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Do not submit to the jurisdiction without careful consideration

In a case decided last week, the English Commercial Court ruled that it would enforce a Chinese judgment in England

Even though the Chinese proceedings were brought in breach of an anti-suit injunction, after unsuccessfully challenging the jurisdiction of the Chinese court, the defendant had appeared at trial.  It had also appealed to the Shandong High Court and then to the Supreme Court.

The Judge in the Commercial Court in London referred to paragraph 14-071 of Dicey & Morris confirming that in those circumstances, there will have been submission by express reference to s.33(1)(a), (b) and (c) of the Civil Jurisdiction and Judgments Act 1982:

“If the defendant in the foreign court fails on any of these issues, but nevertheless goes on to defend the case on the merits, he will be regarded as having submitted.”

The Judge went on to say,

“Under s.32, a foreign judgment arising out of proceedings brought without agreement and in breach of a jurisdiction or arbitration clause against a party will not be recognised by the United Kingdom, provided that that party has not counterclaimed or otherwise submitted to the jurisdiction of the foreign court. But once it has so (counterclaimed or) submitted, there can be no objection on public policy grounds to recognition by reference to the jurisdiction or arbitration clause. The arbitral anti-suit injunctions are founded on and there to give effect to the jurisdiction and arbitration clauses in the Contracts. Those clauses are the very subject-matter of s.32(1)(a). The arbitral anti-suit injunctions cannot lead to a separate (and opposite) conclusion to that to be reached by a proper application of s.32.”

The case is Spliethoff’s Bevrachtingskantoor Bv V. Bank of China Limited Neutral Citation Number: [2015] EWHC 999 (Comm)

For any further information on foreign jurisdiction please contact international commercial litigation specialist Steven Loble in London on 020 7478 9010 or contact our litigation department.

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