‘Forum non conveniens’ waiver clause not necessarily a bar to stay of proceedings

Standard Chartered Bank (Hong Kong) Limited and another v Independent Power Tanzania Limited and others [2016] 2 Lloyd’s Rep 25, [2016] EWCA Civ 411, 28 April 2016

The Court of Appeal had to consider whether proceedings in England should be stayed in favour of Tanzania as the most appropriate forum, where the contracts in question contained non-exclusive English jurisdiction clauses with forum non conveniens (FNC) waivers and an express acceptance of the possibility of concurrent proceedings in different jurisdictions, together with provisions for service in England. Longmore LJ adopted Flaux J’s observation in the commercia court, that: “even where there is an FNC waiver with a non-exclusive jurisdiction clause, if very strong or exceptional grounds for granting a stay are demonstrated, the court may in an appropriate case grant a stay, provided that the grounds in question can properly be described as unforeseen and unforeseeable at the time the agreement was made”. On the facts, Longmore LJ held that the grounds were not sufficiently strong or exceptional for a stay to be granted.