, however, a term of the Clause 33 Contract? There is no express incorporation of clause 41, and indeed no incorporating language of the kind present in The Mahkutai[1996] AC 650 (“all exceptions, limitations, provision, conditions and liberties herein benefiting the carrier”), in which case Lord Goff appears to have been of the view that the choice of law “already applies to the bill of lading contract itself and may for that reason apply to another contract which comes into existence pursuant to its terms.”