Mr Justice Aikens:
In May 1999 the European Commission started an investigation into
the vitamins and pigment markets in Europe. On 21 November 2001
the European Commission ("the Commission") made a Decision, ("the
Decision") which was published on 10 January 2003. The Decision held
that various manufacturers of vitamins had operated cartels, contrary to
Article 81 (formerly Article 85) of the EC Treaty, in relation to the sale
of vitamin within the EU and the European Economic Area ("EEA") for
periods of up to ten years between 1989 and 1999. The Decision held that
F. H. – La R. AG ("R. Switzerland"), a Swiss company, had participated in
the cartels in relation to all the vitamins covered by the investigation. It
also held that A. SA (which was known at the time as Rh. – Po. SA) was
responsible for an infringement of Article 81 through the participation
of its subsidiary, Rh. – Po. A. Nutrition (which has since become A. A.
N. SA – "AAN France"). AAN France was involved in the same cartels as
F. H. – La R. AG, but in relation only to vitamins A and E. I will refer to
companies in the H. – La R. group of companies as "the R." group. I will
refer to companies in what was the Rh. – Po. group (now called A.) as
"the A." group.
In 1999 criminal proceedings were started in the USA, alleging that F H. –
La R. AG had taken part in various cartels for vitamins sold in the US and
elsewhere in the world. There were also investigations in the USA against
A. companies. There have been proceedings in Canada and investigations
in Australia concerning vitamin cartels in which it is said that R. and A.
companies were participants.
The Commission's Decision resulted in four actions in the Commercial
Court against various companies in the R. and A. groups. The actions
were started in May 2002. The claimants are two English companies
and a German company. Those companies were all direct purchasers of
vitamins from companies within the R. and A. groups. The defendant
companies are sellers and associated companies in those two groups. The
claimants' principal allegation in all the proceedings is that the defendant
companies participated in various cartels, contrary to Article 81 of the EC
Treaty, and that the claimant companies have suffered damage because
vitamins were sold at an inflated price as a result of the formation and
implementation of the cartels. This is alleged to give the claimants a right
to damages for breach of a statutory duty not to infringe EC competition
laws, in particular Article 81.
In the present series of applications before the court, the defendants' aim
is to strike out and/or set aside part of these proceedings.
The applications are made on the grounds that the claimants do not have
an arguable case and/or that the English Courts do not have jurisdiction
to determine these claims against most, but not all defendants. The
applications raise issues about what a claimant has to prove to succeed
in a claim for damages said to arise out of a breach of Article 81. They
also raise questions on the proper application of EC Regulation 44 of
2001 ("Regulation 44" or "the Regulation") and the Lugano Convention,
in circumstances when one side alleges that a foreign jurisdiction clause
applies and this is challenged.
I will consider the applications under the following broad headings:
(A) The Commission Decision; (B) the actions and the jurisdictional
framework; (C) the parties, the allegations, the applications and the
issues that arise; (D) the applications to strike out parts of the cases
or dismiss them as having no reasonable prospect of success; (E)
the challenges to the jurisdiction based on Article 17 of the Lugano
Convention and Swiss jurisdiction clauses; (F) the challenges to the
jurisdiction based on Article 23 of Regulation 44 and German jurisdiction
clauses; (G) the challenges to the jurisdiction based on Article 23 of
Regulation 44 and Commission Decision
This is central to the case, so it is necessary to set out some of the
details.
(1) Section 1 is headed "The Facts" and Recital (1) sets out a "Summary
of the Infringement". It states:
"This Decision imposing fines for infringement of Article 81(1) of the [EC]
Treaty and Article 53 of the EEA Agreemen is addressed to the following
undertakings….F H. – La R. AG; ….A. SA".
The use of the word "undertakings" is important. It is a concept of the
competition rules which have been developed from the EC Treaty. The
concept of an "undertaking" is explained in Recitals 635 and 636 of the
Decision, which state:
"[635] A change in legal form or corporate identity does not relieve an
undertaking of liability to penalties for the anti – competitive behaviour.
Liability for a fine may thus pass to a successor where the corporate
entity which committed the violation has ceased to exist in law. This is
because the subject of the competition rules in the [EC]Treaty and the
EEA Agreement is the undertaking, a concept not necessarily identical to
the notion of corporate legal personality in national commercial company
or fiscal law".
[636] The "undertaking" is not defined in the Treaty. The Court of First
Instance has found that "Article 81(1) of the Treaty is aimed at economic
units which consist of a unitary organisation of personal, tangible and
intangible elements which pursues a specific economic aim on a long –
term basis and can contribute to the commission of an infringement of the
kind referred to in that provision" (Case T – 532/94 Mo Och Domsjo AB v
Commission [1998] ECR II – 1989 at paragraph 87)".
Recital 637 of the Decision points out that the EC competition law concept
of the "undertaking", which can embrace a number of corporate entities
within one economic unit, is to be contrasted with the need to identify
one specific legal personality which is responsible for the "undertaking",
to which a Decision concerning an infringement of Article 81 can be
addressed. It is that legal entity which will be held liable to enforce the
rules and which will have to pay any penalty imposed for infringement of
Article 81(1).
(2) Recital (2) summarises the basic facts of the EU cartels:
"For the periods and for the different vitamin products specified in
this section the manufacturers of [various] vitamins…and carotinoids
supplying the Community and the EEA entered into and participated in a
series of continuing agreements contrary to Articles 81(1) of the Treaty
and Article 53 EEA by which they fixed prices for the different products,
allocated sales quotas, agreed on and implemented price increases,
issued price announcements in accordance with their agreements, sold
the products at the agreed prices, set up a machinery to monitor and
enforce adherence to their agreements and participated in a structure of
regular meetings to implement their plans".
The verbs used – "entered into", "participated in", and implemented"
are significant. They are also used in the claimants' pleadings. It is clear
that the meaning in the pleadings is intended to reflect that used in the
Decision itself.
(3) Section 1.2.5 of the Decision is headed "The Producers". This gives
details of the various "undertakings" identified in Recital 1 and some other
companies in the various undertakings.
(4) Section 1.4 is headed "The Cartels". It describes the organisation and
operation of each of the cartels. The cartels were designed both to share
markets within the EU and also to fix prices. Recital 176 states that at
Regional product market meetings, the various regional groups (including
the EU group) would be responsible for implementing the price increases
that had been agreed at a more senior level.
(5) Section 1.5 is headed "The Nature and Reliability of the Evidence".
It points out that the majority of the undertakings had admitted their
involvement in unlawful price fixing and market sharing arrangements
contrary to Article 81(1).
(6) Section 2 is headed "Legal Assessment". Having referred to the
relationship between Article 81 of the Treaty and Article 53 of the
EEA Agreement, Section 2.2.2 deals with "Agreements and Concerted
Practices". Recitals 554 and 558 discuss what is meant by the formation
and existence of an "agreement" for the purposes of Article 81. Recital
554 states:
"[554] An agreement can be said to exist when the parties adhere to a
common plan which limits or is likely to limit their individual commercial
conduct by determining the lines of their mutual action or abstention
from action in the market. It does not have to be made in writing; no
formalities are necessary, and no contractual sanctions or enforcement
measures are required. The fact of agreement may be express or implicit
in the behaviour of the parties".
Recital 558 states:
[558] An "agreement" for the purposes of Article 81(1) of the Treaty does
not require the same certainty as would be necessary for the enforcement
of a commercial contract at civil law. Moreover, in the case of a complex
cartel of long duration, the term "agreement" can properly be applied
not only to any overall plan or to the terms expressly agreed but also to
the implementation of what has been agreed on the basis of the same
mechanisms and in pursuance of the same common purpose".
Having referred to case law in the Court of Justice on the meaning of
"agreement", Recitals 560 - 562 continue:
"[560] A cartel may thus properly be viewed as a single continuing
infringement for the time frame in which it existed. The agreement
may well be varied from time to time or its mechanisms adapted or
strengthened to take account of new developments. The validity of this
assessment is not affected by the possibility that one or more elements of
a series of actions or of a continuous course of conduct could individually
and in themselves constitute a violation of Article 81(1) of the Treaty".
"[561] Although a cartel is a joint enterprise, each participant in the
agreement may play its own particular role. One or more may exercise
a dominant role as ringleader(s). Internal conflicts and rivalries, or even
cheating may occur, but will not however prevent the arrangement from
constituting an agreement for the purposes of Article 81(1) of the Treaty
where there is a single common and continuing objective".
[562] The mere fact that each participant in a cartel may play the role
which is appropriate to its own specific circumstances does not exclude its
responsibility for the infringement as a whole, including acts committed
by other participants but which share the same unlawful purpose and the
same anti – competitive effect. An undertaking which takes part in the
common unlawful enterprise by actions which contribute to the realisation
of the shared objective is equally responsible, for the whole period of its
adherence to the common scheme of the acts of the other participants
pursuant to the same infringement. This is certainly the case where it is
established that the undertaking in question was aware of the unlawful
behaviour of the other participants or could have reasonably foreseen or
been aware of them and was prepared to take the risk (judgment of the
Court of Justice in Commission v Anic, at paragraph 8)".
(7) Section 2.2.3 is headed "The Nature of the Infringement in the
Present Case". It describes the dominant role of "R.", the company I
have called R. Switzerland. It states that R. Switzerland was the "prime
mover and main beneficiary of the complex of collusive arrangements"
Section 2.2.4 is headed "Restriction of Competition" and gives details
of the principal aspects of the agreements and arrangements that can
be characterised as restrictions of competition. These include allocating
markets and market share quotas; agreeing concerted price increases;
"concerting" on the implementation of those price increases in the
different markets; and dividing the business of specific customers.
Section 2.2.5 is headed: "Effect upon Trade between Member States
and Between EEA Contracting Parties". The Decision records that the
continuing agreement between producers had an appreciable effect upon
trade between Member States.
(8) Section 2.2.8 is headed "Addressees: Undertaking Identity and
Succession". As I have already explained in (1) above, the EC competition
law concept of an "undertaking" is broader than the English law notion of
a corporate entity. So when this Decision describes F.H.-La R. AG as an
"undertaking" it is, in my view, embracing other corporate entities within
the R. group that have in some way "entered into" or "participated in" or
"implemented" the cartel agreements. They are included because they
have not operated as a "functionally separate entity" from F. H.-La R. AG.
This is borne out by the wording of Recitals 636 and 637 which I have
quoted above. It is also inherent in the way that Recital 642 identifies
S. Pharmaceuticals BV as the addressee because that "undertaking"
directly participated in the infringement and "operates as a functionally
separate entity from its parent S. SA" But this leaves open the difficult
question, much debated before me, of the circumstances (if any) in which
a corporate entity that is not specifically an addressee in the Decision
can be sued as having infringed Article 81(1). I have to consider that in
Section C below.
(9) Section 2.3 is headed "Remedies". Recital 655 states that, under
Article 15(2) of Regulation 17, the Commission can impose fines upon
undertakings participating in an infringement of Article 81(1) of the Treaty
either intentionally or negligently. Then Recital 656 states:
"In view of the nature of the agreements in question, as described in
the factual part of the Decision, and the measures adopted for their
implementation, the undertakings could not have been unaware that
their conduct had as its object the restriction of competition. The
Commission therefore concludes that each of the cartels constitutes a
deliberate infringement of Article 81(1) of the Treaty and 53(1) of the EEA
Agreement".
Recital 666 concludes that the infringements affecting vitamins A, E, C,
B2, B5, D3, beta – carotene and carotinoids constituted –
"by their nature very serious infringements of Article 81(1) of the Treaty
and Article 53(1) of the EEA Agreement".
Recital 712 states that the Commission regards R. Switzerland and
BASF AG as being the "joint leaders and instigators of the collusive
arrangements" regarding the vitamins. Recital 775 sets out the fines that
are imposed on the addressees. R. Switzerland is fined Euro 462 million.
(10) The formal Decision comes at the end of the document. That
identifies the "undertakings" that have infringed Article 81(1) of the
Treaty and Article 53(1) of the EEA Agreement and in what respects. It
also sets out the fines to be paid by the undertakings and how they are to
be paid.(…)
The actions and the jurisdictional framework
There are two groups of proceedings. Each group consists of two actions.
In each of the two groups one action is brought by P. Limited ("P. UK"),
an English company. The other action is brought by two companies in
the T. group. These are T. (UK) Limited ("T. UK"), which is an English
company and T. N. Deutschland GmbH ("T. Germany"), which is a German
company. The defendants in one group of actions are companies in
the R. group. The defendants in the other group of actions are or were
companies in the A. group.
I have therefore divided the actions according to which defendants are
being sued. I have called Group A "the R. Actions" and Group B "the A.
actions".
It is accepted by all sides that the question of whether the English
Court has jurisdiction to hear these claims is to be determined by either
Regulation 44 or the Lugano Convention. It is also accepted that each of
the defendants in the four actions is domiciled in a Member State of the
EU or EFTA. Therefore everyone accepts that the general jurisdictional
rule is that a party should be sued in the courts of the Member State in
which it is domiciled.
But the R. and A. defendants also acknowledge that defendants domiciled
in one Member State may, in another Member State, be sued, in matters
relating to tort, "in the courts of the place where the harmful event
occurred or may occur". The R. and A. defendants are prepared to accept,
for the purposes of these applications, that there is a "good arguable
case" that if the tort alleged is established, then "the harmful event",
that is the damage to the claimants, occurred or may have occurred in
England in a case when the claimant concerned is domiciled in England.
It is also accepted that claimants can rely on Article 6 (1) to found
jurisdiction; ie. if one defendant is domiciled in England (being a Member
State) and is sued here, then, if the Lugano Convention applies, another
defendant may then also be sued in England. However, if Regulation 44
applies then the claimants accept that that they can only utilise Article
6(1) of the Regulation if they also establish that there is a good arguable
case that:
"…the claims are so closely connected that it is expedient to hear and
determine them together to avoid the risk of irreconcilable judgments
resulting from separate proceedings".
The claimants accept that Articles 5 and 6 can be overridden by the
jurisdictional rule in Article 23 of Regulation 44 (or Article 17 of the
Lugano Convention). But a defendant must demonstrate that the
requirements of Article 23 of the Regulation are fulfilled, and that the
scope of the particular jurisdiction clause is wide enough to cover the
dispute in question.
The allegations, the applications and the issues that arise
The format of the claims in each of the four actions is similar. But it is
necessary to set out some details of each case because of the different
parties involved, their different domiciles and the different applications
that are made in each case.
Group A: "the R. Actions": Folios 473 and 476 of 2002.
Folio 473:
(1) In the re – amended Particulars of Claim, it is alleged that P. UK
bought vitamins from R. UK and R. Vitamins Switzerland throughout
the period September 1989 to December 1999. It is now accepted
that P. UK did not make any purchases from R. UK after 1 January
1999. It is said that the three defendants together formed part of one
"undertaking" "… engaged in the same economic activity" so that for
the purposes of EC competition law the defendants formed part of a
"single economic entity". The pleading alleges that the Commission
Decision found that R. Switzerland was a joint leader and instigator of
the relevant cartel. It goes on to allege that the success of the cartels
relied on the "implementation", by R. UK and R. Vitamins Switzerland,
of the prices as fixed by R. Switzerland and its fellow members of the
cartels. It alleges that the prices charged to the claimant were fixed by
the cartel and that R. UK and R. Vitamins Switzerland "gave effect" to the
cartel in the UK by selling products at those prices. It is asserted that all
three defendants participated in the cartels from September 1989 until
December 1999, in breach of Article 81 of the EC Treaty. Alternatively
the pleading alleges that the three defendants agreed to "implement" the
cartels, with the consequence that the claimant, P. UK, was prevented
from buying vitamins at a price lower than the cartel prices.
(2) By its application notice dated 18 July 2002, R. Vitamins Switzerland
applies under CPR Part 11 for a declaration that the English Court has
no jurisdiction to determine the claims of P. UK against it in respect of
any claims arising out of purchases of vitamins since February 1998.
R. Vitamins Switzerland alleges that all purchases made from it by P.
UK from February 1998 were made subject to R. Vitamins Switzerland's
standard terms and conditions. These stipulated that the contracts were
subject to Swiss law and that "controversies" that could not be settled
amicably were to be brought before the competent courts of Arlesheim in
Switzerland. There is no challenge to the jurisdiction by R. UK.
Folio 476:
(1) The re – amended Particulars of Claim allege that T. UK bought
vitamins from R. UK and/or R. Vitamins Switzerland during the period
1989 to 1999. It also alleged that T. Germany bought vitamins from R.
Germany during this period. So it is not alleged that T. UK purchased
any products from R. Germany or that T. Germany purchased any
products from R. UK during the relevant period. It is alleged that the
defendants were part of one "undertaking" and were, for EC competition
law purposes, "one economic entity".
(2) The defendants in this action have made two applications. The first is
dated 18 July 2002. The second is dated 1 November 2002.
(3) The Application of 1 November 2002; This application is made by
R. UK, the first defendant. It asks the court to strike out the claim of
T. Germany (the third claimant) against R. UK (the first defendant) as
disclosing no reasonable grounds for bringing that claim; alternatively
R. UK asks for summary judgment on this claim under CPR Part 24. The
arguments on this application are complicated. But essentially R. UK's
submission is that T. Germany does not assert that it bought any vitamins
from R. UK at the relevant time; T. Germany's pleaded case against R. UK
does not and cannot, as a matter of EC competition law, show that R. UK
was in breach of Article 81 of the EC Treaty; moreover, even if R. UK was
in breach of Article 81, the breach did not cause any loss to T. Germany.
(4) The Application of 18 July 2002: In this application several orders are
sought under CPR Part 11, as follows:
(a) First, R. Vitamins Switzerland (the second defendant) claims a
declaration that the English Court should decline jurisdiction in relation
to the claims made against it by T. UK (the first claimant). It does so
on the basis that all contracts for the sale of vitamins by R. Vitamins
Switzerland to T. UK were on its standard terms and conditions, which
contained clause 9 with the terms referred to in paragraph 17 above.
Thus the clause provided for Swiss law and that "controversies" that
were not settled amicably should be brought before the competent courts
of Arlesheim in Switzerland. So R. Vitamins Switzerland alleges that,
pursuant to Article 17 of the Lugano Convention, the Swiss Courts have
exclusive jurisdiction to determine the claims of T. UK against R. Vitamins
Switzerland.
(b) Secondly, R. Switzerland (the third defendant) applies for a
declaration that the English Court has no jurisdiction to determine claims
made against it by T. Germany (the third claimant). Originally L., solicitors
for the T. claimants, had argued that T. Germany was entitled to rely on
Article 6(1) of the Regulation to assert English jurisdiction against R.
Germany. That argument was not pursued. Subsequently T. Germany
alleged that, as it had a claim against R. UK, therefore it could also bring
a claim against R. Switzerland by virtue of Article 6(1) of the Lugano
convention. This basis of jurisdiction is challenged by R. UK in the second
application of November 2002 – see above. Essentially R. UK argues that
T. Germany has no arguable claim against R. UK. Therefore that claim
should be struck out. If it is then there is no basis on which T. Germany
can bring a claim against R. Switzerland using Article 6(1) of the Lugano
convention.
(c) Thirdly, on behalf of R. Germany (the fourth defendant) the application
asserts that the English court has no jurisdiction to determine claims
against it by T. Germany (the third claimant). It is said that the contracts
for the sale of vitamins that were concluded between T. Germany
(as buyers) and R. Germany (as sellers) prior to 20 September 1999
contained a German jurisdiction clause; and the contracts between those
companies after that date contained a Swiss jurisdiction clause. Therefore
in relation to all relevant contracts the parties had agreed that all the
current claims should be dealt with by courts other than the English
courts. Accordingly, by virtue of Article 23(1)(a) of the Regulation, the
English Court must decline jurisdiction to hear those claims.
Group B: Folios 470 and 475 of 2002: "the A. Actions": Folio 470
(1) In the re – amended Particulars of Claim P. UK alleges that it bought
vitamins from AAN France and Rho. UK during the period when the cartels
were being operated. It is not alleged that any purchases were made
from A. France. However it is asserted that all the defendants together
formed one undertaking and, for the purposes of EC competition law, they
constituted a "single economic entity". It is alleged that A. France had
entered into the cartels (with other, non – A. companies) and that the
first, second and fourth defendants "gave effect" in the UK to the cartels
entered into by A. France.
(2) The application dated 20 August 2002 is made by AAN France, the
first defendant. AAN France asserts that all the contracts made by it
for the sale of vitamins to P. UK in 1998 and 1999 were subject to its
standard terms and conditions. There was one version in 1998 and
another in 1999. However the effect of each was, so it is asserted, that
the Tribunal de Commerce de Paris has exclusive jurisdiction to determine
the claims made by P. UK. Therefore, by virtue of Article 23(1) of the
Regulation, the English Court should decline jurisdiction to hear the claims
of P. UK against AAN France.
Folio 475:
(1) In the re – amended Particulars of Claim, it is alleged that T. UK
bought vitamins from Rho. UK and/or AAN France during the period when
the cartels were active. It is also alleged that T. Germany bought vitamins
from AAN France and/or Rho. Germany during this period. However in
correspondence L., for the claimants, confirmed that there had been
no purchases of vitamins by T. UK from Rho. Germany, nor any by T.
Germany from Rho. UK. It has also been confirmed that no claims are
made as between T. UK (the first claimant) and Rho. Germany (the fourth
defendant). However it is maintained that there is a claim between T.
Germany (the second claimant) and Rho. UK.
(2) In this action there are two application notices. The first is dated 20
August 2002 and is made on behalf of all four defendants. The second is
dated 4 November 2002 and is made by Rho. UK (the first defendant) and
Rho. Germany (the fourth defendant). The nature of the applications is
different. Logically those made in the second application should be dealt
with first.
(3) Application of 4 November 2002: There are three aspects to the
application .
(a) First of all, Rho. Germany applies to strike out the claims of T. UK
against it. As I understand it there are no such claims, so this aspect of
the application notice is irrelevant, save possibly as to costs.
(b) Secondly, Rho. UK (the first defendant) applies to strike out the claim
against it by T. Germany (the second claimant), pursuant to CPR Part 3.4.
Alternatively Rho. UK applies for summary judgment under CPR Part 24.
The basis of this application is the same as that made by R. UK against T.
Germany in Folio 476 of Group A. Essentially, as in that other action, the
argument is that T. Germany does not assert that it bought any vitamins
from Rho. UK during the relevant period; T. Germany's pleaded case
against Rho. UK does not and cannot, as a matter of EC competition law,
show that Rho. UK was in breach of Article 81 of the EC Treaty; moreover,
even if Rho. UK was in breach of Article 81, the breach did not cause any
loss to T. Germany.
(c) The defendants raise a further argument under this application,
although it is not expressly referred to in the wording of the application
notice itself. It is that even if the claim by T. Germany against Rho. UK is
arguable, then the court should still decline jurisdiction to determine the
claims of T. Germany against the other defendants because T. Germany
cannot show, as it must to come within Article 6.1 of the Regulation, that:
"[those] claims are so closely connected that it is expedient to hear and
determine them together to avoid the risk of irreconcilable judgments
resulting from separate proceedings".
(4) Application of 20 August 2002: These applications are made by all the
defendants, pursuant to CPR Part 11. The relevant applications asking the
Court to decline jurisdiction are now the following:
(a) Rho. Germany(fourth defendant) submits that it traded with T.
Germany (second claimant) between January 1995 to July 1998 and
did so on Rho. Germany's standard terms and conditions. Paragraph 10
of those conditions contained a form of jurisdiction clause which Rho.
Germany alleges gives the courts of Frankfurt am Main jurisdiction to
hear the claims of T. Germany against Rho. Germany. Therefore, pursuant
to Article 23(1) of the Regulation, the English court should decline
jurisdiction on those claims.
(b) AAN France submits that the contracts that it made in 1998 and 1999
with T. UK and T. Germany were subject to standard terms and conditions.
The terms in the 1998 contracts differed from those in the 1999 contracts,
but effectively both provided for French law to govern and that disputes
would be determined by the Tribunal de Commerce de Paris. Accordingly
AAN France says that the English court should decline jurisdiction of the
claims of T. UK (first claimant) and T. Germany (second claimant) against
AAN France (second defendant), pursuant to Article 23 of the Regulation.
(…)
The Issues that arise
It is obvious that there are a number of issues that are common to the
two groups of actions. The issues can be put into four groups.
(1) Group 1: In this group there are three sub – issues. First, both
the R. and A. defendants make the same challenge to T. Germany's
claim against, respectively, R. UK and Rho. UK. Both claim that, on the
pleadings, these actions have no prospect of success. Secondly both
groups of defendants say that the claim put forward by T. Germany
is hopeless on causation grounds. In addition, in Folio 475, the A.
defendants argue the further point that even if there is an arguable cause
of action, the extra conditions of the new wording of Article 6(1) of the
Regulation cannot be met by T. Germany, so jurisdiction against the other
defendants cannot be asserted. I deal with all these issues in Section D
below.
(2) Group 2: Next, in both the R. actions (Folios 473 and 476), there are
challenges to English jurisdiction based on Swiss jurisdiction clauses in the
contracts. This issue is dealt with in Section E below.
(3) Group 3: In Folio 476 (second R. action) and in Folio 475 (second
A. action) there are challenges to English jurisdiction based on German
jurisdiction clauses in the contracts. The clauses are different and the
two groups of defendants have relied on different expert evidence, but
the issues are broadly the same. I deal with those together in Section F
below.
(4) Group 4: in Folio 475 AAN France relies on French jurisdiction clauses
in its contracts with the two T. claimants to challenge English jurisdiction.
I deal with that argument in Section G below.
(1) The applications to strike out/dismiss as having no reasonable
prospect of success as a matter of law
There is no dispute as to the legal test to be applied in relation to this part
of the applications. If the claimants have a reasonably arguable claim,
then it must be allowed to proceed. The R. and A. defendants also both
accept that where the nature of the claim raises new issues of law, then
the court has to be careful before dismissing the claim as unarguable.
Discussion: Everyone assumed in argument that English law applied.
The decision of the European Court in Re Woodpulp Cartel indicates that
the implementation of an infringing agreement is itself an infringement
of Article 81(1) by a company. But the defendants say, relying on the
Viho case, that there is no infringement if the implementation of the
agreement consists simply of obeying the orders of a parent company
to sell at "cartel" prices that have been agreed by the parent (with other
"undertakings" in the cartel) without the knowledge of the subsidiary.
In my view the principle in the Viho case is not relevant to the present
situation. But in the present cases the issue is whether there is an
infringement by a subsidiary when it carries out the cartel agreement
which has been entered into by the parent and other, independent,
"undertakings".
(…)
Accordingly I have concluded that the claimants (in particular T. Germany)
have an arguable case against R. UK and Rho. Ltd. It is that those
companies are infringers of Article 81(1), as a matter of law. If so, then
it must be arguable that R. UK and Rho. Ltd are in breach of a statutory
duty not to infringe Article 81(1), following the Garden Cottage case. The
next question must be whether T. Germany can recover damages from R.
UK and Rho. Ltd, given that T. Germany did not buy vitamins from either
company.
(2) The Causation Argument
If, as I have held, it is arguable that all companies within an "undertaking"
who "implemented" the cartel are infringers of Article 81, then their
action in "implementing" the cartel could cause the loss that the claimants
allege. On this analysis, each infringing entity is a tortfeasor.
Accordingly I have concluded that there is a "real issue" as between
T. Germany and R. UK and Rho. UK. Therefore those claims by T.
Germany are not artificial or advanced solely so that T. Germany can
take advantage of Article 6(1) of the Lugano Convention or Regulation
44 so as to bring proceedings in England against other, non UK domiciled
defendants. However, that still leaves the third part of this jurisdiction
argument to be dealt with.
(3) Do the claimants satisfy the terms of Article 6?
As I have already pointed out, Article 6(1) of what was the Brussels
Convention has been modified in the new Regulation 44. The modified
wording reads:
"A person domiciled in a Member State may also be sued:
(1) Where he is one of a number of defendants, in the courts for the place
where any one of them is domiciled, provided the claims are so closely
connected that it is expedient to hear and determine them together
to avoid the risk of irreconcilable judgments resulting from separate
proceedings".
The new wording only applies to defendants that are affected by
Regulation 44. This means that in Folio 476, R. Vitamins Switzerland and
R. Switzerland (the second and third defendants) cannot take advantage
of it, as Switzerland is still governed by the Lugano Convention.
Although there is no such evidence, I think that the claimants have
amply demonstrated that they have the better of the argument that the
requirements of the proviso of Article 6(1) are satisfied. First, the claims
of T. Germany against all the defendants in Folio 475 are very closely
connected.
Secondly, as counsel for both the R. and A. groups have had to accept
in argument, the law on the scope for making claims of this type is very
undeveloped.
Thirdly, therefore, I think that it must follow that it is expedient to hear
and determine all these claims together to avoid the risk of irreconcilable
judgments. (…) I reject Mr de la Mare's argument that the claimants have
not satisfied the tests in the proviso of Article 6(1) of Regulation 44.
(…) I reject the applications of R. and A. groups to strike out or dismiss
the claims of T. Germany against, respectively, R. UK and Rho. UK. I also
reject the submission that in Folio 475 T. Germany cannot invoke Article
6(1) to join AAN France, A. France and Rho. Germany in that action.
The effect of these conclusions is as follows:
(1) in Folio 476 T. Germany's action against R. UK can proceed and T.
Germany is entitled to use Article 6(1) to join R. Vitamins Switzerland,
R. Switzerland and R. Germany. However R. Germany still relies on
Article 17/23 and Swiss and German jurisdiction clauses to defeat T.
Germany's attempt to bring its claims against them in the English Courts:
see Sections E and F below;
(2) In Folio 475, T. Germany's action against Rho. UK can proceed and T.
Germany is entitled to use Article 6(1) to join AAN France, A. France and
Rho. Germany to the action. However AAN France relies on Article 23 and
French jurisdiction clauses to defeat T. Germany's attempt to bring claims
against AAN France in the English Courts. And Rho. Germany relies on
Article 23 and German jurisdiction clauses to defeat T. Germany's attempt
to bring claims against Rho. Germany in the English Courts.
Challenges to the English Court's jurisdiction based on Swiss Jurisdiction
Clauses
Swiss jurisdiction clauses appear in the following contracts:
(1) In Folio 473: There is a Swiss jurisdiction clause in the standard
terms and conditions contained in contracts for the purchase of vitamins
between P. UK and R. Vitamins Switzerland
Discussion: (1) The proper approach
This point applies equally to the contracts containing French and German
jurisdiction clauses as well as those containing the Swiss jurisdiction
clauses. I am bound to adopt the general approach established by
the Court of Appeal in Canada Trust v Stolzenburg (No 2). It seems
to me that the most helpful guiding principle is that the court must
be as satisfied as it can, having regard to the limitations which an
interlocutory process imposes, that factors exist which allow the court to
take jurisdiction. In these cases it has to be accepted by the defendants
that, on the face of it and without the jurisdiction clauses, the claimants
would be entitled to invoke English jurisdiction under Articles 5(2)
and 6(1) of the Regulation/Convention. I am prepared to accept that
a burden remains on the claimants to satisfy the court that it should
take jurisdiction, despite the existence of the jurisdiction clauses in the
contracts. In trying to encapsulate the test that the claimants have to
pass in dealing with that point, the phrase "has much the better of the
argument" will do to describe what a claimant must achieve.
And in the case of the Swiss jurisdiction clauses it is accepted that the
Swiss Courts have not had to rule on the scope of a Swiss jurisdiction
clause when the claim in question is one for damages for the infringement
of anti – cartel laws.
(2) What is the "applicable law"?
It is agreed that the scope of the jurisdiction clause depends on its proper
construction and application to the type of claim presently in issue. It
is also agreed that I should apply English law principles of construction
and application unless I am satisfied that Swiss law applies different
principles.
(3) There is some confusion here, in my view. Article 17 of the Lugano
Convention (…) The only issue is as to its scope. On that issue Article 17
is irrelevant, because the European Court of Justice has made it clear
that this issue is to be determined by the "applicable law", as opposed to
any autonomous principles of construction or application laid down by the
European Court of Justice.
Conclusion: I conclude, on the basis of the material available to me now,
that the scope of the Swiss jurisdiction clauses is not sufficiently wide
to include the present claims, in tort, for damages for infringement of
Article 81(1). Therefore the defendants cannot invoke Article 17/23 and
the claimants can invoke Article 5(2) and/or 6(1) of the Regulation/
Convention and sue the defendants in England.
Challenges to the English Court's jurisdiction based on German
Jurisdiction Clauses.
German jurisdiction clauses appear in the following contracts:
(1) R. Group: Folio 476: the contracts between T. Germany and R.
Germany that were concluded prior to 20 September 1999 were subject
to standard terms, which contained a German jurisdiction clause.
(2) A. Group: Folio 475: The contracts between T. Germany (second
claimant) and Rho. Germany (fourth defendant) made between January
1995 and July 1998 were on Rho. Germany's standard terms and
conditions.
The Issues between the parties on the "German jurisdiction clauses".
I think that the following issues arise:
(1) To what extent, if any, is national law relevant to questions of the
validity of the clauses, in particular when it is alleged that under national
law a jurisdiction clause will not be valid in relation to a particular type
of dispute because of (a) the nature of the allegations made; and (b)
national law rules as to the "presumed intention" of the parties?
(2) What are the German law rules as to the interpretation of jurisdiction
clauses?
(3) How are those rules to be applied in these cases? In particular:
(a) Does the current dispute arise out of the legal relationship in
connection with which the jurisdiction agreement was made?
(b) What is the effect, if any, of the fact that the courts identified in the R.
group contracts do not have jurisdiction to determine cartel matters?
(c) Does the fact that the claimants allege fraud or a tort of intent have
any bearing on the scope of the jurisdiction clauses?
Discussion: (1) relevance of national law to the validity of the clauses.
In my view it is clear from the ECJ decisions in Benincasa v Dentalkit
Srl and Transporti Castelletti Spedizioni Internazionale SpA v Hugo
Trumpy SpA that questions concerning the "formal validity" of jurisdiction
clauses are to be determined exclusively by what is now Article 23 of the
Regulation. Principles of national law as to formal validity are irrelevant.
But Mr de la Mare's argument was, in effect, that all issues as to the
"material validity" of a jurisdiction clause are also to be determined
exclusively by the rules laid down in Article 23, making national law
irrelevant on that issue as well. He pointed in particular to passages at
paragraphs 49 to 51 of the ECJ's judgment in the Hugo Trumpy case.
In that case the ECJ was concerned with the effect of a jurisdiction
clause set out on the reverse of bills of lading. Claims were brought
by the receivers of the goods which had been shipped from Buenos
Aires to Savona, Italy. The receivers had brought proceedings for
compensation against Hugo Trumpy in the Genoa courts. Trumpy relied on
a jurisdiction clause on the reverse of the bills of lading and claimed that
the proceedings should have been brought in the High Court in London.
The Corte Suprema di Cassazione posed fourteen questions to the ECJ.
The only relevant ones for present purposes are the seventh and sixth
questions. These are summarised in paragraph 46 of the ECJ's judgment
as being:
"…whether the court seised may review the validity of the clause as
well as the intention of the party which inserted it and whether the fact
that the substantive provisions applicable before the chosen court tend
to reduce that party's liability may affect the validity of the jurisdiction
clause".
The Court stated, in paragraphs 48 to 51 of its judgment:
"[48]…..In Benincasa, at paragraphs 28 and 29, the Court explained that
the aim of securing legal certainty by making it possible reliably to foresee
which court will have jurisdiction has been interpreted, in connection with
Article 17 of the Convention, by fixing strict conditions as to form, since
the purpose of that provision is to designate, clearly and precisely, a court
in a contracting State which is to have exclusive jurisdiction in accordance
with the consensus between the parties.
[49] It follows that the choice of court in a jurisdiction clause may
be assessed only in the light of considerations connected with the
requirements laid down by Article 17.
[50] (There is no need for any relationship between the dispute and the
court selected).
[51] For the same reasons, in a situation such as that in the main
proceedings, any further review of the validity of the clause and of the
intention of the party which inserted it must be excluded and substantive
rules of liability applicable in the chosen court must not affect the validity
of the jurisdiction clause".
As I read those passages they state that the material validity of a
jurisdiction clause has to be determined exclusively by reference to
the terms of Article 23. Thus there has to be an "agreement conferring
jurisdiction" which is one to settle any disputes "which have arisen or
which may arise in connection with a particular legal relationship".
In Powell Duffryn plc v Wolfgang Petereit the ECJ held that the phrase
"agreement conferring jurisdiction" had an autonomous meaning, so was
not to be interpreted according to national laws. However, in the same
case the ECJ has also held that there is still scope for national laws to
determine two particular questions concerning an "agreement conferring
jurisdiction". The first is whether the dispute in issue arose out of the
legal relationship in connection with which the jurisdiction agreement
was made. That "is a question of interpretation which is a matter for the
national court to resolve". The second question is whether the scope of
the jurisdiction agreement applied to the dispute before the court. The
ECJ held that "it is for the national court to interpret the clause conferring
jurisdiction invoked before it".
Given these pronouncements of the ECJ I must conclude that when a
jurisdiction clause is subject to Article 23, then the court seised of the
issue of whether it is valid and applicable in the instant case must not
apply national laws at all to the issue of the validity of the clause. So
national laws are irrelevant to the issue of whether a clause can be valid
at all if invoked in a dispute where fraud is alleged or it is alleged that the
dispute concerns a tort of intent.
However the ECJ's judgment in the Powell Duffryn case establishes that
relevant national laws will determine two issues. The first is whether the
dispute concerned arises out of the legal relationship in connection with
which the jurisdiction agreement was made. The second is the scope of
the jurisdiction agreement when applied to the dispute before the court.
In relation to the German jurisdiction clauses, there was no dispute that
German law should be considered on those two issues if there were any
relevant German law principles involved.
(2) The German law rules as to the interpretation of jurisdiction clauses.
I think that there is no dispute as to the German law principles on the
interpretation of jurisdiction clauses. All sides agree that the basic rules
are set out in Articles 133 and 157 of the German Civil Code. They
stipulate that the court must interpret the clause taking into account the
underlying intention of the parties, the principles of good faith and the
customary habits of the particular business concerned. I accept (as noted
by Professor Wolf) that if there is any doubt as to the interpretation of
the clause then it must be interpreted in favour of the party that did not
introduce the clause – in this case T. Germany.
(3) How are the German law principles of interpretation to be applied?
(…) First, I have concluded that the claimants have much the better of the
argument on the issue of whether the jurisdiction clause applies at all to
cartel matters. This is a matter of construction of the clause, bearing in
mind that it has to be interpreted according to the will of the parties. The
parties have agreed to give jurisdiction for all disputes arising out of the
legal relationship to two named courts. It is agreed by Professor Wolf and
Dr Seiler that those courts do not have jurisdiction to hear cartel matters.
The parties may not choose the Local Court of Lörrach or the District
Court of Freiburg to hear a claim based on breach of Article 81(1) of the
Treaty. The court nominated in the appropriate regulations to deal with
cartel claims, including alleged breaches of Article 81(1) of the Treaty, is
the District Court of Mannheim.
Dr Seiler suggests that if the Commission has already decided that there
has been a breach of Article 81, then the choice of the local courts will
be upheld because the expertise of the District Court will not be needed.
But the issues of whether R. Germany is in breach of Article 81(1) and
whether T. Germany has a private law claim against R. Germany, are very
much in issue. So this argument has no force.
Dr Seiler then suggests that the jurisdiction clause will be valid :
"if it is possible to interpret the jurisdiction clause so as to determine the
natural will of the parties according to Arts. 133, 154 BGB, or to convert
the invalid jurisdiction clause into a valid one by way of re – interpretation
according to Art. 140 BGB. That provides:
Conversion. If a void legal transaction meets the requirements of another
legal transaction, then this latter shall be valid if it can be presumed that
the parties [had] they had knowledge of the invalidity would have wanted
its validity."
Dr Seiler argues that as the designation of particular courts to hear
special types of dispute is determined by "mere ordinances issued by
the respective governments of each Federal State" which can therefore
change that law easily, therefore:
"the possibility to reinterpret and convert a jurisdiction agreement
guarantees that this kind of agreement can be adjusted to the changes in
the law".
Dr Seiler suggests that the only reason that the parties chose the Local
Court of Lörrach or the District Court of Freiburg was so that disputes
could be heard by the courts nearest to R. Germany's business seat.
Otherwise, he speculates, they would have chosen the District Court of
Mannheim, which does have jurisdiction to hear cartel matters.
I find these arguments very unsatisfactory.
Furthermore I find equally unsatisfactory the argument that the clause
could be "manipulated" or re –
My second reason for concluding that the claimants have much the better
of the argument that the jurisdiction clause does not apply to this type
of dispute is based upon the German courts' approach to the scope of
jurisdiction clauses in cases involving fraud or torts of intent. Professor
Wolf relied on two cases in particular: the decision of the Higher Court of
Hamburg of 12 December 1981 ("the Hamburg case"),and the decision
of the Higher Court of Stuttgart of 14 December 1973 ("the Stuttgart
case"). Dr Seiler said that the Hamburg case could be distinguished,
because it was dealing with an issue of fraud (the issue of fraudulent
bills of lading), whereas the claims here are in tort, which is something
different. Moreover the court's decision was "motivated" by the fact that
the jurisdiction clause nominated the Ethiopian courts and the court
hesitated before forcing a claimant to sue in such courts.
In my view the Hamburg case cannot be so easily dismissed. The
jurisdiction provision stated that "all actions under this contract of
carriage must be brought before the Ethiopian Court". The claimant
sued the shipowners, "a state owned shipping company", and asserted
that there had been a "wilful false issue of the bill of lading". The court
accepted that the parties would have intended that disputes concerning
the terms of the bill of lading fell within the jurisdiction clause and also
"unlawful acts" such as damage to the cargo, even if done wilfully. The
court's judgment continued:
"They [ie. the parties] have certainly not intended to regulate for the
case that the consignor committed fraud to the detriment of the recipient
of the cargo as early as the stage of issuing the bill of lading; it would
appear quite unusual and would offend absolutely the sense of decency
of any person who thinks reasonably and justly(Arts. 133, 15, 138(1)
German Civil Code)…."
That reasoning indicates, at the least, that a German court would not give
a broad interpretation to the words "all actions under this contract" so as
to include claims based on the issue of a fraudulent bill of lading.
The Stuttgart case goes further. In that case the contract contained a
clause "place of performance and venue are both Munich". So far as I can
tell from the translation of the report, the claimant alleged that it had
been induced into concluding a contract through "wilfully illegal conduct".
The issue was whether the claim was within the scope of the jurisdiction
clause or the general rules for jurisdiction in section 32 of the German
Code of Civil Procedure prevailed. The court held that the claim did not
come within the scope of the jurisdiction clause. It stated the procedural
law provided the jurisdictional rules for a claim both in contract and for
"unlawful acts". If these were to be replaced by the agreement of the
parties, then:
…Clear and unambiguous regulation is required if a jurisdiction clause
that is agreed on a standard form is also to include claims arising from
unlawful acts and is to replace the jurisdiction provided under [the Civil
Procedure Code]".
In my view these two cases show that the German courts' approach to the
interpretation of jurisdiction clauses is much more restricted than that of
the English courts.
Therefore I have concluded that the claimants have much the better of
the argument with their proposition that, following German principles
of interpretation, this jurisdiction clause is insufficiently clear and
unambiguous to include within its scope disputes concerning claims for
breach of Article 81(1) which are based on allegations of fraud or a tort of
intent.
The third reason for my conclusion that the claimants have much the
better of the argument is that I think that, looking at things from a
German court's point of view, it would be more likely to conclude that the
current dispute does not "arise out of the legal relationship in connection
with which the jurisdiction agreement was made".
Conclusion: I conclude, on the basis of the material available to me now,
that the scope of the German jurisdiction clauses is insufficiently wide
to include the present claims, based on a tort of intent and, effectively,
fraud, for breach of Article 81(1) of the Treaty. Therefore the defendants
R. Germany and Rho. Germany cannot invoke Article 23 of the Regulation
and rely on the German jurisdiction clauses. It follows that the claimants
can rely on Article 6(1) of the Regulation to sue those defendants in
England.
Challenges to the English Court's jurisdiction based on French jurisdiction
clauses.
(…)
Discussion
As I understood Mr Carr's arguments, he did not question the validity
of the jurisdiction clauses. The two issues on the French jurisdiction
clauses are, therefore: (1) do the present disputes arise out of legal
relationships in connection with which the jurisdiction agreements were
made; if so, then (2) what is the scope of those clauses. Both these
issues are a matter of interpretation, which is for this court to resolve in
accordance with national, as opposed to EU, law. However, as it has been
assumed that these contracts are all subject to French law, I must take
into account French law principles of interpretation. Quite how is a matter
for debate, as I will demonstrate.
The problem of "characterisation" of the claim. Both parties' French law
experts have written reports analysing the nature of the claims, upon
which, they both say, depends whether the jurisdiction clauses will apply
to the claims as characterised by each expert. I asked both Mr Carr and
Mr de la Mare whether there was any guidance, either from the ECJ, or
in English domestic law, on which system of law should be used in the
current circumstances to decide on the nature, or characterisation, of the
claims made by the claimants for the purposes of determining whether
the claims were within the scope of the jurisdiction clauses.
In the present case the aim is not to decide and apply the correct system
of law to an issue. It is to decide whether jurisdiction clauses in various
contracts, governed by French law and entered into by parties of different
domiciles, cover a claim that has been framed in English proceedings
according to English law concepts. For the present the defendants have
not attacked the conceptual basis on which the claimants have put their
case for damages for breach of Article 81. In other words the defendants
appear to accept that it is theoretically possible for these claimants to
make a claim against some or all of these defendants for damages for
breach of Article 81, using the English law concept of a claim for breach
of statutory duty. (The defendants have, of course, argued that the
claimants cannot establish the necessary ingredients in order to succeed
against some defendants, but that does not detract from their acceptance
of the "cause of action" in English law in principle).
It seems to me that, given the general guidance of the ECJ in the cases
referred to above, I have to start the enquiry by asking: what is the
particular issue at stake here? The answer is: the scope of the jurisdiction
clauses in contracts which, it has been assumed, are governed by French
law.
The next question must be, I think: are there any principles by which the
French courts determine the scope of a jurisdiction clause in contracts.
The answer, which is implicit in the approach of both French law experts,
although neither of them spells it out, is: the character of the claim must
be ascertained. That "characterisation" will assist in answering whether
the particular dispute falls within the scope of the jurisdiction clause in
question.
On consideration of the arguments, I do not find those of Professor
Gaudemet - Tallon convincing.
As for Professor Lécuyer's argument, my reaction, inevitably considered
from an English lawyer's standpoint, is that it appears to be more
persuasive. The points are not developed much in his two reports, but
then there is not much to develop. Overall, for the reasons that Professor
Lécuyer has given, I conclude that the probability is that a French court
would hold that the nature of the claim in these actions is one in tort.
Have the present disputes arisen out of the relationship in connection with
which the jurisdiction agreement was made?
Professor Lécuyer does not set out any principles on how a French court
might approach this issue. Professor Gaudemet – Tallon does not do so
directly, although she does consider the question of the scope of the
jurisdiction clauses. However she does that exercise on the assumption
that the claim is properly characterised as contractual, rather than
tortious. So, given my conclusion to the contrary, her arguments are not
particularly helpful.
An English court would almost certainly conclude that the present
disputes have arisen out of the legal relationship in connection with
which the jurisdiction clauses were made. That is because an English
court would say that, broadly speaking, the present disputes arise out
of the contracts for the sale of the vitamins. But I doubt whether I am
entitled to take simply the English court's approach. I think that I have
to have regard to the fact that if the nature of the claim is tortious, then
a French court would be inclined to say that the dispute arises out of the
tort, ie. the fact that the sellers allegedly entered into illegal cartels and
imposed illegal prices as a result. However, I propose to leave this issue
as undecided, given the lack of French expert evidence on the point.
What is the scope of the jurisdiction clauses?
Conclusion: Looking at the position overall I have to ask: have the
claimants got "much the better of the argument" that the French
jurisdiction clauses do not apply to the claim as it is currently pleaded?
In my view they have. My conclusion is based, ultimately, on two points.
First, that the principal claim is a tortious one, not a contractual one.
Secondly, given that characterisation of the claim, then the scope of the
two forms of jurisdiction clause, as they would be interpreted by a French
court, is insufficiently wide to embrace the claims as pleaded. Accordingly
AAN France is not entitled to rely on Article 23 of the Regulation and the
French jurisdiction clauses. Therefore the claimants P. UK (in Folio 470)
and T. UK and T. Germany (in Folio 475) can rely on Articles 5(3) and/or
6(1) of the Regulation to sue AAN France in England.
Overall Conclusions
My conclusions on the various issues are therefore as follows:
(1) I reject the applications of the R. and A. groups (in Folios 473
and 475) to strike out or dismiss the claims of T. Germany against,
respectively, R. UK and Rho. UK.
(2) I reject the submission, made in Folio 475, that T. Germany cannot
invoke Article 6(1) of the Regulation to join AAN France, A. France and
Rho. Germany in that action.
(3) I hold that the Swiss jurisdiction clauses are insufficiently wide to
include the present claims in tort for damages for alleged infringement of
Article 81(1). Therefore the defendants R. Switzerland and R. Vitamins
Switzerland (in Folios 473 and 476 respectively) cannot invoke Articles
17and the claimants can invoke Article 5(2) or 6(1) of the Lugano
convention and sue those defendants in the English courts.
(4) The German jurisdiction clauses are insufficiently wide to include the
present claims, which are (effectively) based on a tort of intent and fraud,
for damages for infringement of Article 81(1). Therefore the defendants R.
Germany and Rho. Germany (in, respectively, Folios 476 and 475), cannot
invoke Article 23 of the Regulation and rely on those clauses. It follows
that the claimants can rely on Article 6(1) of the Regulation and sue those
defendants in the English proceedings.
(5) The French jurisdiction clauses are insufficiently wide to cover the
present claims, which would be characterised by a French court as claims
in tort. Therefore AAN France is not entitled to rely on Article 23 of the
Regulation and the French jurisdiction clauses. The claimants P. UK (in
Folio 470) and T. UK and T. Germany (in Folio 475) can rely on Articles
5(3) and/or 6(1) of the Regulation to sue AAN France in England.