QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Antec International Limited
|- and -
|Biosafety USA Inc
Ben Hubble Esq (instructed by Courts & Co) Defendant
Hearing dates: 14th July 2005; written submissions 21st July 2005;
and initial judgment 8th August 2005
Crown Copyright ©
Mrs Justice Gloster, DBE:
i) that the court had no jurisdiction; and/or
ii) that the appropriate forum for the trial of Antec's action is Florida.
"10.6 This agreement shall be governed by and construed in all respects in accordance with the Laws of England and each party hereunder submits to the non-exclusive jurisdiction of the English Courts".
Relevant legal principles
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; see e.g. per Hobhouse J in S & W Berisford Plc v New Hampshire Insurance Co.  1 Lloyd's Rep. 454, at 463; per Waller J in British Aerospace Plc v Dee Howard Co  1 Lloyd's Rep. 368; per Moore-Bick J in Mercury Communications Ltd v Communication Telesystems International  2 AER 33 at page 41.
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; see e.g. British Aerospace Plc supra ; Mercury Communications supra at page 41; per Aikens J in Marubeni Hong Kong & South China Ltd v Mongolian Government  2 AER (Comm) 873 at 891(b) – (f); per Lawrence Collins J in Bas Capital Funding Corporation and others v Medfinco Ltd and Others  1 Lloyd's Rep 652, at paragraphs 192-195; per Gross J in Import Export Metro Ltd v Compania Sud Americana de Vapores SA  1 Lloyd's Rep 405.
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; see cases cited supra. 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, notwithstanding the undesirability of parallel proceedings. Otherwise a party to a non-exclusive jurisdiction clause could avoid its agreement at will by commencing proceedings in another jurisdiction; see cases cited supra and The El Amria  2 Lloyd's Rep. 119; Breams Trustees Ltd v Upstream Downstream Simulation Services  EWHC 211 (Ch) per Patten J at paragraphs 27 and 28.
Application of legal principles to the facts
i) Antec remains the party to the distribution agreement, including the jurisdiction clause in question, and no contrary assertion can properly be made. At the time of its acquisition, Antec announced that business would be as usual.
ii) Antec, from its two manufacturing facilities in Sudbury, continues to produce and deliver the products in question and Biosafety's orders for products are processed from Antec's base in England.
iii) Biosafety continues to have regular contact with Antec's personnel in England.
The Owusu point
i) that the Brussels Convention extends to circumstances where the legal relationship involves only one contracting state and one or more non-contracting states and not just where there is a real and sufficient link with the working of the internal market (paragraphs 28, 34 of the judgment);
ii) that Article 2 of the Regulation (which provides that a party domiciled in a member state "shall" be sued in the courts of that member state) was of mandatory application (paragraph 37) and that respect for the principle of certainty and predictability underlying the Regulation would not be guaranteed if a member state court could apply forum non conveniens principles; that would undermine the uniform application of the rules as to jurisdiction (paragraph 38-43);
iii) that, accordingly, the Regulation precludes a court of a contracting state from declining the jurisdiction conferred on it by Article 2 on the ground that a court of a non-contracting state would be a more appropriate forum (paragraph 46).
"40. The Court has thus held that the principle of legal certainty requires, in particular, that the jurisdictional rules which derogate from the general rule laid down in Article 2 of the Brussels Convention should be interpreted in such a way as to enable a normally well-informed defendant reasonably to foresee before which courts, other than those of the State in which he is domiciled, he may be sued (GIE Groupe Concorde and Others, paragraph 24, and Besix, paragraph 26).
41. Application of the forum non conveniens doctrine, which allows the court seised a wide discretion as regards the question whether a foreign court would be a more appropriate forum for the trial of an action, is liable to undermine the predictability of the rules of jurisdiction laid down by the Brussels Convention, in particular that of Article 2, and consequently to undermine the principle of legal certainty, which is the basis of the Convention.
42. The legal protection of persons established in the Community would also be undermined. First, a defendant, who is generally better placed to conduct his defence before the courts of his domicile, would not be able, in circumstances such as those of the main proceedings, reasonably to foresee before which other court he may be sued. Second, where a plea is raised on the basis that a foreign court is a more appropriate forum to try the action, it is for the claimant to establish that he will not be able to obtain justice before that foreign court or, if the court seised decides to allow the plea, that the foreign court has in fact no jurisdiction to try the action or that the claimant does not, in practice, have access to effective justice before that court, irrespective of the cost entailed by the bringing of a fresh action before a court of another State and the prolongation of the procedural time-limits.
43. Moreover, allowing forum non conveniens in the context of the Brussels Convention would be likely to affect the uniform application of the rules of jurisdiction contained therein in so far as that doctrine is recognised only in a limited number of Contracting States, whereas the objective of the Brussels Convention is precisely to lay down common rules to the exclusion of derogating national rules."