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Jindal Society of International Law, in pursuance of fostering fruitful conversations on international law, is delighted to present and host the Fall Lecture Series of 2021, titled ‘Exploring the Ecosystem of International Law’. The lecture on ‘Private Law Remedy for Breaches of International Law Norms’ is the first lecture in this twenty-three part lecture series, which is being held from August to November 2021.

About Jindal Society of International Law

The Jindal Society of International Law is a student-led initiative under the aegis of the Centre for the Study of United Nations of Jindal Global Law School, and the guidance of Faculty Coordinator Professor (Dr.) Vesselin Popovski. Founded in 2020, this Society is an initiative to provide a platform to young international law enthusiasts.The purpose of this Society is to increase student interaction with the subject matter of International Law through its various initiatives. Rather than being primarily research-driven, we intend to offer a host of experiences that contribute towards skill-building, thereby increasing the knowledge database available to students. This Society is an attempt to bridge the lacuna by streamlining resources and inculcating an overall interest in the vast expanses of International Law. We aim to provide a space to young international law enthusiasts to nurture their interest in the field.

About the Lecture Series ‘Exploring the Ecosystem of International Law’

Our Fall Lecture Series of 2021, ‘Exploring the Ecosystem of International Law’, builds upon the introduction given on internationalism and international law by the concluded Spring Lecture Series, titled ‘Future of Internationalism and International Law’. The Fall Series endeavours to study the different contours of international law. To assist in this study, the speakers will cover and address their respective areas of expertise, based upon their years of research and practice. Given the vast ecosystem and the engagement of international law in it, the Society aims to study the fragmentation and fertilisation of the various disciplines in this ecosystem.

The lowest common denominator in this Fall Lecture Series is to enhance and provide a deeper understanding of international law through international lawyers. The Society, for its Members, is a well of knowledge and a quorum of thought provoking discussions, which will be resultant of this engagement with experts aimed at exploring the ecosystem of international law.

About the Lecture ‘Private Remedy for Breaches of International Law Norms’

The first lecture of our Fall 2021 Lecture Series, ‘Exploring the Ecosystem of International Law’, is on the topic ‘Private Remedy for Breaches of International Law Norms’. The lecture will be hosted online and is scheduled for 17:00 IST on 6th August 2021. The distinguished speaker for this lecture is Ms. Vasuda Sinha and with this lecture being the inaugural session, the opening remarks shall be given by Professor Dr. Vesselin Popovski.

Join Us for this Interesting Lecture!

In order to be a part of this lecture, attendees are requested to register themselves for the lecture through the following the link: https://www.eventbrite.co.uk/e/164448390563. Kindly register yourself as soon as possible to not miss out on this lecture, given that there are limited number of seats!

The lecture will be held online on Zoom and will also be simultaneously be live-streamed on YouTube. The registration link provides for all the necessary information regarding this.

For any further queries or for additional information regarding the Fall 2021 Lecture Series or other initiatives of Jindal Society of International Law, kindly visit our website.You can also follow and engage with us on LinkedIn, Twitter and Instagram!

A thought-provoking and much welcome contribution was posted by Prof. Dr. Dres. h.c. Burkhard Hess on SSRN, setting the stage for the discussion on the status quo in the application and the prospects of the Brussels IbisRegulation.

The article, titled “Reforming the Brussels Ibis Regulation: Perspectives and Prospects”, may be retrieved here.

The abstract reads as follows:

According to article 79 of Regulation (EU) 1215/2012, the EU Commission shall present a report on the application of the Brussels Ibis Regulation by 11 January 2022. This paper intends to open the discussion about the present state of affairs and the necessary adjustments of the Regulation. Although there is no need to change its basic structure, the relationship of the Brussels Ibis Regulation with other EU instruments (as the General Data Protection Regulation) should be reviewed. There is also a need to address third-State relationships and cross-border collective redress. In addition, the paper addresses several inconsistencies within the present Regulation evidenced by the case law of the CJEU: such as the concept of contract (article 7 no 1), the place of damage (article 7 no 2), the protection of privacy and the concept of consumers (articles 17 – 19). Finally, some implementing procedural rules of the EU Member States should be harmonised, i.e. on the assessment of jurisdiction by national courts, on judicial communication and on procedural time limits. Overall, the upcoming review of the Brussels Ibis Regulation opens up an opportunity to improve further a central and widely accepted instrument of the European law of civil procedure.

The new issue of International & Comparative Law Quarterly (Volume 70, Issue 3) is out. Some of articles concern directly or indirectly questions of private international law. Their abstracts are provided below.

The whole issue is available here. Some of articles are available in open access.

A. Poon, Determining the Place of Performance under Article 7(1) of the Brussels I Recast, pp. 635-663

This article calls for a reassessment of the methodology in determining the place of contractual performance under Article 7(1) of the Brussels I Regulation Recast. The first part of the article deals with Article 7(1)(a). It argues that in light of the adoption of autonomous linking factors under Article 7(1)(b), more types of contracts presently not covered within the ambits of Article 7(1)(b) should centralise jurisdiction at the places of performance of their characteristic obligations. The second part of the article considers the way Article 7(1) operates when there are multiple places of performance under the contract. The test devised by the Court of Justice of the European Union in this regard is not only difficult to apply, but the application of the test also often does not guarantee a close connection between the claim and the court taking jurisdiction. This article argues that when a claim is made in respect of a contractual obligation to be performed in more than one Member State, Article 4 should be applied instead of Article 7(1).

A. Xu, A New Solution Concerning Choice-of-Law for the Assignment of Debts, pp. 665-696. Available in open access.

This article explores a solution to the choice-of-law issues concerning both voluntary and involuntary assignments arising in a domestic forum. The focus is on English private international law rules relating to cross-border assignments. A distinction is made between primary and extended parties as the foundation for choice-of-law analysis. Drawing on insights from the distinction of the use value and exchange value of debts found in economics, this article proposes a new analytical framework for choice-of-law based on a modified choice-of-law theory of interest-analysis.

S. Caserta, P. Cebulak, Resilience Techniques of International Courts in Times of Resistance to International Law, pp. 737-768

International courts are increasingly called upon to adjudicate socially divisive disputes. They are therefore exposed to a heightened risk of backlash that questions their authority and impedes the implementation of their judgments. This article puts forward an analytical framework for mapping the resilience techniques used by international courts to counter this growing resistance. Case studies involve the Court of Justice of the European Union, which has been cautious in its stance regarding democratic backsliding in Hungary and Poland, and the Caribbean Court of Justice, which has engaged in legal diplomacy while adjudicating both on the land rights of indigenous groups and on Lesbian Gay Bisexual Transgender Queer and Intersex (LGBTQI) rights. It is argued that, in order to effectively avoid and mitigate backlash, international courts should deploy resilience techniques that go beyond merely exercising their judicial function. The successful deployment of resilience techniques can allow international courts to become significant actors in global governance during a time of crisis for the international liberal order.

Non lieu à renvoi

Non lieu à renvoi

Pourvoi c. déc. Cour d'appel d'Aix-en-Provence du 29 mars 2021

Pourvoi c. déc. Cour d'appel de Paris du 3 mars 2021

Pourvoi c. déc. Cour d'appel de Paris du 3 mars 2021

Pourvoi c. déc. Cour d'appel d'Aix-en-Provence du 26 janvier 2021

Pourvoi c. déc. Cour d'appel de Paris du 29 septembre 2020

The Centre for Private International Law (CPIL) of the University of Aberdeen is pleased to host its first postgraduate conference, which is to be held on 17 November 2021. The Postgraduate Law Conference aims at bringing together early career scholars working in the private international law field or at the intersection of European Union law and Private International Law. The purpose is for scholars to present their research before esteemed peers with relevant expertise and receive valuable feedback for further development from academic experts.

The Conference will include panels on Private International Law aspects of International Family Law, International Commercial Law and ADR as well as European Union Law and will be complete with the unrivalled expertise of the Members and Associate Members of the CPIL and external scholars. For a full list of the participating scholars and to download the Call for Papers form, please click here. The deadline for the Call for Papers is 31 August 2021.

Pourvoi c. déc. Cour d'appel d'Orléans du 26 janvier 2021

Tribunal judiciaire de Meaux

Pourvoi c. déc. Cour d'appel de Paris du 16 février 2021

Pourvoi c. déc. Cour d'appel d'Aix-en-Provence du 4 février 2021

This guest  post was written by Ahmed Alzaabi, a legal researcher based at Abu Dhabi. It is great material for comparative conflicts purposes, as it highlights issues like ‘clearly demonstrated’ choice of court, hybrid jurisdiction clauses, and lex contractus for choice of court. Geert.

Introduction

The Dubai International Financial Center Court of Appeal (DIFC CA) delivered an interesting judgment in Goel and others v Credit Suisse (Switzerland) Limited [CA-002-2021} on 26 April 2021, which addresses the DIFC Courts opt-in jurisdiction. It is the most important decision since the opt-in clauses came into force in 2011. The case deals with personal guarantees entered into by Goel and others as Guarantors, and Credit Suisse AG as Lender. A term of the guarantee agreements refers to the jurisdiction of the “Courts of Dubai”.

An ex parte application was filed before the DIFC Court of First Instance (CFI) and was dismissed by H.E. Justice Ali Al Madhani on ground that the words “Courts of Dubai” were not specific, clear and express as required by Article 5(A)(2) of the DIFC Judicial Authority Law[i] (“JAL”) to opt-in into the DIFC jurisdiction.

The application was appealed and determined by Justice Wayne Martin, who ruled that the DIFC CFI has the jurisdiction to hear and decide any substantive claim filed by the Respondent. Justice Wayne Martin issued a world-wide freezing order (WFO) against the Guarantors and the order was appealed on the basis that the jurisdiction term in the Guarantee Agreements refers to the Courts of Dubai, and not to the DIFC Courts, therefore, the DIFC Courts shall have no jurisdiction to decide on this matter. The DIFC CA dismissed the appeal and upheld the ruling of Justice Wayne Martin.

Overview of the dispute:

• Description of the parties. Credit Suisse AG (was a DIFC Establishment), and Credit Suisse (Switzerland) LIMITED (Respondent) are both subsidiary banks wholly owned by a Credit Suisse Group (a company registered in Switzerland). Goel and others (Appellants) are shareholders and directors of GP FZC (a parent company of GP Group of companies and offices all over the world).

• Facts. On 13 May 2016, the Appellants entered into Guarantee Agreements with the Credit Suisse AG guarantying the performance of various borrowers of GP Group under a Credit Facility Agreement. Furthermore, on September 2016, Guarantee Transfer Agreements were signed between the Credit Suisse AG and the Appellants providing for the transfer of the rights and obligations of the guarantees to benefit the Respondent. The Appellants undertook to perform their obligations toward the Respondent as if the Respondent has been a party to the original Guarantee Agreements. At the time of signing the Guarantee and Transfer Agreements, the Credit Suisse AG was a “DIFC Establishment” within the definition of DIFC JAL. Neither Appellants nor Respondent were a DIFC Establishment.

The Guarantee Agreements provide in its clause 16 that the governing law is the Law of the Emirate of Dubai and the Applicable Federal Law of the United Arab Emirates. Clause 17 of the Guarantees (enforcement provision) refers to the jurisdiction of the Courts of Dubai, and clause 17.1 entitles the lender, Credit Suisse AG, to initiate legal proceedings before any other competent court. On the other hand, clause 7 of the Guarantee Transfer Agreements[ii] refers to the applicable law and jurisdiction, which states that any contractual or non- contractual obligations of the Transfer Agreements shall be governed by the Laws of the Emirate of Dubai, and the applicable Federal Laws of the United Arab Emirates. In addition, any dispute arising out of the Transfer Agreements which relates to any provisions of the Guarantees (as transferred and amended) shall be subject to the same jurisdictional provisions of the Guarantee Agreements.

• Proceedings. The Respondent filed an application before the DIFC CFI requesting for a world-wide freezing order (WFO) to restrain the Appellants from dealing or disposing of their assets until the determination of the Respondent’s substantive claim. The CFI dismissed the claim on the ground that it has no jurisdiction, and stated that the order sought would have been granted if the court has the jurisdiction, as the Respondent made all the grounds for making such order. The Respondent appealed that decision, and the CA allowed the appeal and upheld that the judge of CFI should have granted that order on the basis that there is a good arguable case to the extent that the court has the jurisdiction. The CA added that, the CFI judge should have leave it open to the Appellants to challenge the court’s jurisdiction. Following this decision, the WFO was issued on 13 September 2020 and served on the Appellants. The Appellants filed an application to challenge the court’s jurisdiction arguing that the court lacked jurisdiction to issue that decision, and requested to dismiss the proceedings. Justice Martin, the assigned judge to hear the Appellants’ application, dismissed the application and held that DIFC Courts had the jurisdiction to hear and determine the Respondent’s substantive claim and the WFO against the Appellants, and he published his interesting reasoning for that decision on 4 October 2020.

• CFI Decision. It was common ground for the judge and the parties that the applicable law governing the guarantees are the laws of the Emirate of Dubai and the applicable Federal Law of the United Arab Emirates. Justice Martin referred to Article 6 of the JAL, which provides that “the Court shall apply the DIFC Laws and Regulations, except where the parties have explicitly agreed to another law to govern the dispute, provided that that law doesn’t contradict with the public policy and morals”. Accordingly, he pointed that this article clarifies that the parties may select another governing law than DIFC Laws. However, the choice made by the parties will not place the dispute outside the DIFC Courts jurisdiction.

Justice Martin then focused on whether the Court has the jurisdiction to enter the WFO in support of the Respondent’s substantive claim. He had to determine a question of if the Respondent could establish that the claim against the Appellants passed through one or other of the “gateways” to the jurisdiction of the CFI as stipulated in Article 5 of the JAL. His finding was that the only available “gateway” is Article 5(A)(2) of the JAL, which states the following: “the Court of First Instance may hear and determine any civil or commercial claims or actions where the parties agree in writing to file such claim or action with it whether before or after the dispute arises, provided that such agreement is made pursuant to specific, clear and express provisions”. He further noted that the Respondent submitted and Appellants denied that clauses 17.1 and 17.2 of the Guarantee Agreements constitute an agreement in writing within the meaning of Article (5)(A)(2) of the JAL.

Justice Martin analysed the UAE Civil Transactions Code as a governing law applied to the contract and cited Articles 258 and 265, which address the intention of the parties to a contract. He also looked at a commentary on the Civil Transactions Code approved by the Ministry of Justice. The result of his analysis is that: “the both UAE legal system and the common law require the Court to confirm the join intention of the parties. The joint intention could be ascertained by interpreting words which the parties have used to record their agreement objectively, as they would be understood by a reasonable business person having the knowledge of the circumstances known to the parties at the time they entered into their contract”.

Justice Martin then referred to three prior decisions of DIFC Courts (Sunteck, Taalem, and IGPL), in which the CA rejected the proposition that the words “Dubai Courts” mean only non-DIFC Courts. He extracted from these three decisions the following propositions:

(a) it is not mandatory for the contract to specifically refer to the jurisdiction of the “DIFC Courts” to consider the gateway to the jurisdiction specified by Article 5(A)(2) of the JAL;

(b) the Court is to determine the question whether the joint intention of the parties meant to select the jurisdiction of DIFC Courts to hear such kind of dispute;

(c) that question could be resolved by referring to the natural and ordinary meaning of the jurisdictional words as the parties would have been mutually understood them having regard to the circumstances, the nature of the agreement and the context in which the words are used;

(d) if the Court concluded that the parties intended to refer to the DIFC jurisdiction when using the words recorded in their contract, those words will satisfy the requirements set by Article 5(A)(2) ““specific, clear and express provisions”;

(e) the words (Dubai Courts) or (Courts of Dubai) in their natural and ordinary meaning refer to all courts established in the Emirates of Dubai, including the DIFC Courts and the non-DIFC Courts;

(f) if one of the parties was a DIFC establishment at the time of signing a jurisdiction agreement, the other party would have taken into consideration and understood that the DIFC Courts, by default, would have the exclusive jurisdiction within Dubai to hear and determine any dispute arising out of that agreement. It would require a clear and express words to come to the result that the parties’ mutual intention is to exclude the jurisdiction of DIFC Courts.

Justice Martin selected the IGPL among the other two decisions, although it was an opt-out and not op-in case, but it shares common facts which are relevant to the question that the judge has to decide. The similarities with IGPL being (a) the relevant agreements were governed by the applicable Laws of UAE; (b) the words used in the jurisdiction agreements were identical (c) one of the party was a DIFC establishment at the time that the jurisdiction agreements were signed. Given those similarities, Justice Martin was bound to apply the reasoning in IGPL to conclude that clause 17.1 of the Guarantee Agreements indicates the mutual intention of the parties at the time that the agreements were signed. He highlighted that Credit Suisse AG was a DIFC Establishment at the time the guarantee agreements were signed. This constitutes a strong indication that the mutual intention of the parties was to include DIFC Courts within the meaning of the words “Courts of Dubai”. There was no indication of mutual intention of the parties to exclude DIFC Courts jurisdiction.

The judge stated the following circumstances which support the proposition that the words ‘Courts of Dubai’ should hold ordinary meaning to include DIFC Courts: “(a) the agreements are all in English language (the DIFC Courts operate in English); (b) Credit Suisse AG is a Foreign Company, incorporated in Switzerland; (c) a number of the borrowers under the Credit Facility Agreement were incorporated in foreign jurisdictions; (d) the Guarantors are all Indian nationals with Indian passports; and (e) clause 17.3 of each Guarantee expressly recognises the prospect of enforcement proceedings in foreign jurisdictions. These circumstances support the proposition that the parties have intended to refer to a court within the Emirate of Dubai which has an international characteristic as well as an onshore court of Dubai.

• DIFC CA Decision. The Appellants challenged the CFI decision after the permission of appeal has been granted and provided that the CFI does not have jurisdiction to determine the substantive claim against the Appellants including the WTO application. The appeal was unsuccessful. The CA upheld that the jurisdiction clause used in the contract was a solid agreement to opt-in to the DIFC Courts’ jurisdiction in accordance with article 5 (A)(2) of the JAL. The CA added that when the term “the courts of Dubai” is used in an agreement, it has an ordinary meaning that refers to all courts incorporated within the Emirate of Dubai, including DIFC’s and non-DIFC’s Courts. Furthermore, the CA confirmed that the intention of the parties when they signed the agreement with a DIFC Establishment did not change the obligations on the Appellants when the Guarantee Transfer Agreements are signed in favour of a non DIFC Establishment. The CA then looked at the question of whether the clarity of the term “the courts of Dubai” is enough for the purposes of the gateway to jurisdiction within Article 5(A) (2) of the JAL.  The CA added that if as a matter of contractual construction, the parties had intended to agree that the DIFC Courts should have jurisdiction over their disputes, it would be a triumph of form over substance to hold that they failed because they did not use the term “DIFC Courts. On that note, the CA ruled that the parties’ contract was “specific, clear and express” enough to opt-in to the jurisdiction of the DIFC Court.

The CA highlighted in its conclusion that the construction of terms such as “courts of Dubai” will rely upon their context. Moreover, the transactions’ history matter in this case is significant to the constructional conclusion.

• Conclusion. This case points out that the parties wishing to include or exclude DIFC jurisdiction should use a clear and express language in their contract to minimise jurisdictional disputes risk and avoid any ambiguity.

Royal Caribbean Cruises Ltd v Browitt [2021] FCA 653 is a great addition to the comparative conflicts binder, particularly from the angle of ‘consent’ in business to consumer contracts. It also engages a classic tripartite relation between the consumer, signing a contract with a travel agent, whose GTCS in turn incorporate the GTCS of the carrier.

The case follows on from the December 2019 volcanic eruption at Whakaari.  (Mrs Browitt), for herself and as representative of the deceased estates of her late husband Paul and late daughter Krystal, and Stephanie (Ms Browitt), a daughter who survived the eruption with horrific injuries, are suing Royal Caribbean Cruises Ltd (RCCL), a Liberian registered company headquartered and operating in Miami, Florida, in the courts at Miami. There are applicable law and procedural advantages (incl discovery and trial (both on culpability and level of damages) by jury).

RCL Cruises Ltd (RCL) and RCCL apply for anti-suit in the FCA arguing that the Browitts were passengers on the Ovation of the Seas pursuant to a contract of carriage between the Browitts and RCL as the disponent owner and operator of the vessel. They seek a declaration that it was a term of the contract, signed at Flight Centre in Victoria, Australia, that any disputes between the parties would be subject to the exclusive jurisdiction of the courts of New South Wales.

The list of issues to be determined is long but I repeat it here anyways for they highlight the complexity of issues following a routine purchase of a cruise:

(1)    Was Flight Centre the agent of Mrs Browitt, RCL or both?

(2)    Were the RCL AU terms, including the exclusive jurisdiction clause, incorporated into the contract of carriage by: (a)    reference in the Flight Centre terms and conditions signed by Mrs Browitt on 14 February 2019? (b)    the text of a Royal Caribbean brochure? (c)    links on the RCL AU website? (d)    links in emails? (e)    links in the electronic guestbook?

(3)    As to the construction of the RCL AU terms: (a)    is RCL entitled to invoke the exclusive jurisdiction clause to restrain the Florida proceedings? (b)    is RCCL entitled to rely on the exclusive jurisdiction clause? (c)    did the purchase of insurance exclude the operation of the terms (cl 1)? (The respondents later dropped reliance on the purchase of insurance as excluding the operation of the exclusive jurisdiction clause, so this issue fell away.) (d)    does the contract of carriage apply to shore excursions (cl 25)? If not, does the exclusive jurisdiction clause nonetheless operate to restrain the Florida proceedings? (e)    does the exclusive jurisdiction clause permit a proceeding to be brought in the Federal Court of Australia sitting in New South Wales, and if not, what consequence follows from the commencement of this proceeding (cl 1, cl 37/38)? (f)    does the exclusive jurisdiction clause cover the Florida proceeding?

(4)    Is RCCL entitled to relief on the basis of the RCL AU terms?

(5)    Is the Florida proceeding vexatious and oppressive such that RCL and RCCL are entitled to an anti-suit injunction?

The judge held that although the Browitts were bound by the RCL AU terms, the Florida proceeding is not in breach of the exclusive jurisdiction agreement in those terms because RCCL is not a party to the agreement and RCCL does not enjoy the benefit of it. Also, there is no basis for the alternative case that the Florida proceeding is in any event vexatious and oppressive such as to justify an order restraining Mrs Browitt and Ms Browitt from pursuing it.

Terms and conditions were available on relevant websites and brochures, shown to and browsed by Mrs Browitt but not for the purposes of terms and conditions. Rather, as one would expect, for details of the journey, vessels etc. Unlike a quote, the eventual invoice included as part of the document three pages of booking terms and conditions. Some of those were highlighted in the copy made available to Mrs Browitt  Mrs Browitt could have read the GTCS but there was no inidcation she had or had been specifically pointed to them. Nothing in either version of the invoice, i.e., that which was printed for and signed by Mrs Browitt and that which was emailed by the agency, identifies which of RCCL and RCL was offering the cruise or operating the vessel.

The judgment, which I would invite readers to consult, eventually boils down to limitations of ‘agency’, privity of contract, and clear determination of contractual clauses. It does not decide for the Browitts on the basis of a particular concern for the weaker party in a classic B2C transaction, rather on the need for parties clearly to think through their spaghetti bowl of overlapping arrangements and GTCs when hoping to rely on them in court.

Geert.

Royal Caribbean Cruises Ltd v Browitt [2021] FCA 653
Consumer contracts, exclusive choice of court, privity (and sloppy drafting)
|Federal Court clears the way for victims of the White Island Volcano to sue in Florida https://t.co/qGjGc4DUaQ

— Geert van Calster (@GAVClaw) July 13, 2021

To celebrate the 25th anniversary of the HCCH 1996 Child Protection Convention, the HCCH is pleased to announce the launch of the Advancing and Promoting the Protection of All Children (Approach) Initiative!

The HCCH|Approach Initiative will consist of a series of activities and events culminating in the HCCH|Approach Event, to be held online on Tuesday 19 October 2021. Information on registration and the programme of the HCCH|Approach Event will be made available in due course.

Leading up to the HCCH|Approach Event, the Permanent Bureau of the HCCH is organising two competitions: the HCCH|Approach Essay Competition, and the HCCH|Approach Media and Design Competition. Entries can be submitted up until Friday 1 October 2021, 5.00 p.m. (CEST).

More information on the HCCH|Approach Initiative and its competitions is available here.

This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH). 

This post was contributed by Nicolas Kyriakides, who is a practising lawyer in Cyprus and an Adjunct Faculty at the University of Nicosia, and Laura McBride, a BA Jurisprudence student at the University of Oxford.

On 6 July 2021, Robin Knowles J handed down a lengthy judgment in the case of Province of Balochistan v Tethyan Copper Company Pty Ltd [2021] EWHC 1884 (Comm), in the Commercial Court subdivision of the Queen’s Bench Division of the High Court of England and Wales.

This case was to settle various preliminary issues in an arbitration dispute, and provides an interesting insight into the workings of substantive jurisdiction and separability in arbitration.

The Province of Balochistan is one of the four provinces of Pakistan and is rich in natural resources, including gold.

The defendant is an Australian company, owned by two of the world’s biggest mining companies, Antofagasta and Barrick Gold, and had been exploring the Chagai Hills in Balochistan as a possible location for mining. For that purpose, a contract – the Chagai Hills Exploration Joint Venture Agreement (CHEJVA) had been formed in 1993 between BHP Minerals Intermediate Exploration Inc. and the Balochistan Development Authority, but BHP had been replaced as a party to the contract through a Novation Agreement in 2006 which introduced Tethyan Copper (TCCA).

The Islamabad High Court granted a Scheme of Arrangement, which broadly transferred TCCA’s rights to its wholly owned subsidiary (TCCP). After years of exploring, a Mining Lease application was made by TCCP to the Government of Balochistan, which was refused, and two arbitrations have followed – one through ICSID, and one through the ICC – as well as a case in the Supreme Court of Pakistan.

The Province of Balochistan claimed that the ICC arbitral tribunal did not have jurisdiction because the CHEJVA was void, and therefore the arbitration agreement contained within it was also void. This is based on the ‘Corruption Allegation’, which is the allegation that the CHEJVA and related agreements were void due to the existence of corruption.

Robin Knowles J’s robust analysis and thorough discussion laid bare a breadth of important points when it comes to substantive jurisdiction and separability of agreements in the context of arbitration. The ability to preclude parties from denying the jurisdiction of the tribunal is key to ensuring that an arbitration can occur successfully. The learned judge found multiple ways to ensure that the arbitration could occur in line with the actual submissions that the parties had advanced to proceed with the arbitration in the first place.

The Corruption Allegation, as it stood, appears to have had the possibility of preventing the two parties from having any non-litigious solution to their standoff, but Robin Knowles J effectively threw it out as a possible challenge to the jurisdiction of the ICC’s arbitral tribunal.

The sanctity of arbitration agreements, even in invalid, ineffective, or void contracts, is clearly demonstrated through the reasoning of Robin Knowles J, who carefully ensures both deference to the Supreme Court of Pakistan and the continuance of successful arbitration, especially in a case as complex as this.

This case reflects the importance of preserving such international deference and the ability to maintain relations across multiple jurisdictions, which has cemented London as a global centre of arbitration between warring international organisations.

Robin Knowles J was asked to give judgment on eight issues:

• Whether the Corruption Allegation is precluded by section 73(1) of the Arbitration Act 1996
• Whether the Corruption Allegation is precluded pursuant to the doctrine of waiver by election
• Whether TCCA is precluded by an issue estoppel arising from the Judgment of the Supreme Court of Pakistan from alleging separability of the arbitration agreement
• Whether TCCA is precluded by an issue estoppel arising from the Judgment of the Supreme Court of Pakistan from denying that the arbitration agreement is governed by the law of Pakistan
• Whether the Province of Balochistan is precluded by section 73 of the 1996 Act from denying separability of the arbitration agreement
• Whether the Corruption Allegation seeks impermissibly to challenge the ICC tribunal’s decision on the merits of the claim before it
• Whether the Province of Balochistan cannot pursue the Corruption Allegation on the basis that it was not included in the Arbitration Claim Form
• Whether an application dated 21 January 2021 by the Province of Balochistan to amend the Arbitration Claim Form should be granted?

A further two issues were dependent upon the answer given to the fifth issue.

The analysis began with extensive outlining of the Supreme Court of Pakistan’s judgment to see what the Court actually said with reference to corruption. The Supreme Court of Pakistan found that the CHEJVA was made contrary to the Balochistan Mining Concession Rules 1970 and the later Balochistan Mining Rules 2002, both of which were implemented in conformity with the Mineral Development Act 1948. The Government of Balochistan, under these rules, is able to relax the requirements outlined in the Rules in cases of hardship, and the applicant must show special circumstances warranting the exercise of such power. The hardship was never demonstrated, yet the rules were relaxed, in what the Supreme Court described as relaxations granted in excess of authority and therefore ultra vires. This means that the CHEJVA was made contrary to law, and hence was unenforceable. Beyond this, s23 of the Contract Act 1872 allows for a contract to be void if the object or consideration is unlawful, including if it opposes public policy – the contract, in its violation of the BCMR, was opposed to public policy, and therefore unlawful on these grounds as well.

Noticeably, there was not much discussion of corruption in the Supreme Court of Pakistan’s judgment. Indeed, Robin Knowles J made it clear that corruption was not the turning point in deciding that the CHEJVA was void, but the court had observed that there were disclosures of corruption. Descriptions or references to corruption are insufficient to found the claim that it rendered the contract void.

Issue (1) – Waiving The Corruption Allegation?

The first, and most substantial, issue concerns whether the Province of Balochistan was precluded from making the Corruption Allegation based on s73(1) of the Arbitration Act 1996, which says that a party continuing in an arbitration without making an objection about the substantive jurisdiction of the arbitral tribunal may not raise the objection later unless he proves that he did not know and could not with reasonable diligence have discovered this.

The Province, before the Supreme Court of Pakistan had delivered their reasoning, argued that there was no jurisdiction for arbitration, but that rather there should have been judicial review by the court system of Pakistan in reference to a decision made by the Licencing Authority under the BMR 2002 being a product of corruption. Furthermore, it argued that the Supreme Court of Pakistan should be able to determine the validity, legality, and vires of the CHEJVA before the arbitration even occurs, as the appropriate forum is Pakistan.

The ICC tribunal, however, disagreed with this argument by the Province, as they found that arbitration clause within the CHEJVA was separable from the larger agreement, and may be governed by a different law – in this case, arguably English law, as the chosen seat of arbitration is London, although the agreement did also reference international law – nor was there any formal challenge to the Tribunal’s jurisdiction by the Government. Following the delivery of the judgment of the Supreme Court of Pakistan, the Province argued that the entire contract being null and void meant that the jurisdiction of the ICC tribunal, arising from the contract, would also be illegal.

However, they did not ask the ICC’s arbitral tribunal to make an independent case of corruption leading to the invalidity of the arbitration agreement, and while the arbitral tribunal acknowledged that there were references to corruption within the Supreme court of Pakistan’s judgment, this was not the basis upon which the contract was declared void. The arbitral tribunal, in its Rulings on Preliminary Issues, decided that the Supreme Court did not make any findings of corruption and did not invalidate any agreement on this ground, but made no ruling itself upon the question of corruption because no separate arguments or evidence had been put before it.

Following the arbitral tribunal’s Rulings on Preliminary Issues, an exchange between the parties and tribunal occurred, wherein the latter offered to the parties a slightly different course of action, where the Rulings would be given as a Partial Award. Between the time of the grant of award and the transfer of the award itself, the right to object to substantive jurisdiction of the ICC tribunal would not be lost under s73 where the objection had been made in the proceedings which led to the Rulings. However, there were no objections, whether one was not made for the reasons under s73(1) or any other reason.

After this exchange, the Province said that it had recently uncovered ‘new evidence of extensive corruption by TCC’, and claimed that it was not too late to raise the issue of corruption, because the evidence had required the cooperation of third parties who had not been previously involved when the time had come to allege corruption originally.

It was open to the Province to request the ICC tribunal look at the issue of corruption as one which went to jurisdiction, not only to merits of claims under arbitration. The Province did not take this course of action, but confined the request to the merits of the claims, and Robin Knowles J felt that, by consulting an international law firm in doing so, they appreciated what they were doing. The Province identified an exception in English law to the general practice rule that corruption has no impact upon the jurisdiction of the arbitral tribunal and that the doctrine of separability is preferred, in that where bribery impeaches the arbitration clause in particular, then there is the possibility that the general rule no longer applies.

They did not wish to pursue this to vitiate TCC’s claim, nor did they acknowledge that the issue that, if the practice rule in English law also existed in Pakistan’s laws, they could not identify a suitable exception which would allow them to claim no jurisdiction.

The jurisdictional issue, then, was whether the Supreme Court of Pakistan had decided that the arbitration agreement was void, including on the basis of corruption, which is not the Corruption Allegation as defined above, which is wider. Raising the contention that there was contention is not enough to raise it as a jurisdictional objection, and raising the contention as a jurisdictional objection that the Supreme Court of Pakistan had decided that the arbitration agreement was void, including on the basis of corruption, is not the same thing as raising corruption as a jurisdictional objection.

As a consequence of this, the Corruption Allegation was ruled to be precluded by s73(1) of the 1996 Act because the Province did not make the jurisdictional objection to the ICC tribunal that the CHEJVA and related agreements were void due to the existence of corruption, even though with reasonable diligence the Province had the knowledge it needed to raise the objection.

Issue (2) – The Corruption Allegation: Waiver by Election

The second issue focused on the doctrine of election, which applies where a choice has to be made between two inconsistent courses of action. The Province had made a decision not to pursue the argument that the arbitration agreement in the CHEJVA was vitiated by corruption on behalf of TCC, which Robin Knowles J held to be a clear, unequivocal choice. Consequently, the Corruption Allegation is additionally precluded by the doctrine of waiver by election.

Within this issue, the principle of separability was also introduced. Section 7 of the 1996 Act provides that an arbitration agreement which was part of an “invalid, non-existent, or ineffective” larger agreement is not regarded as such, and is treated as a distinct agreement. While it was common ground that s7 applied before the ICC tribunal, the Province denied it.

Issue (3) – Issue Estoppel Against TCCA: Separability of the Arbitration Agreement

The notion that a judgment of a court in another jurisdiction is capable of giving rise to an issue estoppel in proceedings before the English courts has been in existence for over half a century in England. The focus of the issue estoppel here is whether the Supreme Court of Pakistan decided that the arbitration agreement was not separable from the CHEJVA, or if it was otherwise saved by the principle of separability.

Robin Knowles J identified that, while no part of the CHEJVA had escaped the Supreme Court of Pakistan’s judgment and indeed the Court had decided that there was no separability, there was an issue of who was in fact a party to the case in Pakistan. TCCP, the wholly-owned subsidiary of TCCA, was before the court, but a shared commercial interest does not make TCCP a privy to TCCA. As a result, TCCA is not precluded from alleging separability of the arbitration agreement by an issue estoppel arising from the judgment of the Supreme Court of Pakistan.

Issue (4) – Issue Estoppel against TCCA: The Governing Law of the Arbitration Agreement

The fourth issue was dealt with shortly. It was ruled that TCCA was not precluded by an issue estoppel arising from the judgment of the Supreme Court of Pakistan from denying that the arbitration agreement is governed by the law of Pakistan, for the same reasons that they were not precluded under issue (3).

Issue (5) – Separability: s73 of 1996 Act

The Province could have argued, for the fifth issue, that the lack of jurisdiction included the fact that the arbitration agreement is not separable, but they chose to not argue this, and in fact argued the opposite way during the arbitration. Robin Knowles J highlighted that the party raising an objection to jurisdiction must deal with separability when relevant in order for them to prevail. Due to the Province’s failure to do this, they are now precluded by s73 of the 1996 Act from denying the separability of the arbitration agreement under English law.

Issue (6) – Challenge on the Merits

The Corruption Allegation was not raised as a jurisdictional objection before the ICC tribunal but was raised as part of its defence on the merits. In its Partial Award, the ICC tribunal found that the ICSID tribunal’s dismissal of corruption allegations in the arbitration under the Bilateral Investment Treaty had a “preclusive effect” in the ICC arbitration. A party bringing a jurisdictional challenge under s67 of the 1996 Act may challenge the arbitral tribunal’s findings of fact which are relevant to that challenge, and the facts which have been treated as having preclusive effect may also be challenged. However, it is not for the Court to handle the aspects of jurisdiction challenge to which the findings of fact would be relevant.

The ICC tribunal had addressed the findings of fact as part of its consideration on the merits, and the Province had accepted their jurisdiction to determine TCC’s claims, so the effect of allowing a Corruption Allegation to be advanced within its s67 challenge would allow the Province to challenge the ICC’s treatment of the merits of dispute. The Province must raise the evidence relating to corruption with the tribunal, not the court as a challenge to the jurisdiction of the tribunal.

Issue (7) – The Arbitration Claim Form, and Issue (8) – Amendments to the Claim Form

These two issues together referred to the Claim Form submitted by the Province. The Province had incorrectly referenced corruption as one of the reasons for the Supreme Court of Pakistan’s decision in the claim form, but proper analysis of the judgment as above made it clear that corruption was not one of the grounds for the judgment. The Province did not include the Corruption Allegation in the claim form, so therefore cannot pursue it in arbitration. Indeed, the amendments under issue (8) relied upon the proposition that the Supreme Court had decided in favour of corruption. As a consequence, the ability to amend the form was denied.

Suite à l'article 8 du décret n° 2020-293 du 23 mars 2020, modifié par le décret n° 2020-423 du 14 avril 2020, les établissements relevant de certaines catégories n'ont plus pu accueillir du public jusqu'au 11 mai 2020.
1) Dans le cas d'un bail commercial conclu au profit d'un preneur touché par la fermeture administrative ordonnée en vertu des décrets pris pour lutter contre la propagation de l'épidémie de COVID 19, le preneur peut-il opposer l'exception d'inexécution et refuser le paiement des loyers en faisant valoir que le bailleur a manqué à son obligation de délivrance d'une chose apte à l'usage convenu, quand bien même ce manquement ne serait pas de son fait mais dû à un cas de forme majeure ?
2) La fermeture administrative ordonnée en vertu des décrets pris pour lutter contre la propagation de l'épidémie de COVID 19 constitue-t-elle un cas de force majeure qui frappe la substance même du contrat de bail, de sorte que celui-ci serait alors suspendu (le bailleur serait dispensé de son obligation de délivrance pendant la durée des mesures réglementaires et le preneur serait dispensé du paiement du loyer et des charges) ?
3) L'interdiction temporaire d'exploiter les locaux commerciaux décidée par les pouvoirs publics pour lutter contre la pandémie équivaut-elle à une perte partielle de la chose louée au sens de l'article 1722 du code civil, justifiant une dispense de paiement des loyers pour la période considérée ?”