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Posted at the request of Aastha Asthana, Managing Editor, Trade Law and Development

CALL FOR SUBMISSIONS

General Issue

Issue 13.2 | Winter ’21

The Board of Editors of Trade, Law and Development is pleased to invite original, unpublished
manuscripts for publication in the Winter ’21 Issue of the Journal (Vol. 13, No. 2) in the form of
‘Articles’, ‘Notes’, ‘Comments’ and ‘Book Reviews’.

Founded in 2009, the philosophy of Trade, Law and Development has been to generate and sustain a
constructive and democratic debate on emergent issues in international economic law and to serve
as a forum for the discussion and distribution of ideas. Towards these ends, we have published
works by noted scholars such as WTO DDG Yonov F. Agah, Dr. Prof. Ernst Ulrich Petersmann,
Prof. Steve Charnovitz, Prof. Petros Mavroidis, Prof. Mitsuo Matsuhita, Prof. Raj Bhala, Prof. Joel
Trachtman, Gabrielle Marceau, Simon Lester, Prof. Bryan Mercurio, and Prof. M. Sornarajah
among others. TL&D also has the distinction of being ranked the best journal in India across all
fields of law for seven consecutive years by Washington and Lee University, School of Law.

Manuscripts received by August 1st, 2021, pertaining to any area within the purview of international
economic law will be reviewed for publication in the Winter ’21 issue.

Manuscripts may be submitted via e-mail. For further information about the Journal, please
click here. For submission guidelines, please click here.

In case of any queries, please feel free to contact us at: editors[at]tradelawdevelopment[dot]com.

LAST DATE FOR SUBMISSIONS: 01 AUGUST, 2021

PATRON: P.P. Saxena | ADVISORS: Raj Bhala | Jagdish Bhagwati | B.S. Chimni | Glenn
Wiser | Daniel B. Magraw, Jr. | Vaughan Lowe | Ricardo Ramirez Hernandez | W.
Michael Reisman | M. Sornarajah | FACULTY-IN-CHARGE: Dr. Rosmy Joan | BOARD OF
EDITORS: Amogh Pareek | Sahil Verma | Sukanya Viswanathan| Aastha Asthana|
Abilash Viswanathan| Malaika Shivalkar | Nishant Sharma | Pranav Karwa | Rashmi
John | Swikruti Nayak | Akshita Saxena | Ananya Awasthi | Anushka Mathur | Jahnavi
Srivastava | Khushi Agrawal | Maulik Khurana | Nidhi Lakhotia | Ria Chaudhary |
Yashvi Hora | Aarzoo Gang | Anoushka | Lipika Singla | Priyanshu Shrivastava | Simran
Bherwani | Sneha Naresh | Vipashyana Hilsayan

Pourvoi c. déc. Cour d'appel d'Aix-en-Provence du 18 septembre 2020 (RG 18/13534, 18/13018, 18/08172 et 18/07171)

Pourvoi c. déc. Cour d'appel de Pau du 6 octobre 2020

Pourvoi c. déc. Tribunal judiciaire de Pau du 1er mars 2021

Tribunal judiciaire de Bordeaux, 2 avril 2021

Tribunal judiciaire de Coutances, 7 avril 2021

Pourvoi c. déc. Cour d'appel de Caen du 29 octobre 2020

Pourvoi c. déc. Cour d'appel d'Aix-en-Provence du 20 octobre 2020

Pourvoi c. déc. Cour d'appel de Pau du 19 novembre 2020

Tribunal judiciaire de Dax, 26 mars 2021

Pourvoi c. déc. Cour d'appel de Nancy du 9 juillet 2020

Tribunal judiciaire de Versailles, 20 avril 2021

Axis Corporate Capital UK Ltd & Ors v Absa Group Ltd & Ors [2021] EWHC 225 (Comm) is a good illustration of choice of court and law clauses that are a gift to conflict of laws practitioners. Choice of law and in particular choice of court was as Calver J put it [35] ‘somewhat poorly worded’. This is what the clauses look like in the various (re)insurance agreements [36 ff]

The primary reinsurances contain the following provision: “Any disputes concerning the interpretation of the terms, conditions, limitations and/or exclusions contained in this policy is understood and agreed by both the Reinsured and the Reinsurers to be subject to England Wales Law. Each party agrees to submit to a worldwide jurisdiction and to comply with all requirements necessary to give such court jurisdiction.”

The excess reinsurances contain the following provision: “Any dispute concerning the interpretation of the terms, conditions, limitations and/or exclusions contained in this policy is understood and agreed by both the insured and the insurers to be subject to England and Wales. Each party agrees to submit to the jurisdiction of England and Wales to comply with all requirements necessary to give such court jurisdiction. In respect of claims brought against the Insured and indemnified under this policy, as more fully described herein, the choice of law applicable is Worldwide and the choice of jurisdiction is Worldwide.”

Thirdly, the ARR [aggregate retention reinsurance, GAVC] contains the following two provisions: “Supplemental Clauses … “Policy Interpretation, Jurisdiction and Service of Suit Clause.” And then: “Choice of Law and Jurisdiction. “Any dispute concerning the interpretation of the terms, conditions, limitations and/or exclusions contained in this policy is understood and agreed by both the (re)insured and the (re)insurers to be subject to England and Wales. Each party agrees to submit to the jurisdiction of Worldwide to comply with all requirements necessary to give such court jurisdiction.”

The policy interpretation, jurisdiction and service of suit clause, which is specifically referred to as a supplemental clause, provides as follows and was contained in a schedule: “Any dispute between the Reinsured and the Reinsurer alleging that payment is due under this reinsurance shall be referred to the jurisdiction of the courts of the England and Wales and the meaning of this reinsurance policy shall be decided by such courts in accordance with the law of England and Wales.”

Claimant submits that, on the proper construction of the reinsurance contracts, the defendants were obliged to submit to and to submit any dispute arising under or in connection with any of the reinsurances contracts to the exclusive (A25 BIa imposes exclusive choice of court in principle: [56]) jurisdiction of the English courts. Calver J agrees that that is the case with a high degree of probability (this is an interlocutory stage). Generali Italia v Pelagic features as authority. Note the ‘worldwide’ reference in some of the clauses means that parties agree that all courts worldwide should ensure that the dispute be referred to the English courts.

The formulation in the excess reinsurance agreements, include what is construed as a carve-out of worldwide jurisdiction, which is non-exclusive, for claims brought against the insured and indemnified under the excess reinsurance. This is taken by the judge to mean that for all other claims, choice of court for E&W is, a contrario, exclusive.

At 81 ff, the judge grants an interim anti-suit injunction against proceedings in South Africa. The very possibility for this is not discussed at all (possibly as a result of the nature of the proceedings). It is not established that anti-suit to protect jurisdiction of a court in the EU, against that of courts outside the EU, is at all possible. In Gray v Hurley the Court of Appeal suggested it is not possible within the context of A4 BIa, yet referred to the CJEU where the case was withdrawn. This might become a contested issue.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.24, para 2.296 ff.

Axis Corporate Capital UK ea v Absa Group ea [2021] EWHC 225 (Comm)
Arcane choice of court clauses in insurance and reinsurance contracts (A25 BIa, A3 Rome I) which are a true gift to conflict of laws practitionershttps://t.co/jTCR3BhkoO

— Geert Van Calster (@GAVClaw) May 20, 2021

Tribunal judiciaire de Lille, 22 avril 2021

Cour d'appel de Paris, 15 avril 2021

Pourvoi c. déc. Cour d'appel de Papeete du 27 août 2020

Pourvoi c. déc. Chambre de l'instruction de Paris du 26 janvier 2021

Pourvoi c. déc. Cour d'assises des mineurs du Puy-de-Dôme du 23 octobre 2020

Pourvoi c/ décision Cour d'assises d'appel du Gard rendue le 17 novembre 2020