CL-2025-000010 and CL-2025-000091 - [2025] EWHC 1842 (Comm)

Fecha: 18-Jul-2025

The alleged attempt to circumvent clause 33.1

The alleged attempt to circumvent clause 33.1

137.

I accept that there will be circumstances in which the bringing of proceedings in another forum for the purposes of circumventing rules of English law may support a conclusion that those proceedings are vexatious and oppressive: for example the English sanctions legislation considered in Barclays Bank Plc v PJSC Sovcombank [2024] EWHC 834 (Comm), [25], Renaissance Securities, [56], [59]-[60] and JP Morgan, [151].

138.

However, the fact that a foreign court may apply a different law to a claim than the law which the English court would apply, or would, applying its law, not enforce a term which the English court would enforce in proceedings here, will not of itself usually support the conclusion that the claim is vexatious and oppressive.

139.

In Navig8 Pte Ltd v Al-Riyadh Co for Vegetable Oil Industry [2013] EWHC 328 (Comm), proceedings were commenced in Jordan in respect of cargo carried under a bill of lading which the Jordanian courts were likely to interpret as a contract with Navig8 as carrier, which would not be the position under English law. Further, the Jordanian courts would not give effect to certain provisions of the bill which would be given effect in English proceedings (Jordan being a Hamburg Rules jurisdiction). Andrew Smith J rejected the contention that the pursuit of the Jordanian proceedings was vexatious and oppressive in those circumstances:

It was not enough that the proceedings in Jordan would (on the conventional application of Jordanian private international law principles) be governed by Jordanian law, whereas English proceedings would, through the application of English principles of private international law, be governed by English law ([15(i)]) nor that those two legal systems would reach different conclusions as to who the contractual carrier was ([15(ii)]).

ii)

Nor was it sufficient that exemptions which Navig8 would enjoy under English law had the proceedings been brought here (due to the contractual incorporation of the Hague Rules), would not be available, or available to the same extent, in a jurisdiction applying the Hamburg Rules ([15(iii)]).

iii)

The Judge noted at [22] that “Navig8's argument asserts a right, deriving apparently from the choice of English law, not to be sued in any jurisdiction that does not give effect to a choice of English law that is recognised by English private international law, at least unless the foreign jurisdiction recognises rights similar to those recognised by English law” and held that “there is no proper basis for so wide a proposition”.

140.

Similar views were expressed by Burton J in Golden Endurance Shipping SA v RMA Watanya SA (The Golden Endurance) [2014] EWHC 3917 (Comm), [45]-[46].

141.

In this case, the arguments as to which law applies are not straightforward, and the case for the application of Greek law very far from hopeless. That provides a further reason why this particular head of vexation and oppression is not made out.

142.

Further, if the SHA did not, as a matter of contract, give the Directors a right not to be sued in any jurisdiction which would not give effect to clause 33.1(c), then this argument would essentially give them under the court’s vexation and oppression jurisdiction a protection that they had failed to obtain as a matter of contract.

143.

Finally, I should also note that while it is the case that Greek law does not permit contracting out of liability under Article 919, there are many respects in which Greece might be said to be the natural forum for the complaints advanced in the Greek Proceedings. The proceedings are brought against Greek nationals in respect of their conduct as directors of a Greek company by a shareholder in that company in respect of alleged damage to their rights as shareholders.