SMT Global Logistics Limited v Georgian Airlines LLC [2025] EWHC 739 (Comm)

[2025] EWHC 739 (Comm)Case No CL-2024-000077
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (KBD)
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 24 February 2025
Before
THE HON. MR JUSTICE BRYAN
Between
SMT GLOBAL LOGISTICS LIMITEDClaimantGEORGIAN AIRLINES LLCDefendant
MR M. HAIN (instructed by Holman Fenwick Willan LLP) for ClaimantMR P. BURTON (instructed by Tenet Compliance and Litigation Limited) for DefendantHearing Hearing Date: 24 February 2025
APPROVED JUDGMENT
[1]The parties appear before the court on the hearing of:(1) The application of the Defendant, Georgian Airlines LLC (the “Defendant”) pursuant to its Application Notice dated 12 August 2024, challenging jurisdiction under CPR Part 11 on the basis that the Claim Form has not been validly served under CPR 6.33(2B)(b) (service out of the jurisdiction where permission is not required on the basis of a contract term that the court shall have jurisdiction to hear the claim) on the basis that Clause 7.2 of the relevant agreement does not amount to such a jurisdiction clause or, alternatively (if it does) on the basis that England and Wales is not the natural or appropriate forum for the claim nor the proper place in which to bring the claim and there is another available forum that is clearly or distinctly more appropriate than England and Wales, namely Georgia (the “Jurisdiction Application”); and(2) The application of the Claimant, SMT Global Logistics Limited (the “Claimant”) pursuant to its application notice dated 17 February 2025, in the alternative to its primary case that Clause 7.2 does amount to a term to the effect that the court has jurisdiction, for permission to serve the Defendant out of the jurisdiction on the basis that its claim is made in respect of a contract where the contract is (by Clause 7.2) governed by the law of England and Wales within the meaning of CPR PD 6B(6)(c) and England is the proper place in which to bring the claim (the “Permission Application”).[2]The Permission Application would, in the normal way, be heard ex parte on paper (with a right to thereafter apply to set it aside inter partes if granted). The Claimant only recently issued the application (although it was foreshadowed as long ago as September 2024 in the responsive evidence to the Jurisdiction Application). In circumstances in which the proper construction of Clause 7.2 inevitably arises on the Jurisdiction Application and the Paper Application but the Defendant submitted that the Permission Application should not be listed together with the Jurisdiction Application as they had had insufficient time to serve any response, I directed that the Permission Application should be listed with the Jurisdiction Application but it would be heard on an ex parte (albeit on notice) basis and should permission be granted, the Defendant would be at liberty to apply to set it aside in the usual way (such application thereafter being heard on an inter partes basis in the usual way).

BACKGROUND

[3]The Claimant is an air cargo specialist logistics company incorporated in Hong Kong. The Defendant is an airline incorporated in Georgia.[4]On 8 September 2023, the Claimant and the Defendant entered into a written contract for the carriage of goods by air (Agreement No.0905/23) (the “Contract”) whereby the Defendant agreed to “organise and execute regular cargo charter flights” in accordance with a pre-agreed schedule. By Amendment No.1 thereto, dated 17 October 2023, the previously agreed route (from an airport in China to an airport in Budapest) was amended to a different airport in China but the same airport in Budapest and the parties also agreed to operate Hong Kong to Madrid flights (as well as the possibility of ad hoc flights from Hong Kong to Belgium) until permits for the contemplated route were granted. By Amendment No.2 dated 25 November 2023 the parties agreed to revise the previously and temporarily operated Hong Kong to Madrid routes, with four flights from Hong Kong to London Stansted in December 2023 and agreed associated amended charter rates.[5]The parties also entered into two further similar agreements one dated 28 September 2023 (the “Second Contract”) with a China to Madrid route, and another dated 19 October 2023 with a China to Belgium route (the “Third Contract”).[6]However on 14 December 2023, the Defendant purported to terminate the Contracts with effect from 18 December 2023 (with the Claimant treating that as a repudiation of the Contracts, which repudiation the Claimant accepted).[7]In relation to the flights:(1) Three flights in total – one from Hong Kong to Madrid (“HKG-MAD”) and two from Hong Kong to London Stansted (“HKG-STN”) – in respect of which the Claimant had prepaid freight in the total sum of US$846,500, were not performed;(2) Many other flights (up to 4 a week) which would have been due to be performed between December 2023 and October 2024, when the Contract would otherwise have come to an end, were also not performed;(3) The last flight to be performed under the Contract had been prepaid in the form of a deposit of US$208,000 (per Clause 4.1(b)). This flight was also not performed.[8]HKG-MAD flights were performed in October 2023 pursuant to the Second Contract. There was also a single flight to Liege, Belgium pursuant to the Third Contract. However the Claimant does not make any claims in respect of those flights.[9]Following the purported termination, the Defendant repaid US$243,500 which constituted the freight prepayment of the HKG-MAD flight. But the initial US$208,000 deposit and the freight prepayments in respect of the HKG-STN flights of US$300,000 (pursuant to the First Contract) have still not been repaid.

THE CLAIM AND JURISDICTION APPLICATION

[10]On 8 February 2024 the Claimant issued its Claim Form against the Defendant, and thereafter amended the same on 14 June 2024. The Claimant sues the Defendant for breach of the Contract seeking repayment of the deposit (US$208,000), the prepaid freight (US$603,000), and other losses, including claimed lost profits (claimed at US$11,633,500) (the “Claim”). The Claimant does not advance any claims under the Second Contract or the Third Contract (though should the same be relevant they were in materially similar terms).[11]The contract provides at Clause 7 as follows: “7. Disputes 7.1. Any dispute concerning interpretation or application of this Agreement shall be settled by direct negotiations between the parties concerned. 7.2. In case that any possible dispute remains unresolved despite peaceful approaches, such disagreement or trial will be submitted to the court in accordance with current legislation of United Kingdom, which solution shall be final and obligatory for the parties”.[12]In its Form N510 (Notice for Service out of the jurisdiction where permission of the court is not required), in relation to “proceedings to which CPR 6.33(2B)(b) or (c) applies” the Claimant ticked the box: “I state that each claim made against the defendant to be served and included in the claim form is a claim made pursuant to or in respect of a contract which contains a term to the effect that the court shall have jurisdiction to determine that claim”.[13]The Claimant’s case is that properly construed, clause 7.2 is an express choice of forum clause in favour of the High Court of England and Wales, entitling the Claimant to serve the Defendant out of the jurisdiction as of right under CPR 6.33(2B)(b) and (c).[14]Alternatively (and in response to the Jurisdiction Application and in support of the Permission Application) the Claimant’s case is that it (also or alternatively) represents a choice of English law, and the Court should grant permission to serve the Defendant out of the jurisdiction.[15]On 15 July 2024, the Defendant filed its acknowledgement of service indicating that it intended to contest jurisdiction, and on 12 August 2024, the Defendant issued an application under Part 11.[16]In support of its Jurisdiction Application, the Defendant relies on:(1) Two witness statements of Liane Atcheson dated 12 August 2024 (“Atcheson 1”) and 2 October 2024 (“Atcheson 2”). Ms Atcheson is a senior solicitor at Tenet Compliance & Litigation Limited, the Defendant’s solicitors;(2) A witness statement of Giorgi Batlidze dated 2 October 2024 (“Batlitdze 1”). Mr Batlidze is a partner at BLC Law Office in Tbilisi, Georgia, and he acts on the Defendant’s behalf in relation to matters of Georgian law.[17]In opposition to the Jurisdiction Application, the Defendant filed and served a witness statement of Nicholas Poynder dated 9 September 2024 (“Poynder 1”). Mr Poynder is a partner in Holman Fenwick Willan LLP, and the managing partner of its Shanghai office. Poynder 1 is also relied upon by the Defendant in the context of the Permission Application.[18]The Claimant’s primary case is that it did not need permission to serve the Defendant out of the jurisdiction because of clause 7.2 of the Contract. The Claimant’s case is that the words “such disagreement or trial will be submitted to the court in accordance with current legislation of United Kingdom” in clause 7.2 are to be construed as meaning “such disagreement or trial will be submitted to the High Court of England and Wales”. If the Claimant is right about that, then no permission was needed to serve the Defendant out of the jurisdiction, and the Claimant says that that is the end of the Jurisdiction Application.[19]The Defendant, for its part, in its Application Notice and the witness evidence of Ms Atcheson submits that the Contract “is not a contract that contains a term to the effect that the English court shall have jurisdiction to determine the claim” (in Clause 7.2) and “further or alternatively the Defendant will establish that England and Wales is not the most appropriate forum for the dispute, and that a far more appropriate forum is available” (which it says is Georgia).[20]However, and for the first time in its Skeleton Argument, the Defendant takes a further point, which I shall refer to as the “Montreal Convention Point”, namely that “[Clause 7.2] has no relevant meaning on jurisdiction in light of the [Montreal] Convention’s exclusive code” (at [28]), which is a reference to the Montreal Convention, i.e. The Convention for the Unification of Certain Rules for International Carriage by Air, 28 May 1999 ICAO Doc.No.9740, which is given effect in the United Kingdom as Schedule 1B to the Carriage of Goods by Air Act 1961 (the “Montreal Convention”). Building upon what is said to be the application of the Montreal Convention the Defendant submits that this Court “has no jurisdiction to hear and determine the Claim; or at least the majority of the Claim” (emphasis added).[21]For its part, the Claimant says that the Defendant’s reliance upon the Montreal Convention is misplaced, as it misunderstands the scope and effect of the Montreal Convention which it says has nothing to do with its claim. It points out, however, that were the Montreal Convention jurisdiction regime to be relevant, on the Defendant’s own case this Court would have jurisdiction in relation to claims concerning flights to London Stansted.

THE MONTREAL CONVENTION POINT

[22]It is appropriate to address the Montreal Convention Point first as it is logically anterior to the question that arises as to the construction of Clause 7.2.[23]The Defendant submits that the Claim has been issued without any regard to the applicable law including the laws as to jurisdiction applied in this Court, which it asserts is the Montreal Convention, as a result of which this Court “has no jurisdiction to hear and determine the Claim; or at least the majority of the Claim”. It is further submitted that if and to the extent that this court has jurisdiction to deal with part of the claim under the Montreal Convention, it ought to decline to do so on forum non conveniens grounds. In what is something of an understatement, it is said that “an order in those terms may require a modest and appropriate departure from existing authority” (which is an oblique reference to the Court of Appeal decision in Milor SRL v British Airways [1996] QB 702 (“Milor”) which is binding on this Court). The Defendant nevertheless submits that, “such a departure would be in keeping with the approach adopted in other jurisdictions applying the Convention”.[24]The Defendant’s submission as to the application of the Montreal Convention is as follows. It is said that it provides a “self-contained code on jurisdiction” as well as creating causes of action and limiting liability. All actions for damages are subject to the provisions of the Montreal Convention, including limits on liability. Parties cannot “contract out’ of the Convention (referring to Article 49 and submitting that any term that seeks to depart from the Montreal Convention, including on jurisdiction, is null and void). This extends to attempts to contract out by choice of law agreements (although the Defendant says that that is not relevant here as, even on the Claimant’s argument, the purported choice of law (English law) would apply the Convention).[25]It is said that the relevant jurisdictional rules are set out in Articles 29 and 33(1) of the Convention: “An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination”.[26]It is pointed out that there is no dispute between the parties that Georgia, China, the United Kingdom, Spain, Hungary and Belgium are State Parties, that the courts of the domicile of the Defendant are the Georgian courts, and that the courts of the Defendant’s principal place of business are the Georgian courts. There is an issue as to whether the Contract was made in Georgia (for the purpose of the place of the defendant’s business in which the Contract (or Contracts) were made). The Defendant submits that the Contract was made in Georgia (as it is stated at the top of the Contract, “done in Tbilisi”), although I note that the Contract provides at Clause 9.2, “This Agreement is executed in duplicate in English”, and it has been signed in relation to the Carrier (the Defendant), “on behalf of the Carrier at TBILISI” and signed in relation to the Customer (the Claimant), “on behalf of the Claimant at Hong Kong”. The Claimant submits that “done in Tbilisi” simply reflects that the Contract was drafted by the Defendant whose domicile is Tbilisi, Georgia. I do not consider the point matters in relation to the Montreal Convention Point, and it is of only the most limited relevance should any forum considerations arise.[27]It is said that as the natural and obvious jurisdiction under the Montreal Convention, which the Defendant says are the courts of Georgia, has been rejected by the Claimant, the Claimant could only found jurisdiction, here or in the jurisdiction of any other State Party, by reason of “the court at the place of destination”. It is said that the only argument available to the Claimant for this court to have jurisdiction (which the Defendant does not accept) is for a claim based on the agreement for four cargo flights to London Stansted, it being said that the English court self-evidently does not have jurisdiction, under this head of jurisdiction (i.e., “the court at the place of destination”), where the destination is in Spain, Hungary or Belgium.[28]The Defendant then asks, if this court were to decide it has jurisdiction with regard to the agreement for four flights to London Stansted, should it entertain that jurisdiction or decline it on forum non conveniens grounds? It is pointed out that pursuant to Article 33(4) of the Montreal Convention questions of procedure are governed by the law of the court seised of the case. The Defendant recognises that the Court of Appeal’s decision in Milor, supra, “prima facie” rules out the application of the doctrine of forum non conveniens in Montreal Convention cases. However it is submitted, somewhat bravely given the doctrine of stare decisis, that this decision can, and should, be distinguished, so as to allow the application of forum non conveniens in this case. It is said that permitting forum non conveniens to apply here would avoid the potential “shambles” that may ensue in this case (referring to the reference to “the Warsaw shambles” in Shawcross & Beaumont: Air Law, Division VII at [122]-[123]), and referring to what it describes as an illuminating analysis of the issue in Shawcross & Beaumont: Air Law, Division VII at [418]-[418.1].[29]I can deal with the Montreal Convention point relatively briefly as I am satisfied that it is a point of no merit, and that the Defendant’s reliance upon the Montreal Convention is misplaced, as the Montreal Convention does not apply to the Claim under the Contract and largely for the reasons which the Claimant identifies in its Skeleton Argument and in its oral submissions before me today.[30]The Montreal Convention is scheduled to the Carriage by Air Act 1961 in Schedule 1B (see section 1(6)(c)). By Article 1, it applies to all international carriage of persons, baggage or cargo performed by aircraft for reward, and it provides uniform rules including limits of liability, in respect of passenger and cargo claims.[31]The Claimant is not a passenger. It is not making a claim in respect of death or personal injury or loss of personal baggage (see Article 17).[32]In respect of cargo claims, Article 18.1 provides that:
“The carrier shall be liable for damages sustained in the event of the destruction or loss of, or damage to, cargo upon condition only that the event which caused the damage so sustained took place during the carriage by air.”
[33]That liability is then subject to various defences set out in Article 18.2.[34]The Claimant is not making a cargo claim. In particular, it is not making a claim in respect of the destruction or loss or damage to cargo, let alone such destruction or loss sustained “during the carriage by air”. It is seeking the repayment of payments that it has made, damages in respect of a failure to return a piece of equipment and other consequential losses including loss of profits for the Defendant’s failure to carry the goods at all. Such claims are not, I am satisfied, within the scope of the Montreal Convention and nor is the Claimant making a claim for damage occasioned by delay in the carriage by air of passengers, baggage or cargo within Article 19 either.[35]Mr Hain, on behalf of the Claimant, points out that the claims advanced by the Claimant do not fall within Articles 17, 18 and 19 at all, yet these are the Articles that give rise to liability under the Convention and associated remedies. If the Defendant were correct and the Convention applied to the Claimant’s claims and so they had to be brought under the Convention (as to which see also Article 29) it is difficult to see that the Claimant would have any remedy at all under the Convention, which is, I am satisfied, an indicator that the Convention does not extend to all claims under a contract of carriage by air, including the Contract.[36]Article 29 of the Convention provides: “Article 29 – Basis of Claims In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable”.[37]Article 29 is again concerned with the carriage of passengers, baggage and cargo and not any other claims under a contract of carriage. There are, in this regard, three recognisable strands of authority in the context of Article 29. First, cases such as Weiss (discussed below) concerned with delay versus non-performance (in “bump” cases), and non-performance rather than delay is not within the Convention. Secondly, personal injury claims and those do fall under the Convention, albeit there may be claims at least for declaratory relief out-with the Convention (e.g. in relation to disability, though not for damages). Thirdly, there may be claims for compensation under the EU Compensation Regime which compensates for consequential losses and is out-with the Convention regime. These all illustrate that not all claims fall within the Convention regime.[38]Article 33.1 provides that:
“An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination.”
[39]Article 33.1 relates to claims under the Convention. It does not relate to any and all claims that may be made between two contracting parties, one of whom is an airline and the other of whom is contracting for services under a contract. Thus, in Silverman v Ryanair [2021] EWHC 2955 (QB), the Court (rightly in my view) drew a distinction at [64] between a “claim for damages for breach of the Convention” and “a claim in the law of contract”. Thus, as Master McCloud stated in that case:
“All cases turn on their own facts, to a greater or lesser degree, and in this case the Claim and Particulars are clear: they plead a claim for damages for breach of the Convention, they do not plead a claim in the law of contract. It is true that they refer to the choice-of-law clause in clause 2.4, to found the argument as to applicable law, but the claim as a whole is clearly not put as a claim for breach of contract but rather as a Convention claim to which it is said that, by reason of clause 2.4, the law of Ireland applies. I do not rule out the possibility that a claim could be pleaded in contract relying on the incorporation of the Convention as a species of contractual indemnity but this claim is not put on that footing.”
[40]See also what was said by the United States District Court for the Southern District of New York in Weiss v. El Al Israel Airlines, Ltd., 433 F. Supp. 2d 361, 369 (S.D.N.Y. 2006) in which it was held that the Montreal Convention governed delays in furnishing transportation but did not cover total breach of contract involving denial of transportation where a passenger is “bumped” by the airline. After noting that the academic literature indicates that the courts that have dealt with this question in other signatory countries have almost uniformly accepted that bumping constitutes contractual non-performance, redressable under local law, and not delay, for which the Convention supplies the exclusive remedy, District

Judge Lynch continued at page 369, left-hand column:

“Thus, the drafting history indicates that the drafters of the Montreal Convention intended that the national courts would determine the meaning of ‘delay,’ and national courts have almost universally accepted Wolgel's interpretation of bumping as contractual non-performance and not delay. Consequently, in light of the interest in international uniformity announced in Tseng, and the greater focus on consumer protection intended in the Montreal Convention, plaintiffs' bumping claims should be read as grounded in a cause of action for non-performance of contract and not delay. They are, therefore, not preempted by the Montreal Convention.”
[41]As is also stated in Shawcross and Beaumont: Air Law VII at [402]: “So far as matters arise which are not covered by the Convention, the usual English choice of law rules must be applied”.[42]And what is stated at [410]: “The Convention did not purport to deal with all matters relating to contracts of international carriage by air”.[43]I am satisfied that this distinction is also reflected in the overall context, for example, the provisions relating to tickets and airway bills in Articles 3 to 11, and the text of Article 33 itself (quoted above) and the reference to the place of business “where the contract has been made”. As is stated in Shawcross and Beaumont: Air Law Division VII, at paragraph 437, “In the normal case, a contract would be made where the ticket (or airway bill) is issued”. No ticket nor airway bill has been issued in this case and no claim is being made under any such contract.[44]In the case of Rothmans of Pall Mall v Saudi Arabian Airlines [1981] 1 QB 368 (implicitly cited at paragraph 16 of the defendant’s skeleton argument for the proposition that the Montreal Convention provides a “self-contained code on jurisdiction”), Roskill LJ stated, at page 386, that, “The true interpretation depends on the fact that this is a self-contained code”. However, that reference is in the context of the application of the Warsaw Convention to a claim under an airway bill and was clearly directed to the application of the Warsaw Convention in such a context (and the question where a corporation was “ordinarily resident”).[45]In the course of oral argument Mr Burton, on behalf of the Defendant, submitted that there were aspects of performance under the Contract that were applicable and which applied even before a cargo was bailed to the Defendant and a waybill issued (such as set out in the “General Expense List” and included matters such as “hull insurance” and “aviation fuel”). However, I do not consider that such matters assist the submission that any claims under the Contract were subject to the Montreal Convention. Indeed, I have to say that the reverse is true – it is difficult to see how any loss and damage flowing from a failure to maintain valid hull insurance could be brought under the Montreal Convention. This illustrates that the obligations of the parties under the Contract were much wider, and more diverse, than forms the subject matter of the Convention – recovery of freight and a deposit being two more examples.[46]I am satisfied that the present claims are not ones that are within the scope of the Montreal Convention and Article 33.1 thereof. Claims for the repayment of a deposit or prepaid freight are not claims for damages within the meaning of Article 33.1. Neither is the Claimant’s claim for the Defendant’s failure to return equipment that belongs to the Claimant (a unit load device). Equally the claim for lost profits (presently unparticularised) would itself not appear to be one within the scope of the Montreal Convention either.[47]I would only add that if, contrary to the conclusion I have reached, the Montreal Convention was applicable to any of the claims advanced, on the Defendant’s own case, this Court would have jurisdiction in respect of any claims where London Stansted was the intended destination (and such claims are advanced in the action). The Court would, on this hypothesis, have jurisdiction in respect of those claims in any event.[48]Equally, the suggestion that in such circumstances, the Court ought to decline jurisdiction on the grounds of forum non conveniens itself does not bear examination and is contrary to Court of Appeal authority – see Milor supra, in particular at 708H and 710D-E, per Phillips LJ, with whom Peter Gibson LJ and Leggatt LJ agreed. As Phillips LJ stated at paragraph 710E: “I consider that Article 28 of the Warsaw Convention leaves no scope for a challenge to jurisdiction on grounds of forum non conveniens”.[49]Quite apart from the fact that the same is binding upon me, I am quite satisfied that the conclusion reached by the Court of Appeal (which has equal application to the Montreal Convention) is clearly right.[50]I also note in passing that Leggatt LJ rejected a suggestion (not dissimilar to the Defendant’s “shambles” point raised at paragraph 24 of the Defendant’s Skeleton Argument), stating at page 710F: “Mr Webb disclaimed any threat in his submissions that if we excluded the operation of the doctrine of forum non conveniens that would allow carriers to be faced following disasters by a multiplicity of suits in jurisdictions worldwide. Whether or not that might happen, it is not a consideration that can move this court to consider Article 28 in a way not justified by its language so as to permit the operation of the doctrine”.[51]I would only add that the reference in Shawcross and Beaumont (Division VII) at pages 122 to 123 to “the Warsaw shambles” is about the complexity of different iterations of Conventions covering the same subject matter, not the consequence of the non-operation of the doctrine of forum non conveniens.[52]I address the issues of forum where relevant in due course below. What is clear is that there is no scope for the operation of forum non conveniens where the Montreal Convention applies. The point is academic in the present case as I am satisfied that the Montreal Convention does not apply to the Claim. APPLICABLE PRINCIPLES

E.1 CPR 6.33

[53]I recently addressed the applicable principles in relation to CPR 6.33(2B)(b) and (c) in the case of Dexia Crédit Local S.A. v Patrimonio del Trentino S.p.A. [2024] EWHC 2717 Comm (“Dexia”) at [41] to [49]. It is convenient to restate some of those principles in the context of the issues arising before me on the Jurisdiction Application.[54]The general rule is that a Claim Form can be served on a Defendant present within a territorial jurisdiction of England and Wales, but not outside that territory (see CPR Rule 2.3(1) and see Pantheon International Advisors Ltd v Co-Diagnostics, Inc [2023] EWHC 1984 (KB) at [16]).[55]However, under CPR 6.33, permission of the Court is not required for a claimant to serve a defendant who is not in the jurisdiction (i.e. “out of the jurisdiction”) provided there is a gateway for the claim (such as under CPR 6.33(2B) “the claimant may serve the claim form on a defendant outside the United Kingdom where, for each claim made against the defendant to be served and included in the claim form… a contract contains a term to the effect that the court shall have jurisdiction to determine that claim”).[56]The test in CPR 6.33(2B)(b) applies for each claim made against the defendant in the proceedings where “a contract contains a term to the effect the court shall have jurisdiction to determine that claim”. This is not limited to exclusive jurisdiction clauses but also “includes English jurisdiction clauses which are non-exclusive” and also clauses which are “asymmetric (that is, which do not apply identically to both parties)” (see Dicey, Morris & Collins on the Conflict of Laws, 16th Ed., at paragraph 11-241). E.2 Choice of Forum Clauses[57]Choice of forum clauses are not within the material scope of the regulation (EC) No.593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome 1) (Retained) (“Rome 1”): see Article 1.2(e).[58]Thus, in the context of identifying the law applicable to a choice of forum clause, and as was stated by Lords Hamblen and Leggatt, with whom Lord Kerr agreed, in Enka v Chubb [2020] UKSC 38; [2021] WLR 4117 at [33]: “…it is both consistent with authority and sound in principle to apply English law as the law of the forum to ascertain whether the parties have agreed on the law which is to govern their contract”. (emphasis added)[59]See also in this regard what was stated by Lord Burrows at [193(iv)] (with whom Lord Sales agreed): “The proper law of the arbitration agreement must therefore (in an English court) be determined by applying English common law conflict of laws rules. They require a court to look for (applying English law) an express choice, an implied choice or, if neither of those applies, the system of law with which the arbitration agreement has its closest and most real connection”. (emphasis added)[60]Where a choice of forum clause (such as a jurisdiction clause) is challenged under CPR Part 11, any questions as to the validity, existence or incorporation of the jurisdiction clause are to be determined by reference to the putative governing law of the contract (see Dexia supra, at [47]).[61]I am satisfied that applying the principles identified in Enka v Chubb and having regard to the terms of Clause 7.2, which it will be recalled provides, “In case that any possible dispute remains unresolved… such disagreement or trial will be submitted to the court in accordance with the current legislation of United Kingdom”, the proper law of such foreign clause is English law, based on the parties’ express choice of English law (applying the established authorities on references to “UK law” being read as references to English law – see, for example, Exmek Pharmaceuticals v Alkem Laboratories [2016] 1 Lloyd’s Rep 239, as addressed further in section F below). E.3 Construction of Choice of Forum Clauses[62]The applicable general principles as to the construction of contracts are well established. A convenient statement of them is set out in the judgment of Popplewell J in Lukoil Asia Pacific Pte Ltd v Ocean Tankers (Pte) Ltd (Ocean Neptune) [2018] EWHC 163 (Comm); [2018] 2 All ER (Comm) 108 at [8]:
“There is an abundance of recent high authority on the principles applicable to the construction of commercial documents, including Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896; Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101; Re Sigma Finance Corp [2010] 1 All ER 571; Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900; Arnold v Britton [2015] AC 1619; and Wood v Capita Insurance Services Ltd [2017] AC 1173. The court's task is to ascertain the objective meaning of the language which the parties have chosen in which to express their agreement. The court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant. The court must consider the contract as a whole and, depending on the nature, formality and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to the objective meaning of the language used. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other. Interpretation is a unitary exercise; in striking a balance between the indications given by the language and the implications of the competing constructions, the court must consider the quality of drafting of the clause and it must also be alive to the possibility that one side may have agreed to something which with hindsight did not serve his interest; similarly, the court must not lose sight of the possibility that a provision may be a negotiated compromise or that the negotiators were not able to agree more precise terms. This unitary exercise involves an iterative process by which each suggested interpretation is checked against the provisions of the contract and its commercial consequences are investigated. It does not matter whether the more detailed analysis commences with the factual background and the implications of rival constructions or a close examination of the relevant language in the contract, so long as the court balances the indications given by each.”
[63]There are also numerous authorities addressing the construction of choice of forum agreements and arbitration agreements.[64]The approach of the English courts is to give meaning and effect to a choice of forum clause wherever possible – see, in this regard, what was said by Lords Hamblen and Leggatt in Enka v Chubb, supra at [106]:
“The principle that contracting parties could not reasonably have intended a significant clause in their contract, such as an arbitration clause, to be invalid is a form of purposive interpretation, which seeks to interpret the language of the contract, so far as possible, in a way which will give effect to - rather than defeat - an aim or purpose which the parties can be taken to have had in view.”
[65]This is a specific application of the general principle that was identified by Moore-Bick LJ in Whitecap v Rundle [2008] EWCA Civ 429; [2008] 2 LR 216 at [21] that:
“The conclusion that a contractual provision is so uncertain that it is incapable of being given a meaning of any kind is one which the courts have always been reluctant to accept, since they recognise that the very fact that it was included demonstrates that the parties intended it to have some effect.”
[66]As Lord Hamblen and Lord Leggatt also said in Enka v Chubb at [95]: “It is a well-established principle of contractual interpretation in English law, which dates back at least to the time of Sir Edward Coke (see Coke upon Littleton (1628) 42a), that an interpretation which upholds the validity of a transaction is to be preferred to one which would render it invalid or ineffective. In the days when Latin was commonly used in the courts, it was expressed by the maxim ‘verba ita sunt intelligenda ut res magis valeat quam pereat’ - translated by Staughton LJ in Lancashire County Council v Municipal Mutual Insurance Ltd [1997] QB 897, 910, as “the contract should be interpreted so that it is valid rather than ineffective”.[67]There is also a large body of authority (quoted at [49] in Dexia) that in relation to the construction of an English law jurisdiction clause (or arbitration clause), “…it is axiomatic as a matter of English law, that jurisdiction clauses and arbitration clauses should be widely and generously construed” (Deutsche Bank AG v Petromena ASA [2015] EWCA Civ 226, [2015] 1 WLR 4225 at [84] (‘Petromena’)) and the approach to be adopted to construction is a “broad, purposive and commercially minded approach” (Etihad Airways PJSC v Flöther (‘Etihad’) [2020] QB 793 at [58]).”[68]There are also a number of authorities addressing the meaning of particular clauses which are of relevance when construing Clause 7.2. It is convenient to address these in the context of the consideration of Clause 7.2 itself.

THE PROPER CONSTRUCTION OF CLAUSE 7.2

[69]I turn then to the application of the applicable principles on contractual construction as a matter of English law to the construction of Clause 7.2. It will be recalled that Clause 7.2 provides as follows (numbering added for ease of discussion): “7. Disputes… 7.2. In case that [1]any possible dispute remains unsolved despite peaceful approaches, such disagreement or trial [2]will be submitted to the court[3]in accordance with current legislation of the United Kingdom which solution shall be final and obligatory for the parties”. (emphasis added)[70]I consider that it is appropriate to consider Clause 7.2 in three stages which are logically to be considered in reverse[71]On established principles of contractual construction, Clause 7.2 stands to be construed in the context of the Contract as a whole and the admissible factual matrix thereto and, as stated in Ocean Neptune, supra at [8], “the court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant” by the words “current legislation of the United Kingdom”.[72]The parties here are from Hong Kong and Georgia. The constitutional setup of the United Kingdom is not part of the background knowledge reasonably available to international businesspeople, and that is as true of those involved in the carriage of goods by sea or by air as anyone else. That is why the English courts have consistently construed references to British or UK courts or law to be references to the High Court of England and Wales and the law of England and Wales, and but two examples, as addressed below, will suffice.[73]In The Komninos S [1991] 1 Lloyd's Rep 370, the relevant clause provided that, “[a]ll dispute to be referred to British Courts”. Addressing the submission that the parties may have meant either the courts of British colonial dependencies or Scottish or Northern Irish Courts, Bingham LJ held (at 374rhc), that: “The first question is whether the reference to ‘British Courts’ in Clause 24 was, as the cargo owner submitted and the judge held, equivocal… [W]e are here construing an international maritime contract to ascertain what, if any, intention should be attributed to the parties to it. Whatever the constitutional niceties, it seems to me altogether far-fetched, in truth a lawyer’s point, to suppose that the parties can have meant or intended to embrace the Courts of British dependencies overseas. I intend no disrespect at all to the highly distinguished judges who sit in Scotland and Northern Ireland when I say, further, that it is scarcely less far-fetched to suppose that the parties can have meant or intended to embrace those Courts. It is widely known that the Commercial Court and the Admiralty Court, both parts of the High Court, deal on a daily basis with a wide range of international maritime business, much if not most of it referred by agreement to English law or jurisdiction. No doubt for historical and geographical reasons, no other Court in the United Kingdom enjoys that reputation or dispatches that business. It would, in this class of contract between foreigners, be as unusual to find an express choice of a Scots or Northern Irish forum as it would to find agreement for general average adjustment in Edinburgh or Belfast rather than (as expressly agreed here) London. I feel as little doubt on this point as the cargo owner’s solicitors can have felt when they sought and obtained leave to serve out on the basis of a contract which provided that the High Court should have jurisdiction. While I respect the judge’s view that the reference in these bills was equivocal, I cannot share it”.[74]Those sentiments of Bingham LJ in The Komninos S, stated in the context of the international carriage of goods by sea are, I am satisfied, equally apposite in the context of international carriage of goods by air.[75]In Exmek Pharmaceuticals v Alkem Laboratories supra, the distribution agreement included numerous references to UK law including the following clause: “Article 13: PROPER LAW The proper law of this agreement is the law of the UK, and the parties submit to the exclusive jurisdiction of the courts of the UK and of all courts having jurisdiction in appeal from the courts of the UK”.[76]The submission before Burton J was that this was “ambiguous and ineffective as not specifying any one of the three potential laws (or courts) involved”. The scope of the argument can be seen at [23]:
“…Mr Aswani submits that there is no reason to differ from the conclusion of the Peruvian Courts, drawn from Wikipedia, that the provision for 'UK law' is ambiguous and ineffective as not specifying any one of the three potential laws (or courts) involved. Mr Green again relies upon the maxim ut res magis valeat quam pereat, and the construction in favour of sensible commercial interpretation. This is a contract relating to international trade, and the jurisdiction of England and Wales (and its law) is regularly resorted to for resolving such international legal disputes. Mr Green pointed out that there are many cases which have resolved similar issues in favour of the Courts and Law of England and Wales (for example Downing v Al Tameer Establishment [2002] EWCA Civ 721, cited to the Arbitrator); but Mr Aswani emphasised that in many of those cases there have been factors indicating a connection with England or London, and that is not the case here.”
[77]Burton J had no difficulty in accepting the rival submission, based on the maxim ut res magis valeat quam pereat and the construction in favour of a sensible commercial interpretation as a “contract relating to international trade and the jurisdiction of England and Wales (and its law) is regularly resorted to for resolving such international legal disputes”, relying upon, and quoting from, what was said by Bingham LJ in The Komninos S in the passage quoted above.[78]Bingham LJ’s reference to the solicitor’s statement on service in The Komninos S was noted by Burton J to be similar to his own at [23] in Exmek. In each case, the solicitor thought there was jurisdiction to serve out based on their understanding of the clause. If nothing else, this illustrates what an experienced solicitor involved in international trade, practising English law would understand such words to mean. In this regard, there can be no doubt as to Mr Poynder’s understanding in this regard for, as he says, at paragraphs 7 and 8 of his witness statement, the basis on which he ticked the box in Form N510 was that Clause 7.2 is a choice of forum clause in favour of the courts of England and Wales (as opposed to the courts of Scotland or Northern Ireland).[79]For myself, I would prefer to construe Clause 7.2 without regard to the views of those acting for either party (however prescient, and reflective of, the correct construction of the clause in question).[80]I am in no doubt whatsoever, having regard to the applicable principles of contractual construction, and previous case law such as that referred to above and the rationale therein, that giving Clause 7.2 a businesslike construction, and giving its words meaning and effect, the words “in accordance with current legislation of United Kingdom” is to be construed as a reference to “the current laws of England and Wales” (i.e. English law) and that the reference to “the court” is to be construed as a reference to the High Court of England and Wales (and not “a court”) so that the proper construction of Clause 7.2 is that it provides that “any possible dispute [that] remains unresolved… will be submitted to the High Court of England and Wales in accordance with the current laws of England and Wales”.[81]The words “any possible dispute” are then to be “widely and generously construed” (Deutsche Bank AG v Petromena ASA supra) and clearly extend to any possible dispute, which includes all the claims in this action.[82]I am satisfied that such construction also accords with:(1) the reasonable expectations of international businesspeople who would expect a clause conferring jurisdiction on UK courts to be conferring jurisdiction on the courts of the UK’s capital, i.e. the courts in London, and to do so by reference to the law of such country, i.e. English law;(2) Business common sense because international commercial parties are likely to confer jurisdiction on a neutral court, such as the English court, instead of wishing to confer jurisdiction on either one or other party’s home courts and ditto viz the law to apply;(3) The principle that a clause is to be construed in favour of validity instead of invalidity; and(4) The principle that such clauses should be “widely and generously construed” (Deutschebank supra, at [84]) and the approach to be adopted to construction is a “broad purposive and commercially minded approach” (Etihad Airways PJSC v Flöther at [58]).[83]Accordingly, I am satisfied, and find, that Clause 7.2 is a choice of forum clause in favour of the court of England and Wales. In such circumstances, the Claimant’s claim was within the gateway of CPR 6.33(2B)(b) and (c) and, accordingly, no permission was required to serve the Claim Form upon the Defendant. I am equally satisfied that in such circumstances, the Defendant has been validly served. In such circumstances, the Court does have jurisdiction over the Defendant.[84]I would only add that it matters not, for jurisdiction purposes, whether Clause 7.2 is an exclusive or non-exclusive jurisdiction clause. I addressed the applicable principles in relation to that in Dexia at [89] to [91]. To the extent that it is of any relevance, I consider that Clause 7.2 is properly to be construed as an exclusive jurisdiction clause. The assumption is that rational businesspeople are likely to have intended for any dispute arising out of the same relationship to be settled in a single forum (see Dicey at paragraph 12-077). The consequence of an exclusive jurisdiction clause is that the bringing of proceedings by a party to the contract in a court other than the court designated in the “exclusive jurisdiction agreement” is a breach of contract (see Sabah Shipyard (Pakistan) Ltd. v Islamic Republic of Pakistan [2003] 2 Lloyd's Rep 571 at [30] per Waller LJ) and common law, English courts will ordinarily enforce such a bargain absent strong reasons to the contrary (see Joseph, Jurisdiction and Arbitration Agreements and Their Enforcement, 3rd Ed., at paragraph 4.02).

STAY OF THE PROCEEDINGS

[85]In both its application notice and in Atcheson 1 (at paragraph 4.3), the Defendant seeks to argue that if the Court has jurisdiction, England and Wales is not the natural or appropriate forum in which to bring the claim and there is another available forum (Georgia) that is clearly or distinctly more appropriate than England and Wales.[86]Whilst it is not expressly sought by way of relief in the application notice, it is stated in Atcheson 1 at paragraph 4.3 that the Defendant seeks a stay of the proceedings on the ground that England and Wales is not the actual appropriate forum in which to bring a claim.[87]The position is that the English court has jurisdiction by reason of the jurisdiction clause in Clause 7.2 and that the Claimant has served the Defendant as of right. The applicable principles as to when the Court will grant a stay on forum grounds in such a situation are well-established and there is a high hurdle that the Defendant would have to surmount.[88]In such circumstances, I can deal with matters relatively shortly. I addressed the applicable principles in relation to the granting of a stay in Dexia at [137] to [145]. For convenience, I summarise them below.[89]If Clause 7.2 is non-exclusive, to commence proceedings in another jurisdiction would not be, without more, a breach of contract (see Joseph at paragraph 4.04). The implication of a non-exclusive jurisdiction agreement is that the parties are precluded, “…from later arguing that the forum identified is not an appropriate forum on grounds foreseeable at the time of the agreement for the parties must be taken to have been aware of such matters at the time of the agreement”, per Toulson LJ in Highland Crusader Offshore Partners LLP v Deutsche Bank AG [2009] EWCA Civ 725 (“Highland Crusader”) at [50(7)].[90]It has been said that “overwhelming” reasons are required for a court to grant a stay of proceedings in England where there is a jurisdiction clause (even a non-exclusive one) conferring jurisdiction on the English court (see Dicey at paragraph 12-106 citing, amongst others, UCP Plc v Nectrus Ltd [2018] EWHC 380 (Comm) (a case of a non-exclusive jurisdiction clause)).[91]Where the English court is the “neutral forum” (as in the present case) it has been said that it is “most unlikely that the English court will override the choice” (see Dicey at paragraph 12-106 citing Akai Pty Ltd v The People's Insurance Co Ltd [1998] 1 Lloyds Rep 90 at p. 105 (only for “exceptional reasons” per Thomas J); BAS Capital Funding. Corp v Medfinco Ltd [2003] EWHC 1798 (Ch) at [192] (requiring “very strong grounds to override a choice of English jurisdiction”)). It was also said by Staunton LJ in Attock Cement Co. Ltd. v Romanian Bank for Foreign Trade, [1989] 1 WLR 1147 CA at p. 1161 that, “we ought to look with favour on the choice of our own jurisdiction”.[92]It has been said that, in practice:
“There is generally little fundamental difference as regards the question of whether or not a stay of proceedings should be granted between the approach of the English courts in cases involving an exclusive and a non-exclusive jurisdiction agreement”
. See Joseph at paragraph 10.35.[93]Since the implication of a non-exclusive jurisdiction agreement is that the parties are precluded from later making forum non conveniens arguments:
“An application to stay on forum non conveniens grounds an action brought in England pursuant to an English non-exclusive jurisdiction clause will ordinarily fail unless the factors relied upon were unforeseeable at the time of the agreement”
. Per Toulson LJ in Highland Crusader supra at paragraph 50(7). See also in this regard what was said in Antec International Limited v Biosafety USA Inc [2006] EWHC 47 (Comm) at [7] (“Antec International”):
“i) The fact that the parties have freely negotiated a contract providing for the non-exclusive jurisdiction of the English courts and English law, creates a strong prima facie case that the English jurisdiction is the correct one. In such circumstances it is appropriate to approach the matter as though the claimant has founded jurisdiction here as of right, even though the clause is non-exclusive… ii) Although, in the exercise of its discretion, the court is entitled to have regard to all the circumstances of the case, the general rule is that the parties will be held to their contractual choice of English jurisdiction unless there are overwhelming, or at least very strong, reasons for departing from this rule… iii) Such overwhelming or very strong reasons do not include factors of convenience that were foreseeable at the time that the contract was entered into (save in exceptional circumstances involving the interests of justice); and it is not appropriate to embark upon a standard Spiliada balancing exercise. The defendant has to point to some factor which it could not have foreseen at the time the contract was concluded. Even if there is an unforeseeable factor or a party can point to some other reason which, in the interests of justice, points to another forum, this does not automatically lead to the conclusion that the court should exercise its discretion to release a party from its contractual bargain… In particular, the fact that the defendant has, or is about, to institute proceedings in another jurisdiction, not contemplated by the non-exclusive jurisdiction clause, is not a strong or compelling reason to relieve a party from his bargain…”
(emphasis added)[94]As identified in Dicey at paragraph 12-109: “It is not open in principle (although this is not a fixed and invariable rule) to either party to object to the exercise of its jurisdiction at least on grounds which should have been foreseeable when the agreement was made”. (citing British Aerospace Plc v Dee Howard Co [1993] 1 Lloyd’s rep 368 where the point was made in relation to an English non-exclusive jurisdiction agreements).[95]Circumstances specifically excluded as grounds under the forum non conveniens exception are, per Dicey at paragraph 12-109: inconvenience as a result of witnesses and documents being in another country (BAS Capital Funding Co v Medfinco [2003] EWHC 1798 (Ch); Antec International, supra) and inconsistent findings as a result of parallel proceedings (CH Offshore Limited v PDV Marina SA [2015] EWHC 595 (Comm)).[96]I am satisfied that there are no grounds, still less strong grounds, for a stay in the present case. The parties have, by their contractual bargain, chosen to litigate in the English courts and none of the factors relied upon by the Defendant were unforeseeable at the time of contracting and may, in reality, amount to factors of convenience that were foreseeable at the time that the contract was entered into and, as such, do not assist the Defendant, nor is it appropriate to embark upon a standard Spiliada balancing exercise. The Defendant has to point to some factor which it could not have foreseen at the time the contract was concluded. The Defendant has not done so.[97]The factors relied upon by the Defendant are thin gruel and would carry little weight even in relation to a standard Spiliada balancing exercise. The Defendant points to the fact the Defendant is incorporated in Georgia and the headquarters are there, with a principal place of business in Tbilisi International Airport, Georgia and it is said that the parties agreed that the contract was “done in Tbilisi” and so it concluded in Tbilisi. It is also said that witnesses and documents in relation to the dispute would be located in Georgia and Hong Kong (which are all factors of convenience and rarely carry much weight in the internet age with witnesses commonly giving evidence by live link from abroad), and it is said that neither party has any connection with the jurisdiction of England and Wales. These are all foreseeable factors, including factors of convenience known at the time of contracting and by the jurisdiction clause in Clause 7.2, the parties chose a neutral forum, England, for the determination of any claim in relation to a contract which was written in English, concerned the international carriage of goods and was governed by English law. Applying the applicable principles, the Defendant has not made out strong grounds for a stay.[98]The Jurisdiction Application and associated applications for a stay are accordingly dismissed. THE APPLICATION FOR PERMISSION TO SERVE OUT H.1

INTRODUCTION

[99]In the above circumstances, the application for permission to serve out on the ground that “a claim is made in respect of a contract where the contract… is governed by the law of England and Wales within the meaning of CPR PD 6B at paragraph 6” is somewhat academic given that the Defendant has been validly served in accordance with CPR 6.33(2B)(b) and (c).[100]Nevertheless, as it was before me on an ex parte basis (on notice), I will address it. I foreshadow at the outset that I am satisfied it is an appropriate case for service out of the jurisdiction on this gateway and I grant permission to serve out. In the usual way, it will be open to the Defendant to apply to set aside service in due course if they see fit to do so. H.2 Applicable Principles Governing the Law of a Contract[101]The governing law of the contract is to be determined in accordance with Rome I.[102]Article 3.1 of Rome I provides that:
“A contract shall be governed by the law chosen by the parties. The choice shall be made expressly or clearly demonstrated by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or to part only of the contract.”
[103]This question is not to be addressed through a prism of English law (see Dicey 16th Ed., at paragraph 32-085): “The question of interpretation as to whether a provision constitutes a choice of law by the parties should be looked at from a broad Regulation-based approach not constrained by national rules of construction”.[104]Instead (per Calliess, Rome Regulations: Commentary, 2nd Ed., at 97-98 (original emphasis)): “[Article 3] paragraph 1 sets forth autonomous European criteria for the kind of evidence from which the courts of the member states may infer a choice. For the sake of uniform interpretation… there is no rule whatsoever left to domestic doctrines in the implication of terms neither of the chosen law nor of the lex fori”. (emphasis added)[105]At the same time, the application of such European principles is unlikely to produce different results. In this regard, and having regard to the principles of European Contract Law (“PECL”) and Unidroit Principles of International Commercial Contracts 2016 (the “Unidroit Principles”): (1) Article 5: 101 of the PECL provides that:
“A contract is to be interpreted according to the common intention of the parties even if this differs from the literal meaning of the words.” (2) Article 4.5 of the Unidroit Principles provides that: “Contract terms shall be interpreted so as to give effect to all the terms rather than to deprive some of them of effect.”
Similarly, Article 5:106 of the PECL provides that: “An interpretation which renders the terms of the contract lawful, or effective, is to be preferred to one which would not.” (3) “Where there is doubt about the meaning of a contract term not individually negotiated, an interpretation of the term against the party who supplied it is to be preferred” (Article 5:103 of the PECL; See also Article 4.6 of the Unidroit Principles.[106]In relation to Article 3.1, I am in no doubt whatsoever (as already addressed above), that in referring to “current legislation of the United Kingdom”, the parties have either expressly chosen or have clearly demonstrated that they chose English law.[107]In this regard, I am satisfied that the “current legislation of” is to be construed as “the laws of” and that “United Kingdom” is to be construed as “England and Wales”. Such a construction accords with the reasonable expectation of international businesspeople.[108]The former accords with a need to give effect to the clause and a contra proferentem principle (the Claimant’s unchallenged evidence being that “the Defendant had prepared the drafts” (Poynder 1 at paragraph 24).[109]The latter is also consistent with the examples given in two of the leading textbooks to explain how the relevant principles of construction will apply in practice: (1) Dicey at paragraph 32-085:
“Such a solution [i.e. not applying purely national roles] is not likely to present any difficulty in a normal case, nor in such cases as where the parties have referred to ‘British’ law in circumstances in which it is clear from the surrounding circumstances that they intended to refer to English law”. (2) Calliess, Rome Regulations: Commentary at [94] (original emphasis): “Where the construction of an agreement on a choice of law is at issue an autonomous interpretation… should prevail for the sake of Europe wide conformity of decisions. Thus, where the parties, by virtue of an inaccuracy in expression or by common mistake, specified the wrong (Iceland instead of Ireland) or non-existing (British instead of English law) the common intention prevails over the literal meaning of the words…”
[110]The reality is that a contrary construction is not really tenable.[111]This does not “require an impermissible interdependence, i.e. that Clause 7.2 has to be read as an English jurisdiction clause to support the contention that it is also a choice of law clause… and vice versa” (per the Defendant’s Skeleton at paragraph 35) as at this stage of the argument, the fact that the parties have chosen England as the forum is not being taken into account. Of course, the Claimant will say (at the merits stage should the applicable law remain in issue) that a choice of forum clause does provide a further indication that the parties chose English law to govern the contract. In this regard, Recital 12 of Rome 1 provides:
“An agreement between the parties to confer on one or more courts or tribunals of a Member State exclusive jurisdiction to determine disputes under the contract should be one of the factors to be taken into account in determining whether a choice of law has been clearly demonstrated.”
See also Calliess, Rome Regulations: Commentary at [98] to [100]. H.3 Application of the requirements for permission to serve out[112]Turning to the requirements for permission to serve out, as stated in FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45; [2021] 3 WLR 1011, at [25], (per Lord Lloyd-Jones, with whom Lords Reed, Briggs and Burrows agreed): “…a claimant must establish(1) a good arguable case that the claims fall within one of the gateways in CPR PD 6B, paragraph 3.1;(2) a serious issue to be tried on the merits; and(3) that England is the appropriate forum for trial and the court ought to exercise its discretion to permit service out of the jurisdiction”.[113]Here, I am satisfied that the Claimant has established a good arguable case that the claim falls within one of the gateways in CPR PD 6B, namely CPR PD 6B(6)(c) (as addressed above, “a claim is made in respect of a contract where the contract… is governed by the law of England and Wales”).[114]Equally, I am satisfied (and the contrary is not suggested) that there is a serious issue to be tried on the merits.[115]I turn, therefore, to the third requirement, that England is the appropriate forum for trial and the court ought to exercise its discretion to permit service out of the jurisdiction. This requires the Claimant to show that England is clearly or distinctly the appropriate forum for the trial of the claim (Dicey rule 41(3); and see paragraph 12R-001). The underlying aim is to identify the forum in which the case can be suitably tried for the interests of all the parties and the ends of justice. I am satisfied that England is the appropriate forum for at least the following reasons:(1) Choice of English law. This “is generally a positive factor in favour of England as the appropriate forum, though it is not dispositive and may be outweighed by other factors such as the location of witnesses and evidence” (Dicey at paragraph 12-034);(2) English documents. All the relevant correspondence was conducted in English and the documents are all in English (not Georgian). That is in terms of the contractual documents. It may be, of course, as was identified on behalf of the Defendant, that there could be other documentation that is not in English. However, the central documentation, which is the contractual documentation, clearly is;(3) Local expertise. The Court’s and the local legal expert community’s experience and expertise in resolving the relevant type of dispute are factors to be taken into account “in the objective interest of justice” as they contribute to “efficiency, expedition and economy” as well as “assisting the court to reach a just resolution and promoting a possibility of settlement” (see Spiliada [1987] A.C. 460 at 486 per Lord Goff). The English Commercial Court has considerable experience of dealing with commercial claims such as the present in the aviation field;(4) No other, better forum. The assessment is relative – in other words, England has to be more appropriate than the alternatives. In this case, I do not consider that either Georgia or Hong Kong can be said to be the natural forum. The domicile and place of business of the Defendant in Georgia is to be contrasted with the domicile and place of the Claimant in Hong Kong. England at least has the advantage that it is a neutral forum and a forum that applies the chosen law of English law. I have already referred to the factors that the Defendant has prayed in aid in relation to Georgia. Many of them, such as location of documentation and witnesses, can carry little weight in the internet age given the use of electronic document bundles, and the fact that the giving of evidence by live link is commonplace if not the norm in respect of overseas witnesses in the Commercial Court.[116]Contrary to the Defendant’s submissions, there is no risk of fragmentation of claims. The Montreal Convention is not applicable, and any proceedings in Georgia would amount to a breach of contract on the findings I have made. There is accordingly no (proper) risk of a multiplicity of proceedings.[117]In all the circumstances, I am satisfied that England is the appropriate forum for trial and the Court ought to exercise its discretion to permit service out of the jurisdiction in Georgia and I grant permission to serve out. Associated orders can be addressed in the Order that is provided to the Court for its approval.

order

(1) First, it is necessary to construe the meaning of [3] “in accordance with current legislation of the United Kingdom”;(2) Which facilitates the construction of [2] which is the operative part, i.e. that “such disagreement or trial will be submitted to the court in accordance with” whatever “current legislation of the United Kingdom means;(3) And then to consider what is within [1], “any possible dispute”.