COMMERZBANK AKTIENGESELLSCHAFT v LIQUIMAR TANKERS MANAGEMENT INC

[2017] EWHC 161 (Comm), Queen's Bench Division, Commercial Court, Mr Justice Cranston, 3 February 2017

Conflict of laws - Jurisdiction - Asymmetrical jurisdiction clauses - Whether exclusive jurisdiction clauses - Regulation (EU) 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters - Brussels I Recast, articles 29, 30, 31 - Hague Convention on Choice of Court Agreements, 2005

The dispute concerned a guarantee by the defendant ship management company to the claimant bank in respect of shipbuilding contracts entered into by the defendant's subsidiaries. The law and jurisdiction clause provided, briefly, that it was governed by English law. The guarantor agreed to exclusive English jurisdiction, but the bank remained entitled to commence proceedings in any jurisdictions, the guarantor waiving objection to such proceedings. The question was whether such an asymmetrical jurisdiction clause qualified as an exclusive jurisdiction clause for the purposes of the Brussels I Recast. Following default, there were currently proceedings in Greece as well as England. Apart from the claims in relation to breach of the jurisdiction clauses, the claims in the two London actions involved the same causes of action as the claims in the Greek actions and were within article 29 of the Brussels I Recast. The defendant argued that article 31(2) was subsidiary to article 29 and that the court should apply the ordinary lis pendens rule, because asymmetric jurisdiction clauses did not qualify as exclusive. Further, article 31(2) on its language applied only to the actions of the court seized first; the Greek court. Finally, asymmetric jurisdiction clauses were invalid under the Brussels I Recast.