Qorti Civili (Sezzjoni tal-Kummerc); 2018-11-29; 1. Balticmax Holding Company Limited (C-70765) ; u 2. Av. Jonathan Abela Fiorentino (k.i. 555482M), bhala mandatarju specjali ta` Arlie Sterling, detentur tal- Passaport Amerikan bin-numru 444918779, u wkoll bhala mandatarju specjali ta` Marsoft International A/S, socjeta` registrata fin-Norvegja bin-numru 937 657 927 u b`indirizz registrat ta` Inkognitogata 33A, 0256 Oslo, fin-Norvegja kontra 1. Vroon Containers B.V., socjeta` registrata fl-Olanda bin-numru 22055081 u b`indirizz registrat ta` Haven Westzijde 21, 4511 AR Breskens, fl-Olanda; 2. Herman Marks, detentur tal- Passaport Olandiz bin-numru BURC14296; 3. Stefan Quist, detentur tal-Passaport Olandiz bin-numru NNPoJ28B3; 4. Balticmax Acquisition Corporation One Ltd (C-70766); u 5. Registratur tal-Kumpanniji; 605/2017
Decision by national courts in the field of European Union law — ECLI:MT:KUM:2018:114374
Date: 2018-11-29
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Malta

82018MT1129(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a question of the international jurisdiction of the Maltese courts in a commercial dispute resolved by the Qorti Ċivili (Sezzjoni tal-Kummerċ) (hereinafter ‘the Court of First Instance’).
In the centre of the case is a very complex commercial dispute between several companies on one side (hereinafter ‘the plaintiffs’) and several companies on the other side (hereinafter ‘the defendants’). The plaintiffs disputed the validity of the decisions of the defendants’ Board of Directors concerning the transfer of shares of a Maltese registered company. According to the plaintiffs, the defendants acted in violation of their responsibilities and in a conflict of interests.
The defendants alleged a lack of jurisdiction of the Maltese courts referring to the agreement between the parties, according to which all related matters shall be governed by Norwegian law and any potential dispute shall be settled by arbitration in Oslo, Norway. The defendants argued also by Articles 27 and 28 of the new Lugano Convention (a question of list pendens) alleging that disputes between the same parties were already brought before the courts in Norway and therefore the proceedings in Malta cannot proceed.
Conversely, the plaintiffs relied on Article 24(2) and (3) and Article 25(4) of the Brussels I Regulation (recast) (1) and Article 22(2) and (3) and Article 23(5) of the new Lugano Convention (2), which justifies the jurisdiction of Maltese courts.
The Court of First Instance thoroughly assessed all jurisdictional issues and based its conclusions on previous national case-law and referred to the case-law of the Court of Justice of the European Union. The objection based on a prorogation of jurisdiction cannot be accepted since the current dispute is based on the alleged abusive and illegal conduct of the defendants, which goes far beyond the terms of what was agreed between the parties within the jurisdiction clause. The principle of lis pendens is an extraordinary remedy and must be applied only where necessary in the interests of the better administration of justice, which is not the case in the present dispute. There is no connection between the current dispute and the proceedings in Norway other than the parties. However, the proceedings in Norway have a different cause of action.
The Court of First Instance also considered jurisdiction under Article 7(2) of the Regulation and Article 5(3) of the Convention (special jurisdiction ‘in matters relating to tort, delict or quasi-delict’), but refused to apply them to the current case. The principle of special jurisdiction must be interpreted independently and strictly and the concept of ‘matters relating to tort, delict or quasi-delict’ covers only those actions which seek to establish the liability of a defendant and, at the same time, do not concern ‘matters relating to a contract under Article 7(1) of the same Regulation. However, the Court of First Instance concluded that the present case is strictly linked to contractual obligations.
The Court of First Instance agreed with the plaintiffs that the main objective of these proceedings is the validity of the decision of the organs of the defendants, therefore, the exclusive jurisdiction of the Maltese courts could be established under Article 24(2) of the Brussels I Regulation (recast) and Article 22(2) of the new Lugano Convention.
The Court of First Instance rejected the further objection of the defendants pointing to a lack of locus standi as it was sufficiently proven that the plaintiffs have enough legal interest and capacity to bring the action.
The Court of First Instance assessed the alleged wrongdoing and confirmed that the representatives of the defendants acted contrary to the responsibilities imposed on them by the mutual agreements between the parties as well as by the law. The defendants had failed to fulfil their duties to ensure the best interests of the companies they represented. The action of the plaintiffs was successful.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.