Category: International

City of London v Sancheti: CA 21 Nov 2008

The defendant sought leave to appeal against a refusal of a stay of arbitration. He was an Indian national operating as a solicitor in London. When pursued for rent arrears on his busines premises, he requested a stay, seeking to take the protection of a bilateral investment treaty protecting nationals of one state who invested another.
Held: He could not claim the benefit of the treaty. He sought to impose the burden of the treaty on a private company. That was not its intention.

Judges:

Lord Justice Laws, Lord Justice Richards and Lord Justice Lawrence Collins

Citations:

[2008] EWCA Civ 1283, Times 01-Dec-2008

Links:

Bailii

Statutes:

Arbitration Act 1996 9

Jurisdiction:

England and Wales

Arbitration, International

Updated: 19 July 2022; Ref: scu.278208

Mauritius Tourism Promotion Authority v Min: EAT 24 Nov 2008

EAT JURISDICTIONAL POINTS: Excluded employments
The issue in this case is whether the Employment Tribunal was entitled to refuse to review three earlier decisions in which it had concluded that the respondent Authority could not claim state immunity because the claimant fell into one of the exceptions in section 4 of the State Immunity Act 1978. It then subsequently awarded the claimant compensation for unfair dismissal and other breaches of statutory employment rights. The EAT, whilst recognising that considerable leeway will be given to foreign states who seek to raise the issue of immunity late in the day, nonetheless determined that in the particular circumstances of this case the Tribunal was entitled to refuse to review the decisions.
In any event, it appeared highly likely that the state had waived any immunity which it might otherwise have been able to claim.

Judges:

Elias P J

Citations:

[2008] UKEAT 0185 – 08 – 2411

Links:

Bailii

Statutes:

State Immunity Act 1978 4

Employment, International

Updated: 19 July 2022; Ref: scu.278236

Nigerian National Petroleum Corporation v IPCO (Nigeria) Ltd: CA 21 Oct 2008

The court was asked ‘Can part of a New York Convention arbitration award be enforced? How should sequential applications for enforcement of such an award be approached? ‘
Held: A foreign arbitration award could be enforced within the UK only to the extent that the arbitration was subject to some international convention.

Judges:

Tuckey LJ, Wall LJ, Rimer LJ

Citations:

[2008] EWCA Civ 1157, Times 11-Nov-2008, [2009] 1 All ER (Comm) 611, [2009] Bus LR 545, [2009] BLR 71, [2009] 1 Lloyd’s Rep 89, [2008] 2 CLC 550

Links:

Bailii

Statutes:

Arbitration Act 1996

Jurisdiction:

England and Wales

Citing:

Appeal from – IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation ComC 27-Apr-2005
A Nigerian arbitration award between two Nigerian companies was first subject to proceedings in Nigeria to set aside the award and subsequently to enforcement proceedings in England.
Held: Gross J refused to consider immediate enforcement. He . .
Appeal from – IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation ComC 17-Apr-2008
The court considered its power to enforce a New York Convention award in circumstances where a challenge to the validity of the award is pending before the supervisory court. . .

Cited by:

See Also – IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation ComC 14-Mar-2014
IPCO applied to have enforced here a substantial arbitration award. NNPC replied that the award had been inflated by fraud.
Held: The fraud challenge was made bona fide. NNPC had a good prima facie case that IPCO practised a fraud on the . .
See Also – IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation (Costs) CA 10-Nov-2015
Challenge to order for payment of security for costs.
Christopher Clarke LJ said: ‘In the present case it seems to us that in reality it is NNPC, the Award debtor, which sought the continuance of the adjournment in the face of IPCO’s attempt to . .
See Also – IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation CA 10-Nov-2015
The court was asked whether the court below had been right to decline to enforce an arbitration award made in Nigeria in October 2004 and, instead, to continue an adjournment of the enforcement proceedings begun subsequently in this jurisdiction. . .
See Also – IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation SC 1-Mar-2017
The court was asked whether the appellant NNPC, should have to put up a further USD 100m security (in addition to USD 80m already provided) in respect of a Nigerian arbitration award which the respondent, had been seeking since November 2004 to . .
Lists of cited by and citing cases may be incomplete.

International, Arbitration

Updated: 19 July 2022; Ref: scu.277079

Jugoslavenska Oceanske Plovidba v Castle Investment Co Inc: CA 1974

London arbitrators had made an award for unpaid hire in US dollars, being the currency of the hire contract. An issue arose whether an English court could give leave under the Act to enforce the award in the same manner as a judgment to the same effect.
Held: English arbitrators had jurisdiction to make their awards in a foreign currency where that currency was the currency of the contract. Such an award could be enforced with the leave of the court by converting the award into sterling at the rate of exchange ruling at the date of the award.
Lord Denning MR said: ‘In my opinion English arbitrators have authority, jurisdiction and power to make an award for payment of an amount in foreign currency. They can do this – and I would add, should do this – whenever the money of account and the money of payment is in one single foreign currency. They should make their award in that currency because it is the proper currency of the contract. By that I mean that it is the currency with which the payments under the contract have the closest and most real connection. Likewise, whenever the proper currency of a contract is a foreign currency, English arbitrators can and should make their award in that currency, unless the parties have expressly or impliedly agreed otherwise. The proper currency can usually be ascertained without difficulty. But if the transaction is closely connected with two currencies (as in The the Hu [1970] P 106 Japanese salvors of a Panamanian vessel) the arbitrators can and should make their award in whichever of the two currencies seems to them to produce the most appropriate and just result.’ and (Roskill LJ) ‘I would only add on this part of the case that this decision does not amount to a general licence to arbitrators and umpires to make awards in any currency they choose heedless of the provisions of the contract with which they are concerned. The currency of account and the currency of payment will in most cases be easily ascertainable just as the proper law of a contract is in most cases easily ascertainable. In a few cases the problem will be difficult as in a few cases the question of proper law is difficult. But even in a difficult case the problem must ultimately be capable of solution and the arbitrators (if they wish) can – as I would think – always decide as a matter of discretion to make an award in sterling unless either the terms of the contract in question or of the arbitration agreement under which their jurisdiction arises or some other reason prevents them from so doing.’

Judges:

Lord Denning MR

Citations:

[1974] QB 292

Statutes:

Arbitration Act 1950 26

Jurisdiction:

England and Wales

Cited by:

Cited – Lesotho Highlands Development Authority v Impregilo Spa and others CA 31-Jul-2003
The parties went to arbitration to resolve disputes in a construction contract. The award appeared to have been made for payment in currencies different from those set out in the contract. The question was asked as to whether the award of interest . .
Cited – Lesotho Highlands Development Authority v Impregilo Spa and others HL 30-Jun-2005
The House had to consider whether the arbitrator had acted in excess of his powers under s38, saying the arbitrator had misconstrued the contract. The arbitrator had made his award in different currencies.
Held: The question remained whether . .
Lists of cited by and citing cases may be incomplete.

Arbitration, International, Damages, Litigation Practice

Updated: 19 July 2022; Ref: scu.185175

In re B (Children) (Removal from jurisdiction); In re S (Child) (Removal from jurisdiction): CA 30 Jul 2003

Mothers appealed refusal of leave to remove their children from the jurisdiction so that they could make a life with a new partner.
Held: The case of Payne was not directly of effect, because the mother there was returning to her home country. It did show the need to see where the new family would naturally live. The degree of attachment and commitment of the new partners was a factor which could be decisive. It was not a question of putting the mother’s interests before the child but of recognising that if the child was to be with the mother and if the mother’s life would take her abroad, the child should follow in reality. To act otherwise would unduly restrict proper migration.

Judges:

Thorpe, Judge, Sedley LLJ

Citations:

[2003] EWCA Civ 1149, Times 29-Aug-2003, [2003] Fam Law 820, [2003] 2 FLR 1043, [2003] 2 FCR 673

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Payne v Payne; P v P CA 13-Feb-2001
No presumption for Mother on Relocation
The mother applied for leave to return to New Zealand taking with the parties’ daughter aged four. The father opposed the move, saying that allowing the move would infringe his and the child’s right to family life. He had been refused residence.
Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 19 July 2022; Ref: scu.184895

Dardana Ltd v Yukos Oil Company: QBD 21 Dec 2001

The defendant sought to challenge the enforcement here of a foreign arbitration award. It sought security for costs.
Held: The action was not a challenge to the award itself, but rather to challenge an attempt to enforce it in England. The challenge was therefore in its nature defensive, and accordingly the courts did have power to require security for costs against the claimant.

Judges:

Chambers J

Citations:

Times 04-Feb-2002

Statutes:

Practice Direction: Arbitrations (Civil Procedure volume 2, paragraph 2B-1) 31.3, Arbitration Act 1996 103

Jurisdiction:

England and Wales

Citing:

See Also – Yukos Oil Company v Dardana Ltd CA 6-Jul-2001
The applicant had sought to have set aside an arbitral award given in Sweden. In the meantime the defendant had applied for its enforcement on an ex parte basis, and the applicant now sought leave to appeal. . .

Cited by:

Appeal from – Dardana Ltd v Yukos Oil Company CA 18-Apr-2002
The court was asked as to the appropiateness of making a split order. . .
Appeal from – Yukos Oil Company v Dardana Ltd CA 18-Apr-2002
The claimant sought to enforce an arbitration award made in Sweden, even though it had yet to give its final adjudication on the defence under the New York Convention argued by the defendant.
Held: The Act cannot have been intended to give the . .
Lists of cited by and citing cases may be incomplete.

International, Costs, Arbitration

Updated: 19 July 2022; Ref: scu.167543

British South Africa Co v De Beers Consolidated Mines Ltd: CA 1910

The equitable rule against clogging the equity of redemption of a mortgage applied to a contract governed by English law and would be enforced against a contracting party as regards land abroad in a state where the equity of redemption may not be recognised.
Cozens-Hardy MR said: ‘For centuries the Court of Chancery has, by virtue of its jurisdiction in personam, applied against parties to a contract or trust relating to foreign land the principles of English law, although the lex situs did not recognize such principles. … If indeed the law of the country where the land is situate should not permit or not enable the defendant to do what the court might otherwise think it right to decree, it would be useless and unjust to direct him to do the act; but when there is no such impediment the courts of this country, in the exercise of their jurisdiction over contracts made here, or in administering equities between parties residing here, act upon their own rules, and are not influenced by any consideration of what the effect of such contracts might be in the country where the lands are situate, or of the manner in which the courts of such countries might deal with such equities.
To take a simple case, if A by an English contract agreed to give a mortgage to secure an English debt upon land in a foreign country, the law of which country does not recognize the existence of what we call an equity of redemption, which was the case of our common law, and if a mortgage was given and duly perfected according to the lex situs, I feel no doubt that our courts would restrain the mortgagee from exercising the rights given by the foreign law and would treat the transaction as a mortgage in the sense in which that word is used by us. In doing this our courts would not in any way interfere with the lex situs, but would by injunction, and if necessary by process of contempt, restrain the mortgagee from asserting those rights. Similar observations would apply to a trustee, if the lex situs does not recognize trusts.’

Judges:

Cozens-Hardy MR L

Citations:

[1910] 2 Ch 502

Jurisdiction:

England and Wales

Cited by:

Cited – Akers and Others v Samba Financial Group SC 1-Feb-2017
Saad Investments was a Cayman Islands company in liquidation. The liquidator brought an action here, but the defendant sought a stay saying that another forum was clearly more appropriate. Shares in Saudi banks were said to be held in trust for the . .
Lists of cited by and citing cases may be incomplete.

Equity, Trusts, International

Updated: 18 July 2022; Ref: scu.640390

Akers and Others v Samba Financial Group: SC 1 Feb 2017

Saad Investments was a Cayman Islands company in liquidation. The liquidator brought an action here, but the defendant sought a stay saying that another forum was clearly more appropriate. Shares in Saudi banks were said to be held in trust for the company, but Saudi law would not recognise such trusts. The shares had been transferred to the defendants, and the liquidators now sought to have the transfer set aside as having been in breach of trust.
Held: Samba’s appeal succeeded. The transfer to Samba did not dispose of any rights belonging to SICL within the meaning of s. 127.
In the eyes of English law, a trust may be created, exist and be enforceable in respect of assets located in a jurisdiction, the law of which does not recognise trusts in any form.
At common law, the interest created by a trust depends on the law governing the trust. The lex situs may treat a disposition of shares to a third party as overriding any interest of the beneficiary in the shares. Even so, a common law trust may exist in respect of those shares. A trust can be created, exist and be enforced in respect of assets located in a jurisdiction such as Saudi Arabia, the law of which does not recognise trusts in any form.
The Hague Convention does not change this conclusion, since one of its aims was exactly to provide for the recognition of trusts in jurisdictions which did not themselves know of the institution.

Judges:

Lord Neuberger, President, Lord Mance, Lord Sumption, Lord Toulson, Lord Collins

Citations:

[2017] 1 BCLC 151, [2017] WTLR 373, [2017] UKSC 6, [2017] WLR(D) 57, [2017] 2 All ER 799, [2017] 2 WLR 713, [2017] 2 All ER (Comm) 97, [2017] BPIR 263, [2017] AC 424, UKSC 2015/0009

Links:

Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Video Summary

Statutes:

Cross-Border Insolvency Regulations 2006, Insolvency Act 1986 127 436

Jurisdiction:

England and Wales

Citing:

At First Instance – Akers and Others v Samba Financial Group ChD 28-Feb-2014
Samba sought a stay of insolvency proceedings. Shares in a Saudi company were held in trust by a company registered in Cayman. Upon that company going into liquidation, the shares were transferred to the defendant, who now argued that since Saudi . .
Appeal from – Akers and Others v Samba Financial Group CA 4-Dec-2014
Shares in a Saudi company were held I trust for a Cayman company which had gone into liquidation. Saudi law did not recognise such trusts, and the parties now disputed which was the forum conveniens.
Held: The liquidators’ appeal succeeded. . .
Cited – Orr Ewing v John Orr Ewing and Co and Orr Ewing’s Trustees HL 5-Dec-1882
A contract of copartnery provided that in the event of the death of any of the partners the surviving and solvent partners who should continue the business should pay out to the representatives of the deceased the amount at his credit in the books . .
Cited – Attorney General v Jewish Colonization Association 1901
The court was asked whether on the death of the settlor and the termination of his life interest, the foreign shares held on trust were taxable as on a succession. . .
Cited – British South Africa Co v De Beers Consolidated Mines Ltd CA 1910
The equitable rule against clogging the equity of redemption of a mortgage applied to a contract governed by English law and would be enforced against a contracting party as regards land abroad in a state where the equity of redemption may not be . .
Cited – In re Berchtold 1923
. .
Cited – Archer Shee v Garland HL 15-Dec-1930
The parties disputed the taxpayer’s liability to income tax on income coming due to her on an American based family trust.
Held: A beneficiary in a fully administered deceased estate has an equitable interest in property which is the subject . .
Cited – Westdeutsche Landesbank Girozentrale v Islington London Borough Council HL 22-May-1996
Simple interest only on rate swap damages
The bank had paid money to the local authority under a contract which turned out to be ultra vires and void. The question was whether, in addition to ordering the repayment of the money to the bank on unjust enrichment principles, the court could . .
Cited – Duke of Marlborough v Attorney General 1945
The Court was asked whether foreign shares held on trust were taxable as on a succession on the death of the beneficiary of the trust.
Held: The proper law of a marriage settlement ‘can only be the law by reference to which the settlement as . .
Cited – Re Philipson-Stow HL 1961
The section excluded from liability for estate duty property ‘passing on the death which is situate out of Great Britain if it is shown that the proper law regulating the devolution of the property situate, or the disposition under or by reason of . .
Cited – Macmillan Inc v Bishopsgate Investment Trust Plc and Others (No 3) ChD 1-Jul-1993
Bona fide chargees for value of shares situated in New York and held on trust for Macmillan were able, by application of New York law, to take the shares free of Macmillan’s prior equitable interest of which the chargees had had no notice. Where . .
Cited – Deschamps v Miller 1908
The parties disputed land in India. A French couple, had married in France in community of property. So according to the French marriage contract the wife was supposed to be entitled to one half of the husband’s after-acquired property. The husband . .
Cited – Deschamps v Miller 1908
The parties disputed land in India. A French couple, had married in France in community of property. So according to the French marriage contract the wife was supposed to be entitled to one half of the husband’s after-acquired property. The husband . .
Cited – Lake v Bayliss 1974
As to the sale of land: ‘ It is by reason of this trusteeship that the vendor who breaks his contract of sale by reselling to someone else has been held to be accountable to the first intended purchaser for the proceeds of sale.’ . .
Cited – Lightning v Lightning Electrical Contractors Ltd CA 1998
Mr K asserted beneficial ownership under a resulting trust over land in Scotland bought by an English company to which he had advanced the purchase price. Scots law, the lex situs of the land, did not recognise any equitable interest. The company . .
Cited – Luxe Holding Ltd v Midland Resources Holding Ltd ChD 23-Jul-2010
Midland agreed to sell to Luxe shares in 20 companies, 17 of which were incorporated in Russia or the Ukraine, with the lex situs of the shares in them being also there. Midland defaulted, sold the shares in the Russian and Ukrainian companies . .
Cited – Bristol Airport Plc and Another v Powdrill and Others CA 21-Dec-1989
An airline company went into administration. The airport seized two airplanes. The administrators claimed they were property within the administration, could not be seized without a court order, and the court should exercise its discretion not to . .
Cited – Clark and Whitehouse (Joint Administrators of Rangers Football Club Plc), Re Directions SCS 23-Mar-2012
(Outer House) Contracts were made in 2011 and subject to English law, between Rangers and two English limited liability partnerships (together ‘Ticketus’). Under the contracts, Ticketus had paid Rangers large sums for future tranches of season . .
Cited – Glasgow City Council v Springboig St John’s School and Another SCS 27-Mar-2014
The civil law concept of patrimony has been developed to explain the protection of trust property held by a trustee against claims by the trustee’s personal creditors . .
Cited – Saunders v Vautier 7-May-1841
A direction in a will stated that the income from certain shares was to be accumulated and invested until the beneficiary attained the age of 25. On attaining his majority at 21 years, the beneficiary sought termination of the trust, and transfer of . .
Cited – Ayerst (Inspector of Taxes) v C and K (Construction) Ltd HL 1976
A resolution or order for winding up of a company divests it of the beneficial interest in its assets. They become a fund which the company thereafter holds in trust to discharge its liabilities. Where a company is wound up in this country, its . .
Cited – Independent Trustee Services Ltd v GP Noble Trustees Ltd and Others CA 28-Feb-2012
Lloyd LJ said: ‘a transferee of the legal title to property under a disposition made in breach of trust, or a successor in title to such a person, does not have the beneficial title to the property, which remains held on the original trusts, unless . .
Cited – Independent Trustee Services Ltd v GP Noble Trustees Ltd and Others CA 28-Feb-2012
Lloyd LJ said: ‘a transferee of the legal title to property under a disposition made in breach of trust, or a successor in title to such a person, does not have the beneficial title to the property, which remains held on the original trusts, unless . .
Cited – In re Earl Leven, Inland Revenue Comrs v Williams Deacon’s Bank Ltd ChD 1954
Wynn-Parry J said: ‘the word ‘disposition’, taken by itself, and used in its most extended meaning, is no doubt wide enough to include the act of extinguishment’, but he rejected such a wide interpretation of that word in the Finance Act 1940, . .
Cited – Inland Revenue Commissioners v Buchanan CA 1958
The surrender of a life interest under a will trust in favour of those people entitled in remainder operated as a ‘disposition’ of that life interest for the purposes of sections 20 and 21 of the Finance Act 1943.
Jenkins LJ specifically . .
Cited – Re Mal Bower’s Macquarie Electrical Centre Pty Ltd (in liquidation) 1974
The liquidator made a claim against the bank for the amount of the Payments had been made out of the company’s bank account between the date of the petition and the date of the order and the date when the account was subsequently closed.
Held: . .
Cited – In re J Leslie Engineers Co Ltd 1976
The director of a company between presentation of a petition to wind up and the making of the order paid over pounds 1050 to a creditor for work done. Of this sum, pounds 800 was paid by way of a cheque drawn on the personal account of the director . .
Cited – Bristol Airport Plc and Another v Powdrill and Others CA 21-Dec-1989
An airline company went into administration. The airport seized two airplanes. The administrators claimed they were property within the administration, could not be seized without a court order, and the court should exercise its discretion not to . .
Cited – Re S A and D Wright Ltd, Denney v John Hudson and Co Ltd CA 1992
Fox LJ said: ‘A disposition carried out in good faith in the ordinary course of business at a time when the parties were unaware that a petition had been presented would usually be validated by the court unless there is ground for thinking that the . .
Cited – El Ajou v Dollar Land Holdings Ltd CA 2-Dec-1993
The court was asked whether, for the purposes of establishing a company’s liability under the knowing receipt head of constructive trust, the knowledge of one of its directors can be treated as having been the knowledge of the company.
Held: . .
Cited – Express Electrical Distributors Ltd v Beavis and Others CA 19-Jul-2016
Sales LJ said: validation will ordinarily only be granted ‘if there is some special circumstance which shows that the disposition in question … has been … for the benefit of the general body of unsecured creditors’. . .
Cited – Attorney General v Jewish Colonisation Association 1901
. .
Cited – Cook Industries Inc v Galliher ChD 1979
The plaintiff claimed a declaration that the defendants held a flat in Paris together with its contents in trust for the plaintiff, and made an order compelling the defendants to allow the plaintiff to inspect the flat. The fact that the . .
Lists of cited by and citing cases may be incomplete.

Trusts, International

Updated: 18 July 2022; Ref: scu.573799

Akers and Others v Samba Financial Group: CA 4 Dec 2014

Shares in a Saudi company were held I trust for a Cayman company which had gone into liquidation. Saudi law did not recognise such trusts, and the parties now disputed which was the forum conveniens.
Held: The liquidators’ appeal succeeded. Since Cayman Islands law recognised the division of the legal and beneficial interests in shares the trusts were arguably valid, even though ownership of the shares as registered in Saudi Arabia were governed by the lex situs, Saudi law. However the beneficiary’s claim under the trust was with England and Wales jurisdiction by the 1987 Act.
‘Provided that the property that is made the subject of a trust can be alienated at all under the lex situs, questions as to the validity and effect of placing such assets in trust, even though the assets are shares in a civil law jurisdiction, can be determined by the governing law of the trust. To put the matter in the context of this case, the declarations of trust will not be dividing the equitable and legal interests in the shares under Saudi Arabian law. That is not possible. But the declarations of trust may give SICL rights under the trust in respect of those shares that will have to be determined by the governing law of the trust, taking into account that under Saudi Arabian law a division of equitable and legal interests is not possible. All these matters will have to be worked out at the next stage of this litigation when the court comes to consider the effect on the rights granted by the declarations of trust of the transfer to Samba which took effect under Saudi Arabian law.’

Judges:

Longmore, Kitchin, Vos LJJ

Citations:

[2014] EWCA Civ 1516, [2015] 2 WLR 1281, [2015] BPIR 411, [2014] WLR(D) 521, [2015] WTLR 931, 17 ITELR 921

Links:

Bailii, WLRD

Statutes:

Recognition of Trusts Act 1987

Jurisdiction:

England and Wales

Citing:

Appeal from – Akers and Others v Samba Financial Group ChD 28-Feb-2014
Samba sought a stay of insolvency proceedings. Shares in a Saudi company were held in trust by a company registered in Cayman. Upon that company going into liquidation, the shares were transferred to the defendant, who now argued that since Saudi . .

Cited by:

Appeal from – Akers and Others v Samba Financial Group SC 1-Feb-2017
Saad Investments was a Cayman Islands company in liquidation. The liquidator brought an action here, but the defendant sought a stay saying that another forum was clearly more appropriate. Shares in Saudi banks were said to be held in trust for the . .
Lists of cited by and citing cases may be incomplete.

Trusts, International

Updated: 18 July 2022; Ref: scu.539584

Akers and Others v Samba Financial Group: ChD 28 Feb 2014

Samba sought a stay of insolvency proceedings. Shares in a Saudi company were held in trust by a company registered in Cayman. Upon that company going into liquidation, the shares were transferred to the defendant, who now argued that since Saudi law would not recognise such a trust, and the trust being invalid, the action should be stayed.
Held: The stay was granted,

Judges:

The Chancellor (Sir Terence Etherton)

Citations:

[2014] EWHC 540 (Ch), (2014) 16 ITELR 808, [2014] CN 346

Links:

Bailii

Statutes:

Insolvency Act 1986 127, Cross Border Insolvency Regulations 2006

Jurisdiction:

England and Wales

Cited by:

Appeal from – Akers and Others v Samba Financial Group CA 4-Dec-2014
Shares in a Saudi company were held I trust for a Cayman company which had gone into liquidation. Saudi law did not recognise such trusts, and the parties now disputed which was the forum conveniens.
Held: The liquidators’ appeal succeeded. . .
At First Instance – Akers and Others v Samba Financial Group SC 1-Feb-2017
Saad Investments was a Cayman Islands company in liquidation. The liquidator brought an action here, but the defendant sought a stay saying that another forum was clearly more appropriate. Shares in Saudi banks were said to be held in trust for the . .
Lists of cited by and citing cases may be incomplete.

International, Insolvency

Updated: 18 July 2022; Ref: scu.522121

Kadi v Council and Commission: ECJ 3 Sep 2008

(Common foreign and security policy) Grand Chamber – Common foreign and security policy (CFSP) Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban United Nations Security Council Resolutions adopted under Chapter VII of the Charter of the United Nations Implementation in the Community Common Position 2002/402/CFSP Regulation (EC) No 881/2002 ‘ Measures against persons and entities included in a list drawn up by a body of the United Nations Freezing of funds and economic resources Committee of the Security Council created by paragraph 6 of Resolution 1267 (1999) of the Security Council (Sanctions Committee) Inclusion of those persons and entities in Annex I to Regulation (EC) No 881/2002 Actions for annulment Competence of the Community Joint legal basis of Articles 60 EC, 301 EC and 308 EC Fundamental rights Right to respect for property, right to be heard and right to effective judicial review

Citations:

[2009] 1 AC 1225, [2008] EUECJ C-402/05, [2009] 3 WLR 872

Links:

Bailii

Jurisdiction:

European

Citing:

See Also – Kadi v Council and Commission ECFI 21-Sep-2005
ECJ (Common Foreign and Security Policy) Common foreign and security policy – Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – . .
See Also – Kadi v Council and Commission (Common Foreign and Security Policy) ECJ 16-Jan-2008
ECJ Common foreign and security policy (CFSP) – Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – United Nations Security Council . .

Cited by:

Cited – Youssef v Secretary of State for Foreign and Commonwealth Affairs SC 27-Jan-2016
An Egyptian national, had lived here since 1994. He challenged a decision by the Secretary of State,as a member of the committee of the United Nations Security Council, known as the Resolution 1267 Committee or Sanctions Committee. The committee . .
Cited – Wightman and Others v Secretary of State for Exiting the European Union ECJ 10-Dec-2018
Art 50 Notice withrawable unilaterally
Reference for a preliminary ruling – Article 50 TEU – Notification by a Member State of its intention to withdraw from the European Union – Consequences of the notification – Right of unilateral revocation of the notification – Conditions
The . .
Lists of cited by and citing cases may be incomplete.

Crime, International, Banking

Updated: 17 July 2022; Ref: scu.605178

Cannon v Cannon: CA 19 Oct 2004

The mother had brought the child to the UK wrongfully. She had hidden their identity for more than a year. Upon discovering her, the father came to England and began proceedings for the child’s return to the US.
Held: Because the child’s identity had been hidden, that period could not be counted as settled existence under the Act. The section must be given a broad and purposive construction. Despite the passing of the year, the court retained its discretion to order the return of the child to the US. In exercising its discretion, each case was dependent upon its own facts. ‘Concealment or subterfuge in themselves have many guises and degrees of turpitude. Abduction is itself a wrongful act, in that it breaches rights of custody, but the degree of wrong will vary from case to case. Furthermore abduction may also be a criminal offence in the jurisdiction where it occurred. The abductor may have been prosecuted, convicted, and even sentenced in absentia. There may be an international arrest warrant passed to Interpol to execute either in respect of a conviction and sentence. The abductor may have entered the jurisdiction of flight without right of entry or special leave. The abductor may therefore be, or may rapidly become, an illegal immigrant. ‘ and ‘The fugitive from justice is always alert for any sign that the pursuers are closing in and equally in a state of mental and physical readiness to move on before the approaching arrest. ‘ Such a period should not count.
Thorpe LJ said: ‘For the exercise of a discretion under the Hague Convention requires the court to have due regard to the [overriding] objectives of the Convention whilst acknowledging the importance of the child’s welfare (particularly in a case where the court has found settlement), whereas the consideration of the welfare of the child is paramount if the discretion is exercised in the context of our domestic law.’

Judges:

Thorpe LJ

Citations:

Times 28-Oct-2004, [2004] EWCA Civ 1330, [2005] 1 FLR 169, [2005] 1 WLR 32

Links:

Bailii

Statutes:

Child Abduction and Custody Act 1985

Jurisdiction:

England and Wales

Citing:

Cited – Re N (Minors) (Abduction) FD 2-Jan-1991
The court considered the degree of settlement that had to be proved under the Act: ‘The second question which has arisen is: what is the degree of settlement which has to be demonstrated? There is some force, I find, in the argument that legal . .
Appeal from – Re C (Abduction: Settlement) FD 28-May-2004
The mother had unlawfully and against the father’s wishes, brought the child to the UK from the US. She hid their identity and whereabouts for a year, and resisted the father’s request for his return to the US, saying the child was settled here.
Cited – Re M (Abduction: Acquiescence) FD 1996
After referring to the decisions in Re S and in Re N on the issue of whether a child had a settled residence: ‘It seems to me that any survey of the degree of settlement of the child must give weight to emotional and psychological settlement, as . .
Cited – M v M FD 8-Oct-1990
. .
Cited – Re C (Abduction: Interim Directions: Accommodation by Local Authority) FD 2004
The court delivered a judgment settling the extent of the court’s power to remove a child subject to an abduction application into Local Authority accommodation as an interim measure. . .
Cited – Re H, H v H (Child Abduction: Acquiescence) HL 10-Apr-1997
The mother and father were orthodox Jews. The mother brought the children to England from Israel against the father’s wishes. She said that he had acquiesced in their staying here by asking for them to be returned to Israel temporarily. The father . .
Cited – Re L (Abduction: Pending Criminal Proceedings) FD 1999
In a child abduction case, the court considered whether a child was settled within the UK if his whereabouts had been hidden: ‘The mother might or might not have demonstrated that the children were now settled in their new environment. The . .
Cited – Re H (Abduction: Child of Sixteen) FD 2000
The court considered the position as to whether a child was to be deemed to be settled after having been within the UK for a period of more than one year: ‘It is the case, looking at the relative dates, that these proceedings were commenced after . .
Cited – Soucie v Soucie 1995
After noting the approval of In re N in Perrin the court added: ‘Furthermore the question of settlement had to be considered in the context of the spirit of the Convention whereby the fundamental duty of the court is to order a return of the child . .
Cited – Perrin v Perrin IHCS 1994
. .
Cited – Puttick v Attorney General etc FD 1980
P, a former member of the Baader-Meinhof gang absconded while awaiting trial in Germany. She entered the UK using a passport which she had bought in the name of S, and married P under that name. The German authorities discovered her true identity . .

Cited by:

Cited – AF v M B-F FD 22-Feb-2008
The father sought the return of the two children to Poland after they had been brought to England by the mother. She said that she had come to seek work as a dentist, and had been unable to support the family in Poland. She said that her Polish . .
Cited – In re O (Children) CA 16-Feb-2011
The family had Nigerian nationality, but the father also had US nationality. After the split, M wanted to live with the children in Nigeria, and F wanted them with him in the US. On M’s visit to the UK from Nigeria with the children, the father . .
Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 15 July 2022; Ref: scu.216636

Dublin Port and Docks Board v Bank of Ireland: 22 Jul 1976

(Supreme Court of Ireland) The court discussed a bank’s obligation to process cheques issued by its customers: ‘a banker should pay his customers’ cheques in the order in which they are presented, subject to the interest of the customer being taken into account’.

Judges:

Griffin J

Citations:

[1976] IR 118

Links:

Bailii

Cited by:

Cited – Office of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
Lists of cited by and citing cases may be incomplete.

Banking, International

Updated: 14 July 2022; Ref: scu.267119

Hafner and Hochstrasser (A Firm), Regina (on the Application of) v Australian Securities and Investments Commission: Admn 5 Mar 2008

The Commission renewed its application for a review of a decision on their request for judicial assistance in obtaining evidence from the firm. The firm had produced confidential documents to the court, and not disclosed to the Commission.
Held: The decision of the defendant court was based on an unsound appraisal of the law, and the matter would be remitted for reconsideration. The parties had agreed a way forward and it ws unclear why the court had not gone long with it.

Citations:

[2008] EWHC 524 (Admin)

Links:

Bailii

Statutes:

Crime (International Co-Operation) Act 2003, European Connevtion on Human Rights 8

Jurisdiction:

England and Wales

Citing:

Cited – Niemietz v Germany ECHR 16-Dec-1992
A lawyer complained that a search of his offices was an interference with his private life.
Held: In construing the term ‘private life’, ‘it would be too restrictive to limit the notion of an ‘inner circle’ in which the individual may live his . .
Cited – Regina v Southampton Crown Court ex parte J and P 21-Dec-1992
A special material warrant was quashed, partly because it was too widely drawn. It was suspected that there had been thefts from the solicitor’s firms client account. Watkins LJ discussed the need for a judge to give reasons for a decision under . .
Cited – Z v Finland ECHR 25-Feb-1997
A defendant had appealed against his conviction for manslaughter and related offences by deliberately subjecting women to the risk of being infected by him with HIV virus. The applicant, Z, had been married to the defendant, and infected by him with . .
Cited – Funke v France ECHR 25-Feb-1993
M. Funke successfully challenged his conviction for failing to provide documents which the customs authorities had demanded of him, on the grounds that his rights under Article 6 had been infringed: ‘The Court notes that the customs secured Mr. . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, International, Human Rights

Updated: 14 July 2022; Ref: scu.266961

Masri v Consolidated Contractors International Company Sal and Another: CA 4 Apr 2008

The court was asked whether the Commercial Court had international jurisdiction to make an order for the appointment of a receiver by way of equitable execution, and a freezing order, in relation to the judgment debtors’ interest in the concession and the revenues which they may earn from it. It also involves the purely English law question whether a receivership order can be made by way of equitable execution in relation to future debts.

Judges:

Collins LJ

Citations:

[2008] EWCA Civ 303, Times 22-Apr-2008, [2008] 2 Lloyd’s Rep 128, [2008] BPIR 531, [2008] 2 All ER (Comm) 1099, [2008] CP Rep 28, [2009] Bus LR 168, [2008] ILPr 37, [2009] 2 WLR 621, [2008] 1 CLC 657, [2009] QB 450

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Societe Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating . .
See Also – Masri v Consolidated Contractors International (UK) Ltd ComC 17-May-2005
. .
See Also – Masri v Consolidated Contractors International (UK) Ltd CA 24-Oct-2005
The defendants who were resident in Greece appealed a decision that the English court had jurisdiction over them, by virtue of a close connection of the matter with earlier proceedings heard here.
Held: The fact that the defendants were all . .
See Also – Masri v Consolidated Contractors International UK Ltd and Another ComC 28-Jul-2006
. .
Cited – Masri v Consolidated Contractors International Company Sal and Another CA 11-Jul-2007
. .
Appeal from – Masri v Consolidated Contractors International (UK) Ltd and others ComC 25-May-2007
Application for an order to prevent some defendants pursuing action in other jurisdictions. . .
See Also – Masri v Consolidated Contractors International UK Ltd and Another ComC 14-Mar-2007
Judgment on quantum. . .
See Also – Masri v Consolidated Contractors International Company Sal and Another ComC 20-Dec-2007
. .

Cited by:

See Also – Masri v Consolidated Contractors International Company Sal and Another ComC 23-May-2008
Application for interpretation of a receivership order. . .
See Also – Masri v Consolidated Contractors International Company Sal and Another (No 3) CA 6-Jun-2008
The court was asked whether the English court has jurisdiction following judgment to grant an anti-suit injunction against foreign judgment debtors (one of whom has a domicile in a Brussels I Regulation State) restraining them from pursuing . .
See Also – Masri v Consolidated Contractors International Company Sal and others CA 28-Jul-2008
The judgment creditor appealed an order refusing to oblige the defendant company to attend court and provide information about its means. . .
See Also – Masri v Consolidated Contractors International (UK) Ltd and Another ComC 17-Jun-2008
Application for further order of payment of costs of action on account. . .
See Also – Masri v Consolidated Contractors International Company Sal and Another ComC 21-Oct-2008
The court heard matters relating to the recovery by the claimant of $63,000,000. . .
See Also – Masri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
See Also – Masri v Consolidated Contractors (Oil and Gas) Company Sal CA 6-Feb-2009
Appeal from order with regard to management of receivership. . .
See Also – Masri v Consolidated Contractors International Co Sal and others CA 13-Nov-2008
The creditors sought leave to appeal against orders made in the course of proceedings to recover a very substantial debt from a foreign resident company. . .
See Also – Masri v Consolidated Contractors International Company Sal and Others ComC 6-Oct-2010
The third respondent sought to strike out an application for his committal for failure to comply with orders made in support of proceedings to enforce a substantial judgment. . .
See Also – Masri v Consolidated Contractors International Company Sal ComC 21-Oct-2010
The court held a case management conference with regard to an intended application for committal for contempt of one of the defendants. . .
See Also – Consolidated Contractors International Company Sal and Another v Masri CA 21-Jan-2011
. .
See Also – Consolidated Contractors International Company Sal and Another v Masri CA 3-Feb-2011
. .
See Also – Masri and Another v Consolidated Contractors International Co Sal and Others ComC 3-Mar-2011
On notice hearing with regard to without notice receivership order. . .
See Also – Masri v Consolidated Contractors International Company Sal and Others ComC 5-May-2011
The applicant, and judgment creditor sought orders for committal for contempt by the defendant companies and officers after failing to comply with court orders. . .
Lists of cited by and citing cases may be incomplete.

International, Litigation Practice

Updated: 14 July 2022; Ref: scu.266454

Iran v The Barakat Galleries Ltd: QBD 29 Mar 2007

The claimant government sought the return to it of historical artefacts in the possession of the defendants. The defendant said the claimant could not establish title and that if it could the title under which the claim was made was punitive and not to be applied by English law.
Held: It is necessary for a claimant suing in conversion or for wrongful interference with his goods to establish the existence of a proprietary right in the goods. The claimant was unable to do this, because no explicit provision of Iranian law had been demonstrated to establish a claim.
There would be no infringement of the principle governing justiciability if the English Court were to enforce a proprietary claim by a foreign sovereign state in relation to movables acquired by that State (whether by purchase, bequest, gift or as bona vacantia) at a time when the movables were within the territory of that state. However this claim was not a patrimonial claim

Judges:

Gray J

Citations:

[2007] EWHC 705 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Rosenthal v Alderton and Sons Limited CA 1946
The court was asked as to how it should value goods which had disappeared, and where the plaintiff sought damages for their wrongful detention, either as at the date of the detention or as at the date of the judgment.
Held: Damages for detinue . .
Cited – Iran v Berend QBD 1-Feb-2007
The Republic of Iran sought the return of a fragment of ancient Achaemenid relief in the possession of the defendant, saying that it was part of an ancient monument. The defendant said that she had bought it properly at an auction in Paris. The . .
Cited – Gotha City v Sotheby’s and Another; Federal Republic of Germany v Same QBD 9-Sep-1998
Limitation does not run in favour of a thief. A painting stolen during the war and dealt with by those knowing its true origin remained in the ownership of the original owner however long it had been held by someone who was not a purchaser in good . .
Cited – Jarvis v Williams CA 1955
J, the owner of the goods, sued in detinue the defendant W to whom they had been delivered at the request of a third party, P, who had failed to pay for them. W refused to deliver up the goods.
Held: The claim was not maintainable. Lord . .
Cited – International Factors v Rodriguez CA 1978
(Majority) Cheques were made payable to a company which had entered into a factoring agreement with the plaintiffs. The cheques were sent to the company in settlement of debts owed to the company but which had been assigned to the plaintiffs. The . .
Cited – MCC Proceeds Inc (Incorporated Under the Laws of the State of Delaware, USA As Trustee of the Maxwell Macmillan Realization Liquidating Trust) v Lehman Brothers International (Europe) CA 19-Dec-1997
The owner only of an equitable interest in goods may not assert his interest against a bona fide purchaser of the legal title to the goods. International Factors v. Rodriguez was decided per incuriam to the extent that it held that equitable rights . .
Cited – City of Gotha v Sotheby’s and Another CA 19-Jun-1997
An abandonment of privilege within discovery proceedings did not imply general waiver of same privilege; limited to instant proceedings. . .
Cited – Surrey Asset Finance Ltd v National Westminster Bank plc QBD 30-Nov-2000
That a cheque was endorsed ‘account payee’ did not mean that the drawer of the cheque would be entitled to damages for conversion from a paying bank crediting it to a different account. to succeed under this section the claimant had to show an . .
Cited – Aksionairnoye Obschestvo A M Luther v James Sagor and Co CA 1921
A claim was made as to property seized by a decree of Russian revolutionaries later recognised as the government.
Held: A court is required to recognise a foreign state’s dealings with private proprietary rights within its jurisdiction. An . .
Cited – Wisconsin v Pelican Insurance Co 1888
(United States Supreme Court) The court considered the rules forbidding the application of foreign penal laws: ‘The rule that the courts of no country execute the penal laws of another applies, not only to prosecutions and sentences for crimes and . .
Cited – Princess Olga v Weisz 1929
Recovery was sought of items where the possessor claimed title through the Soviet State.
Held: The claim failed. the court recognised that the Soviet Republic had acquired good title to the movables in question (as well as possession of them), . .
Cited – Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
Cited – Huntington v Attrill HL 1893
In deciding how to characterise a claim, the court must examine its substance, and not be misled by appearances. The territorial principle requires attention to be paid to the place where the act was committed. The court defined what was meant by a . .
Cited – Attorney-General of New Zealand v Ortiz CA 2-Jan-1982
The defendant was to sell a Maori carving which had been unlawfully exported from New Zealand. The Attorney General sought its recovery and an injunction to prevent its sale, relying on the Historical Articles Act 1962. The judge had ordered its . .
Cited – Government of India v Taylor HL 1955
The Government of India sought to prove in the voluntary liquidation of a company registered in the United Kingdom but trading in India for a sum due in respect of Indian income tax, including capital gains tax, which arose on the sale of the . .

Cited by:

Appeal from – Islamic Republic of Iran v The Barakat Galleries Ltd CA 21-Dec-2007
The republic appealed the striking out of its claims for the return of artefacts which formed part of its national heritage and were alleged to have been unlawfully removed.
Held: The claim was not an attempt to apply a foreign penal law. . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, International

Updated: 14 July 2022; Ref: scu.254514

Uhd v Mckay: FD 15 May 2019

Application under the Child Abduction and Custody Act 1985 for an order pursuant to Art 12 of the Hague Convention on the Civil Aspects of International Child Abduction (hereafter the 1980 Convention) directing the summary return of Ruby Margaret McKay-Uhd, born in December 2015 and now aged 3 years old, to the jurisdiction of Australia. The application is brought by the father of Ruby, Peter Stewart Uhd (hereafter ‘the father’). The father also applies under the 1996 Hague Convention to enforce certain orders he secured following Ruby’s abduction in ongoing children proceedings in the jurisdiction of Australia, requiring the return of Ruby to that jurisdiction (the father making clear he does not seek to enforce a concurrent order requiring Ruby to be placed in his care on return).
Held: M had repeatedly misrepresented the proceedings in Australia. Order for return.

Judges:

Justice MacDonald

Citations:

[2019] EWHC 1239 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Children, International

Updated: 14 July 2022; Ref: scu.639757

RJ v Tigipko and Others: FD 4 Jun 2019

‘application before me is for positive orders against the paternal grandfather (as I shall call him) and Slava (as I shall call him) in circumstances where I had assumed that there would today be in being a valid, effective, extant application in the Ukraine for recognition and enforcement pursuant to the 1996 Hague Convention. It was implicit in my agreement to this application being listed for today that it would be supplemental or ancillary to such a valid, effective, albeit as yet unadjudicated, application. However, it now appears that there is in fact today no such valid application in being.’

Judges:

Mostyn J

Citations:

[2019] EWHC 1579 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Children, International

Updated: 14 July 2022; Ref: scu.639766

PJSC Rosneft Oil Company, Regina (on The Application of) v Her Majesty’s Treasury and Others: ECJ 28 Mar 2017

ECJ (Judgment : Common Foreign and Security Policy (CFSP) – Restrictive Measures) Reference for a preliminary ruling – Common Foreign and Security Policy (CFSP) – Restrictive measures adopted in view of Russia’s actions destabilising the situation in Ukraine – Provisions of Decision 2014/512/CFSP and Regulation (EU) No 833/2014 – Validity – Jurisdiction of the Court – EU-Russia Partnership Agreement – Obligation to state reasons – Principles of legal certainty and nulla poena sine lege certa – Access to capital markets – Financial assistance – Global Depositary Receipts – Oil sector – Request for interpretation of concepts of ‘shale’ and ‘waters deeper than 150 metres’ – Inadmissibility

Citations:

ECLI:EU:C:2017:236, [2017] EUECJ C-72/15, [2017] WLR(D) 214, [2017] 3 WLR 1031, [2018] QB 1

Links:

Bailii, WLRD

Jurisdiction:

European

Cited by:

Cited – Wightman and Others v Secretary of State for Exiting the European Union ECJ 10-Dec-2018
Art 50 Notice withrawable unilaterally
Reference for a preliminary ruling – Article 50 TEU – Notification by a Member State of its intention to withdraw from the European Union – Consequences of the notification – Right of unilateral revocation of the notification – Conditions
The . .
Lists of cited by and citing cases may be incomplete.

Commercial, International

Updated: 14 July 2022; Ref: scu.581155

Kolden Holdings Ltd v Rodette Commerce Ltd and Another: CA 21 Jan 2008

Lawrence Collins LJ said: ‘For the purposes of article 27, the question whether the ‘same cause of action’ is raised before the courts of two member states is answered by looking at the claims made, and not at the defences raised at a later stage to those claims: Case C-11/01 Gantner Electronic GmbH v Basch Exploitatie Maatschapi [2003] ECR I-4207, para 30: whether the ‘same cause of action’ is raised in the two actions is to be determined on the basis of ‘the respective claims in each of the sets of proceedings, and not to the defence which may be raised by a defendant’.’

Judges:

Tuckey LJ, Lawrence Collins LJ, Rimer LJ

Citations:

[2008] EWCA Civ 10, [2008] 1 Lloyd’s Rep 434, [2008] ILPr 20, [2008] Bus LR 1051, [2008] 1 CLC 1, [2008] 1 BCLC 481, [2008] 2 All ER (Comm) 289

Links:

Bailii

Statutes:

Brussels Convention 27

Jurisdiction:

England and Wales

Citing:

Cited – Gantner Electronic GmbH v Basch Exploitatie Maatschappij BV ECJ 8-May-2003
The dutch based claimant sought damages for wrongful termination of what it said was a long-term contract. The claimant in Austria claimed the price of goods sold and delivered pursuant to a number of one-off contracts to which the defendant . .
See Also – Kolden Holdings Ltd v Rodette Commerce Ltd and Another ComC 4-Jul-2007
. .

Cited by:

Cited – Television Autonomica Valenciana, Sa v Imagina Contenidos Audiovisuales, Sl ChD 8-Feb-2013
The defendant sought a stay of these proceedings pending the outcome of related proceedings in Spain. The claimant sought a declaration that a contract was terminated and damages for such breach. The Spanish proceedings were first in time.
Lists of cited by and citing cases may be incomplete.

Company, International, Contract

Updated: 12 July 2022; Ref: scu.263801

Heifer International Inc v Christiansen: TCC 18 Dec 2007

Judges:

Toulmin QC

Citations:

[2007] EWHC 3015 (TCC), [2008] 2 All ER (Comm) 831, [2007] ArbLR 31, [2008] Bus LR D49, 119 Con LR 155

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Heifer International Ltd v Christiansen and Another TCC 9-Apr-2013
The court was asked whether a charging order placed on the Claimant’s property in Surrey should be discharged. The real issue is whether or not the debt, which related to a costs order made against the Claimant, has been or is to be considered as . .
Lists of cited by and citing cases may be incomplete.

Arbitration, International

Updated: 12 July 2022; Ref: scu.263268

C v D: CA 5 Dec 2007

The court considered an appeal under the Bermuda Form of international Liability Insurance which provided for arbitration in London subject to the internal laws of New York. The insurers threatened to challenge under US federal arbitration law in a federal court an award secured by the insured in a London arbitration, and the insured obtained an anti-suit injunction from the Commercial Court. The insurers appealed, arguing that the choice of English law as the curial law of the arbitration did not exclude a challenge under the law of New York, which had been expressly chosen to govern the parties’ obligations. The insured argued that, because the parties had chosen London as the seat of the arbitration and therefore English law as the curial law, the law of the arbitration was English and an award could be challenged only in the English courts.
Held: The anti-suit injunction was upheld.
Longmore LJ said that ‘by choosing London as the seat of the arbitration, the parties must be taken to have agreed that proceedings on the award should be only those permitted by English law’ and ‘the choice of a seat for the arbitration must be a choice of forum for the remedies seeking to attack the award’. He distinguished the proper law of the underlying insurance contract and the arbitration agreement, observing that the latter was ‘a separable and separate agreement’, and said that the law of the seat of the arbitration ‘will also be relevant’. He then formulated the question for consideration as being this: ‘if there is no express law of the arbitration agreement’, whether the law with which that agreement has its closest and most real connection is that of the seat of the underlying contract or the law of the seat of the arbitration. He considered that ‘the answer is more likely to be the law of the seat of the arbitration than the law of the underlying contract’.

Judges:

Lord Clarke of Stone-cum-Ebony MR, Longmore, Jacob LJJ

Citations:

[2007] EWCA Civ 1282, [2008] 1 Lloyd’s Rep 239, [2007] ArbLR 10, [2008] 1 All ER (Comm) 1001, [2007] All ER (D) 61, 116 Con LR 230

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Sheffield United Football Club Ltd v West Ham United Football Club Plc ComC 26-Nov-2008
The claimant sought an order to prevent the defendant company from pursuing further an appeal against a decision made by an independent arbitator in their favour as regards the conduct of the defendant in the Premier League in 2006/2007.
Held: . .
Cited – UST-Kamenogorsk Hydropower Plant Jsc v AES UST-Kamenogorsk Hydropower Plant Llp SC 12-Jun-2013
Arrangements between the parties owners and operators of a power plant in Kazakhstan required disputes to be arbitrated in London under ICC Rules. That clause was governed by English law, and the remainder by Kazakh law. A ruling by the Supreme . .
Cited – Arsanovia Ltd and Others v Cruz City 1 Mauritius Holdings ComC 20-Dec-2012
. .
Lists of cited by and citing cases may be incomplete.

International, Arbitration

Updated: 12 July 2022; Ref: scu.261800

Shum Kwok Sher: 2002

Final Court of Appeal, Hong Kong. A senior government officer had used his position to provide preferential treatment to a company and its directors to whom he was related. He appealed against his conviction for misconduct in public office.
Held: The court considered the elements of a charge of misconduct in public office as regards the degree of culpability required.
Sir Anthony Mason said: ‘There must be a serious departure from proper standards before the criminal offence is committed; and a departure not merely negligent but amounting to an affront to the standing of the public office held. The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder. A mistake, even a serious one, will not suffice. The motive with which a public officer acts may be relevant to the decision whether the public’s trust is abused by the conduct . . the element of culpability must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment . . The conduct cannot be considered in a vacuum: the consequences likely to flow from it, viewed subjectively as in R v G will often influence the decision as to whether the conduct amounted to an abuse of the public’s trust in the officer . . There will be some conduct which possess the criminal quality even if serious consequences are unlikely, but it is always necessary to assess the conduct in the circumstances in which it occurs.’
Discussing the judgment in Dytham, Sir Anthony Mason said: ‘Read in context, the words suggest that his Lordship was endeavouring to convey the idea that the conduct complained of must be injurious to the public interest and of a sufficiently serious nature to warrant conviction and punishment. The linkage his Lordship makes with the idea of culpability reinforces this view of his lordship’s purpose. In this respect, it is to be noted that Lord Widgery employs the concept of culpability to embrace two different matters, namely first the absence of reasonable excuse and justification and secondly that the conduct complained of may not involve corruption or dishonesty but must be of a sufficiently serious nature.
The second point is that there was no clear previous authority for the proposition that, in any category of case of misconduct in public office the prosecution must prove to the satisfaction of a jury, as elements of the offence, that the conduct of the defendant was calculated to injure the public interest so as to call for condemnation and punishment.’

Judges:

Sir Anthony Mason

Citations:

[2002] 5 HKFAR 381

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Dytham CACD 1979
A constable was 30 yards away from the entrance to a club, from which he saw a man ejected. There was a fight involving cries and screams and the man was beaten and kicked to death in the gutter outside the club. The constable made no move to . .

Cited by:

Cited – ABC and Others, Regina v CACD 26-Mar-2015
Several defendants sought to appeal against convictions. They were public officials accused of having committed misconduct in public office in the sale of information relating to their work to journalists. The journalists were convicted of . .
Cited – Johnson v Westminster Magistrates’ Court Admn 3-Jul-2019
Public Office Misconduct – Acting As not While
The claimant sought judicial review of a decision to issue a summons against him alleging three offences of misconduct in public office. He was said to have issue misleading statements in support of the campaign leading up to the Referendum on . .
Lists of cited by and citing cases may be incomplete.

International, Crime

Updated: 09 July 2022; Ref: scu.545601

Westacre Investments Inc v The State-Owned Company Yugoimport SDPR: ComC 21 Apr 2008

Judges:

Tomlinson J

Citations:

[2008] EWHC 801 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Roberts Petroleum Ltd v Bernard Kenny Ltd HL 2-Jan-1983
The plaintiff supplied petrol to the defendant but had not been paid. Anticipating the defendant winding up, the plaintiff got judgment and a charging order nisi. The defendant appealed against that order being made absolute, saying that this gave . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, International

Updated: 09 July 2022; Ref: scu.267000

HM Revenue and Customs v UBS Ag: CA 21 Feb 2007

The court considered the treatment of losses in a London branch of the non-resident Bank. Had the company been resident it could have set off the losses. It claimed that the refusal was an unlawful discrimination.

Judges:

Sedley, Arden, Moses LJJ

Citations:

[2007] EWCA Civ 119

Links:

Bailii

Statutes:

UK-Switzerland Double Taxation Convention of 8 December 1977, Double Taxation Relief (Taxes on Income) (Switzerland) Order 1978, Income and Corporation Taxes Act 1988 788

Jurisdiction:

England and Wales

Citing:

At SCIT – UBS Ag v Revenue and Customs SCIT 7-Jun-2005
SCIT DOUBLE TAXATION AGREEMENT – non-discrimination – whether UK permanent establishment of Swiss company entitled to payment of the tax credit on dividends under s 243 Taxes Act 1988 – yes, on the interpretation . .
Appeal from – UBS Ag v HM Revenue and Customs ChD 7-Feb-2006
The bank, based in Switzerland sought tax credits for the activities of its London branch.
Held: Although the argument under s243 directly failed, the claim under section 788(3) had to succeed. The Swiss company was entitled to the same tax . .
Lists of cited by and citing cases may be incomplete.

Corporation Tax, International

Updated: 09 July 2022; Ref: scu.248929

In re B (A child) (Care proceedings: Diplomatic Immunity): FD 30 Jul 2002

An order was sought in care proceedings with regard to a child of a family where the father was a member of the administrative and diplomatic staff of a diplomatic mission.
Held: Where a child was present in the UK at the time of the application, an English court had jurisdiction. Such a worker was protected only to the extent that his acts formed part of his duties. An exception to the Vienna Convention (37(2)) which underpinned the 1964 Act allowed the court to make an order even if the child was within a protected residence. Article 30 protected the premises of the diplomatic agent, not to the consequences of his acts.

Judges:

Butler-Sloss President

Citations:

Times 14-Oct-2002, Gazette 24-Oct-2002

Statutes:

Diplomatic Privileges Act 1964 4, Children Act 1989 31

Jurisdiction:

England and Wales

Children, International

Updated: 09 July 2022; Ref: scu.177412

In re D (A Child), (Abduction: Rights of Custody): HL 16 Nov 2006

The child had been born to parents who married and later divorced in Romania. The mother brought him to England without the father’s consent, and now appealed an order for his return.
Held: The mother’s appeal succeeded. The Convention required an order to be made for the return of a child only where the parent seeking the return could show some wrongful element in the removal. A right of veto given to the father to control removal from a jurisdiction would amount to ‘rights of custody’ within the meaning of article 5(a), but a potential right of veto does not. However at the time when the order had been made, the Romanian court had expressly ruled that the mother could leave and take her son with her: ‘While ultimately, therefore, the decision is one for the courts of the requested state, those courts must attach considerable weight to the authoritative decision of the requesting state on both issues.’
Under the Human Rights Act 1998, it is now unlawful for the court as a public authority to act incompatibly with the human rights and fundamental freedoms guaranteed by the European Convention on Human Rights. This applies in a Hague Convention case just as in any other. Article 20 has thus been given domestic effect by a different route. Hence a final issue is whether a return would be incompatible with the Convention rights.
Baroness Hale said that: ‘The question is, do the rights possessed under the law of the home country, by the parent who does not have day to day care of the child, amount to rights of custody or do they not?’ However, she drew a distinction between that position and a simple ‘potential right of veto’: ‘In other words, if all that the other parent has is the right to go to court and ask for an order about some aspect of the child’s upbringing, including relocation abroad, this should not amount to ‘rights of custody’. To hold otherwise would be to remove the distinction between ‘rights of custody’ and ‘rights of access’ altogether.’

Judges:

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood

Citations:

Times 17-Nov-2006, [2006] UKHL 51, [2007] 1 AC 619, [2007] 1 FLR 961, [2006] 3 WLR 989, [2007] 1 All ER 78

Links:

Bailii

Statutes:

Child Abduction and Custody Act 1985, Hague Convention on the Civil Aspects of International Child Abduction 1980 5(a)

Jurisdiction:

England and Wales

Citing:

Cited – C v C (Minor:Abduction: Rights of Custody Abroad) CA 1989
The English mother married the Australian father in Australia and bore their child their. After divorce both parents had custody with no right to remove the child. The mother brought the child to England without the father’s consent.
Held: The . .
Cited – In Re W (Minors) (Child Abduction: Unmarried Father); In Re B (A Minor) (Child Abduction: Unmarried Father) FD 9-Apr-1998
An unmarried father has no rights as regards a child until an application is made, but a mother taking child abroad whilst a court application was continuing could be restrained as an act of child abduction through the court’s own parental rights . .
Appeal from – In re D (A Child) CA 25-May-2006
The mother had unlawfully brought her son here from Romania, and now appealed an order for his return.
Held: The appeal was dismissed. . .
At first instance – In re D (a Child) FD 2006
The father sought the return of his son to Romania. The mother had brought him here without the father’s consent. The father said that a Romanian court had ordered his return, but the expert evidence as to the effect of the order was conflicting. . .
Cited – J, Petitioner IHCS 2005
‘rights of custody’ for Convention purposes included the right to grant or withhold consent to the child’s removal from the United Kingdom under section 2(3) of the 1995 Act. . .
Cited – In re P (A Child) (Abduction: Consent); (Abduction: Custody Rights) CA 28-Jul-2004
The father sought the return to the USA of his daughter, brought here by her mother. The father had custody, but the mother said he had consented to the child being brought here.
Held: The issue of consent did not affect the question of the . .
Cited – Hunter v Murrow (Abduction: Rights of Custody) CA 28-Jul-2005
Rights of access can in themselves amount to ‘rights of custody’ for the Convention. Dyson LJ divided the question of whether the father had rights of custody into two. The first, which he called ‘the domestic law question’, was what rights the . .
Cited – Re H, H v H (Child Abduction: Acquiescence) HL 10-Apr-1997
The mother and father were orthodox Jews. The mother brought the children to England from Israel against the father’s wishes. She said that he had acquiesced in their staying here by asking for them to be returned to Israel temporarily. The father . .
Cited – Regina v Secretary of State for the Home Department, ex parte Adan, Same, ex parte Aitsegeur HL 20-Dec-2000
The Convention gave protection to an asylum seeker fearing persecution by non-state agents in his country of origin where that government was unable or unwilling to provide protection. France and Germany did not recognise this right, and therefore . .
Cited – V-B (Minors) (Abduction: Custody Rights) CA 17-Mar-1999
Rights of custody are to be distinguished from mere rights of access. . .

Cited by:

Cited – Re M and another (Children) (Abduction; Rights of Custody) HL 5-Dec-2007
Three children had been brought from Zimbabwe by their mother against the wishes of the father and in breach of his rights there. The mother appealed an order for their return.
Held: The mother’s appeal was allowed. The House had to consider . .
Cited – AF v M B-F FD 22-Feb-2008
The father sought the return of the two children to Poland after they had been brought to England by the mother. She said that she had come to seek work as a dentist, and had been unable to support the family in Poland. She said that her Polish . .
Cited – In Re I (A Child) SC 1-Dec-2009
The child had been born in Britain to British citizen parents from Pakistan and India. There had been care proceedings, but later and with the court’s consent the father took him to Pakistan undertaking to return him, but then failed to do so. . .
Cited – Re E (Children) (Abduction: Custody Appeal) SC 10-Jun-2011
Two children were born in Norway to a British mother (M) and Norwegian father (F). Having lived in Norway, M brought them to England to stay, but without F’s knowledge or consent. M replied to his application for their return that the children would . .
Cited – Re S (A Child) SC 14-Mar-2012
The mother appealed against an order confirmed by the Court of Appeal for the return of her child to Australia. The mother and father had cohabited in Sydney, before M returned with S without F’s consent or the permission of an Australian court. The . .
Cited – In re K (A Child) SC 15-Mar-2014
Rights of Custody under Convention
The Court was asked as to what were ‘rights of custody’ within the Convention. M had at first left her child with the maternal grandmother in an informal but long term arrangement in Latvia when M moved to Northern Ireland. Later M removed the child . .
Lists of cited by and citing cases may be incomplete.

Children, International, Human Rights

Updated: 08 July 2022; Ref: scu.246083

Svenska Petroleum Exploration Ab v Lithuania and Another (No 2): CA 13 Nov 2006

The defendant state could not now claim state immunity to avoid enforcement of an arbitration award, having agreed to the reference to arbitration in writing.
Held: A person against whom an award has been made is not bound to challenge it before the supervisory court in order to challenge its enforcement in another jurisdiction.
‘In our view the expression ‘relating to’ is capable of bearing a broader or narrower meaning as the context requires. Section 3 is one of a group of sections dealing with the courts’ adjudicative jurisdiction and it is natural, therefore, to interpret the phrase in that context as being directed to the subject matter of the proceedings themselves rather than the source of the legal relationship which has given rise to them. To construe section 3 in this way does not give rise to any conflict with section 9, which is concerned with arbitration as the parties’ chosen means of resolving disputes rather than with the underlying transaction. In our view AIC Ltd v Federal Government of Nigeria was correctly decided and Gloster J was right to follow it in the present case.’

Judges:

Sir Anthony Clarke MR, Scott Baker LJ, Moore-Bick LJ

Citations:

[2006] EWCA Civ 1529, Times 17-Nov-2006, [2007] QB 886, [2007] 1 Lloyd’s Rep 193, [2007] 1 All ER (Comm) 909, [2006] 2 CLC 797, [2007] 2 WLR 876

Links:

Bailii

Statutes:

State Immunity Act 1978 3

Jurisdiction:

England and Wales

Citing:

Appeal from – Svenska Petroleum Exploration Ab v Lithuania and Another (No 2) ComC 4-Nov-2005
The court was asked whether a claim to enforce an arbitration award constituted ‘proceedings relating to’ the transaction that gave rise to the award for the purposes of section 3(1)(a).
Held: It did not. . .
See Also – Svenska Petroleum Exploration Ab v Government of the Republic of Lithuania and Another ComC 11-Jan-2005
The claimant sought enforcement of a final award. The Government of Lithuania had not attempted to challenge the tribunal’s first award in Denmark.
Held: Nigel Teare QC said that that, where a person has unsuccessfully contested the issue of . .

Cited by:

Cited – Dallah Estates and Tourism Holding Company v Ministry of Religious Affairs, Government Of Pakistan CA 20-Jul-2009
The claimant sought to enforce an international arbitration award against the defendant in respect of the provision of accommodation for Hajj pilgrims. A without notice order had been made to allow its enforcement, but that had been set aside.
Approved – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.

International, Arbitration

Updated: 08 July 2022; Ref: scu.245992

Al Rawi and Others, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs and Another: CA 12 Oct 2006

The claimants sought that the defendant should issue a request to the US authorities for their release from detention at Guantanamo Bay.
Held: The courts would not be able to intervene by judicial review, and would be reluctant to intervene in the respondent’s conduct of foreign relations, but the claimants now asserted severe infringement of their human rights, including saying that they had been tortured. The US had declared them to be enemy combatants. The applicants were not British Nationals.
Laws LJ said: ‘If the British Government owed a duty to intercede in case of torture, it would no doubt have to arrive at a judgment, after inquiry as appropriate, as to the likely truth of the allegation; although it is to be noted that the European Court of Human Rights accepts a rule in respect of allegations of violations of article 3 under the European Convention on Human Rights that they have to be established beyond reasonable doubt.’ and
‘This case has involved issues touching both the Government’s conduct of foreign relations, and national security: pre-eminently the former. In those areas the common law assigns the duty of decision upon the merits to the elected arm of government; all the more so if they combine in the same case. This is the law for constitutional as well as pragmatic reasons . .’
. . And ‘Reasonableness and proportionality are not formal legal standards. They are substantive virtues, upon which, it may be thought, lawyers do not have the only voice: nor necessarily the wisest. Accordingly, the ascertainment of the weight to be given to the primary decision-maker’s view (very often that of central government) can be elusive and problematic . . The courts have a special responsibility in the field of human rights. It arises in part from the impetus of the Human Rights Act 1998, in part from the common law’s jealousy in seeing that intrusive state power is always strictly justified. The elected government has a special responsibility in what may be called strategic fields of policy, such as the conduct of foreign relations and matters of national security. It arises in part from considerations of competence, in part from the constitutional imperative of electoral accountability . . The court’s role is to see that the Government strictly complies with all formal requirements, and rationally considers the matters it has to confront. Here, because of the subject matter, the law accords to the executive an especially broad margin of discretion.’

Judges:

Brooke LJ VP, Laws LJ, Smith LJ

Citations:

[2006] EWCA Civ 1279, Times 18-Oct-2006, [2007] 2 WLR 1219, [2008] QB 289

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Regina (Abbasi) v Secretary of State for Foreign Affairs CA 6-Nov-2002
There is no authority in law to support the imposition of an enforceable duty on the state to protect the citizen, and although the court was able to intervene, in limited ways, in the way in which the Foreign and Commonwealth Office used its . .
Appeal from – Al Rawi and Others, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs and Another Admn 4-May-2006
‘This claim arises out of the continued detention in Guantanamo Bay of the first three named claimants by the United States authorities. None of them are British nationals, but each has been a long term resident of the United Kingdom in . .

Cited by:

Cited – Corner House Research and Campaign Against Arms Trade, Regina (on the Application of) v Director of the Serious Fraud Office and Another Admn 10-Apr-2008
The defendant had had responsibility to investigate and if necessary prosecute a company suspected of serious offences of bribery and corruption in the conduct of contract negotiations. The investigation had been stopped, alledgedly at the . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Cited – Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
Cited – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
Cited – Youssef v Secretary of State for Foreign and Commonwealth Affairs SC 27-Jan-2016
An Egyptian national, had lived here since 1994. He challenged a decision by the Secretary of State,as a member of the committee of the United Nations Security Council, known as the Resolution 1267 Committee or Sanctions Committee. The committee . .
Cited – Youssef v Secretary of State for Foreign and Commonwealth Affairs CA 29-Oct-2013
The claimant appealed from rejection of his judicial review of a decision that he be placed on a list of persons subject to sanctions and therefore without access to money save with the consent of the government.
Held: The Secretary of State . .
Lists of cited by and citing cases may be incomplete.

Administrative, Human Rights, International, Constitutional

Updated: 07 July 2022; Ref: scu.245326

In re EC (Child abduction: Stayed proceedings): CA 28 Jun 2006

Child abduction proceedings had been issued after the father had applied for residence here. The mother now appealed against the temporary lifting of the stay on the father’s proceedings which followed her application. The judge ordered for the child’s return, as he was required to do, but also allowed the possibility of the father’s application proceeding if the court in Budapest had declined jurisdiction.
Held: This was a misuse of the judge’s powers. The father had not mitigated his wrong by issuing proceedings here, but rather increased the mother’s fears. The English court should not make orders which could be read to imply criticism of a foreign court taking proper jurisdiction.

Judges:

Thorpe LJ, Dyson LJ, Hallett LJ

Citations:

Times 19-Jul-2006, [2006] EWCA Civ 1115, [2006] Fam Law 918, [2007] 1 FLR 57

Links:

Bailii

Statutes:

Children Act 1989, Child Abduction and Custody Act 1985

Jurisdiction:

England and Wales

Children, International

Updated: 07 July 2022; Ref: scu.244229

McGrath and Honey v McMahon and Others, Re HIH Casualty and General Insurance Ltd and others: CA 9 Jun 2006

The insurance company was to be wound up. It operated internationally but was registered in Australia. The Australian liquidator now sought an order for the transfer of assets held here to Australia.
Held: It was inevitable that cross border insolvency arrangements would cause difficulty, and particularly so for insurance companies. Such a transfer would prejudice non-insurer creditors here, without those creditors obtaining any counterbalancing benefit in the Australian liquidation. The order was refused.

Judges:

Chancellor of the High Court, Tuckey LJ, Carnwath LJ

Citations:

[2006] EWCA Civ 732, Times 06-Jul-2006, [2007] 1 All ER 177

Links:

Bailii

Statutes:

Insolvency Act 1986 426, Co-operation of Insolvency Courts (Designation of Relevant Countries and Territories) Order 1986

Jurisdiction:

England and Wales

Citing:

Cited – Re: BCCI (No.10) ChD 1997
The liquidators of BCCI in different jurisdictions had created a pooling agreement in the liquidation of the place of the company’s incorporation, namely Luxembourg to which all assets were to be remitted and in which all creditors were to share . .
Cited – Re Associated Travel Leisure and Services Ltd (in liquidation) ChD 1978
It is possible to give retrospective sanction for acts which require the sanction of the court where such sanction has not been obtained in advance, in this case to authorise the liquidators to pay the costs of the solicitors out of the estate of . .
Cited – Kahn and Another v Commissioners of Inland Revenue; In re Toshoku Finance plc HL 20-Feb-2002
A company went into liquidation, being owed substantial sums by another company in the same group, but itself insolvent. A settlement did not include accrued interest, but was claimed to be taxed as if it had, and on an accruals basis. If so, was . .
Cited – Stocznia Gdanska SA v Latreefers Inc; In re Latrefeers Inc; Stocznia Gdanska SA v Latvian Shipping Co and others (No 2) CA 15-Mar-2000
Possible claims against a foreign company for misfeasance, or wrongful or fraudulent trading might be sufficient to justify proceedings here to wind up a foreign registered company. A second requirement is that some person within this jurisdiction . .
Cited – In re Lines Bros Ltd CA 1982
The liquidators in a creditors voluntary liquidation converted foreign currency debts of the company into Sterling at the rate of exchange prevailing at the date of the resolution to wind up. As a result of the depreciation of Sterling against the . .
Cited – Re International Tin Council ChD 1987
An order for the winding up of a foreign company operates universally, applies to all the foreign company’s assets and brings into play the full panoply of powers and duties under the Insolvency Act 1986 like any other winding up order. Millett J . .
Cited – England v Smith CA 8-Dec-1999
A liquidator of an Australian company sought damages from a ‘world-wide’ company Arthur Andersen’ and sought in particular to examine a partner in the UK. Examination was at first refused since an English court would not make a similar order. That . .
Cited – Hughes and others v Hannover Re Ruckversicherungs-Aktiengesellschaft CA 28-Jan-1997
An insolvency court answering an international call for assistance has the full range of remedies available to it. It may exercise ‘its own general jurisdiction and powers’ as well as the insolvency laws of England and the corresponding laws of the . .

Cited by:

Appeal from – McGrath and others v Riddell and others HL 9-Apr-2008
(Orse In Re HIH Casualty and General Insurance Ltd)
HIH, an Australian Insurance company, became insolvent. An order was sought for the collection and remission of it assets in England under a letter of request from the Australia Court.
Lists of cited by and citing cases may be incomplete.

Insolvency, International

Updated: 06 July 2022; Ref: scu.242443

Eisentrager v Forrestal: 5 Jun 1949

(US Supreme Court) German citizens had been convicted of espionage by a United States military commission after the surrender of Germany at the end of the Second World War. They were repatriated to Landsberg Prison in Germany to serve their sentences. The prison was under the control of the United States army. The prisoners petitioned for writs of habeas corpus.
Held: Justice Robert Jackson (majority) said that a court was unable to extend the writ of habeas corpus to aliens held outside the territory of the United States. He distinguished between aliens and citizens, observing that ‘citizenship as a head of jurisdiction and a ground of protection was old when Paul invoked it in his appeal to Caesar’.

Citations:

(1949) 174 F.2d 961

Links:

Findlaw

Jurisdiction:

United States

Cited by:

Cited – Regina (on the application of Abassi and Another) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 6-Nov-2002
A British national had been captured in Afghanistan, and was being held without remedy by US forces. His family sought an order requiring the respondent to take greater steps to secure his release or provide other assistance.
Held: Such an . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 06 July 2022; Ref: scu.241343

Vigreux v Michel and Another: CA 18 May 2006

The mother sought the return of her children to France. Her summons had been dismissed after balancing the policy of the Convention against the strength of the child’s objection to return together with certain welfare considerations. The discretionary balance was weighted against the making of a return order.
Held: The appeal succeeded. The welfare considerations to which the Judge had given weight, including issues as to the disruption of the child’s life and education, were powerfully outweighed by ‘the policy of The Hague Convention, buttressed by the provisions of Brussels II Revised’.
Thorpe LJ asked if insufficient weight was given to to the French court process, which was fully seized to settle the child’s future. Had Brussels II Revised ‘raised the bar’ against the abductor to a level higher than was implicit in Zaffino? The father argued that, while Article 11 of Brussels II Revised informed the operation of The Hague Convention within the EU, the emphasis of protective measures in Article 11 related to a defence under article 13(b) of the Convention and nothing in the Regulation expressly applied to a defence of child’s objections. The position remained as in Zaffino.
Thorpe LJ set out the interrelationship of The Hague Convention and the Regulation and referred to the provisions for the Enforceability of Judgments contained in Articles 40 and 42, and to Article 60 which provides for the Regulation to take precedence over the Convention so far as any conflict is concerned and the welfare considerations underlying the Judge’s decision for non-return. They were the sort of considerations that Article 11(3) which provides for expeditious disposal of Convention applications, was designed to eliminate. One principal matter had founded the child’s objection and affected the Judge’s view, namely the child’s fear that he would not receive a fair hearing in France. This was given undue weight. ‘Therefore, in my view, this was not a case in which peripheral welfare considerations could be introduced into the discretionary conclusion. On the application for return the Judge had to weigh only the nature and strengths of PM’s objection against the policy of Brussels 2 Revised and the fact that the essential welfare investigations and decisions must be taken in France.’
On the submission of counsel for the husband that the provisions of the Regulation ‘raised the bar’ against an abductor above that set in relation to Hague Convention proceedings as stated in Zaffino. ‘Is my conclusion to be taken as an acceptance of Mr Scott-Manderson’s primary submission and therefore a conclusion of general application? I do not so intend, since I accept the submission of the respondents that Brussels 2 Revised is not to be taken to have achieved implicitly more than it has expressed. However, there can be little doubt as to the intention of the member states that opted for Brussels 2 Revised. The provisions relating to the return of abducted children were the most contentious and therefore the most difficult of resolution during the negotiation of Brussels 2 Revised. The resolution of the resulting impasse was the retention of the operation of The Hague Convention throughout the European region but with the fortification of what were seen, in the light of nearly 20 years of operation, as weaknesses or loopholes through which abductors were escaping. The fortifications were threefold: The emphasis on protective measures to nullify an Art 13(b) of The Hague Convention defence; The return of the case to the requesting state in the event of a refusal by the requested state; and automatic enforcement of return ordered throughout the region. The policy that underlies these provisions is clear and it is important that states bound by Brussels 2 Revised do not undermine its intended effect either in its interpretation or in its application in accordance with the stringent time limits stipulated.’
Wall LJ said that Zaffino was a restatement of well established principles and reaffirmed his observations in that case. Under the heading ‘The Brussels 2 Revised Dimension’: ‘I think there is some force in Mr Scott-Manderson’s first ground of appeal, namely that the Judge failed to give sufficient weight as to what he described as the ‘European factors’ deriving from the application of Brussels 2 Revised. It is of course true . . that for present purposes, while Art. 60 of Brussels 2 Revised gives it precedence over the Hague Convention, the only specific provision of Art. 11 which affects the implementation of Art. 13 of The Hague Convention (apart from the need, identified in Art. 11(3) for the proceedings to be concluded within 6 weeks) is Art. 11(4) which relates specifically only to a defence under Art. 13(b), which this is not. Mr Scott-Manderson was thus unable to derive direct support from Brussels 2 Revised in his efforts to rely on the protective measures available to PM in France.
Nonetheless, when the Court is considering the policy of The Hague Convention, I do not think it can shut its eyes to the fact that pursuant to Art. 11(8) the French court, in the event of an order for the non-return of PM, can subsequently require his return; and if it does so, the English authorities have no alternative but to comply.
I am, of course, far from saying that in a case to which Brussels 2 Revised applies, no child’s Art. 13 defence will ever, or should ever succeed. That this is manifestly not the case is clear from the terms of Art. 11(8) itself, which plainly envisages non-return orders being made. Nonetheless, in my judgment, when one is considering the policy of The Hague Convention in a case where there are active proceeding pending in the court of the child’s habitual residence, and where that court is plainly seized of all determinative welfare considerations, Art. 11(8) seems to me, at its lowest, a reinforcement of the policy of The Hague Convention, and thus falls to be considered in the exercise of discretion.’

Judges:

Lord Justice Thorpe Lord Justice Wall

Citations:

[2006] EWCA Civ 630, [2006] 2 FLR 1180

Links:

Bailii

Statutes:

Child Abduction and Custody Act 1985

Jurisdiction:

England and Wales

Citing:

Confirmed – Zaffino v Zaffino 2006
The court considered the treatment of a child’s objections to being returned to a home country by an order under the Act. . .

Cited by:

Cited – AF v M B-F FD 22-Feb-2008
The father sought the return of the two children to Poland after they had been brought to England by the mother. She said that she had come to seek work as a dentist, and had been unable to support the family in Poland. She said that her Polish . .
Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 06 July 2022; Ref: scu.241770

Griggs v Duke Power Company: 1971

(US) The court examined the arguments relating to indirect discrimination.

Citations:

(1971) 401 US 424

Jurisdiction:

United States

Cited by:

Cited – J P Jenkins v Kingsgate (Clothing Productions) Ltd ECJ 31-Mar-1981
ECJ The fact that work paid at time rates is remunerated at an hourly rate which varies according to the number of hours worked per week does not offend against the principle of equal pay laid down in article 119 . .
Cited – Secretary of State for Trade and Industry v Rutherford and others HL 3-May-2006
The claimant sought to establish that as a male employee, he had suffered sex discrimination in that he lost rights to redundancy pay after the age of retirement where a woman might not.
Held: The appeal was dismised. There were very few . .
Lists of cited by and citing cases may be incomplete.

International, Discrimination

Updated: 06 July 2022; Ref: scu.241436

The Schooner Exchange v McFaddon: 1812

(United States Supreme Court) The court considered the rationale of the jurisdictional immunity given to sovereign states: ‘This full and absolute territorial jurisdiction being alike the attribute of every sovereign, and being incapable of conferring extra-territorial power, would not seem to contemplate foreign sovereigns nor their sovereign rights as its objects. One sovereign being in no respect amenable to another, and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express licence, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him.
This perfect equality and absolute independence of sovereigns, and this common interest compelling them to mutual intercourse, and an interchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation.’

Judges:

Marshall CJ

Citations:

[1812] 7 Cranch 116

Jurisdiction:

United States

Cited by:

Cited – Aziz v Republic of Yemen CA 17-Jun-2005
The claimant had made a claim for unfair dismissal. The defendant state had filed a defence instead of claiming state immunity. It then sought to assert such immunity. The claimant said the state had waived its immunity.
Held: Section 2(7) of . .
Cited – Aziz v Aziz and others CA 11-Jul-2007
The claimant sought return of recordings and of money paid to the defendant through an alleged fraud or threats. She was the former wife of the Sultan of Brunei and head of state, who now sought an order requiring the court to protect his identity . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 06 July 2022; Ref: scu.227914

Chung Chi Cheung v The King: PC 2 Dec 1938

Hong Kong.
Held: The applicant could not invoke any right under the rule of international law which placed upon a state a duty to receive its own national, because that rule was inconsistent with the domestic law. In modern times the idea of even a Government ship being a ‘floating island,’ belonging to and retaining the law of the country of its flag, has been abandoned.
Lord Atkin said: ‘ [S]o far, at any rate, as the Courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic law. There is no external power that imposes its rules upon our own code of substantive law or procedure. The Courts acknowledge the existence of a body of rules which nations accept amongst themselves. On any judicial issue they seek to ascertain what the relevant rule is, and, having found it, they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals. . . ‘

Judges:

Lord Atkin

Citations:

[1939] AC 160, [1938] UKPC 75

Links:

Bailii

Statutes:

Immigration Act 1971

Cited by:

Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
Lists of cited by and citing cases may be incomplete.

Immigration, Commonwealth, International

Updated: 05 July 2022; Ref: scu.239960

Czarnikow Ltd v Centrala Handlu Zagranicznego Rolimpex: HL 1979

The sellers (Rolimpex), a state trading organisation, tried to rely on the actions of their own government as a defence to claims for non-performance of commercial contracts.
Held: The sellers were not an organ or department of the Polish government but an independent state enterprise, and had a good defence to liability, consequent upon an export ban imposed by the Polish government.
Viscount Dilhorne said: ‘The respondents are an organisation of the state. Under Polish law they have a legal personality. Though subject to directions by the appropriate minister who can tell them ‘what to do and how to do it’, as a state enterprise they make their own decisions about their commercial activities. They decide with whom they will do business and on what terms and they have considerable freedom in their day to day activities. They are managed on the basis of economic accountability and are expected to make a profit. They arbitrators . . rightly found as a fact that the respondents were not so closely connected with the government of Poland as to be precluded from relying on the ban imposed by the decree as government intervention.
The appellants also asserted that the respondents bought and sold for the state. This while no doubt true, does not . . help the appellants. The facts found by the arbitrators . . show that they were not a department of the government but have a separate identity. They were, it was found as a fact, employed as ‘a commission merchant’ to sell sugar intended for export on behalf of Sugar Industry Enterprises which were also state enterprises. ‘

Judges:

Lord Wilberforce, Lord Salmon

Citations:

[1979] AC 351

Jurisdiction:

England and Wales

Cited by:

Cited – Okta Crude Oil Refinery A D v Mamidoil-Jetoil Greek Petroleum Company S A and Another CA 17-Jul-2003
The parties had contracted to allow an exclusive right to deliver oil by tanker and to sell into Macedonia. The defendants claimed they were overborn, and claimed exemption under a force majeure clause.
Held: The acts which had made the . .
Cited – Okta Crude Oil Refinery A D v Mamidoil-Jetoil Greek Petroleum Company S A and Another CA 17-Jul-2003
The parties had contracted to allow an exclusive right to deliver oil by tanker and to sell into Macedonia. The defendants claimed they were overborn, and claimed exemption under a force majeure clause.
Held: The acts which had made the . .
Lists of cited by and citing cases may be incomplete.

Contract, Company, International

Updated: 04 July 2022; Ref: scu.184744

Svenska Petroleum Exploration Ab v Lithuania and Another (No 2): ComC 4 Nov 2005

The court was asked whether a claim to enforce an arbitration award constituted ‘proceedings relating to’ the transaction that gave rise to the award for the purposes of section 3(1)(a).
Held: It did not.

Judges:

Gloster J, DBE

Citations:

[2005] EWHC 2437 (Comm), [2006] 1 Lloyd’s Rep 181

Links:

Bailii

Statutes:

State Immunity Act 1978 3(1)

Citing:

See Also – Svenska Petroleum Exploration Ab v Government of the Republic of Lithuania and Another ComC 11-Jan-2005
The claimant sought enforcement of a final award. The Government of Lithuania had not attempted to challenge the tribunal’s first award in Denmark.
Held: Nigel Teare QC said that that, where a person has unsuccessfully contested the issue of . .
Applied – AIC Limited v The Federal Government of Nigeria, the Attorney General of the Federation of Nigeria QBD 13-Jun-2003
AIC had used the 1920 Act to register a judgment obtained in Nigeria against the Nigerian Government. The underlying matter was a commercial transaction. Nigeria applied to set the registration aside, saying that registration was an adjudicative act . .

Cited by:

Appeal from – Svenska Petroleum Exploration Ab v Lithuania and Another (No 2) CA 13-Nov-2006
The defendant state could not now claim state immunity to avoid enforcement of an arbitration award, having agreed to the reference to arbitration in writing.
Held: A person against whom an award has been made is not bound to challenge it . .
Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.

International, Arbitration, Jurisdiction

Updated: 04 July 2022; Ref: scu.234738

Secretary of State in Council of India v Kamachee Boye Sahab: PC 9 Jul 1859

‘The transactions of independent states between each other are governed by other laws than those which municipal courts administer: such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make.’
Lord Kingsdown said: ‘The transactions of independent states between each other are governed by other laws than those which municipal courts administer: such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make.’

Judges:

Lord Kingsdown

Citations:

(1859) 13 Moo PCC 22, [1859] EngR 836, (1859) 13 Moo PC 22, (1859) 15 ER 9, [1859] EngR 837, (1859) 7 Moo Ind App 476, (1859) 19 ER 388, [1859] UKPC 19, [1859] UKPC 20

Links:

Commonlii, Commonlii, Bailii, Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Occidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
Cited – Maclaine Watson and Co Ltd v International Tin Council HL 2-Jan-1989
The International Tin Council was a body constituted by an international treaty not incorporated into law in the United Kingdom. The ITC was also created a legal person in the United Kingdom by article 5 1972 Order.
Held: As a legal person in . .
Cited – Miller and Dos Santos v The Secretary of State for Exiting the European Union and Others QBD 13-Nov-2016
Article 50 Notice Requires Parliament’s Authority
The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
Held: Once the . .
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 04 July 2022; Ref: scu.230261

Lewis v Eliades and Others: QBD 1 Feb 2002

The claimant sought judgment in the USA, and obtained an ex parte world-wide asset freezing order in the UK. When he applied for the order to be extended, the application was withdrawn.
Held: Those advising foreign litigants to apply for such orders here, should remember, and respect, the particular difficulties involved. In particular the legal obligations may be different, and in what were usually very complicated situations financially, the UK lawyer taking a case on needs to take and be given the opportunity and time to assimilate the case properly.

Judges:

McCombe J

Citations:

Times 28-Feb-2002

Statutes:

Civil Jurisdiction and Judgments Act 1982 25

Jurisdiction:

England and Wales

International, Litigation Practice

Updated: 29 June 2022; Ref: scu.167669

Purrucker v Valles Perez: ECJ 20 May 2010

EU (Opinion) Area Of Freedom, Security And Justice – Recognition and enforcement of judgments in matters of parental responsibility Provisional measures Custody.

Citations:

C-256/09, [2010] EUECJ C-256/09 – O

Links:

Bailii

Jurisdiction:

European

Cited by:

Opinion – Purrucker v Valles Perez (No 1) ECJ 15-Jul-2010
ECJ (Judgment) Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation (EC) No 2201/2003 – . .
See Also – Purrucker v Valles Perez (No 2) ECJ 9-Nov-2010
Area Of Freedom, Security And Justice – Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility – Regulation (EC) No 2201/2003 – Lis pendens – . .
Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 29 June 2022; Ref: scu.416435

Glencore International Ag v Metro Trading International Inc Credit Lyonnais (France) Sa and others: CA 6 Feb 2002

Application for leave to appeal against costs order.

Judges:

Potter, Kay LJJ

Citations:

[2002] EWCA Civ 138

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal – Glencore International AG v Metro Trading International Inc and others ComC 1-Aug-2001
Under English conflicts of laws rules the transfer of title to movable property is governed by the law of the place where the property is situated.
Moore-Bick J commented obiter on a dictum of Millett J in Macmillan: ‘However, if the lex situs . .
Lists of cited by and citing cases may be incomplete.

International, Costs

Updated: 23 June 2022; Ref: scu.216786

Al-Saadoon and Others, Regina (on the Application of) v Secretary of State for Defence: Admn 29 Aug 2008

The applicants complained of their continued detention in Iraq in a UK internment facility as an infringement of their human rights.

Citations:

[2008] EWHC 2391 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence Admn 19-Dec-2008
The two applicants had been detained by the armed forces in Iraq suspected of murder. They sought release before being transferred to the civilian authorities for trial saying that the trials would not be fair. The respondent denied that the . .
See Also – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 22-Dec-2008
. .
See Also – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 21-Jan-2009
The claimants had been detained on the request of the Iraqi criminal court in a detention facility run by the UK armed forces. They complained of their proposed transfer to an Iraqi facility in anticipation of facing trial for murder, for which if . .
At High Court – Al-Saadoon and Mufdhi v The United Kingdom ECHR 2-Mar-2009
The claimant Iraqi nationals complained of their long term detention by British forces in Iraq, and of their transfer to the Iraqi authorities for trial for murder.
Held: The transfer was a breach of the applicants’ rights. The Iraqis had . .
See Also – Al-Saadoon and Others v Secretary of State for Defence Admn 17-Mar-2015
Leggatt J explained the idea of enforced disappearance: ‘a concept recognised in international law and . . a practice which is internationally condemned. It involves detention outside the protection of the law where there is a refusal by the state . .
See Also – Al-Saadoon and Others v Secretary of State for Defence Admn 26-Jun-2015
Reasons for orders following a case management hearing to review whether there are steps which the court should now be taking to procure compliance by the Secretary of State for Defence with the duty of the UK under articles 2 and 3 of the European . .
See Also – Al-Saadoon and Others v Secretary of State for Defence Admn 7-Apr-2016
The court considered the extent of the state’s obligations to investigate allegations of unlawful killing and ill-treatment of civilians by British soldiers in Iraq between 2003 and 2009. It follows a hearing to consider three issues: i) Whether the . .
See Also – Al-Saadoon and Others v The Secretary of State for Defence and Others CA 9-Sep-2016
. .
Lists of cited by and citing cases may be incomplete.

Human Rights, International

Updated: 23 June 2022; Ref: scu.277286

Midland International Trade Services v Al Sudairy: ChD 11 Apr 1990

The court had power to order the payment of interest on a judgment of a court in Saudi Arabia even though a Saudi court would have applied Sharia law. That law follows the teaching in the Koran forbidding the payment or receipt of interest.

Judges:

Hobhouse J

Citations:

Unreported, 11th April 1990

Jurisdiction:

England and Wales

Cited by:

Approved – Kuwait Oil Tanker Company SAK and another v Bader and others 17-Dec-1998
. .
Cited – Knight v Axa Assurances QBD 24-Jul-2009
The claimant was injured in a car accident in France. The defendant insurer said that the quantification of damages was to be according to French law and the calculation of interest also. The claimant said that English law applied.
Held: The . .
Lists of cited by and citing cases may be incomplete.

International, Litigation Practice

Updated: 21 June 2022; Ref: scu.185195

The United States of America v Nolan: SC 21 Oct 2015

Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Held: The appeal failed (Lord Carnworth dissenting). That the exact situation might not have been foreseen was not a proper reason for creating an exemption not founded in EU law. The legislation was territorial, and was not legisalting extra-territorially when it covered a domestic dismissal occuring technically abroad. The legislation was intended to reflect EU law, which also made no such distinction.

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Reed, Lord Carnwath

Citations:

[2015] UKSC 63, [2016] IRLR 34, [2015] 3 WLR 1105, [2016] 1 CMLR 42, [2015] ICR 1347, [2016] 1 All ER 857, [2015] WLR(D) 441, [2016] AC 463, UKSC 2014/0073

Links:

Bailii, WLRD, Bailii Summary, SC, SC Summary

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992 188ff, Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995, State Immunity Act 1978

Jurisdiction:

England and Wales

Citing:

Cited – Sengupta v Republic of India 1983
India did not appear at court to take a point on jurisdiction under the 1978 Act. The Court asked for the appointment of an amicus to assist it.
Held: The court has a duty under statute to give the effect to the immunity conferred, even though . .
Cited – Littrell v Government of the United States of America and Another (No 2) CA 24-Nov-1993
The plaintiff claimed damages for personal injuries arising from medical treatment which he had received at a United States military hospital in the United Kingdom while a serving member of the United States Air Force.
Held: Section 16(2) . .
Cited – Holland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
Appeal from – The United States of America v Nolan CA 4-Feb-2014
The employee was made redundant from working at a US watercraft repair base. She complained that on the base closing the appellant had failed to consult with her as employee representative. The appellant denied that obligation. After a reference to . .
At EAT – United States of America v Nolan EAT 15-May-2009
EAT REDUNDANCY: Collective consultation and information / Protective award
An Employment Tribunal held that the USA was in breach of Section 188 of the Trade Union and Labour Relations (Consolidation) Act . .
AT CA (1) – United States of America v Nolan CA 9-Nov-2010
The claimant had sought a protective award under the 1992. She had been a civilian employee at a base operated by the appellant which it closed. She sought to sue as an employee representative, saying that the appellant had failed to consult its . .
At ECJ – United States of America v Nolan ECJ 18-Oct-2012
Reference for a preliminary ruling – Directive 98/59/EC – Protection of workers – Collective redundancies – Scope – Closure of an American military base – Information and consultation of workers – Time at which the consultation obligation arises – . .
Cited – Goodwin v The United Kingdom ECHR 27-Mar-1996
An order for a journalist to reveal his source was a breach of his right of free expression: ‘The court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to . .
At CA – United States of America v Nolan CA 24-Nov-2010
. .
Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Cited – Teckal Srl v Comune di Viano, Azienda Gas-Acqua Consorziale (AGAC) di Reggio Emilia ECJ 18-Nov-1999
AGAC was a corporate entity set up by a consortium of Italian local authorities to provide energy and environmental services to those participating. Prior to 1997 Teckal had supplied fuel to Viano and had serviced its heating systems. In May 1997 . .
Cited – HM Revenue and Customs v Vodafone 2 CA 28-Jul-2006
The inspector had sought additional information from the company with respect to its tax returns, believing that the company had not provided sufficient information about the earnings of foreign controlled companies. They now challenged the ability . .
Cited – Brent London Borough Council and Others v Risk Management Partners Ltd SC 9-Feb-2011
The council had put out to tender its insurance requirements. The respondent submitted its bid. The council then withdrew the tender in order to take up membership of a mutual company providing such services created by local authorities in London. . .
Cited – Robertson v Swift SC 9-Sep-2014
Notice Absence did not Remove Right to Cancel
The defendant had contracted to arrange the removal of the claimant’s household goods on moving house. The claimant cancelled the contract, made at his housel, but refused to pay the cancellation fee, saying that the contract not having been made at . .
Cited – Salomon v Customs and Excise Commissioners CA 1966
Diplock LJ said: ‘The Convention is one of those public acts of state of Her Majesty’s Government of which Her Majesty’s judges must take judicial notice if it be relevant to the determination of a case before them, if necessary informing themselves . .
Cited – Regina v Kohn CACD 1979
An overdraft facility was property which could be the subject of a charge of theft. In the context of the presentation of a cheque, improperly presented to a bank but which the bank pays, it was a theft of a chose in action by the person who . .
Cited – Alcom Ltd v Republic of Colombia HL 1984
A bank account used to cover the day-to-day expenses of an Embassy, clearly served sovereign purposes and therefore was immune from enforcement measures. The Act of 1978 must be read against the background of customary international law current in . .
Cited – Oakley Inc v Animal Ltd and others CA 20-Oct-2005
It was argued that the Secretary of State, when implementing the Directive in the 2001 Regulations, had exceeded his powers in preserving provisions of the Registered Designs Act. The judge had held the Seceretary had exceeded his powers. The . .
Cited – Coditel Brabant v Commune d’Uccle, Region de Bruxelles-Capitale (Law Relating To Undertakings) ECJ 13-Nov-2008
ECJ Public procurement – Tendering procedures Public service concessions – Concession for the operation of a municipal cable television network – Awarded by a municipality to an inter-municipal cooperative . .
Cited – Scattolon v Ministero Dell Istruzione, Dell Universita E Della Ricerca ECJ 5-Apr-2011
ECJ (Opinion) Social policy – Directive 77/187/EEC – Safeguarding of employees rights in the event of transfers of undertakings – Transfer of staff of a public entity to another public person – Recognition by the . .
Cited – Assange v The Swedish Prosecution Authority SC 30-May-2012
The defendant sought to resist his extradition under a European Arrest Warrant to Sweden to face charges of sexual assaults. He said that the prosecutor who sought the extradition was not a judicial authority within the Framework Decision.
Cited – The Case of the SS ‘Lotus’ PCIJ 1927
Jurisdiction is primarily territorial in both international and domestic law: ‘the first and foremost restriction imposed by international law upon a state is that – failing the existence of a permissive rule to the contrary – it may not exercise . .
Cited – F Hoffmann-La Roche Ltd v Empagran SA 14-Jun-2004
United States Supreme Court – the Supreme Court reflected on matters of comity in relation to US competition law in the Sherman Act, saying that a state has jurisdiction to prescribe law with respect to ‘(a) conduct that, wholly or in substantial . .
Cited – Mangold v Helm ECJ 22-Nov-2005
ECJ Grand Chamber – Directive 1999/70/EC – Clauses 2, 5 and 8 of the Framework Agreement on fixed-term work – Directive 2000/78/EC – Article 6 – Equal treatment as regards employment and occupation – Age . .
Cited – Vatsouras v Arbeitsgemeinschaft (ARGE) Nurnberg 900; Koupatantze v Arbeitsgemeinschaft (ARGE) Nurnberg 90 C-23/08 ECJ 12-Mar-2009
ECJ (Opinion) European citizenship Freedom of movement for persons – Concept of worker Validity of Article 24(2) of Directive 2004/38/EC Resident nationals of other Member States who have become unemployed after . .
Cited – Vatsouras v Arbeitsgemeinschaft (ARGE) Nurnberg 900; Koupatantze v Arbeitsgemeinschaft (ARGE) Nurnberg 90 – C-22/08 ECJ 12-Mar-2009
ECJ (Opinion) European citizenship – Freedom of movement for persons – Concept of worker Validity of Article 24(2) of Directive 2004/38/EC Resident nationals of other Member States who have become unemployed . .
Cited – Kucukdeveci v Swedex GmbH and Co KG ECJ 19-Jan-2010
ECJ Principle of non-discrimination on grounds of age – Directive 2000/78/EC – National legislation on dismissal not taking into account the period of employment completed before the employee reaches the age of . .
Cited – Patmalniece v Secretary of State for Work and Pensions SC 16-Mar-2011
The claimant challenged as incompatible with EU law, the Regulations which restricted the entitlement to state pension credit to those entitled to reside in the UK.
Held: The appeal failed (Majority). The conditions imposed by the Regulations . .
Cited – Association De Mediation Sociale v Union Locale Des Syndicats CGT ECJ 15-Jan-2014
ECJ Social policy – Directive 2002/14/EC – Charter of Fundamental Rights of the European Union – Article 27 – Subjecting the setting up of bodies representing staff to certain thresholds of employees – . .
Cited – Benkharbouche and Another v Embassy of The Republic of Sudan CA 5-Feb-2015
The claimant had been an employee of a foreign diplomatic mission. He said that he was not debarred by the 1978 Act from bringing claims for unfair dismissal and breach of working time regulations, saying that any exemption would infringe his human . .
Cited – Commission v United Kingdom (Judgment) ECJ 8-Jun-1994
ECJ Despite the limited character of the harmonization of rules in respect of collective redundancies which Directive 75/129 was intended to bring about, national rules which, by not providing for a system for . .
Cited – Martinez Sala v Freistaat Bayern ECJ 12-May-1998
ECJ A benefit such as the child-raising allowance, which is automatically granted to persons fulfilling certain objective criteria, without any individual and discretionary assessment of personal needs, and which . .
Cited – UK Coal Mining Ltd v National Union of Mineworkers (Northumberland Area) and Another EAT 27-Sep-2007
The employer appealed against a protective award made for failing to consult the union on prospective redundancies.
Held: The appeal failed. The duty to consult arose as soon as the redundancies were fixed as a clear, even if there had been . .
Cited – Cukurova Finance International Ltd and Another, Regina (on The Application of) v HM Treasury and Another Admn 29-Sep-2008
The claimant contended that section 2(2)(b) of the the 1972 Act did not confer power on Her Majesty’s Treasury to make the 2003 Regulations and, accordingly, they should be quashed or, alternatively, construed so as to be intra vires. . .
Cited – Bullimore v Pothecary Witham Weld etc EAT 21-Sep-2010
EAT SEX DISCRIMINATION – COMPENSATION
H, a partner in a firm of solicitors, PWW, by whose predecessor C had previously been employed gave an unfavourable reference to another firm, S, with whom she was . .
Cited – ITV Broadcasting Ltd and Others v TV Catchup Ltd PatC 18-Jul-2011
. .

Cited by:

At SC – The United States of America v Nolan CA 4-Feb-2014
The employee was made redundant from working at a US watercraft repair base. She complained that on the base closing the appellant had failed to consult with her as employee representative. The appellant denied that obligation. After a reference to . .
At SC – United States of America v Nolan ECJ 22-Mar-2012
ECJ (Opinion) Directive 98/59/EC – Admissibility – Protection of workers – Collective redundancies – Information and consultation of workers – Closure of a US military base – Scope – Time at which the obligation . .
Cited – Moreno v The Motor Insurers’ Bureau SC 3-Aug-2016
The claimant had been severely injured when hit by a car in Greece. The car’s driver was uninsured. The Court was now asked whether the scope of her claim to damages was to be determined in accordance with English or Greek law. The implementation of . .
Lists of cited by and citing cases may be incomplete.

Employment, European, International

Updated: 17 June 2022; Ref: scu.553630

In re Helbert Wagg and Co Ltd’s Claim: ChD 8 Dec 1955

Conflict of Laws – Movables – Assignment – Foreign legislation –
Validity – Foreign exchange legislation – Whether confiscatory –
German Moratorium law of 1933 – Debt payable in London made payable to
Konversionskasse in Reichsmarks – German law proper law of contract.
Conflict of Laws – Chose in action or debt – Situs – Debtor’s place of
residence – No situs until but payable
Conflict of Laws – Contract – Proper law – Contract to be ‘construed in accordance with x law’ – x proper law.
Trading with the Enemy – Loan before war – Enemy debtor – Whether
contract abrogate
Trading with the Enemy – Administrator of Enemy Property – Appeal from decision – Whether decision of Administrator on effect of German law
final – Distribution of German Enemy Property Act, 1949 (12, 13 and 14 Geo. 6, c. 85) – Distribution of German Enemy Property (No. 2) Order, 1951 (S.I. 1951, No. 1899), art. 7 (2).
Contract – Conflict of laws – Debt – No local situation until payable
– Governed by proper law – Moratorium law – Whether confiscatory.
Upjohn J said: ‘the elementary proposition that it is part of the law of England, and of most nations, that in general every civilized state must be recognized as having power to legislate in respect of movables situate within that state and in respect of contracts governed by the law of that state, and that such legislation must be recognized by other states as valid and effectual to alter title to such movables.’

Judges:

Upjohn J

Citations:

[1956] 1 Ch 323

Links:

Google Groups

Jurisdiction:

England and Wales

Cited by:

Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

International, Contract

Updated: 14 June 2022; Ref: scu.634755

United States of America v Dollfus Mieg et Cie SA: HL 1952

The Bank of England was holding, in safe custody for the governments of the US, France and the UK, bars of gold which had been wrongly removed by German troops from a French bank and later captured by the allied armies in Germany during the Second World War. The French company which had deposited the gold with the French bank brought proceedings against the Bank of England claiming redelivery of the gold bars. The governments of the US and France applied to have the proceedings stayed on the ground of state immunity.
Held: The action in respect of 51 bars was stayed because the United States Government had deposited them and had the right to immediate possession of them. However, a further 13 bars were part of a pool of the Bank of England and so were in a form of an unallocated account. The House of Lords allowed the case to continue in respect of the 13 bars because the bank by its own act of mixing the 13 bars with the pool put an end to the bailment and the protective umbrella of immunity. The foreign governments had a sufficient proprietary interest in the gold bars to bring the case within the second principle stated by Lord Atkin in the Cristina.
Lord Radcliffe in contrast at p 616 treated it as a suit which might affect a sovereign’s interest in property under the head of proceedings which ‘amount in one way or another to a suit against the sovereign’
Earl Jowitt said that ‘the English law has never worked out a completely logical and exhaustive definition of ‘possession’
Lord Porter referred to an action ‘impleading the two governments or affecting their rights’ and to the foreign governments being ‘implicated or their rights invaded’,

Judges:

Earl Jowitt, Lord Radcliffe, Lord Tucker, Lord Porter

Citations:

[1952] AC 582

Jurisdiction:

England and Wales

Citing:

Cited – Compania Naviera Vascongado v Steamship ‘Cristina’ HL 1938
A state-owned ship that was used for public purposes could not be made the subject of proceedings in rem. Lord Atkin described the absolute immunity of a sovereign of a foreign state within this jurisdiction: ‘The foundation for the application to . .

Cited by:

Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

Banking, International

Updated: 14 June 2022; Ref: scu.634298

Carr v Fracis Times and Co: HL 1902

The House considered a claim following seizure of ammunition by British officers in Muscat under the authority of a proclamation of the absolute ruler, the Sultan of Muscat, whose word was law.
Held: The appeal succeeded. To found an action here arising from an action taken abroad, the wrong must be both such that had it been committed here, it would have been a tort, and that it was justiciable as a wrong in the place where it had been committed. The action having been at the request of the lawful authority in Muscat, no action was available here against the naval officer involved.
The Earl of Halsbury LC’s said that the lawfulness of what happened
‘rests, and must rest, upon the authority of the sovereign of Muscat; and it appears to me that any other decision would be open to very serious questions of policy if, in every case where the lord of a country has declared what the law of his own country is, it were open to an English tribunal to enter into the question and to determine, as against him, what was the law of his country.’

Judges:

Lord NacNaghten, The Earl of Halsbury LC

Citations:

[1902] AC 176, 71 LJ KB 361, 85 LT 144, 50 WR 257, 17 TLR 657

Jurisdiction:

England and Wales

Citing:

Appeal from – Fracis Times and Co v Carr CA 1901
To accept that a foreign judgment was in rem, the judgment must relate to an item within (actually or constructively) the jurisdiction of the court issuing the judgment at the time the order was made. . .
Approved – Nabob of The Carnatic v East India Company 28-Jan-1793
The case arose out of the East India Company’s controversial relations with the Nabob at a stage when the courts had not yet learned to identify the East India Company with the British government. The Company had assisted the Nabob, a sovereign . .

Cited by:

Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

International, Torts – Other

Updated: 14 June 2022; Ref: scu.634756

Khan, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs: CA 20 Jan 2014

The claimant’s father had been killed in Pakistan by a missile in a drone strike by the USA. He alleged that the strike had been supported by positional information supplied by the British intelligence agencies, and sought judicial review of the decisions leading to the strike, alleging that the actions were criminal. He sought a public ‘declaration that a GCHQ officer or other Crown agent who passes ‘locational intelligence’ to an agent of the US may commit an offence of ‘encouraging or assisting in a crime’ under sections 44-46 of the Serious Crime Act 2007′
Held: The request was refused. An English court could not adjudicate of the lawfulness of actions taken by a third party state. Any such investigation would be damaging to the national interest, and could be justified only in exceptional circumstances, which did not apply here.
Lord Dyson MR regarded the claim as non-justiciable, because: ‘The proposition, even if it is right, that a person may be guilty of secondary liability for murder under sections 44-46, although the principal could not, is no answer to the fundamental objection to the grant of a declaration: that it involves, and would be regarded ‘around the world’ … as ‘an exorbitant arrogation of adjudicative power’ in relation to the legality and acceptability of another sovereign power. … Even if the argument focused on the status of the attacks in North Waziristan (international armed conflict, armed conflict not of an international nature, pre-emptive self-defence) for the purposes of considering whether the United Kingdom employee might have a defence of combatant immunity, it would give the impression that this court was presuming to judge the activities of the United States.’ and ‘In my view, a finding by our court that the notional UK operator of a drone bomb which caused a death was guilty of murder would inevitably be understood (and rightly understood) by the US as a condemnation of the US. In reality, it would be understood as a finding that (i) the US official who operated the drone was guilty of murder and (ii) the US policy of using drone bombs in Pakistan and other countries was unlawful. The fact that our courts have no jurisdiction to make findings on either of these issues is beside the point. What matters is that the findings would be understood by the US authorities as critical of them. Although the findings would have no legal effect, they would be seen as a serious condemnation of the US by a court of this country.’

Judges:

Lord Dyson MR, Laws, Elias LJJ

Citations:

[2014] EWCA Civ 24, [2014] WLR(D) 14, [2014] 1 WLR 872

Links:

Bailii, WLRD

Statutes:

Serious Crime Act 2007 44 46

Jurisdiction:

England and Wales

Cited by:

Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

Crime, International

Updated: 14 June 2022; Ref: scu.519973

Blad v Bamfield: PC 2 Nov 1674

Peter Blad was holder of a patent of monopoly from the King of Denmark to trade in Iceland, then a Danish possession. Bamfield was an Englishman whose property was seized on the high seas in 1668 by the authority of the Danish Crown and forfeited by the Danish courts, on the ground that he had been fishing off Iceland in breach of the monopoly. Some years later, Blad made the mistake of visiting England. Bamfield sued him at law, contending that the monopoly was illegal and invalid since it was contrary to a right to trade which had in practice been recognised by Denmark for 50 years before the seizure. Blad contended that he could not be liable because the seizure was an act of state. He initially complained to the Privy Council on the ground that as an act of state it was susceptible of relief only by diplomatic means.
Held: Perpetual injunction to restrain proceedings against a Dane, for the seizure of property of English subjects in Iceland, the seizure being sanctioned by the Danish authorities.
Bamfield contended that reliance on the Danish letters patent was precluded by the terms of the Anglo-Danish commercial treaty of 1670. This, Nottingham LC said, made all the difference: ‘it is very true that this cause was dismissed from the council board being not looked on there as a case of state, because for aught appeared to them, it might be a private injury, and unwarrantable, and so fit to be left to a legal discussion. But now the very manner of the defence offered by the defendant had made it directly a case of state; for they insist upon the articles of peace to justify their commerce, which is of vast consequence to the public; for every misinterpretation of an article may be the unhappy occasion of a war.’
Nottingham restrained Bamfield’s action at law on the ground that: ‘to send it to a trial at law, where either the court must pretend to judge of the validity of the King’s letters patent in Denmark or of the exposition and meaning of the articles of peace; or that a common jury should try whether the English have a right to trade in Iceland, is monstrous and absurd.’

Judges:

Lord Chancellor Nottingham

Citations:

[1674] EngR 113, (1674) 3 Swans 604, (1674) 36 ER 992

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, International

Updated: 14 June 2022; Ref: scu.406112

Princess Paley Olga v Wiesz: CA 1929

The Court considered a seizure of property from the plaintiff which had then been adopted by the Russian Government and a later confiscation decree.
Held: The decree was effective to vest the goods in the Russian authorities and the adopted seizure was an act of state the validity of which could not be questioned.

Judges:

Scrutton and Sankey LJJ

Citations:

[1929] 1 KB 718

Jurisdiction:

England and Wales

Citing:

Cited – Oetjen v Central Leather Co 1918
(US Supreme Court) Animal hides were seized and sold to satisfy a monetary assessment to support the revolution, and there was an issue of title between an assignee from the original owner and a person deriving his claim to title from the purchaser . .

Cited by:

Cited – Korea National Insurance Company v Allianz Global Corporate and Specialty Ag ComC 18-Nov-2008
The claimant sought to enforce a judgment for payment of a sum under a policy of insurance. The defendant sought to refuse saying that the policy had been instigated by a fraud perpetrated by the state of North Korea, and or that the judicial system . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 14 June 2022; Ref: scu.316671

Dobree And Others v Napier And Another: 9 May 1836

A vessel (Lord of the Isles) supplying the revolutionary Don Miguel of Portugal was seized in the Portuguese port of St Martinho by Sir Charles Napier as admiral in the service of the Queen of Portugal lawfully under Portuguese law. The ship was subsequently forfeited by a Portuguese prize court. The Queen’s admiral happened to be a British subject, the adventurer Sir Charles Napier (‘not to be trusted except in the hour of danger’), and upon his return home he was sued in the King’s Bench for trespass.
Held: The action was dismissed.
Tindal CJ stated that ‘no one can dispute the right of the Queen of Portugal to appoint in her own dominions the defendant . . as her officer . . to seize a vessel which is afterwards condemned as a prize’
The decree of the prize court was a judgment in rem and conclusive. The CJ continued to reject an argument to the effect that having entered Portuguese service in breach of the Foreign Enlistment Act 1819, Napier was disabled from relying on the authority of the Queen of Portugal or the decision of her prize courts. A breach of the Act could not render the acts of the Portuguese state justiciable: ‘no one can dispute the right of the Queen of Portugal, to appoint in her own dominions, the defendant or any other person she may think proper to select, as her officer or servant, to seize a vessel which is afterwards condemned as a prize; or can deny, that the relation of lord and servant, de facto, subsists between the queen and the defendant Napier. For the Queen of Portugal cannot be bound to take any notice of, much less owe any obedience to, the municipal laws of this country … For as we hold that the authority of the Queen of Portugal to be a justification of the seizure ‘as prize’, there is as little doubt but that she might direct a neutral vessel to be seized when in the act of breaking a blockade by her established, which is the substance of the first special plea, or of supplying warlike stores to her enemies, which is the substance of the second.’

Judges:

Tindal CJ

Citations:

[1836] EngR 690, (1836) 2 Bing NC 781, (1836) 132 ER 301

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

International, Transport

Updated: 14 June 2022; Ref: scu.315022

AIG Capital Partners Inc and Another v Kazakhstan: ComC 20 Oct 2005

Aitkens J said as to the United Nations Convention on Jurisdictional Immunities of States and Their Property that it though not in force, and not ratified by the United Kingdom: ‘its existence and adoption by the UN after the long and careful work of the International Law Commission and the UN Ad Hoc Committee on Jurisdictional Immunities of States and Their Property, powerfully demonstrates international thinking on the point.’

Judges:

Aikens J

Citations:

[2006] 1 All ER 284, [2005] EWHC 2239 (Comm), [2006] 1 WLR 1420

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Jones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
Cited – SerVaas Incorporated v Rafidian Bank and Others SC 17-Aug-2012
The appellant had contracted to construct a factory in Iraq. On the imposition of sanctions, the respondent bank’s assets were frozen. The appellant sought to recover the sums due to it, and obtained judgment in France. After the fall of Hussain, . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

International, Jurisdiction

Updated: 14 June 2022; Ref: scu.231570

Re State of Norway’s Application (No 2): HL 1989

The government of Norway sought evidence here to support a claim for tax in Norway.
Held: The State of Norway’s application requesting the oral examination of two witnesses residing in England did not fall foul of the Revenue rule. A claim will not be enforced here, where the claimant is asserting a sovereign right or where the central interest of the claimant is governmental in nature, however, Lord Goff said: ‘It is of importance to observe that that rule is limited to cases of direct or indirect enforcement in this country of the revenue laws of a foreign state. It is plain that the present case is not concerned with the direct enforcement of the revenue laws of the State of Norway. Is it concerned with their indirect enforcement? I do not think so. It is stated in Dicey and Morris, at p. 103, that indirect enforcement occurs (1) where the foreign state (or its nominee) in form seeks a remedy which in substance is designed to give the foreign law extraterritorial effect, or (2) where a private party raises a defence based on the foreign law in order to vindicate or assert the right of the foreign state. I have been unable to discover any case of indirect enforcement which goes beyond these two propositions. Even so, since there is no authority directly in point to guide me, I have to consider whether a case such as the present should nevertheless be held to fall foul of the rule. For my part, I cannot see that it should. I cannot see any extraterritorial exercise of sovereign authority in seeking the assistance of the courts of this country in obtaining evidence which will be used for the enforcement of the revenue laws of Norway in Norway itself.’
Lord Goff discussed the phrase ‘civil or commercial matters’, and said of itsuse in the 1856 Act: ‘Here we find the first mention in an Act of Parliament, at least in this context, of the expression ‘civil or commercial matter.’ It is plain that here the word ‘matter’ is used as referring to the relevant proceedings; because in section 1 the ‘matter’ is required (consistently with the long title and section 2 of the Act) to be pending before the foreign court or tribunal. This reinforces the natural inference that, in section 1 of the Act, the expression ‘civil matter’ is being given no restricted meaning, and would be understood in this country as referring to civil, as opposed to criminal, proceedings. It is true that this gives no weight to the words ‘or commercial’ so far as the law of this country is concerned: but it is not surprising to find these words added in relation to a jurisdiction which will be invoked by courts or tribunals in foreign countries, many of which differentiate between civil and commercial matters.’

Judges:

Lord Goff of Chieveley

Citations:

[1990] 1 AC 723

Statutes:

Evidence (Proceedings in Other Jurisdictions) Act 1975, Foreign Tribunals Evidence Act 1856

Jurisdiction:

England and Wales

Citing:

Approved – Attorney-General of New Zealand v Ortiz CA 2-Jan-1982
The defendant was to sell a Maori carving which had been unlawfully exported from New Zealand. The Attorney General sought its recovery and an injunction to prevent its sale, relying on the Historical Articles Act 1962. The judge had ordered its . .
Appeal from – Re State of Norway’s Application (No 2) CA 1988
The basic requirement for an issue estoppel to arise was that ‘the earlier determination relied on as raising an issue estoppel shall have been fundamental to the decision first arrived at’. The Board did not accept that an issue estoppel is . .

Cited by:

Cited – Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
Lists of cited by and citing cases may be incomplete.

Estoppel, International, Evidence

Updated: 14 June 2022; Ref: scu.245569

Rahimtoola v Nizam of Hyderabad: HL 1957

A claim was made against the former High Commissioner for Pakistan personally for money had and received. He established that he had received the money in England in his official capacity as High Commissioner.
Held: Appeal allowed. The application of the doctrine of sovereign immunity does not depend upon the persons between whom the issue is joined, but upon the subject-matter of the issue.
The House described the basis of state immunity: ‘The principle of sovereign immunity is not founded on any technical rules of law: it is founded on broad considerations of public policy, international law and comity.’ Lord Denning MR in the Court of appeal had expressed, obiter, the view that judicial immunity should not apply to commercial transactions, but the House expressly dissociated themselves from this view, because the point had not been argued.

Judges:

Lord Reid, Viscount Simonds

Citations:

[1958] AC 379, [1957] 3 WLR 884, [1957] 3 All ER 441

Jurisdiction:

England and Wales

Citing:

Overruled – Rahimtoola v Nizam of Hyderabad CA 1957
The court considered the doctrine of state immunity. Lord Denning MR said: ‘If the dispute brings into question, for instance, the legislative or international transactions of a foreign government, or the policy of its executive, the court should . .

Cited by:

Cited – Jones v Ministry of Interior Al-Mamlaka Al-Arabiya As Saudiya Kingdom of Saudi Arabia) and Another CA 28-Oct-2004
The claimants sought damages alleging torture by the respondent whilst held in custody in Saudi Arabia.
Held: Although the state enjoyed freedom from action, where the acts were ones of torture, and action could proceed against state officials . .
Cited – AIC Limited v The Federal Government of Nigeria, the Attorney General of the Federation of Nigeria QBD 13-Jun-2003
AIC had used the 1920 Act to register a judgment obtained in Nigeria against the Nigerian Government. The underlying matter was a commercial transaction. Nigeria applied to set the registration aside, saying that registration was an adjudicative act . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

International, Contract

Updated: 14 June 2022; Ref: scu.219441

Oppenheimer v Cattermole (Inspector of Taxes): HL 5 Feb 1975

HL Income tax, Schedule D – Foreign possessions – Double taxation relief – German government pension for past services – Paid to British subject of German origin – Whether German nationality deemed to be retained – Double Taxation Relief (Taxes on Income) (Federal Republic of Germany) Order 1955 (S.I. 1955 No. 1203), Sch., arts. 11(3), IX(1) and XXI(3); Double Taxation Relief (Taxes on Income) (Federal Republic of Germany) Order 1967 (S.1. 1967 No. 25), Sch., arts. 11(3), IX(2) and XXIII(3).
The 1941 decree of the National Socialist Government of Germany deprived Jewish emigres of their German nationality and, consequentially, lead to the confiscation of their property.
Held: A racially discriminatory and confiscatory law of this sort was so grave an infringement of human rights and of ‘clearly established rules of international law’ that the courts of this country ought to refuse to recognise it as a law at all.

Judges:

Lord Cross of Chelsea

Citations:

[1976] AC 249, [1975] UKHL TC – 50 – 159, [1975] TR 13

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
Cited – Peer International Corporation Southern Music Publishing Company Inc Peermusic (UK) Limited v Termidor Music Publishers Limited Termidor Musikverlag Gmbh and Co Kg -And-Editoria Musical De Cuba CA 30-Jul-2003
Peer sought declarations that they were the owners, or licensees, of the UK copyright in musical works composed by Cuban nationals, relying on assignments in writing by the composers and in some instances by their heirs. The defendants claimed under . .
Cited – Jones v Ministry of Interior Al-Mamlaka Al-Arabiya As Saudiya Kingdom of Saudi Arabia) and Another CA 28-Oct-2004
The claimants sought damages alleging torture by the respondent whilst held in custody in Saudi Arabia.
Held: Although the state enjoyed freedom from action, where the acts were ones of torture, and action could proceed against state officials . .
Cited – Regina (on the application of Abassi and Another) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 6-Nov-2002
A British national had been captured in Afghanistan, and was being held without remedy by US forces. His family sought an order requiring the respondent to take greater steps to secure his release or provide other assistance.
Held: Such an . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

International, Torts – Other

Updated: 14 June 2022; Ref: scu.179880

The Parlement Belge: CA 1879

An action in rem indirectly impleaded a sovereign who was the owner of the vessel served because his property was affected by the judgment of the court. An unincorporated treaty cannot change the law of the land and, ‘the immunity of the sovereign as is as least as great as the immunity of an ambassador.’
Brett LJ said that the reason for a sovereign’s immunity is ‘the character of the sovereign authority, its high dignity, whereby it is not subject to any superior authority of any kind,’ and he referred to Vattel’s statement: ‘S’il est venu en voyageur, sa dignite seule, et ce qui est du a la nation qu’il represente et qu’il gouverne, le met a couvert de toute insulte, lui assure des respects et toute sorte d’egards, et l’exempte de toute juridiction.’
‘From all these authorities it seems to us, although other reasons have sometimes been suggested, that the real principle on which the exemption of every sovereign from the jurisdiction of every court has been deduced is that the exercise of such jurisdiction would be incompatible with his regal dignity – that is to say, with his absolute independence of every superior authority. By a similar examination of authorities we come to the conclusion, although other grounds have sometimes been suggested, that the immunity of an ambassador from the jurisdiction of the courts of the country to which he is accredited is based upon his being the representative of the independent sovereign or state which sends him, and which sends him upon the faith of his being admitted to be clothed with the same independence of and superiority to all adverse jurisdiction as the sovereign authority whom he represents would be.
It has been held that an ambassador cannot be personally sued, although he has traded; and in both cases because such a suit would be inconsistent with the independence and equality of the state which he represents. If the remedy sought by an action in rem against public property is, as we think it is, an indirect mode of exercising the authority of the court against the owner of the property, then the attempt to exercise such an authority is an attempt inconsistent with the independence and equality of the state which is represented by such an owner. The property cannot upon the hypothesis be denied to be public property; the case is within the terms of the rule; it is within the spirit of the rule; therefore, we are of opinion that the mere fact of the ship being used subordinately and partially for trading purposes does not take away the general immunity.’
. . And: ‘In a claim made in respect of a collision the property is not treated as the delinquent per se. Though the ship has been in collision and has caused injury by reason of the negligence or want of skill of those in charge of her, yet she cannot be made the means of compensation if those in charge of her were not the servants of her then owner, as if she was in charge of a compulsory pilot. This is conclusive to shew that the liability to compensate must be fixed not merely on the property but also on the owner through the property. If so, the owner is at least indirectly impleaded to answer to, that is to say, to be affected by, the judgment of the court … To implead an independent sovereign in such a way is to call upon him to sacrifice either his property or his independence. To place him in that position is a breach of the principle upon which his immunity from jurisdiction rests. We think that he cannot be so indirectly impleaded, any more than he could be directly impleaded. The case is, upon this consideration of it, brought within the general rule that a sovereign authority cannot be personally impleaded in any court.’

Judges:

Brett LJ

Citations:

(1880) LR 5 PD 197

Jurisdiction:

England and Wales

Citing:

Appeal from – The Parlement Belge AdCt 1879
Proceedings in rem were served on a mail packet owned by Belgium which had been involved in a collision. . .

Cited by:

Cited – Higgs and Mitchell v The Minister of National Security and others PC 14-Dec-1999
(Bahamas) The applicants appealed against sentences of death, saying that the executions would be unlawful while there was a pending appeal to the OAS.
Held: The appeals failed. The Bahamas was a member of the Organisation of American States, . .
Cited – Baccus SRL v Servicio Nacional Del Trigo CA 1956
The defendant organisation carried on business from Spain and was sued in England for damages for breach of a commercial contract. An appearance was entered by their solicitors in London and a consent order made for security for the organisation’s . .
Cited – Aziz v Republic of Yemen CA 17-Jun-2005
The claimant had made a claim for unfair dismissal. The defendant state had filed a defence instead of claiming state immunity. It then sought to assert such immunity. The claimant said the state had waived its immunity.
Held: Section 2(7) of . .
Cited – De Haber v The Queen of Portugal 1851
Orse In the Matter of Wadsworth and R of Spain In the Matter of De Haber and R of Portugal
Property in England, belonging to a foreign sovereign prince in his public capacity, cannot be seized under process in a suit instituted against him in . .
Cited – Aziz v Aziz and others CA 11-Jul-2007
The claimant sought return of recordings and of money paid to the defendant through an alleged fraud or threats. She was the former wife of the Sultan of Brunei and head of state, who now sought an order requiring the court to protect his identity . .
Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 14 June 2022; Ref: scu.182816

Motorola Solutions, Inc and Others v Hytera Communications Corporation Ltd and Others: ComC 24 Apr 2020

Grant of domestic freezing injunction to support US proceedings.

Citations:

[2020] EWHC 980 (Comm)

Links:

Bailii

Statutes:

Civil Jurisdiction and Judgments Act 1982 25

Jurisdiction:

England and Wales

Cited by:

Appeal from – Motorola Solutions Inc and Another v Hytera Communications Corporation Ltd and Another CA 11-Jan-2021
. .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, International

Updated: 14 June 2022; Ref: scu.651153

Andrea Merzario Ltd v Internationale Spedition Leitner Gesellschaft Gmbh: CA 23 Jan 2001

Citations:

[2001] EWCA Civ 61, [2001] 1 All ER (Comm) 883, [2001] CLC 643, [2002] ILPr 26, [2001] 1 Lloyd’s Rep 490

Links:

Bailii

Statutes:

Convention for the International Carriage of Goods by Road 1956 31

Jurisdiction:

England and Wales

Citing:

Overruled – Frans Maas Logistics (UK) Ltd v CDR Trucking BV ComC 23-Mar-1999
CMR Convention: Articles 31(2) and 36 – relating on jurisdiction. Brussels Convention: Article 57. Applicability in cases covered by the CMR convention.
Article 31.2 of CMR to be limited to proceedings brought by same claimant against the same . .

Cited by:

Cited – British American Tobacco Denmark A/S v Kazemier Bv SC 28-Oct-2015
One container loaded with cigarettes was allegedly hi-jacked in Belgium en route between Switzerland and The Netherlands in September 2011, while another allegedly lost 756 of its original 1386 cartons while parked overnight contrary to express . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 11 June 2022; Ref: scu.200723

British American Tobacco (Investments) Ltd v United States of America: CA 30 Jul 2004

The claimant appealed an order for its London solicitor to be examined in connection with proceedings in the US.
Held: A court should not make an order which was superfluous. The witness had now given his evidence. However, the foreign decision rested on an assumption that the co-operation had been voluntary. There had been no choice to disclose the documents and so there was no waiver of legal professional privilege.

Citations:

[2004] EWCA Civ 1064

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Macnaughton v Macnaughton’s Trustees IHCS 1953
It is not the function of the courts to decide hypothetical questions which do not impact on the parties before them. Lord Justice-Clerk Thomson said: ‘Our Courts have consistently acted on the view that it is their function in the ordinary run of . .
Cited – Regina v Her Majesty’s Attorney General ex parte Rusbridger and Another HL 26-Jun-2003
Limit to Declaratory Refilef as to Future Acts
The applicant newspaper editor wanted to campaign for a republican government. Articles were published, and he sought confirmation that he would not be prosecuted under the Act, in the light of the 1998 Act.
Held: Declaratory relief as to the . .
Cited – Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc); etc v Freshfields (a Firm) CA 11-Mar-1999
A client who sues his former solicitor, waives his legal privilege protection, as regards that legal relationship, but that does not require a waiver also, of other privilege with later solicitors instructed in related matters. Lord Bingham LCJ . .
Cited – Bourns Inc v Raychem Corporation; Latham and Watkins (a Firm) CA 30-Mar-1999
Documents disclosed in support an application in a costs taxation, remained subject to implied duties of confidence, and they could not be used for any other purpose, including to support litigation abroad. Where questions of US law arose, a US . .
Cited – Good Challenger Navegante S A v Metalexportimport SA CA 24-Nov-2003
The claimant sought to enforce an arbitration award made in 1983. Time might otherwise have expired, but the claimants relied on a fax which they said was an acknowledgement of the debt, and also upon a finding in a Romanian court which created an . .
Lists of cited by and citing cases may be incomplete.

International, Legal Professions

Updated: 11 June 2022; Ref: scu.199595

Marlwood Commercial Inc v Kozeny: CA 25 Jun 2004

Letters of request. The claimants brought an action for fraudulent misrepresentation. The documents disclosed by the defendants indicated there had been criminal conduct including bribery of the Azeri authorities. The Director of the SFO served notices under section 2 of the CJA 1987 requiring both parties to produce the relevant documents to the SFO. The claimants sought permission under CPR 31.22 to hand over the documents. The defendants opposed that application. The court granted permission as sought by the claimants. Rix LJ, delivering the judgment of the court, noted that the court was resolving a conflict between the public interest in the proper disclosure of documents in civil litigation and the separate public interest in the investigation of allegations of serious fraud. He then proceeded to weigh up those two conflicting interests, paying close attention to the particular circumstances of the case under appeal. Rix LJ concluded that ‘the public interest in the investigation or prosecution of a specific offence of serious or complex fraud should take precedence over the merely general concern of the courts to control the collateral use of compulsorily disclosed documents’.

Judges:

Lord Justice Peter Gibson Lord Justice Rix Lord Justice Longmore

Citations:

[2004] EWCA Civ 798, [2004] 3 All ER 648, [2005] 1 WLR 104

Links:

Bailii

Statutes:

Criminal Justice Act 1987 2, Civil Procedure Rules 31.22

Jurisdiction:

England and Wales

Cited by:

Cited – Tchenguiz v Director of The Serious Fraud Office and Others CA 31-Oct-2014
The appellant challenged an order of the Commercial Court refusing permission for documents disclosed in English litigation to be used in litigation proceedings in Guernsey. The principal issue is whether the judge correctly weighed up the . .
Lists of cited by and citing cases may be incomplete.

International, Litigation Practice

Updated: 11 June 2022; Ref: scu.198406

Henderson v Jaouen and Another: CA 1 Feb 2002

The plaintiff had been injured in an accident and had sued and recovered damages for his injuries in France. Later, his condition deteriorated. In France he would have been able to revive his action to claim further damages, but he sought a similar right from an English Court, claiming a right to do so under the Act because the deterioration had occurred exclusively whilst he was in England. The defendant and his insurers appealed a refusal to strike out the claimant’s claim.
Held: The claim should be struck out. The harmful even required by the Convention had occurred in France. The Bier case was not on all fours and was to be interpreted restrictively.

Judges:

Lord Justice Peter Gibson, Lord Justice Mantell and Mr Justice Wall

Citations:

Times 07-Mar-2002, Gazette 21-Mar-2002, [2002] EWCA Civ 75

Links:

Bailii

Statutes:

Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 (Cmnd 7395), Civil Jurisdiction and Judgments Act 1982

Jurisdiction:

England and Wales

Citing:

Cited – Handelskwekerij G. J. Bier BV v Mines de potasse d’Alsace SA ECJ 30-Nov-1976
Europa A discharge into the French part of the Rhine of saline waste caused alleged damage to the horticultural business of the first plaintiff, and to the waters of the Rhine in general in the Netherlands.

Cited by:

Cited – Cooley v Ramsey QBD 1-Feb-2008
The claimant sought damages after being severely injured in a road traffic accident in Australia caused by the defendant. The defendant denied that the court had jurisdiction to permit service out of the jurisdiction. The claimant said that the . .
Lists of cited by and citing cases may be incomplete.

International, Personal Injury, Damages, European, Road Traffic

Updated: 10 June 2022; Ref: scu.167724

E (BIIa: Recognition and Enforcement): CA 4 Aug 2020

his appeal concerns the extent of the obligation upon the court in England and Wales to enforce a foreign order in relation to children. It directly concerns one provision of the Brussels II revised Regulation (Council Regulation (EC) No. 2201/2003) (‘BIIa’) but the underlying principles are of broad application in cases where the court is faced with an enforcement application alongside a welfare application.

Judges:

Lord Justice Peter Jackson

Citations:

[2020] EWCA Civ 1030, [2020] WLR(D) 463

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Children, International

Updated: 09 June 2022; Ref: scu.657109

Royal Bank of Canada v Cooperatieve Centrale Raiffeisen-Boerenleenbank Ba: CA 23 Jan 2004

The claimant sought an order to restrain proceedings in New York. The parties were based in Canada and the Netherlands, with places of business in New York and London also. The swap agreement underlying the claim provide for it to be governed non-exclusively by the laws of England, but which envisaged other courts applying it.

Judges:

Lord Justice Mance Lord Justice Thorpe Mr Justice Evans-Lombe

Citations:

[2004] EWCA Civ 7

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Royal Bank of Canada v Cooperative Centrale Raiffeisen-Boorenleenbank Binding Authority ComC 2-Dec-2003
. .
Cited – South Carolina Insurance Co v Assurantie Maatschappij de Zeven Provincien NV HL 1987
There can be little basis for the grant of relief to a landowner providing protection from an action in nuisance if the landowner will not himself remedy the public nuisance. The House considered whether the circumstances gave the court power to . .
Cited – Turner v Grovit and others HL 13-Dec-2001
The applicant was a solicitor employed by a company in Belgium. He later resigned claiming unfair dismissal, saying he had been pressed to become involved in unlawful activities. The defendants sought to challenge the jurisdiction of the English . .
Lists of cited by and citing cases may be incomplete.

International, Jurisdiction, Contract, Banking

Updated: 08 June 2022; Ref: scu.192101

Amiri Flight Authority v BAE Systems Plc: CA 17 Oct 2003

The appellant had contracted to purchase maintenance from the defendant of aircraft it had also purchased from them. They sought damages for negligence, saying the defendants had failed to prevent a known risk of corrosion. The defendants argued that its contract excluded liability, and under the Act, that clause was not subjected to a test of reasonableness, being an international supply contract.
Held: The exclusion clause was clear and unambiguous. The Act required the contract to govern the supply of goods delivered abroad. The scheme of section 26 leads to narrow or even arbitrary distinctions. The history of the legislation did not suggest that the effect of the simple words should be departed from. The contract was not a contract for the delivery of goods, and so was not exempt. Appeal allowed.

Judges:

Lord Justice Potter, Lord Justice Mance And Lord Justice Rix

Citations:

[2003] EWCA Civ 1447

Links:

Bailii

Statutes:

Unfair Contract Terms Act 1977 26

Jurisdiction:

England and Wales

Citing:

Cited – Thornton v Shoe Lane Parking Ltd CA 18-Dec-1970
The claimant had suffered damage at the defendant’s car park. The defendant relied upon an exemption clause printed on the ticket, and now appealed against rejection of its defence under the clause.
Held: The appeal failed. The more extreme an . .
Cited – Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd CA 12-Nov-1987
Incorporation of Onerous Terms Requires More Care
Photographic transparencies were hired out to the advertising agency defendant. The contract clauses on the delivery note included a fee which was exorbitant for the retention of transparencies beyond the set date.
Held: The plaintiff had not . .
Cited – Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd HL 26-Nov-1981
Even though a shipowner who had carried cargo on deck was not entitled to rely on the exceptions to liability in his contract, a limitation clause was different and should not be construed by reference to the specially exacting standards applicable . .
Cited – HIH Casualty and General Insurance Limited v New Hampshire Insurance Company Independent Insurance Company Limited Axa Reinsurance S A CA 21-May-2001
A claim was made under a re-insurance policy which supported film finances. The re-insurers resisted the claim on the grounds of misrepresentation. Rix LJ: ‘In principle it would seem to me that it is always admissible to look at prior contracts as . .
Cited – Attorney-General v Prince Earnest Augustus of Hanover HL 1957
‘legislative antecedents’ may in some circumstances constitute relevant background for the interpretation of statutes in pari materia. Words in a preamble cannot of themselves restrict the scope of enacting words, where the latter are wider or more . .
Mentioned – Regina v Schildkamp HL 1971
The defendant was accused of defrauding the company’s creditors.
Held: Not guilty. When interpreting a statute, the words of a heading cannot have equal weight with the words of the Act. The courts sometimes have to fill lacunae in . .
Cited – Regina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .
Appeal from – Amiri Flight Authority v BAE Systems Plc and Another ComC 20-Nov-2002
. .
Lists of cited by and citing cases may be incomplete.

International, Contract

Updated: 08 June 2022; Ref: scu.186816

Micula and Others v Romania: CA 27 Jul 2018

Enforcement of an arbitration award given in accordance with the procedure laid down in the International Convention on the Settlement of Investment Disputes between States and Nationals of Other States

Judges:

Lady Justice Arden
Lord Justice Hamblen
And
Lord Justice Leggatt

Citations:

[2018] EWCA Civ 1801, [2019] Bus LR 1394, [2018] WLR(D) 496

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

See Also – Micula and Others v Romania and Another ComC 20-Jan-2017
. .
Appeal from – Micula and Others v Romania ComC 15-Jun-2017
Claimant’s application for security or leave to appeal.
Held: Leave given. . .
Lists of cited by and citing cases may be incomplete.

Arbitration, International

Updated: 08 June 2022; Ref: scu.620470

Sabah Shipyard (Pakistan) Ltd v The Islamic Republic of Pakistan and Another: CA 14 Nov 2002

An order was sought to restrain proceedings in Pakistan.
Held: The agreement provided that it should be subject to the exclusive jurisdiction of England. The national state was also party to the agreement, and had waived sovereign immunity. It was not clear which proceedings had commenced first, but the terms of the guarantee were clear enough to justify an anti-suit injunction from the English courts. Clauses dealing with waiver of immunity need not be construed tightly.

Judges:

Sir Martin Nourse, Lord Justice Waller, Lord Justice Pill

Citations:

Times 27-Nov-2002, [2002] EWCA Civ 1643

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Turner v Grovit and others HL 13-Dec-2001
The applicant was a solicitor employed by a company in Belgium. He later resigned claiming unfair dismissal, saying he had been pressed to become involved in unlawful activities. The defendants sought to challenge the jurisdiction of the English . .
See Also – Sabah Shipyard (Pakistan) Ltd v Islamic Republic of Pakistan and Another CA 24-Apr-2002
. .

Cited by:

Cited – OT Africa Line Ltd v Magic Sportswear Corporation and others CA 13-Jun-2005
The parties to a contract had agreed that the proper law for the contract was England. One party commenced proceedings in Canada, and the courts of Canada had accepted jurisdiction as the most appropriate and convenient forum to resolve the dispute. . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, International

Updated: 06 June 2022; Ref: scu.178077

El-Al Israel Airlines Ltd v Danielowitz, National Labour Court: 30 Nov 1994

(Israel) ( Supreme Court sitting as the High Court of Justice) Justice Barak said: ‘The factual premise is that people are different from one another, ‘no person is completely identical to another’ . . Every person is a world in himself. Society is based on people who are different from one another. Only the worst dictatorships try to eradicate these differences.’

Judges:

Justice Barak

Citations:

HCJ 721/94, [1992-4] IsrLR 478

Links:

Cardozo

Jurisdiction:

England and Wales

Cited by:

Cited – The Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .
Lists of cited by and citing cases may be incomplete.

International, Human Rights, Discrimination

Updated: 06 June 2022; Ref: scu.628558

Roerig v Valiant Trawlers Ltd: CA 28 Jan 2002

The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under Dutch law was different, with all benefits deducted from any compensation awarded.
Held: The accident occurred on an English registered trawler, and the applicable law was English as to liability but possibly Dutch as to damages. If the 1976 Act was procedural rather than substantive, the law applicable would be English, and the Dutch law as to deduction of all benefits would not apply. Traditionally, issues as to the quantification of damages have been seen as procedural rather than substantive. The general structure of the Act also suggested that it was intended to offer English remedies, and those should be applied: ‘the general rule is not to be dislodged easily’.
After referring to the case of Boys v Chaplin, Waller LJ said: ‘The passages referred to support the view that so far as damages are concerned it is a question for the substantive law whether a head of damage is recoverable, but quantification of the actual head is procedural. If one poses the question whether the issue in this case is about the right to recover certain benefits or whether it is about the quantification of the damages for loss of dependency the answer seems to me to be that it is about the quantification of the damages. The concern of the court in considering a tortious claim should be as to liability, including liability for particular heads of damage without the existence of which liability might not be complete. The question whether deductions should be made for benefits is not a question which goes to liability: it is a question going to assessment’ and ‘Procedurally an action on behalf of a person killed in an accident is only available in the English courts by virtue of what is now sections 1 and 2 of the 1976 Act . . As I have already said, we are concerned with an action which can only be brought in this country by virtue of the 1976 Act.’

Judges:

Lord Justice Simon Brown Vice-President Of The Court Of Appeal Civil Division, Lord Justice Waller, Lord Justice Sedley

Citations:

[2002] All ER (D) 234, [2002] EWCA Civ 21, [2002] 1 WLR 2304

Links:

Bailii

Statutes:

Fatal Accidents Act 1976 4, Private International Law (Miscellaneous Provisions) Act 1995 11, Merchant Shipping Act 1995 25

Jurisdiction:

England and Wales

Citing:

Cited – Coupland v Arabian Gulf Oil Co QBD 1983
The plaintiff employee, injured whilst working for the defendant in Libya, sued in contract and tort. The judge held that Libyan law was the proper law of the contract, but that this was of no relevance to the claim in tort which could proceed here . .
Approved – Stevens v Head 18-Mar-1993
(High Court of Australia) The court considered a claim for damages arising out of a motor accident in New South Wales, where the claim had been brought in the courts of Queensland. The questions arose as to whether or not a provision in the Motor . .
Cited – Boys v Chaplin HL 1969
The plaintiff sued in England for a traffic accident which had happened in Malta. The law of Malta would have denied certain elements of damages which would be available in this jurisdiction.
Held: Liability in respect of the road accident in . .
Cited – Edmunds v Simmonds QBD 4-Oct-2000
The claimant suffered damages in a road traffic accident in Spain caused by the respondent. A Spanish court would have allowed much lower damages. Such damages should normally be assessed in accordance with the law of the country where the accident . .
Cited – Caltex Singapore Pte Ltd v BP Shipping Ltd 1996
A provision of Singapore law giving a ship-owner the right to limit his liability for damage resulting from a collision in Singapore was procedural, or at least not substantive. The limitation in question did not qualify the right of the claimants . .
Cited – Breavington v Godleman 18-Aug-1988
Austlii (High Court of Australia) – Private International Law – Tort – Negligence – Act committed in Territory – Personal injury – Territory statute imposing limit on amount of damages – Action in State court – . .
Cited – Breavington v Godleman 18-Aug-1988
Austlii (High Court of Australia) – Private International Law – Tort – Negligence – Act committed in Territory – Personal injury – Territory statute imposing limit on amount of damages – Action in State court – . .
Cited – The Esso Malaysia 1974
A Russian seaman died as the result of a collision in international waters between two foreign registered vessels. His family sought to claim here.
Held: The benefit of the Fatal Accidents Acts can, in principle, be claimed by a foreigner. The . .
Cited – White v Brunton CA 1984
A judgment given upon a trial of a preliminary issue was held to be a final judgment for the purpose of deciding whether leave to appeal was required on the ground that it could be treated as the first part of a final hearing. Sir John Donaldson MR . .
Cited – Holmes v Bangladesh Binan Corporation 1988
An appeal was sought from a judge’s order deciding a preliminary issue of law. The claimant sought damages under the Fatal Accidents Act case.
Held: Bingham LJ said: ‘Order 33, r. 3 gives the Court a wide discretion to order the separate trial . .
Cited – Tanfern Ltd v Cameron-MacDonald, Cameron-MacDonald CA 12-May-2000
The court gave detailed guidance on the application of the new procedures on civil appeals in private law cases introduced on May 2. Appeals from a County Court District Judge’s final decision in a multi-track case could now go straight to the Court . .

Cited by:

Cited – Harding v Wealands CA 17-Dec-2004
The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
Held: The general rule in section 11 was not to . .
Cited – Al-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
Cited – Harding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: . .
Cited – In the Matter of T and N Limited and others ChD 12-Apr-2006
. .
Cited – Bristow Helicopters Ltd and Another v Sikorsky Aircraft Corporation (Incorporated In and Under Laws of Delaware USA) and others ComC 5-Mar-2004
. .
Cited – Welsh Ambulance Services NHS Trust and Another v Williams CA 15-Feb-2008
The court considered the essential philosophy underwriting the 1976 Act. Smith LJ said: ‘nothing that a dependant (or for that matter anyone else) could do after death could either increase or decrease the dependency. The dependency is fixed at the . .
Cited – Saldanha v Fulton Navigation Inc AdCt 10-May-2011
. .
Cited – Cox v Ergo Versicherung Ag CA 25-Jun-2012
The deceased member of the armed forces had died in a road traffic accident in Germany. The parties didputed whether the principles governing the calculation of damages were those in the 1976 Act and UK law, or under German law.
Held: ‘There . .
Cited – VTB Capital Plc v Nutritek International Corp and Others SC 6-Feb-2013
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
Cited – Cox v Ergo Versicherung Ag and Another QBD 28-Oct-2011
The deceased died in a road traffic accident whilst serving in the Armed forces in Germany. The driver was insured under German law. The widow now claimed damages in England. She had entered a new relationship.
Held: The object of section 844 . .
Cited – Cox v Ergo Versicherung Ag SC 2-Apr-2014
The deceased army officer serving in Germany died while cycling when hit by a driver insured under German law. His widow, the claimant, being domiciled in England brought her action here, claiming for bereavement and loss of dependency. The Court . .
Lists of cited by and citing cases may be incomplete.

Damages, Personal Injury, International

Updated: 05 June 2022; Ref: scu.167900

Williams v Central Bank of Nigeria: QBD 24 Jan 2012

The claimant asserted involvement by the defendant bank in a fraud perpetrated against him. Jurisdiction had already been admitted for one trust , and now the claimant sought to add two further claims.
Held: ‘None of the gateways to English jurisdiction in CPR PD 6B paragraph 3.1 expressly permit a putative claimant to pursue a claim in this jurisdiction to enforce a foreign law. For the reasons I have given, the present claim does not fall within paragraph 3.1(6) and I doubt that it falls within paragraph 3.1(11). However, even if it does, I do not consider that England is ‘clearly or distinctly the most appropriate forum’ for the trial of a claim to enforce a Nigerian law, particularly when, even on the claimant’s case, parts of the claim cannot be determined in England. For these reasons, permission to serve out of the jurisdiction in respect of the new claims is refused.’

Judges:

Beatson J

Citations:

[2012] EWHC 74 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Williams v Central Bank of Nigeria QBD 8-Apr-2011
The claimant had been defrauded by a customer of the defendant bank. He brought a claim against the bank, saying that they knew or ought to have known of the fraudster’s activities, and were liable. The Bank denied that the UK courts had . .
Cited – RG Carter Ltd v Clarke CA 1990
Even in an Order 14 application, the court will, on suitable occasions, be prepared to decide complicated and difficult questions of law.
Lord Donaldson MR said: ‘If a judge is satisfied that there are no issues of fact between the parties, it . .
Cited – ICI Chemicals and Polymers Ltd v TTE Training Ltd CA 13-Jun-2007
The Defendant had applied for summary judgment under CPR Part 24. One argument was a short point of construction. The Judge suggested the parties agree that he should decide the point as a preliminary issue. They were unwilling so he proceeded on . .
Cited – Henry v Hammond KBD 1913
Channell J said: ‘It is clear that if the terms upon which the person receives the money are that he is bound to keep it separate, either in a bank or elsewhere, and to hand that money so kept as a separate fund to the person entitled to it, then he . .
Analogy – Swain v The Law Society HL 1983
The Solicitors’ Practice Rules had the force of a statute, being rules made by the Council of the Law Society with parliamentary sanction for the protection of that section of the public who might be in need of legal advice, assistance or oversight. . .
Cited – Regina v Clowes (No 2) 1994
The court considered appeals from from criminal convictions including theft in the course of which it was necessary to consider whether the defendants were trustees of monies passed to their company for the purpose of investment in a particular . .
Cited – Canada Trust Company and others v Stolzenberg and others (2) CA 29-Oct-1997
The court looked at questions relating to domicile and jurisdiction; standard of proof, date to be determined and duties before service.
Held: The court is endeavouring to find an imprecise concept which reflects that the plaintiff must . .
Cited – Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc v D B Thakerar and Co (a Firm); Ranga and Co (a Firm) and Sterling Financial Services Limited CA 21-Jul-1998
Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. . .
Cited – ICI Chemicals and Polymers Ltd v TTE Training Ltd CA 13-Jun-2007
The Defendant had applied for summary judgment under CPR Part 24. One argument was a short point of construction. The Judge suggested the parties agree that he should decide the point as a preliminary issue. They were unwilling so he proceeded on . .
Cited – Cherney v Deripaska ComC 3-Jul-2008
Renewed application for leave to serve proceedings out of jurisdiction. The court considered a submission that a fair trial would not be possible in Russia: ‘An English court will approach with considerable circumspection any contention that a . .
Cited – Greene Wood and Mclean v Templeton Insurance Ltd ComC 10-Jul-2008
Application to set aside order permitting service outside jurisdiction in Isle of Man. . .
Cited – Cecil and Others v Bayat and Others ComC 29-Mar-2010
The defendants sought to set aside an order allowing service out of the jurisdiction pleading forum non conveniens. . .
Cited – AK Investment CJSC v Kyrgyz Mobil Tel Ltd and Others PC 10-Mar-2011
Developing Law – Summary Procedures Very Limited
(Isle of Man) (‘Altimo’) The parties were all based in Kyrgyzstan, but the claimant sought a remedy in the Isle of Man which would be unavailable in Kyrgyzstan.
Held: Lord Collins said: ‘The general rule is that it is not normally appropriate . .
Cited – Re Schebsman CA 1944
The import into commercial law of equitable principles would be inconsistent with the certainty and speed which are the essential requirements for the orderly conduct of business affairs.
Lord Greene MR said: ‘The first question which arises . .

Cited by:

See Also – Central Bank of Nigeria v Williams CA 3-Apr-2012
The claimant alleged that he had been defrauded and accused the appellant of involvement in the fraud. The Bank appealed against a finding that the claim against it was not time limited.
Held: The appeal failed. The action was by a beneficiary . .
See Also – Williams v Central Bank of Nigeria CA 2-Jul-2013
The claimant appealed against an order dis-allowing service on it out of the jurisdiction.
Held: Dr Williams’ appeal in respect of the Nigerian law claim was allowed but rejected in respect of the trust claim and the contract claim. . .
See Also – Williams v Central Bank of Nigeria SC 19-Feb-2014
Bank not liable for fraud of customer
The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .
Lists of cited by and citing cases may be incomplete.

Trusts, International

Updated: 05 June 2022; Ref: scu.450512

Normaco and Another v Lundman and Others: ChD 10 Feb 1999

A Mareva order made ex parte freezing assets world-wide on an interim basis was nevertheless a judgment allowing jurisdiction for recognition and enforcement in foreign jurisdictions once it had been certified as such on an inter partes application.

Citations:

Gazette 10-Feb-1999, Times 06-Jan-1999

Statutes:

Civil Jurisdiction and Judgments Act 1982 50

Jurisdiction:

England and Wales

International

Updated: 05 June 2022; Ref: scu.84331

Morris and Others v Banque Arabe et Internationale D’Investissement Sa: ChD 23 Dec 1999

A party which had been ordered to produce documents which were under its control but in a foreign jurisdiction, did not have the right to refuse to produce them on the grounds that this would require them to breach the laws of the jurisdiction in which they were held. That was clearly a relevant consideration, but the decision remained that of the court which had a wide discretion. Rules regarding the enforcement of illegal contracts were not directly comparable.

Citations:

Times 23-Dec-1999, Gazette 07-Jan-2000

Jurisdiction:

England and Wales

Litigation Practice, International

Updated: 05 June 2022; Ref: scu.83844

Mund and Fester v Hatrex Internationaal Transport: ECJ 10 Feb 1994

(Judgment) A presumption against the successful enforcement of a judgment was not valid against an EU member.

Citations:

Times 29-Mar-1994, C-398/92, [1994] EUECJ C-398/92

Links:

Bailii

Cited by:

Applied – Fitzgerald and Others v Williams and Others O’Regan and Others v Same CA 3-Jan-1996
Security for costs should not to be granted against an EC National in the absence of some particular difficulty. The Treaty required citizens of other states which were signatories of the convention. The importance of accurate evidence is . .
Lists of cited by and citing cases may be incomplete.

International, European

Updated: 03 June 2022; Ref: scu.161014

Pollard and Another v Ashurst: ChD 16 Mar 2000

Where a bankrupt was joint owner of property abroad but within the European Community, an English court could order the property to be sold and the proceeds paid to the trustee. Such an order could not be made against the land itself, but could be effective against the bankrupt in personam. The bankrupt and his wife could be ordered to sell the property at the best price reasonably obtainable, or to require the conveyance of the property to the trustee.

Citations:

Times 16-Mar-2000

Statutes:

Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1968) (Cmnd 7395), Insolvency Act 1986 436

Jurisdiction:

England and Wales

Insolvency, International, Land

Updated: 03 June 2022; Ref: scu.84787

Fonu v Demirel and Another: ChD 21 Dec 2006

Judges:

Lawrence Collins J

Citations:

[2007] 2 All ER 815, [2006] EWHC 3354 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Demirel v TMSF CA 26-Jul-2007
. .
Mentioned – Masri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
Lists of cited by and citing cases may be incomplete.

Banking, International

Updated: 02 June 2022; Ref: scu.263684

Revenue and Customs and Another v Ben Nevis (Holdings) Ltd and Others: ChD 20 Jul 2012

The claimant sought to make arrangements with a view to collecting substantial arrears of tax due to South Africa. The revenue said that it had that power by virtue of the double taxation treaty with South Aftrica. The company replied that the liabilities arose for years prior to the Convention embodied in the Regulations, andtat they were not recoverable under it.

Judges:

Pelling QC

Citations:

[2012] EWHC 1807 (Ch)

Links:

Bailii

Statutes:

Double Taxation Relief (Taxes on Income) (South Africa) Order 2002, Income and Corporation Taxes Act 1988 788, Finance Act 2006 173, Vienna Convention on the Law of Treaties 28

Jurisdiction:

England and Wales

Citing:

Cited – Re Visser ChD 1928
English law generally does not permit either the direct or indirect enforcement of foreign revenue laws. . .
Cited – Government of India v Taylor HL 1955
The Government of India sought to prove in the voluntary liquidation of a company registered in the United Kingdom but trading in India for a sum due in respect of Indian income tax, including capital gains tax, which arose on the sale of the . .
Cited – Rossano v Manufacturers Life Insurance Co 1963
The plaintiff an Egyptian national bought insurance from the defendant Canadian company (MLI) with branches inter alia in Egypt. When the policies matured, Rassano brought an action in England claiming the money due under them. In defence, MLI . .
Cited – QRS 1 APS and others v Frandsen CA 21-May-1999
The appellants were all Danish companies put into liquidation for asset stripping in contravention of Danish law. The respondent was resident in the UK and had owned them. The Danish tax authorities issued tax demands and the liquidators now sought . .

Cited by:

Appeal from – Ben Nevis (Holdings) Ltd and Another v Revenue and Customs CA 23-May-2013
The company owed very substantial arrears of tax in South Africa. Assets had been transferred to a bank account in London in the name of an associated company. The double taxation treaty with South Africa now provided for mutlual assistance and the . .
Lists of cited by and citing cases may be incomplete.

International, Taxes Management, Litigation Practice

Updated: 02 June 2022; Ref: scu.463008

Higgs and Mitchell v The Minister of National Security and others: PC 14 Dec 1999

(Bahamas) The applicants appealed against sentences of death, saying that the executions would be unlawful while there was a pending appeal to the OAS.
Held: The appeals failed. The Bahamas was a member of the Organisation of American States, but the rules of that organisation had not been incorporated into its law. The planned execution of prisoners before obtaining a result from an application to the OAS for decision on whether there had been a breach of the prisoner’s human rights was not unlawful.
An international treaty could only be incorporated by statute, and a national court could not rule on what was an issue for that international organisation. The fact that treaties are not part of domestic law is the ‘corollary’ of the Crown’s treaty-making power.
PC The Bahamas (Appeal No.45 of 1999). The appellants had been convicted of murder, and had exhausted all normal avenues of appeal. They had petitioned the Inter-American Commission on Human Rights, and awaited a decision. They sought to appeal pending the result of the petition, and claimed that the prolonged delay in carrying out the death penalty contravened Art 17(1) of the constitution.
Held: The OAS is an international Treaty, and accession to it is an act of the Crown, but does not become part of domestic Bahamian law without enactment by the legislature. This case fell within Fisher (No 2). No legitimate expectation had been created that the execution would await the result of the OAS petitions. The Bahamian constitution did not have a due process clause to bring the case within Thomas v Baptiste. Pre-trial delay can seldom be regarded as an additional form of punishment to make the delay a cruel and unusual punishment, and nor could the prison conditions of themselves add to such a claim. It is a question of fact and degree. Appeals dismissed (Lord Steyn and Lord Cooke dissenting)

Judges:

Lord Steyn, Lord Hoffmann, Lord Cooke of Thorndon, Lord Hobhouse of Woodborough, Mr. Justice Henry

Citations:

Times 23-Dec-1999, [1999] UKPC 55, [2000] 2 AC 228, [1999] 1 WLR 1679

Links:

Bailii, PC

Jurisdiction:

Commonwealth

Citing:

Cited – Trevor Nathaniel Fisher v The Minister of Public Safety and Immigration and Others PC 16-Dec-1997
(The Bahamas) The extent of a delay before a trial is not relevant when considering whether a subsequent delay in carrying out an execution is cruel and inhuman punishment . .
Cited – JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry HL 1989
An undisclosed principal will not be permitted to claim to be party to a contract if this is contrary to the terms of the contract itself. Thus the provision in the standard form B contract of the London Metal Exchange ‘this contract is made between . .
Cited – The Parlement Belge CA 1879
An action in rem indirectly impleaded a sovereign who was the owner of the vessel served because his property was affected by the judgment of the court. An unincorporated treaty cannot change the law of the land and, ‘the immunity of the sovereign . .
Cited – Trevor Nathaniel Fisher v The Minister of Public Safety and Immigration and Others (No 2) PC 5-Oct-1998
PC (The Bahamas) The applicant had been convicted of murder and sentenced to death. His case was pending before the Inter-American Commission on Human Rights. He appealed a second time to the board, saying the . .
Cited – Darrin Roger Thomas and Haniff Hilaire v Cipriani Baptiste PC 17-Mar-1999
(Trinidad and Tobago) If the reason for delay in executing a prisoner was the slowness of bodies with whom appeals had been undertaken, that delay itself was not to be considered a good reason for preventing the execution. A delay period above 18m . .

Cited by:

Cited – Napier, Re Petition for Judicial Review; Higgs v The Scottish Ministers OHCS 26-Apr-2004
The petitioner complained of the conditions in the Barlinnie Prison in Glasgow.
Held: The conditions in the prison infringed the petitioner’s human rights against inhuman or degrading treatment and respect for privacy, and he was entitled to . .
Cited – Gianchand Jahree v The State PC 28-Feb-2005
(Mauritius) The defendant appealed his conviction for possession of counterfeit bank notes, saying he had been unrepresented throughout, and that the magistrate had intervened in the character of a prosecutor.
Held: The right to representation . .
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Lists of cited by and citing cases may be incomplete.

International, Criminal Sentencing, Constitutional

Updated: 01 June 2022; Ref: scu.159387

In Re H and others (Minors): HL 10 Apr 1997

Three young children had been brought to England from Israel by their mother but without the consent of the father, who now sought their return. The mother claimed that the father had subsequently acquiesced in the removal. Both parents were orthodox Jews. The father said this had compelled him first to seek assistance from the Beth Din.
Held: When a Treaty ‘obligation is incorporated into domestic law, that obligation will be construed by reference to the principles of international law governing the interpretation and application of treaties, rather than by any domestic principle of construction.’

Judges:

Lord Browne-Wilkinson, Lord Jauncey of Tullichettle, Lord Mustill, Lord Clyde

Citations:

[1997] 2 FCR 257, [1997] UKHL 12, [1998] AC 72, [1997] 2 All ER 225, [1997] 1 FLR 872, [1997] Fam Law 468

Links:

Bailii

Statutes:

Child Abduction and Custody Act 1985

Jurisdiction:

England and Wales

Citing:

Cited – In re S (Minors) (Abduction: Acquiescence) 1994
For the purposes of Article 13 of the Convention, the question whether the wronged parent has ‘acquiesced’ in the removal or retention of the child depends upon his actual state of mind of the parent: ‘the court is primarily concerned, not with the . .
Cited – In re A Z (A Minor) (Abduction: Acquiescence) 1993
. .
Cited – Re A (Minors) (Abduction: Custody Rights) No 2 CA 29-Jul-1992
The mother had wrongfully removed the children from Australia to this country. The father wrote to the mother saying that ‘I think you know that what you have done is illegal, but I’m not going to fight it’ and generally giving the impression that . .
Cited – In Re H (Minors) (Abduction: Custody Rights) HL 1991
The House addressed the question whether wrongful removal and wrongful retention were mutually exclusive concepts. The issue arose in the context of the commencement date for the 1985 Act as between the two States involved.
Held: For the . .

Cited by:

Cited – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence Admn 12-Aug-2005
The claimant was born an Iraqi, but had been granted British Nationality. He was later detained in Iraq suspected of membership of a terrorist group. No charges were brought, and he complained that his article 5 rights were infringed. The defendant . .
Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 31 May 2022; Ref: scu.158887

Al Habtoor v Fotheringham: CA 15 Feb 2001

There is no jurisdiction in wardship over a child not habitually resident in England. A child born in England of and English mother and Dubai father had gone to live with his mother in Dubai at the invitation of the father, but had there retained the boy against the mother’s will. The mother obtained certain orders in Dubai, but then returned to England. The court should give greater recognition to the judgments of foreign courts and refrain from grandiose assertions of jurisdictions. It was important to build bridges between Judeo Christian and Sharia legal traditions.
Thorpe LJ advised that the court should be ‘extremely circumspect’ and ‘must refrain from exhorbitant jurisdictional claims founded on nationality’ over a child who was neither habitually resident nor present here, because such claims were outdated, eccentric and liable to put at risk the development of understanding and co-operation between nations.

Judges:

Thorpe, Laws LJJ, Penry-Davey J

Citations:

Times 02-Mar-2001, [2001] EWCA Civ 186, [2001] 1 FCR 385, [2001] 1 FLR 951

Links:

Bailii

Statutes:

Family Law Act 1986 2, Children Act 1989

Jurisdiction:

England and Wales

Cited by:

Cited – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 31 May 2022; Ref: scu.147435

Kuwait Airways Corporation v Iraqi Airways Company (Conjoined Appeals 4 and 5): CA 10 Nov 2000

If a foreign made law was in breach of clearly established international law, then an English court should not recognise it. To do otherwise would be contrary to public policy. An interference with goods pursuant to such a law was actionable in damages. The Iraqi government passed a resolution dissolving the claimant corporation after invading its home territory, and transferred its assets to the defendant. That law was void. Losses flowing naturally from it were recoverable.

Judges:

Lord Justice Rix Lord Justice Brooke Lord Justice Henry

Citations:

Gazette 15-Dec-2000, Times 21-Nov-2000, [2000] EWCA Civ 284, [2001] 3 WLR 1117

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Buck v Attorney General CA 2-Jan-1965
By an action for declaratory relief, a challenge was offered to the validity of the Order in Council giving effect to the 1961 Act.
Held: The appeal failed. As a matter of international comity an English court should not grant declarations . .

Cited by:

Appeal from – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
Cited – Korea National Insurance Company v Allianz Global Corporate and Specialty Ag ComC 18-Nov-2008
The claimant sought to enforce a judgment for payment of a sum under a policy of insurance. The defendant sought to refuse saying that the policy had been instigated by a fraud perpetrated by the state of North Korea, and or that the judicial system . .
Cited – Korea National Insurance Corp (KNIC) v Allianz Global Corporate and Speciality Ag CA 2-Dec-2008
The insurance company appealed against refusal of the court to decline to enforce a judgment entered against it by the courts of North Korea. It had argued that the insurance policy had been obtained by fraud of the NK government, and that the court . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 31 May 2022; Ref: scu.147317

Pollard and Another v Ashurst: CA 21 Nov 2000

An English court did have power to order the sale of property in Portugal owned by the bankrupt and his wife in their joint names. The estate of the bankrupt vested in the trustee automatically and withoutmore on the bankruptcy. This could not change land registers in Portugal. For such registers the country involved had exclusive jurisdiction. Nevertheless, the instant case involved no investigation of facts or law in Portugal, and it was appropriate to order that the bankrupt execute documents to transfer the property and hold it in trust for the trustee in bankruptcy until transferred.

Citations:

Gazette 18-Jan-2001, Times 29-Nov-2000, [2000] EWCA Civ 291

Links:

Bailii

Statutes:

Civil Jurisdiction and Judgments Act 1982

Jurisdiction:

England and Wales

Insolvency, Land, International

Updated: 31 May 2022; Ref: scu.147324