Neutral Citation Number : [2013] EWCA Civ 784  
Case No: A3/2012/1708 & 1720  
IN THE COURT OF APPEAL ( CIVIL  DIVISION)  
ON APPEAL FROM THE HIGH COURT OF JUSTICE  
CHANCERY DIVISION  
MR JUSTICE FLOYD  
[2012] EWHC 1610 (Ch)  
Royal Courts of Ju stice 
Strand, London, WC2A 2LL  
 
Date:  Tuesday 2nd July 2013   
Before :  
 
LORD JUSTICE LAWS  
LORD JUSTICE AIKENS  
and 
MR JUSTICE MANN  
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Between :  
 
 Joint Stock Company 'Aeroflot -Russian Airlines'  Appellant  
 - and -  
 Berezovsky & Ors  Respondent  
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 (Transcript of the Handed Down Judgment of  
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Francis Tregar QC & Alex Pelling  (instructed by Streathers Solicitors LLP ) for the 
Appellant  
Philip Marshall QC & Justin Higgo  (instructed by  Pinsent Masons LLP ) for the 
Respondents  
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Judgment  
 
 Lord Justice Aikens  :  
I. The Story so far  in outline  
1. This is another appeal in which  the jurisdiction  of the English court  is questioned  in 
litigation where  the parties  are a Russian state controlled company ,  Russian -born 
individuals and  various companies said to have been created or controlled by those  
individuals.   In this case the claimant is the 51% state -owned Russian airline,  which 
I will call  “Aerof lot”.   It has alleg ed that  in the years 1996 -8 a fraud was perpetrated 
on it  by the activities  of the late Mr Boris Berezovsky and Mr Nikolay Glushkov  
through seven companies allegedly controlled by them .    As is well -known,  Mr 
Berezovsky left Russia so me years ago and settled in the UK ,  where he lived until  his 
death on 24  March 2013,  very shortly after t he hearing of this appeal.   M r Glushkov ,  
a business a ssociate of Mr Berezovsky,  currently  lives in the UK.   I will refer to 
these two defendants,  who took no part in the appeal before us,  as “the individual 
defendants”.    Aeroflot began the present proceedings in early 2011.   It served them  
on the individual defendants in England ,  that being  their  state of domicil e.   
2. The arguments on jurisdiction concern the third to fifth and seventh defendants.  They 
are all companies in the same group,  known as the Forus Group,  and,  Aeroflot 
asserts , were at t he time of the relevant events all controlled by Mr Berezovsky and 
Mr Glushkov .   Tho se companies are  respectively   domiciled in Luxembo urg,  
Cyprus,  Switzerland and the British Virgin Islands.   I will refer to them ,  as Floyd J 
did in the  judgment  appealed ,  as follows:  first , the third defendant,  which is the  
Luxembourg  parent co mpany, I will refer to as “Holding s”.  It was formed by Mr 
Beresovsky in 1992.   He  and Mr Glushkov  were directors  of Holdings  for some time,  
although Mr Berezovsky ’s case is that he  resigned in November 1996.    Secondly, 
Holdings ’ subsidiaries ,  which are,  respectively,  the fourth,  fifth and seventh 
defendants, will be referred to as “Cyprus”,  “Services” and “Finance”.   The sixth 
defendant,  wh ich I shall call “Leasing”,  is also domiciled in Switzerland.  It took no 
part in th e application s before Floyd J or on the appeal.   I will call the corporate 
defendants generally “the Forus companies”.  
3. Aeroflot’s claim is that the individual defendants have,  through the ir creatures,  the  
Forus companies,   defrauded Aeroflot o f over  US$ 99 million.  Aeroflot asserts that 
the mechanism for siphoning off funds that belonged to Aeroflot was , briefly,  as 
follows:   Mr Bere zovsky,  who was an important and influential man in Russian  
business,  politics and government in the 1990s ,  was the representative of a 
Russian/Italian joint venture company called Avto VAZ,  which manufactured and 
sold Lada cars.   Holdings was formed in 1992 to assist Avto VAZ.   Aeroflot asserts 
that Mr Glushk ov was a director  of Holdings ,  but he says that he gave all his interests 
in the Forus companies to Mr Berezovsky in July 1995 and ceased to be a director or 
attend board meetings from mid -1996.   Aeroflot alleges that Mr Berezovsky used his 
influence with Aeroflot’s then Director Ge neral,  Marshal  Shaposhnikov,  to “insert” 
Mr Glushkov  as Deputy Director General of Aeroflot , with responsibility  for 
economic and financial affairs,  and also to infiltrate a LogoVAZ team in strategic 
places in Aeroflot .1     
                                                
1 Mr Berezovsky and Mr Glushkov deny this.  They say that Marshal Shaposhnikov recruited Mr Glashov,  in 
particular to undertake an examination of the financial situation of Aeroflot.  
 
 4. Aeroflot asserts that Mr Glushkov  then obtained the appointment of the previously 
incorporated Services to act as advisor to Aeroflot ,  pursuant to a recommendation Mr 
Glushkov  made to Aeroflot in December 1995 that Aeroflot ought to obtain the 
assistance of the Forus Group to advise it on the management of Aeroflot’s finances 
abroad .   Aeroflot say s that this recommendation was made by Mr Glushkov without 
disclosing his and Mr Berezovsky ’s interest in Forus.    The appointment of Services 
as advisor was set out in  the “Advisory  Mandate ” dated 19 December 1995  between 
Aeroflot and Services.  Under this contract Services would advise Aeroflot on 
selecting foreign partners to participate in investment projects and in the management 
of those projects.   Services would get a fee of up to US$30,000 per annum and a 1% 
fee on any financing achieved  by Aeroflot . The Advisory Mandate contract is 
governed by Swiss law and contains a Lausanne jurisdiction clause.     
5. Aeroflot asserts that Services and Aeroflot,  at the instigation of Mr Glushkov ,  then 
entered into a series  of financial agreements whic h he and Mr Berezovsky had 
planned and which they knew  had no proper commercial justification .  Aeroflot 
asserts that through  these contracts over US$90 million  odd which  (Aeroflot say s) 
should have gone to Aeroflot was passed  to the Forus companies and th en on to Mr 
Berezovsky and Mr Glushkov .   The initial  contract was the First Credit Agreement 
(“FCA”) between Aeroflot and Services  which was dated 3 April 1996 .  That has an 
exclusive jurisdiction clause in favour of Lausanne  in it and is governed by Swis s law.   
The FCA was amended by the Amendment Agreement of 27 May 1997,  which,  
amongs t other things,   substituted a  Swiss ICC arbitration clause for the jurisdiction 
clause.  It is the amended FCA (“AFCA” ) which is relevant for the purposes of this 
appeal.  
6. The second contract was the Second Credit Agreement dated 24 November 1997 
(“SCA”) ,  which was between Aeroflot and Services .  That was amended on 25 June 
1998 so that Cyp rus was substituted for Serv ices.  Again,  it is the Amended SCA 
(“ASCA”) which is relevant.   The ASCA has a Zuric h ICC arbitration clause in it and 
is also governed by Swiss law.     
7. Pursuant to these agreements,  monies were loaned by the relevant Forus company to 
Aeroflot in ret urn for fees and,  more importantly,  in return for an assignment of 
payments due to Aeroflot from  non -Russian airlines for permission  to “overfly” 
Russian airspace.  It is said that the Forus companies received these fees knowing that 
Mr Glushkov  was acti ng in breach of his duty as an officer of Aeroflot  and kno wing 
that each of the payments made to the Forus companies was made as a result of the 
breach of duty by Mr Glushkov  and/or Services  (with whom Aeroflot had concluded 
the Advisory Mandate),  so that  each of the Forus companies has acted in bad faith .   
Aeroflot asserts that the fees have either been retained by the Forus companies or 
have been passed on  to Mr Berezovsky or Mr Glushkov . 
8. The claims are pleaded  primarily on the basis of breaches  of Russian law.   It is 
alleged  that the Forus defendants are liable to compensate Aeroflot under various 
articles of the Russian  Civil  Code.    The claim in respect of the diverted monies from 
airlines is currently put at US$90.3 million and the fees paid in respect of the 
 
 unnecessary advice are valued at US$9 million.2  In the  alternative,  claims are made  
under Swiss law  against Cyprus and Leasing . 
9. Aeroflot says that it only became possible  to issue proceedings in December 2010 
because ,  since 2001, all of Aeroflot’s papers and records had been taken into the 
custody of  the Russian authorities,  as a result of  an audi t of Aeroflot which (Aeroflot 
alleges)  revealed that large sums had been  improperly  paid out to the Forus group.  
There followed an investigation by the Russian p rosecuting authorities,  so  Aeroflot  
says it  had no access to its papers and records again until September 2010.   
10. Aeroflot obtained leave to serve Finance (a B ritish Virgin Isles – BVI - company) out 
of the jurisdiction  on the basis that it was a “necessary and proper party” to those 
proceedings wit hin CPR  Pt 6.36 and Practice Direction 6B paragraph 3.1(3).   No 
leave  was needed to serve Holdings and Cyprus because the rules governing  
jurisdiction  for claims against them are contained in  Council Regulation (EC) 
44/2001 (“the Judgments Regulation” ) and  so CPR Pt 6.33  applies.    Similarly,  no 
leave  was needed to serve  proceedings on  Services and Leasing (Swiss companies) 
because the rules for jurisdiction in their cases is governed by the revised Lugano 
Convention (2007 )3 and so also by CPR Pt 6.33.  In respect of the claims against each 
of these  Forus  companies,  Aeroflot has s aid that  the claims  are “…so closely 
connected that it is e xpedient to hear and determine the claims together to avoid the  
risk of irreconcilable judgments resulting from separate proceedings”.4  
11. Holdings,  Cyprus ,  Services  and Finance  have all challenged the jurisdiction of the 
English court .    Services relies upon the fact that the Advisory Mandate contract has a 
Lausanne jurisdiction clause and claims that this is an exclusive juris diction clause 
within Article 23  of the revised Lugano Convention .   Alternatively,  it relies on the 
ICC arb itration clause which was inserted in the FCA by the Amendment Agreement 
and submits that the court must stay the proceedings against it pursuant to section 9(1)  
and (4) of the Arbitration Act 1996 (“AA 1996 ”).     Aeroflot’s response is that there 
was no true agreement to the  Lausanne jurisdiction clause  in the Advisory Mandate  
so that Article 23 does not apply  to it.    Further,  Aeroflot argues that the arbitration 
clause in the AFCA is “null and void [or] inoperative [or] incapable of being 
performed”  within section 9(4) of the AA 1996 so that the court should not grant a 
stay of any proceedings concerning the AFCA in favour of arbitration.  
12. Cyprus relies on the Zurich ICC arbitration clause  in the ASCA  and seeks a stay  
under section 9(1) and (4) of the AA 1996 .   Aeroflot responds in the same way as for 
the AFCA.    
13. Holdings,  the Luxembourg company,   says that if Services and Cyprus are entitled to 
a stay under section 9(1) and (4) of the AA 1996 then it will no longer be expedient to 
hear and determine Aeroflot’s claim against Holdings here in England because the 
                                                
2 Paras 81 and 80 respectively of the Amended Particulars of Claim.  
3 The revised Lugano Conven tion came into force in England and Wales on 1 January 2010 and was ratified by 
Switzerland with effect from 1 January 2011.   The transitional provisions at Art 63 of the revised Convention 
states that it “ shall apply only to legal proceedings instituted…after its entry into force in the state of origin…”.   
As Aeroflot issued the present claim against Services and Leasing on 15 December 2010 and the revise d 
Convention had come into force in Engl and and Wales on 1 December 2010,   it is agreed that it is the revised 
Convention that applies to these proceedings.   
4 This is the wording of Article 6(1) of the Judgments Regulation and of the revised Lugano Convention.  
 
 danger of “inconsistent judgments” cannot be avoided anyway.  This is because  if 
Aeroflot wishes to pursue Services or Cyprus ,  it will have to do so in a rbitration in 
Switzerland ,  pursuant to the arbitration clauses in  the AFCA and ASCA,  or in court 
in Switzerland ,  pursuant to the  Lausanne jurisdiction agreement  in the Advisory 
Mandate .    
14. Finance asserts  that it is not a “necessary and proper party”  to proceedings in England 
if Aeroflot has to pursue the claims against the other Forus companies in court or 
arbitration in Switzerland.    In any event,  Finan ce argues  that there is no “serious 
issue” to be tried as between it and Aeroflot,  so leave to  serve out of the jurisdiction 
should have been refused in any event.5  
15. I have set out the relevant provisions of the Judgme nts Regulation  (Articles  2, 6(1), 
23, and 28) ,  the   revised  Lugano Convention  (Articles 2,  6(1), 23 and 27 ),   section 
9(1)and (4) of the AA 1996 and Article II of the United Nations Convention on the 
Recognition and Enforcement of Foreign Arbtral Awards  1958,  (“the New York 
Convention”)  on which sections 9(1) and (4) of the AA 1996 are based,  in Appendix 
1 to this judgment.  I have set out the jurisdiction and arbitration clauses on which the 
Forus companies rely in Appendix II to this judgment.  
16. Floyd J heard the various challenges to the English court’s jurisdiction by the Forus 
companies over 4 days in May and June 2012.    In his judgment handed down on 18 
June 2012 he concluded,  first,  that Services had “much the better of the argument” 
that the Lausanne jurisdiction clause in the Advisory Mandate contract was 
enforceable as against Aeroflo t for the purposes of Article 23  of the  revised  Lugano 
Convention.  Therefore the English court had no jurisdiction in respect of claims 
between those comp anies.   
17.  Secondly,  Floyd J held that   there should be no stay of the proceedings against 
Cyprus  under section 9(1) and (4) of the AA 1996 .     The judge dealt with  the two 
arguments advanced by Aeroflot,  based upon doctrines of Swiss law,  which  law,  it 
was agreed,  applied to determine the validity and enforceability of the arbitration 
clause in the ASCA.   The first  argument was that Mr Glushkov  had been acting for 
both Aeroflot and Services/Cyprus when the  SCA was concluded and amended,  so 
that there was no true agreement to the arbitration clause under the Swiss law doctrine 
of “double r epresentation”.   The judge concluded that  he should not decide that point 
simply on the written evidence of Swiss law before him.   The second argument was 
that the Swiss law doctrine of “abuse of right” (or “abus de droit ”)  applied in this 
case because Cyprus was attempting to use the existence of the arbitration clause to 
fragment the proceedings that Aeroflot was  attempting to bring  against the various 
Forus  companies.   Floyd J accepted that argum ent and held that,  in consequence,  the 
arbitration agreement in the SCA was “null and void” or “inoperative” within section 
9(4) of the AA 1996.   So he refused to grant a stay of the proceedings against Cyprus.  
18. So far as Holdings was concerned (and Cyprus insofar as it relied on the same 
arguments once it could not obtain a stay in favour of arbitration),  the judge held that 
Aeroflot was still entitled to rely on Article 6(1) of the Judgments Regulation because,  
even if any claim against Services had to be decided in Switzerland pursuant to the 
                                                
5 Services had apparently accepted that there is a serious issue to be tried as between Aeroflot and the individual 
defendants.  
 
 Lausanne jurisdiction clause in the Advisory Mandate contract,   the Swiss courts still 
“may” stay those proceedings in order to avoid the possibility of two irreconc ilable 
judgments (one in England and one in Switzerland),  bearing in mind that England 
was the court “first seised” and that the claim against Services was closely connected 
to those against the individual defendants.   
19. As for Finance,  the judge held  that it remained a “necessary and proper party”  and 
that there was enough substance in the  claim against Finance to justify permission to 
serve out of the jurisdiction on Finance in the BVI.   So he refused to set aside the 
leave to serve out of the juri sdiction that had been granted in respect of Finance.  
20. In the result,  therefore,  only Services was successful  before Floyd J  in its challenge 
to the English court’s jurisdiction.  The judge gave permission to appeal his judgment 
to all parties before him.   On appeal,    Cyprus,  Holdings and Finance challenge the 
judge’s refusal to stay  the proceedings or reject English jurisdiction and Aeroflot 
cross -appeals the judge’s  conclusion with regard to Services.  We heard argument on 
20 and 21 March and rese rved judgment.  
II. Further  Facts on which the parties rely  
21. (A). The Andava affair:   Aeroflot places great emphasis on contracts that Aeroflot 
made with Andava SA (“Andava”) , a company which is said  also  to have been 
beneficially owned and controlled by Messrs Berezovsky and Glushkov .    As part of 
Mr Glushkov ’s review of Aeroflot’s financial structures and financing arrangements 
he recommended that the collection and management of Aeroflot’s hard currenc y 
assets be centralised and managed by Andava.   Aeroflot says that Mr Glushkov  failed 
to reveal his own interests in Andava in making this recommendation.    As a result,  
so Aeroflot claims,   Andava was able to misappropriate R oubles 48 mi llion of 
Aerof lot’s funds.   
22. The Andava/Aeroflot matter has been the subject of proceedings in both Russia and 
Switzerland.   In 2006/7 Messrs Berezovsky and Glushkov  were convicted in their 
absence by a Moscow  court  for their part in what was called “the Andava fra ud” and 
they were  sentenced to terms of imprisonment.   Proceedings were brought  in the 
Swiss Federal Criminal Court  against Mr Hans -Peter Jenni, a Swiss lawyer and 
associate of the individual defendants,  who managed Andava day to day.6    Mr 
Glushkov  and Holdings  were parties to those proceedings.    In December 2008 Mr 
Jenni was convicted of fraud and sentenced to 21 months imprisonment  (to be 
enforced conditionally and with a term of probation for two years)  and subjected to 
financial penalties.   The Forus defendants who were  a party to those proceedings had 
financial orders made against them.   Mr Jenni attempted to appeal these orders  but 
the Swiss Supreme Court rejected his appeal.  He has sought to appeal to the ECtHR.  
23. Aeroflot relies upon adverse findings of the Swiss court against Mr Glushkov  in 
relation to the Aeroflot/Andava affair.   In particular it relies on the finding that he 
acted knowingly and wi lfully and that he  profited considerably as a shareholder in the 
Andava group from the arrangements between Andava and Aeroflot a nd inflicted  
damage on Aeroflot.  It held Mr Glushkov  was  therefore  guilty of “aggravated 
                                                
6 Mr Jenni made a wi tness statement on behalf of the Forus defendants in these proceedings to which I will refer 
below.  
 
 criminal mismanagement at the expense of Aeroflot,  his employer” contrary to 
Articles 158(1) and (2) of the Swiss Criminal Code.7    Aeroflot also relies upon the 
conclusion of the Swiss court that in 1996 “Forus” received a loan from Andava of 
US$1.525 million which had come from Aeroflot funds and then Andava wa ived 
repayment.   Holdings had argued that it was Finance that was the debtor,  not 
Holdings,  so any claim was against Finance,  which was not a party to the 
proceedings.   The Swiss court rejected that argument,  saying:  
“As the documents reveal,  the F orus Group has a similar 
structure to that of the Andava group and is controlled by the 
same group of individuals (in particular [Jenni],  [ Glushkov ] 
and [ Berezovsky ]).  Furthermore,  [Finance] is a subsidiary of 
[Holdings].  Nothing is known about the int ernal settlements, 
but it is cle ar that with the preferential t reatment of the 
subsidiary , the holding disposed of the money in question itself,  
ie. benefited from this payment from Andava”.  
 The court rejected a submission that Holdings had acted in good  faith as being 
“absurd”.8   
24. Effectively,   Aeroflot relies on these findings as “similar fact” evidence or “bad 
character” evidence to assist in its case on the merits against the individual defendants 
and the F orus companies.   But the defendants say that these are separate matt ers 
which must not be confused with the present allegations.  
25. (B). The arrang ements for signing agreements at  Aeroflot:   In his witness 
statement,  Mr Shaposhnikov stat es that he was presented with the signed Advisory 
Mandate and Mr Glushkov  explained to him that it had been properly prepared and 
reviewed and approved by the legal department.  Aeroflot alleges that this was a 
misrepresentation by Mr Glushkov  of the true position.   Mr Shaposhnikov states that,  
as a result , the only briefly reviewed the Russian translation of the Advisory Mandate.  
He noted its main terms but did not otherwise consider it.  He does not say what his 
attitude would have been to a jurisdicti on clause.   Mr Shaposhnikov states  that he 
received a similar assurance from Mr Glushkov  in relation to the FCA and that  he (Mr 
Shaposhnikov ) saw only an English language version of that contract.   He said he 
was not made aware of the detailed contents b y Mr Glushkov  at the time.   However,  
Mr Shaposhnikov  does not say that if he had been aware of the jurisdiction and 
arbitration clauses,  he would not have signed the contracts  or questioned them in 
some way .    Mr Shaposhnikov had ceased to be Director General of Aeroflot when 
the amendment s to the FCA and the SCA were signed.    
26. Mr Okulov became the Acting Director General and then Director General of Aeroflot 
from May 1997 until 2009.     He signed the amendment to the FCA in May 1997 and 
the SCA i n November 1997.  He says that he did not see any Russian language 
version of either contract and that on each occasion Mr Glushkov ,  who was 
responsible for them,  explained the terms to him.   He says that he would not have 
signed them unless they had be en approved by the Aeroflot legal department , on 
                                                
7 Judgment of the Swiss Federal Criminal Court 1 1 July 2008 and supplement of 27 October 2008 para 4.2.2.(a):  
H/525.  
8 Judgment paras 8.6.2 and 3:  H/535 -6. 
 
 which he relied for advice  and expertise on legal issues  such as jurisdiction and 
applicable law clauses and whether they were acceptable to Aeroflot .     Mr Okulov  
“believes” that he was assured by Mr Glush kov that the agreements he signed had 
been approved by the legal department.   Mr Okulov  does not say  that if he had been 
made aware of the jurisdiction or arbitration clauses he would not have signed the 
contracts.   He only says that he relied on the leg al department to ensure whether the 
governing law and jurisdiction clauses were “suitable and acceptable to Aeroflot”.   
27. The head of the Contracting and Commercial Department of Aeroflot during 1995 -
1997 was Mr Ostroumov,  whose superior was Mr Brylov.  In 1974  Mr Ostroumov 
had graduated from the faculty of international law in the Moscow State Institute of 
International Re lations of the Ministry of Foreign Affairs of the USSR.    He was 
responsible for reviewing all foreign jurisdiction and arbitration  clauses in contracts.   
He says that  no one within Aero flot could give advice on  Swiss law.   In his witness 
statement,  Mr  Ostroumov says that  his department did not do the drafting of 
agreements because it was too time consuming;   that work was done either by the 
foreign counterparty or the relevant operational department in Aeroflot.  He says that  
he did not review any of the contracts between Aeroflot and Forus companies because 
they were not shown to him at the time.   He  cannot explain why they were not shown 
to him,  as it was one of his jobs to review such agreements.   Mr Ostroumov  does not 
say that if they had been reviewed by him he would not have approved them or even 
that had he known of the jurisdiction and arbitration clauses in the contracts he would 
have sought advice about them from someone else.   
28. Between January 1996 and March 1999 Ms Lidia Kryzhevskaya held various senior 
posts in Aeroflot concerning finance and accounting.  She reported to Mr Glushkov .   
In her witness statement she says that she was never aware that Mr Glushkov  had any 
interest (either by way of ownership or management role) in the Forus group and if 
she had  been aware of any such interest  she would have been “unhappy because there 
would clearly have been a conflict of interest between him acting in the best interests 
of Aeroflot  and in acting in the interests of the Forus group” and this would have been 
so in relation to the various contracts between Aeroflot and Forus.     
29. Ms Kyzhevskaya states in her witness statement that Mr Glushkov  explained the 
Advisory Mandate to her,  although she thought it a strange contract.   Subsequently,  
she was asked to sign the contract,  which she did after reading it in Russian .   Ms 
Kyzhevskaya states that in April 1996,  Mr Glushkov  showed her an English language 
versio n of the FCA.   She did not (because  she could not) read it.   She does not 
suggest that she asked for a Russian translation.   She did not know it contained a 
Lausanne jurisdiction clause.    There was  a similar process  for the amendment to the 
FCA.  In the case of the SCA,  the English language document was explained to Ms 
Kyzhevskaya by Mrs Krokhina.    Ms Kyzhevskaya states that Aeroflot contracts with 
foreign counterparties were drafted and mainly signed by the employees of the 
Commercial Department and the Centre for Inte rnational Settlements,  after review 
and approval by the legal department.   She doubts whether that department generally 
obtained external legal opinions when entering into an agreement with a foreign 
counterparty.   Ms Kyzhevskaya does not say what her at titude to signing the contracts 
would have been if she had known that they contained a jurisdiction or an arbitration 
clause.    She says that she had a power of attorney to sign agreements on behalf of 
Aeroflot in 1997 -8 but not before.  
 
 30. (C). Mr Glushkov ’s role in the Forus group:   Mr René Kuppers,  the general 
manager of Services  at the relevant time,  states that he was involved in the 
negotiation of the Advisory Mandate and the later agreements with Aeroflot.   He 
states that Mr Glushkov  was a n initial board member of both Holdings and Services 
but “the Forus Group was never controlled by Mr Glushkov  either before or after 
1995”.    He states that in Forus’ dealings with Aeroflot,  “obviously Mr Glushkov  did 
not have any involvement on the Foru s side and never gave instructions to sign any of 
the Aeroflot agreements”.  The negotiations were handled on the Forus side by Mr 
Kuppers himself and Mr A Pivovarov and Mr A Zeugin.    Mr Kuppers states that “all 
conditions were negotiated at arm’s length  and the credit terms obtained by Aeroflot 
were extremely favourable”.   
31. Mr Kuppers also explains that the loans made to Aeroflot by the Forus group could 
not have been arranged without acceptable security from Aeroflot for the banks 
involved.  The onl y available assets in foreign exchange (ie . not in Roubles) for such 
a security structure were the receivables from “overflying” fees paid by foreign 
airlines to Aeroflot.  These were assigned by Aeroflot to Services for repayment of 
the credit facilities.    
32. Mr Jenni, to whom I have already referred,  has known the i ndividual defendants 
since 1991.  He  gave a long witness statement on behalf of the Forus defendants in 
which he set out the history of the Forus group and its dealings with Aeroflot from hi s 
point of view as a director of both Holdings and Services.  He states that he drew up 
an assignment agreement which was signed by Mr Glushkov  and Mr Berezovsky on 
13 November 1995,  whereby Mr Glushkov  assigned to Mr Berezovsky all his shares 
in the Foru s group (amongst other shares).   Mr Jenni  also  states that Mr Glushkov ’s 
directorships of Holding,  Services and Finance effectively ended then, although 
technically the directorship of Services did not do so until formal notification to the 
Lausanne auth orities in May 1997.    
33. Mr Jenni’s evidence is that he was informed by Mr  Glushkov  that the latter was aware 
of the Advisory Mandate at the time of its conclusion in December 1995,  but only 
learnt of it when he took up full -time employment with Aerofl ot in 1996.    Mr Jenni 
also states that Mr Glushkov  has told him that he (Mr Glushkov ) disclosed to Mr 
Shaposhnikov that he (Mr Glushkov ) had been a shareholder in Holdings and was still 
a director of that company and that Mr Shaposhnikov instructed him ( Mr Glushkov ) 
to negotiate a Forus loan for Aeroflot.    Paragraph 50 of Mr Jenni’s witness statement 
continues:  
“All loans subsequently negotiated by [Mr Glushkov ] for 
Aeroflot were approved by Aeroflot by Mr Shaposhnikov (later 
his replacement Valery Oku lov) and were signed by them 
personally exercising their ex officio  powers or by directors of 
Aeroflot holding powers of attorney.  The person who 
negotiated with Aeroflot on behalf of the Forus group was Mr 
Kuppers:   [Mr Glushkov ] was working for A eroflot and 
although he was named in the Commercial Registry as a 
director of [Services]  he had no part in the development on the 
part of the Forus Group of its relationship with Aeroflot”.  
 
 34. As for the signings of the various credit agreements and the  amendments to them,  Mr 
Jenni states:   (i) the FCA was signed for Forus by Mr Kuppers and Mr Pivovarov in 
Moscow .  Mr Jenni also read and approved it and initialled every page of it.  Mr 
Shaposhnikov signed it for Aeroflot.  (ii)  The AFCA was negotiated on behalf of 
Services by Mr Kuppers and executed on behalf of Services by him and on behalf of 
Aeroflot by Mr Okulov.    It was also initialled by Mr Glushkov  and one other.     (iii)  
The SCA was signed on 24 November 1997 on behalf of Services by Mr Jenn i and Mr 
Kuppers and on behalf of Aeroflot by Mr Okulov,  then the General Director .   (iv)  
The second amendment to the SCA,  signed on 25 June 1998,  whereby Cyprus 
replaced Services ,  was negotiated on behalf of Cyprus by Mr Kuppers.   It was signed 
for Aeroflot by Mr Okulov and by Mr Kuppers for Cyprus.   It was “acknowledged” 
by Services by signatures of Mr Alain Mayor and Mr Pivovarov.   
III. The arguments of the parties on the appeal and cross -appeal  
35. (A).  The Forus companies.   Mr Tregear QC app eared for all  three Forus appellants.   
He dealt first with the position of Cyprus under the  ASCA,  which contains the  Zurich 
ICC arbitration clause.9   It is common ground that the claim of Aeroflot against 
Cyprus is within the scope of the arbitration clause in the ASCA,  so that,  on the face 
of things,  Cyprus would be entitled to a stay of the present proceedings,   pursuant to 
section 9(1) and the first part of section 9(4) of the AA 1996.    Mr Tregear submitted 
that it is therefore up to Aeroflot to satisfy the court that a stay should not be granted 
because the Zurich arbitra tion agreement was “null and void” or “inoperative”. 10   He 
dealt first with the judge’s conclusion  at [111]  that ,  on the assumption  that the 
ASCA  arbitration clause was valid,  Cyprus could not rely on it because to do so 
would be an “abuse of right” under Swiss law,  which the judge  held would govern 
the issue of the “enforceability” of the arbitration clause.    Mr Trege ar submitted that,  
first,  the doctrine of “abuse of right” in Swiss law does not have the effect of making 
an arbitration clause “null and void” or “inoperative”; and,  secondly,  the judge did 
not explain how  invocation of the doctrine of “abuse of right” could bring  about this 
result.   He submitted that there was no authority in Swiss law in support of such a 
conclusion.   
36. As to  the application of the  Swiss law doctrine of “double representation”,  on which 
the judge did not come to any conclusion,11 Mr Tregear submitted that this court 
should decide the matter  on the material before it.   He accepted that , if the Swiss law 
doctrine of “double representation” applied in relation to Mr Glushkov  and the 
arbitration agreement in the ASCA ,  then it  would be regarded as “null and void”  for 
the purposes of section 9(4) .   However,  he submitted that it did not do so on the 
materials  before the court.   
37. In relation to Holdings,  Mr Tregear proceeded on the assumption that the judge’s 
conclusion on Services was upheld and that the appeal was allowed in respect of 
Cyprus. Thus, for  Holdings,  the correct question was whether Aeroflot had 
demonstrated that the claim against the individual defendants and that against 
                                                
9 The AFCA between Aeroflot and Services also contains an ICC arbitration clause,  but the judge did not deal 
with the issue of a stay of proceedings against Services on the basis of this arbitration clause bec ause he held 
that the English court must decline jurisdiction regarding the proceedings between Aeroflot and Serv ices on the 
basis of the exclusive ju risdiction clause in Advisory Mandate:  see judgment [103] and [104].   
10 The other ground in section 9(4),  viz.  “incapable of being performed” was not relied upon by Aeroflot.  
11 [106] -[108] of the judgm ent. 
 
 Holdings were “so closely connected that it is expedient to hear and determine them 
together   to avoid the risk of irreconcilable judgments resul ting from separate 
proceedings”.   The “separate proceedings ” would,  in this case,  be the  English 
proceedings against the individual defendants a nd any proceedings against Holdings ,  
presumably in the jurisdiction of its domicile,  Luxembourg,  or  elsewhere ,  eg . 
Switzerland.  He submitted that Aeroflot’s  case against Holdings and Finance 
appeared  to be that they were conduits for money that had or iginally been destined for 
Aeroflot,  alleging that Holdings and Finance (a) knew of breaches of duty of 
Glushkov  to Aeroflot,  and (b) knew that the payments were as a result of his breach 
of duty:  [68] of the Amended Particulars of Claim.   Mr Tregear su bmitted that  
Aeroflot had  no arguable claim against Holdings.  Therefore ,  contrary to the judge’s 
conclusion at [116],  this “claim” could not be closely connected to that against  the 
individual defendants.  Even if arguable,  the claim  was far more closely connected to 
the claims against the other Forus companies,  viz.  Services and Cyprus,  which 
would be conducted in court or arbitration in Switzerland.   The judge was wrong to 
suggest (at [115]) that the Lausanne court might,  pursu ant to Article 28 of the  revised  
Lugano Convention,  stay any proceedings brought  there  by Aeroflot against Services  
pursuant to the jurisdic tion clause.  First,  because the court  would hardly grant a stay 
to Aeroflot, which would itself have started the proceedings;  and,  secondly,  
Services would not seek one.  
38. As concerns Finance,  Mr Tregear made two submissions.  First,  he argued that the 
judge was wrong to conclude (at [117]) that there was a “serious issue to be tried” 
between Aeroflot and Fin ance,  although the judge recognised that  the case needed 
further particularisation.    Secondly,   the judge erred in holding that  there was a 
“good arguable case” that  Finance was a “proper” party to the English proceedings,  
which were focused on the in dividual defendants,  not the Forus companies.   
39. (B). Aeroflot.   Mr Marshall  QC ,  who appeared on the appeal for Aeroflot,  
submitted,  in relation to Services, that the sole issue to be decided was  whether,   for 
the purposes of Artic le 23  of the  revi sed Lugano Convention,  there was consensus 
between the parties to the Lausanne jurisdiction clause.  That  was for Services to 
prove and the  issue  was to be decided  by applying the putative applicable law of the 
contract to determine whether the contract w as void  or,  possibly,  voidable.   This 
issue of the  “substantive v alidity” of the contract was therefore to be determined by 
Swiss law and  so the doctrine of “double representation” applied.   Alternatively,  the 
law of this forum,  viz . English law,  sh ould apply.   On either basis,  Aeroflot had 
“much the better of the argument” that there was no consensus to a Lausanne 
jurisdiction clause. Th e judge therefore erred in his finding to the contrary at [97] -
[103].    
40. In relation to Cyprus,   Mr Marshal l submitted that the burden of establishing a valid 
arbitration agreement fell upon Cyprus and that  that issue was to be determined by 
Swiss law.   He argued that,  on the facts,  the doctrine of “double representation” 
applied,  such that the ICC arbitrat ion clause in the ASCA was “null and void”.    
Alternatively,  the judge was correct to hold that the Swiss law doctrine of “abuse of 
right ” applied to prevent reliance on the arbitration clause when it was likely to cause 
fragmentation of proceedings and so lead to the risk of inconsistent findings and 
duplication of effort and costs.  
 
 41. As regards Holdings,  Mr Marshall submitted that there was the closest possible 
connection between the claims of Aeroflot against the individual defendants and that 
again st the holding company of the Forus group.    Moreover,  at present,  there was 
only one set of proceedings,  viz.  that in the English courts,  so that even if (which 
was disputed) in theory the court could carry out a comparative exercise to determine 
where the “closer connection” lay for the purposes of Article 6(1) of the Judgments 
Regulation,   that could not be done in this case.  
42. As for  Finance,  Mr Marshall  submitted,  first,  that the judge was correct to conclude 
that there was a “serious issu e to be tried” as between Aeroflot and Finance.   If 
necessary,  the third witness statement of Mr Botiuk (of Aeroflot’s solicitors) 
demonstrated that Fi nance was important in the movement of funds in the Forus 
group.  Secondly,  the judge was correct to h old that Aeroflot had a “good arguable 
case” that Finance was a “proper” party to the  English proceedings against the 
individual defendants.    
IV. The issues to be considered and the order in which to deal with them.  
43. It seems to me that the following  issues arise and it is best to deal with them in this 
order:  (1) whether,   for the purposes of Article 23  of the  revised  Lugano Convention, 
the Lausanne jurisdiction clause in the Advisory Mandate between Aeroflot and 
Services  is effective .   If the judg e’s conclusion is upheld,  then it is agreed that the 
English court must decline jurisdiction in respect of all Aeroflo t’s claims against 
Services  in the present proceedings.  (2)  If the judge’s conclusion is not upheld,  then 
Services still relies on the  ICC arbitration clause in the AFCA and would seek a stay 
of the proceedings against it pursuant to section 9(1) and (4) of the AA 1996. The 
parties agree that,  in this case,  the same issues,  including issues of Swis s law  arise 
as under the next issue.   (3)   Whether the proceedings against Cyprus should be 
stayed, pursuant to section 9(1) and (4) of the AA 1996, because of the Zurich ICC 
arbitration clause in the ASCA.   This depends on  two sub -issues.   First,  whether 
there is a concluded arbitration  agreement which covers the present disputes;   
secondly,  if  so,  whether the agreement is  to b e regarded as “null and void” or  
“inoperative” for the purposes of section 9(4), by virtue of the Swiss law doctrines of  
either  (a) “double representation” or,  (b) “abuse of right”.   (4)   Whether,  as against 
Holdings,  Aeroflot can establish that there is a “serious issue to be tried”.   (5)   
Whether,  for the purposes of Article 6(1) of the Judgments Regulation,  the proposed 
claim against Holdings in the E nglish proceedings is,  “…so closely connected  [with 
the claims against the individual defendants]  that it is expedient to hear and determine 
them together to avoid the risk of irreconcilable judgments resulting from separate 
proceedings”.   (6)   Whether,  for the purposes of obtaining permission to serve 
Finance out of the jurisdiction, Aeroflot has established that there is a “serious issue 
to be tried”.    (7)  If so,  whether  Aeroflot has established that there is a “good 
arguable case” that Finance is a “proper” party to the proceedings that are being 
brought against the individual defendants.   
V.  Services.   Issue One:   Is the Lausanne jurisdiction clause effectiv e for the 
purposes of Article 23  of the  revised Lugano Convention?  
44.  Services has been named as a defendant in the English proceedings and it has then 
been served with them in Switzerland.   Aeroflot says that the basis for English 
jurisdiction in respect of its claim against Services is Article 6(1) of the revised 
 
 Lugano Convention,  viz.  that Services is domiciled in a Contracting State 
(Switzerland ), so that , where it is one of a number of defendants, it may be sued in the 
courts of  the place where any one of the  defendants  is domiciled.   The individual 
defendants are ,  of course,  domiciled here in England.    Services wishes to displace 
this rule of jur isdiction by that in Article 23  of the revised Lugano Convention,   
asserting that Aero flot and Services have  agreed in writing that a court of a 
Contracting state (to t he revised Lugano C onvention),  viz.   the Lausanne court,  is to 
have jurisdiction to settle any disputes which may arise in relation to a pa rticular legal 
relationship (ie.  the Advisory Mandate).  Therefore,  the Lausanne court must have 
jurisdiction ins tead of the English court ,  pursuant to Article 23 . 
45. In Aeroflot ’s pleaded case (as amended),  it accepts that Mr Shaposhnikov signed the 
Advisory Mandate,12 but alleges that the Advisory Mandate was  nonetheless  void for 
want of authority  in relation to  Services,   by reason of the prohibition under Swiss 
law against “double representation”.   The “double representation” is said to be  that of 
Mr Glushkov ,  who,  it is said,  acted at the same time as de jure director o f Aeroflot 
and “the de facto organ ” of Forus Services.13    As an alternative,  Aeroflot alleges 
that the Advisory Mandate is void or unlawful or unenforceable under various 
provisions of the Russian Civil Code.   However,  before us Aeroflot did not rely  on 
Russian law for the purposes of its present attack on the validity of the Lausanne 
jurisdiction clause.    It will be recalled that it is accepted that if the jurisdiction clause 
is valid then it would govern all the disputes between Aeroflot and Services and so 
would otherwise be effective.  
46. Threshold Question:   T he proper approach to Article 23 .    The threshold 
question that arises is how the English court should approach a challenge to  the 
applicability of Article 23  of the  revised  Lugano Convention,  when it is alleged that 
the contract containing the exclusive jurisdiction clause is void by  virtue of the 
application,  on the facts,  of a doctrine of  its putative a pplicable law?     The re are 
three questions to be decided.  First,  on whom lies the burden of proof; is it for 
Services to prove the validity of the jurisdiction clause or is it for Aeroflot to satisfy 
the court that it cannot be relied on in this case?   Secondly,  what is t he appropriate 
standard of  proof,  whoever has the burden?    Thirdly,   is the question of the validity 
of the jurisdiction agreement to be determined by reference to an autonomous,  
European law regime,  or by the putative applicable law of the contract ,  or by a 
mixture of the two?  
47. On the first two questions,  which are essentially matters of procedural as opposed to 
substantive law, it seems to me that  the answers must be provided by the law of the 
court considering the issue,  viz.  English law.     We were not shown any  specific  
authority on the fir st question.  As a matter of principle,  if it is assumed that Aeroflot 
would otherwise be entitled to invoke  Article 6(1) of the revised Lugano Co nvention 
to provide a  proper basis for English jurisdicti on against Services ,  then the burden  of 
proof  must be upon Services which  seeks to displace that basis of jurisdictio n.   T here 
was no debate before us about whether Services could otherwise challenge Aeroflot ’s 
ability to  invoke Article 6(1), although,  logically ,  Services could use the same 
argument to challenge that jurisdictional basis that Holdings has  used.   If that had 
                                                
12 Para 49 of the amended Particulars of Claim.     There can be no dispute that Mr Shaposhnikov,  as Director 
General of Aeroflot,  had authority to sign the Advisory Mandate on Aeroflot’s behalf.  
13 Para 50A.1 of the Amended P/Claim.  
 
 been the case there might have been  a complication about where the burden of proof 
lies.   But, as I say,  Service s did not run any  fall back argument  about Article 6(1) .   
Therefore I think that the position in this case must be that the burden lies on Services 
to show that the basis of the English court having jurisdiction that is invoked by 
Aero flot,  viz. Article 6(1),  must  be di splaced  by Article 23  of the  revised  Lugano 
Convention and the Lausanne jurisdiction clause.     I think that this approach is 
supported by the decision of the Privy Council in Bols Distilleries BV v Superior 
Yacht Services Ltd, 14  to which I refer more fully below in the context of the standard 
of proof.  
48. The second question,  then,  is, what is the standard of proof that has to be 
demonstrated by Services?    This issue was specifically addressed by  the Privy 
Council (on appeal  from the Gibraltar Court of Appeal) in Bols Distilleries BV v 
Superior Yacht Services Ltd  in relation to the Judgments Regulation.   The same 
principles must apply to the revised Lugano Convention.   In that case t here was a 
dispute about whether a contra ct had been concluded for the sponsorship by one or 
other of two Bols companies of a new racing yacht to be owned by Superior Yacht 
Services Ltd.   A draft contrac t containing  a Gibraltar law and jurisdiction clause  was 
prepared ,  but Bols denied any contr act had ever been concluded.   Without a 
jurisdiction clause,  Bols would have to be sued in one or other  of the  state s of 
domicile of the Bols companies,  pursuant to Regulation 2 of the Judgments 
Regulation.   Those states were the Netherlands and Poland.    But Superior Yachts 
relied on the jurisdiction clause  in the draft contract  and  said that,  by virtue of 
Regulati on 23 of the  Judgments Regulation,  the courts of Gibraltar must therefore 
have jurisdiction.   
49. Lord Rodger of Earlsferry gave the advice of the Board.    He held,  at [2 8],  that  the 
Gibraltar Court had to decide whether it had jurisdiction by virtue  of Regulation  23 of 
the Judgments Regulation and a written agreement.  Therefore,  the Gibraltar Court 
had to be satisfied,  “ …or as satisfied as it can be having regard to the limitations 
which an interlocutory process imposes”,  that factors exist which a llowed the 
Gibraltar Court to take jurisdiction.   The standard of proof that had to be 
demonstrated by the claimant,  which asserted that the Gibraltar jurisdiction clause 
was effective,  was that of “a good arguable case”.   What amounts to a “good 
argua ble case” will depend on what requires to be shown in any particular situation in 
order to establish jurisdiction .   In that case,  Lord Rodger held that,  in order that the 
claiman t could demonstrate that Regulation 2(1) was “ousted” by Regulation  23 and 
the Gibraltar jurisdiction clause,  the claimants had to demonstrate:   
“… ‘clearly and precisely’15 that the clause conferring 
jurisdiction on the court was in fact the subject of consensus 
between the parties.  So,  applying t he “good arguable case” 
standard,  the claimants must show that they have much the 
better of the argument than the defendants that,  on the material 
available at present,  the requirements of form in Article 23(1) 
are met and that it can be established,  c learly and precisely,  
                                                
14 [2007] 1WLR 12 at [28].  
15 The wording in Art 23(1).  
 
 that the clause conferring jurisdiction on the court was the 
subject of consensus between the parties”.16  
50. There has been debate on whether the qualifier “much” to the phrase “the better of t he 
argument” adds anything.17  In Briggs & Rees “Civil Jurisdiction and Judgments” 
(“Briggs & Rees” ) the authors suggest that , at least in the context of Judgment 
Regulation and revised Lugano convention cases,  the use of “much”  has now pointed 
the law in the right direction and should be “allowed to slip from view ”.18   I 
respectfully agree.   The only point of the word i s to emphasise the fact that  if the two 
arguments are equal,  then the pa rty asserting the Article 23 jurisdiction will not 
succeed.   Too much emphasis on the word “much” wo uld simply lead  to the error of 
imposing too high a standard of proof on the party wishing to establish the Article  23 
jurisdiction.  The whole point of th e jurisprudenc e on the standard of proof i n 
jurisdictional dispute s is to emphasise that such  decision s are made at an early stage in 
a dispute and that the same or very similar questions on the substantive dispute 
between the parti es (eg.  on whether the substantive  contract  itself  has been 
concluded)  may have to be decided at the trial.  Any conclusion at the jurisdiction 
stage must not preclude the possibility of a different finding when  all the evidence has 
been collected and considered  at trial.19   There is this very danger  in the present 
dispute , because Aeroflot alleges that the Advisory Mandate  itself  is void by virt ue of 
the doctrine of “double representation” in Swiss law20.    
51. What law governs the issue of th e validity of the jurisdiction clause?  So to  the 
third and vital question:   is the validity of the jurisdiction agreement in the Advisory 
Mandate to be determined by reference to an autonomous,  European law regime,  or 
by the putative applicable law of the contract or by a mixture of the two?   The judge 
held that doc trines of Swiss law are inapplicable  to decide whether Article 23  of the  
revised  Lugano Convention appl ies.   He held that this  turned on whether there was a 
consensus “as a matter of the au tonomous law”.21 
52. The argument of Aeroflot is that the Advisory Mandate was concluded by Mr 
Glushkov  acting as an organ or representative of both Aeroflot and Services and so,  
under Swiss law,  a situation of “double representation” arises.   This situation is, 
under Swiss law,  p rohibited,  so that if this situation exists,  the consequence is  that 
any contract concluded as a result would  be void.   Therefore,  it is said,  there would 
be no consensus for the Lausanne jurisdiction agreement,  so  that “the pa rties” have 
not “agreed” that a Court of a Contracting State is to have jurisdiction to settle 
disputes which may arise between the parties for the purposes  of Ar ticle 23  of the  
revised  Lugano Convention.   It is important to note  that Aeroflot attacks  the validity 
                                                
16 See [28] of the Advice of the Board.  
17 The phrase “ much the better of the argument”  was first used by Waller LJ in Canada Trust Co v Stolzenberg 
(No 2) [1998] 1 WLR 547 at 555 and endorsed by Lord Steyn on appeal to the House of Lords in [2002] AC 1 at 
page 13.  
18 5th Ed (2009) at 2.111 page 169.   
19 See the discussion in Antonio Gramsci Shipping Corp v Lembergs [2013] EWCA (Civ) 730 at [15] -[17] in 
the judgment of Beatson LJ.  
20 Para 50A.1 of the Amended Particulars of Claim.   Aeroflot also pleads that it was 
void/unlawful/unenforceable under Russian law:  para 50A.2 and 3.  
21 [98] of the judgment.  The judge referred to Art. 23 of the Regulation,  although, strictly speakin g,  in the case 
of Services,  a Swiss company,  the relevant regime must be that of the revised Lugano Convention.  The 
wording is identical . 
 
 of the contract as a whole .  It does not focus  particularly  on whether the parties have 
agreed  the jurisdiction clause.   It is said that the lack of agreement,  for the purposes 
of Article 23 ,   flows automatically from the fact that,  as a matt er of Swiss law,  the  
substantive  contra ct itself is regarded as void becau se the doctrine of “double 
representation” applies.  
53. The construction of Article 23  itself and so what is comprised within the phrase 
“…the parties …have agreed that a c ourt or courts of a State bound by this 
Convention are  to have jurisdiction to settle any disputes which…may arise in 
connection with a particular legal relationship…” must be determined by autonomous 
rules  of construction  rather than any rules of national law.   These autonomous rules 
of construction are decided  ultimately by principles established by what is now the 
Court of Justice of the European Union (“CJEU”) ,  formerly called the European 
Court of Justice (“ECJ”) .   Swiss law is only potentially relevant if the European court 
has determined that,  as a matter of construction according to  autonomous rules,  the 
issue of whether parties have agreed to a court having jurisdiction is to be determined 
by national law rul es as opposed to autonomous rules.   Swiss law  will only actually 
be relevant if ,  by the  same  autonomous rules of construct ion,  it is determined  that the 
relevant national law is the putative applicable law of the contract.  
54. So,  what,  if anything,  has been said on this issue of the construction of Article  23 
(or its equivalent in the Brussels Convention ,  the original (1988) Lugano Convention  
or the Judgments Regulation) by the CJEU or its predecessor?22   We had cited to us 
the ECJ  decision of  Powell Duffryn plc v Wolfgang Petereit .23   The issue before  the 
ECJ was whether a clause in the statutes of a company limited by shares by which all 
shareholders agreed to confer jurisdiction on a particular court  for disputes between 
the shareholder and the company  constituted an “agreement conferring jurisdiction”24 
for the purposes of what was then Article 17 of the Brussels Convention.    The Court 
noted, first, at [13],  that the concept of an “agreement conferring jurisdiction” was 
decisive in assigning exclusive  jurisdiction to a court (in a Contracting State) that had 
been designated by the parties,  in derogation from the general jurisdictional rules set 
out in the Brussels Convention.     Secondly,  it noted that it was important that there 
be equality and uni formity of the rights and obligations for both Contracting States 
and persons arising from the Convention.   Therefore,  the Court  concluded  that “…it 
is important that the concept of “agreement conferring jurisdiction” should not be 
interpreted simply as referring to the national law of one or other of the States 
concerned.  Rather ,  the concept of “agreement conferr ing jurisdiction”  in Article 17 
[23 as it is now]  must be rega rded as an independent concept”: see  [14].    Using this 
“independent concept” of what constituted an “agreement conferring jurisdiction”,  
the Court held that the company’s statutes were to be regarded as a contract governing 
relations between shareholders and each of them and the company.  Thus a clause 
                                                
22 In Article 1 of Protocol 2 to the revised Lu gano Convention,  the Contracting Parties agreed that any court 
applying and interpreting the revised Convention “shall pay due account to the principles laid down by any 
relevant decision concerning the provision(s) concerned or any similar provision(s) o f the 1988 Lugano 
Convention and the instruments referred to in Art 64(1) of [this Convention] rendered by the courts of the states 
bound by this Convention and by the Court of Justice of the European Communities”.   The instruments  referred 
to in Art 64(1 ) include the Brussels Convention (original and as amended) and the Judgments Regulation.   
23 [1992] ECJ I – 1745.  
24 This is the phrase,  put in inverted commas,  that is used by the Court in its judgment.  The phrase is  not found 
in Article 17,  but seems to have been adopted as a shorthand by the Oberlandesgericht in posing the  first of the 
two questions which it referred  to the ECJ and the phrase was adopted by the ECJ.  
 
 conferring jurisdiction in t he company’s statutes constituted an agreement within 
Article 17 and was binding on all shareholders:  see [17].    Those general principles 
remain applicable.    It is clear that the ECJ ruled that the concept of “agreement 
conferring jurisdiction”  should be an independent concept,  not one fashioned 
according to different national laws.  
55. However,  Mr Marshall poi nted out that this decision did  not deal with a situation 
where one party to the contract challenges its substantive validity by virtue  of a rule 
of the putative applicable law of the contract.  That is true,  but it does not follow ,  as 
he argued,  that it is correct to resort to the putative applicable law of the contract to 
decide whether,  for the pu rposes of Article 23 ,   there has b een an “agreement 
conferring jurisdiction” when one party challenges the validity of the contract  
containing the jurisdiction clause  according to that law.  I think that is clear from the 
statement s of the ECJ in the Powell Duffryn case.    Moreover,  a s the authors of 
Briggs & Rees point out,25 one should notice how the Court of Justice “has 
persistently stated that the formalities required by Article 23(1) [of the Judgments 
Regulation] are a full,  perfect and suffic ient guarantee of the existence of consent or 
consensus”.26     
56. Tradi tionally,  English courts have got around the problem of enforcing an arbitration 
or jurisdiction clause in a contract which is alleged to be  void or voidable for 
illegality,  fraud,  misrepresentation or non -disclosure by invoking the doctrine of 
“sepa rability.”   This means that a jurisdiction clause,  like an arbitration clause ,  is 
treated as a separate  agreement from the contract as a whole in which it is contained.    
In Deutsche Bank AG v Asia Pacific Broadband Wireless Communications Inc27 
the Court of Appeal said that this doctrine was “uncontroversial” so far as English 
domestic law was concerned, but it also said ,  more import antly,  that  it was 
uncontroversial  as a matter of European law,  citing the ECJ decision in Benincasa v 
Dentalkit Srl .28  
57. In the context of the present  argument t he Benincasa case is,  in m y view,  very 
important.  It is unfortunate that neither it nor the Deutsche Bank case was cited to us 
in oral argument ;  nor were thos e cases included in the  bundle of  46 cases,  statutes,  
regulations and other materials prepared for the appe al.   Howeve r,  at the request of 
the court the parties provided further short written submissions on those cases and a 
third,  very recent case,29  for which submissions the court is grateful.   
58. The contra ct in the Benincasa  case was a franchise  agreemen t which contained an 
exclusive jurisdiction clause .  T he franchisee claimed that the whole contract 
including the j urisdiction clause was void and argued that it followed that the 
                                                
25 Para 2.128 at page 194 of the 5th Ed. 
26 I have read the judgment of Beatson LJ in Antonio Gramsci Shipping Corp v Lembergs [2013] EWCA (Civ) 
730 which analyses the Powell Duffryn case and other ECJ decisions in the context of an attempt to bind a non -
party to a contract to an exclusive jurisdiction clause for the purposes of Art. 23 of the Judgments  Regulation.   
It does not change my analysis or views on this issue.  
27 [2008] 2 Lloyd’s Rep 619 at [24] in the judgment of Longmore LJ.  Keene and Laws LJJ agreed with 
Longmore LJ’s judgment.  
28 [1997] ECR -I 3767 at [23] to [32].   
29 The decision of Popplewell J in Golden Ocean Group Ltd v Humpuss Intermoda Transportasi Tbk Ltd 
[2013] EWHC 1240 Comm,  which considered issues concerning section 9(1) and (4) of the AA 1996,  relevant 
to the arguments on a stay of the proceedings against Cyprus.  
 
 jurisdiction clause must also be  ineffective.  Three questions were referred  to the ECJ 
by the Obe rlandesgericht Munich.  The third question  was,  effectively,  whether the 
jurisdiction clause would operate even where the claim was for a declaration as to the 
invalidity of the contract as a whole.    
59. The ECJ expressed the prin ciples broadly.   It stated,  at [25],  that a jurisdiction 
clause,  which serves a procedural process,  “is governed by the provisions of the 
[Brussels] Convention”,  whose aim was to establish uniform rules of international 
jurisdiction.  In contrast,  “ the substantive provisions of the main contract  in which 
that clause was incorporated and likewise any dispute s as to the validity of that 
contract are governed by the lex causae  determined by the private international law 
of the State of the court havin g jurisdiction”.   The judg ment of the court continued,  
at [29],  as follows:   
“Article 17 of the [Brussels] Convention sets out to designate,  
clearly and precisely,  a court in a Contracting State which is to 
have exclusive jurisdiction in accordance w ith the consensus 
formed between the parties,  which is to be expressed in 
accordance with the strict requirements as to form laid down 
therein.   The legal certainty which that provision seeks to 
secure could easily be jeopardised if one party to the cont ract 
could frustrate that rule of the Convention simply by claiming 
that the whole of the contract was void on grounds derived 
from the applicable substantive law”.  
60. In Estasis Salotti de Colzani Aimo et Gianmario Colzani v RUWA 
Polstereimaschinen GmbH30 which pre -dates Benincasa and in two cases subsequent 
to the Benincasa case,31  the ECJ  has emphasised t hat the purpose of the 
requirements as to form imposed by Article 17 ,  (now Article 23  of the Judgment 
Regulation ) and the  equivalent in the  revised  Lugano Convention ,  is to ensure that 
consensus between the parties as to the clause conferring jurisdictio n is,  in fact,  
established.   The ECJ has held that,  as a matter of the construction of Article 17 /23,  
the court considering whether that Article  can be invoked has to determine whether 
the clause conferring jurisdiction on the particular court was in f act the subject of 
consensus between the parties,  which itself must be “clearly and precisely 
demonstrated”.    
61. In the Deutsche Bank case the substantive issue was whether the credit agreement 
sued upon was void because the chairman of the defendant companies had signed the 
contract without authority.    Longmore LJ drew a distinction between a case where,  
as in the Bols Distilleries decision ,  there had been no agreement at all because the 
parties “were still in the realms of negotiation” and a case where there had been 
outward agreement but there was an issue as to the extent of the authority of the 
person purporting to agree the contr act for one party.32  In the first a party could not 
rely on the jurisdiction clause,  but in the second it could do so.   Longmore LJ then 
reviewed some of the ECJ decisions,  in particular the Estasis Salotti case.   He 
                                                
30 [1976] ECR 1831 at [7] .  
31 MSG v Les Gravières Rhénanes Sarl [1997] QB 731 at [15],  Corek Maritime GmbH v Handelsveem BV 
[2001] CLC 550 at [13].  
32 See [26] and [27].  
 
 concluded that  it held that the purpose of Article 17’s formal requirements was to 
ensure that consensus was,  in fact, established.  Paragraph 30 of Longmore LJ’s 
judgment continues:   
“That is authority for the proposition that if the formal 
requirements are establish ed (eg that the clause is in writing) 
that will be enough to ensure that consensus is established for 
the purpose of enabling the case to be determined.   It is no 
support for a proposition that a plausible contention of lack of 
authority renders  the clau se inapplicable.  The use of the 
phrase ‘independent will of the parties’ in Coreck Maritime 
GmbH v Handelsveem BV33 at para 14 was not intended to 
express any different concept…”.  
62. The ratio of the Deutsche Bank case is binding on th is court.   I take it  to be that set 
out in the extract quoted.  In  any event I  respectfully  agree with Longmore LJ’s 
analysis on the issue of “separability”  in European law and the approach of European 
law to the question of the validity of jurisdiction clauses in contracts.   
63. In Briggs & Rees,  at para 2.128 the authors suggest that it would be “absurd” to 
argue that the effect of the ECJ decisions is th at a written agreement obtained “by 
extreme duress or the grossest fraud”  would satisfy Article 23  (or 23 of the 
Judgments Regulation).   Yet, at least in circumstances where there is simply an 
allegation  of invalidity because of duress,  fraud,  illegali ty or misrepresentation,  or 
any other doctrine of national law,  I think that this is precisely the tr end of the 
ECJ/CJEU  decisions so far.     After all,  in the Benincasa case itself it was alleged 
that the franchise agreement was void.    Neither Brigg s & Rees nor the parties before 
us have cited a ny decision of the ECJ /CJEU  where,  for the purposes of Article 17/23 , 
it has accepted the proposition that,  in some circumstances,  the court considering 
whether that article applies must resort to the appli cable law of the substantive 
contract concerned to see whether the jurisdiction clause in it is valid.   
64. At the hearing I drew the parties’ attention to a recent article of Professor Briggs34 
which fur ther discusses these  (amongst other) issue s and which,  for my part,  I find  as 
persuasive  as it is characteristically robust .   For present purposes the important 
arguments are , first,  that “the parties” in Artic le 23 means the parties to the litigation,  
not necessarily to a contract, so one is immediately not concerned with the substantive 
validity of a contract for the purposes of deciding whether the conditions in A rticle 23 
have been satisfied.    Secondly,  P rofessor Briggs  reaffirms his previously expressed 
view that the ECJ “has gone out of its way” to emphasise that the jurisdictional 
validity and effect of a jurisdiction clause is to be assessed by reference to the 
requirements of the Article,  not any nat ional law,  whether it be the putative 
applicable law of the contract or some other  law.   Thirdly,  the agreement of a  party 
is not bilateral or contractual,  but unilateral.  And the tests  of whether there has been 
the necessary unilateral agreement  are those set out in Article 23,  viz.  a “written 
manifestation of consent”  or some other sufficiently formal act of agreement,  as laid 
down in the Article .   Fourthly,  however,   there may be an autonomous principle by 
which one party cannot rely on the wri tten manifestation of consent by the other 
                                                
33 [2000] ECR -I 9337  
34 “The subtle variety of jurisdiction agreements” in [2012] LMCLQ 364 :  see 376-381. 
 
 party,  because to do so would be an exercise of bad faith.35  Professor Briggs 
expressed  doubts on whether,  despite contrary statements in the Deutsche Bank case, 
the European approach to  consent to jurisdictional clauses is based on  the doctrine of 
“separability”.  However,  I think I am bound by what this court held in that case ,  so 
that I must proceed on the basis t hat the doctrine of “separability” is now 
uncontroversial as a matter of EU law . 
65. I can now answer the th ird question I have posed, viz.:   is the validity of the 
jurisdiction agreement in the Advisory Mandate to be determined by reference to an 
autonom ous,  European law regime,  or by the putative applicable law of the contract  
(Swiss law)  or by a mixture of the tw o?   My answer,  based on the cases a nd 
materials I have analysed is that it is  the first,  viz . by reference to the autonomous 
European law regime as expounded by the various ECJ cases and as adopted by this 
court in the Deutsche Bank case.     
66. That leads on to a fourth question.   In Corek Maritime GmbH v Handelsveen BV36 
the ECJ stated that the court before which the matter is brought ha s the duty of 
examining,  first of all,  whether the clause conferring jurisdiction upon a court was in 
fact the subject of consensus between the parties,   which must be “clearly and 
precisely demonstrated…”.   So ,  is that “consensus” or,  as Professor Briggs would 
have it,  the unilateral agreement of each party to the litigation,  clearly and precisely 
demonstrated in this case?   Mr Shaposhnikov signed the Advisory Mandate,  after it 
was explained to him by Mr Glushkov .  Mr Glushkov  said that the contract had been 
approved by the legal department.   Mr Shaposhnikov does not assert that Mr 
Glushkov  made any  specific  representation s about  whether there was or was not a 
jurisdiction clause in it or its effect.    Moreover,  Ms Kyzhevskaya also signed the 
contract.   She had read it in Russian before she did so.   As already noted,  Ms 
Kryzhevskaya does not say anything in her witness  statement about  whether she noted 
the jurisdiction clause or  her attitude to jurisdiction agreements in contracts.    
67. So I conclude that,  so far as the jurisdiction clause in the Advisory Mandate is 
concerned,  it is clearly and precisely demonstrate d by Services that Aeroflot gave its 
written manifestation of consent  by the two signatures on the contract .   I am not 
satisfied that,  so far as the jurisdiction clause is concerned ,  there is any evidence to 
found a tenable argument that there was bad f aith on the part of Mr Glushkov  or 
Services.   The truth is that a responsible employee of Aeroflot,  Ms Kyzhevskaya had 
read the contract in Russian before signing it.   Either she saw that there was a 
Lausanne jurisdiction clause or else she failed to sp ot it.   Neither can constitute bad 
faith by Services.   Moreover, I am not satisfied  on the evidence we have  that Mr 
Glushkov  made any misrepresentation about the jurisdiction clause  to Mr 
Shaposhnikov , even assuming that he did not accurately state the p osition by saying  
that the contract had been considered and approved by the “legal department ”,  
although the “legal department”  appears to  have  been a somewhat amorphous concept 
at Aeroflot at the time.  Mr Shaposhnikov himself states that,  as far as he was 
concerned,  the signatures of Ms Kryzhevskaya and Mr Krasnenker on the Advisory 
                                                
35 I take this to be  the effect of fn 87.   But none of the cases referred to advance the present argument,  
including the decision of the Court of Appeal in Sherdley v Nordea Life and Pensions SA [2012] EWCA Civ 
88.   
36 [2000] ECR I – 9337 at para 13,  adopted by the Privy Council in th e Bols Distilleries case at [23].  
 
 Mandate he saw “were to confirm that they had read the agreement and approved 
it”.37 
68. Accordingly,  I would uphold the conclusion of the judge on this issue.   Services is 
entitled to invoke Article 23  of the  revised  Lugano Convention and claim the benefit 
of the Lausanne jurisdiction clause in the Advisory Mandate.   Therefore,  in respect 
of the proceedings against Services,  the English court must decline jurisdiction.     
69. This conclusion means that I do not have to deal with the second issue identified 
above,  viz.  whether Services can rely on the arbitration clause in the AFCA and 
obtain a stay of proceedings under section 9(1) and (4) of the AA 1996.    
VI. Cyprus :  Issue Three (a). I s the arbitration clause in the Amended Second Credit 
Agreement “null and void”  for the purposes of section 9(4) of the AA 1996  by virtue of 
the Swiss law doctr ine of “double representation”?   
70. It will be recalled that the judge declined to decide this issue on the written evidence 
alone of the witnesses of fact and the Swiss law e xperts ,   despite the parties’ 
agreement that h e could do so.38  It will also be recalle d that it was  accepted before 
the judge and again before us that the subject matter of the dispute between Aeroflot 
and Cyprus comes within the terms of the arbitration clause in the ASCA that is relied 
on by Cyprus.  Therefore,  if Cyprus were to obtain a  stay,  it would drop out of the 
present proceedings altogether.     
71. Mr Marshall submitted  to us  that there was sufficient  evidence  on the written material,  
particularly on the evidence  of fact,  to establish Aeroflot’s case that there was 
“double rep resentation” by Mr Glushkov ,  so that,  by virtue of the Swiss law 
doctrine,  there was either no consent to the arbitration agreement  or it is to be 
regarded as “null and void”.    He relies particularly on the findings of the Swiss 
criminal proceedings.   In the alternative,  he submitted that we should direct that 
there be a trial of two issues.  First,  whether Mr Glushkov caused Cyprus to enter into 
the arbitration agreement in the ASCA;  secondly,  whether Mr Glushkov made a 
representation that the ar bitration agreement in the ASCA had been specifically 
reviewed and approved  by Aeroflot’s legal department.   In either case, as I 
understand the submission,  if the answer was in Aeroflot’s favour then it would result 
in a conclusion that there was no con cluded arbitration agreement in the ASCA or that 
it is to be regarded as  “null and void” for the purposes of section 9(4) of the AA 1996.   
72. How should the court deal with an application to stay under section 9 of the AA 
1996?    It is necessary first to analyse the structure of section 9(1) and (4) of the AA 
1996,  to see where the burden lies  and what standard of proof is required  when there 
is an application for a stay of proceedings because one side asserts that two parties ar e 
bound by an arbitration agreement  to submit the disputes being litigated to arbitration 
and the other side asserts that the re was no concluded  arbitration agreement or it is  is 
“null and void” .   Section 9(1) and (4) are based on Article II of the New York  
Convention 1958.  That stipulates that each Contracting State “shall” recognise 
arbitration agreements in writing and it further obliges a court of a Contracting State 
                                                
37 Shaposhnikov statement para 28.  
38 [106] -[108] of the judgment.  However,  Mr Marshall said that Aeroflot’s agreement was on the premise that  
the judge would decide the matter on a “good arguable case” basis,  not finally to determine the mat ter.   
 
 to refer the parties to arbitration if requested to do so by one of the parties in the 
context of an action in a matter which is the subject of an arbitration agreement,  
unless the court “finds that the said agreement is null and void,  inoperative or 
incapable of being performed”.   
73. That has been translated into the terms of section 9( 1) so as to give a party the right to 
apply for a stay of proceedings “in respect of a matter which under the [arbitration] 
agreement is to be referred to arbitration” .   Therefore,  it seems to me in principle  
that there is a burden on the party asserting that there is  (a) a concluded  arbitration 
agreement  as defined in the 1996 Act,  and (b) that it covers the disputes that are the 
subject of the court pro ceedings,  to prove that this is the case .  This is borne ou t by 
the authorities.39   If the party seeking a stay cannot prove both (a) and (b),  then th ere 
is no jurisdiction to grant a stay under section 9(1) and (4) of the AA 1996.    
However,  if the court considers that it cannot decide those issues for itself in a 
summary fashion on the written evidence,  it has two other options ,  as this court 
made  clear in Ahmed Al -Naimi (T/A Buildmaster Construction Services) v Islamic 
Press Agency Inc.40   It can direct an issue to be tried,  pursuant to CPR Pt 62.8(3), or 
it can stay the proceedings (under its inherent jurisdiction) so that the p utative arbitral 
panel can decide the issue of the existence of the arbitration agreement,  pursuant to 
section 30 of the AA 1996.   If the court decides that it will  and can  determine 
whether or not there was a co ncluded arbitration agreement on the writt en evidence 
before it,  then,  in my view,  the authorities establish that it is for the party asserting 
the existence of the concluded arbitration clause to prove it on a balance of 
probabilities. As I point out below,  the position appears to be differen t if the court 
decides,  on an applicat ion for a stay,  that it cannot,  on the materials before it,  
determine whether there was a concluded arbitration agreement. 41 
74. Under section 9(4) the court “shall  grant a stay” unless “satisfied” that the arbitration 
agreement is “null and void,  [or] inoperative…” .   This means,  in my view, that once 
the first party has established the existence of a n apparently  concluded relevant 
arbitration agreement  and that it covers the matters in dispute in the proceedings ,  it is 
for the  party  resisting a stay  to “satisfy” the court that the apparently existing 
arbitration agreement is “null and vo id”.  That was the position under the old law,  ie.  
section 1 of the Arbitration Act 1975,  which provision first gave statutory effect  in 
English law  to the New York Convention.42   This court has said that this remains the 
position under the AA 1996,  albeit without elaborating on its reasoning.43   I will have 
to consider below  the issue of the standard of proof to be achieved at this stage.  
                                                
39 See eg: Fiona Trust & Holdings Corp v Privalov [2007] 1 CLC 144 at [36] per Longmore LJ;  Albon 
(trading as NA Carriage Co v Naza Motr Trading Sdn Bhd (No 3) [2007] 2 All ER (Comm) 513 at [15] per 
Lightman J;  JSC BTA Bank v Ablyazo v [2011] 2 Lloyd’s Rep 129 at [31] – [33] per Christopher Clarke J;   
Golden Ocean Group Ltd v Humpuss Intermoda Transportasi Tbk Ltd [2013] EWHC 1240 at [49] – [50] per 
Popplewell J.   
40 [2000] 1 Lloyd’s Rep 522 at 524 -6,  Waller LJ giving the judgment of the court.   See also Fiona Trust & 
Holdings Corp v Privalov [2007] 1 CLC 144 at [37] per Longmore LJ giving the judgment of the court.  This 
point was not dealt with on appeal to the HL.  
41 This issue has most recently been analysed in detail by Popplewell J in Golden Ocean Ltd  v Humpuss 
Intermoda Transportasi Tbk Ltd [2013] EWHC 1240 (Comm) at [47] – [59].  
42 See:  Overseas Union Insurance Ltd v Mutual Insurance Co Ltd [1988] 2 Lloyd’s Rep 63 at 70,  per Evans 
J.  See also:  Mustill & Boyd on Commercial Arbitration,  2nd Ed (1989) page 464.  
43 See:  Downing v Al Tameer Establishment v another [2002] 2 All ER (Comm) 545 at [20] per Potter LJ,  
with whom Keene LJ and Sumner J agreed.   However,  Potter LJ’s statement,  based on a decision un der the 
 
 75. It was common ground before us that issues concerning the material  validity,  scope 
and interpr etation of an arbitration agreement  are governed by its applicable law44 and 
that,  in th e case of the arbitration agreement in the ASCA ,  the applicable law is 
Swiss law.    There was also no dispute that,  on the face of it,  a written arbitration 
agreement  in the ASCA exists.   The  question is whether there was a lack of true 
consensus to t he agreement .  That  issue has therefore to be decided by Swiss law.   
76. As Dicey correctly notes,  neither Article II of the New York Convention nor section 
9 of the AA 1996 indicates which law is to decide whether the arbitration agreement 
that is found  to exist is “null and void” . The editors of Dicey suggest that,  in practice,  
the English court is likely to determine the other matters mentioned for itself,  
“uninfluenced by foreign law”.45    However,  that canno t strictly  be right in the 
context of a non -English arbitration agreement whose substantive applicable l aw is 
not English law and given that the concepts  “null and void”,  “inoperative”  and 
“incapable of being performed”  are taken from an intern ationally agreed Convention.    
It seems to me that the correct approach for the English court,  when a stay is resisted 
on the grounds  of a non -English law  arbitration agreement  being “null and void” , is to 
take the issue in two stages.    First,  the cou rt must examine and decide (on  whatever 
standard of proof may be necessary,  see below) the rules of the applicable law of  the 
arbitration agreement which are said (on the facts) to  lead to the arbitration clause 
being impugned.   Secondly,  the court must  then decide  the effect of that applicable 
law,  by reference to the facts and the English law concept s of “null and void”  and 
“inoperative” ;  those being the words of the relevant  English statute .   Of course,  in 
considering th ose concepts  the English c ourt must have in mind that th e phrases are 
taken from an International Convention so they should not be interpreted in an 
“anglo -centric” way but in a broad,  international sense.  
77. As for the standard of proof that must be achieved by a party wishing to  establish that 
an arbitration agreement is “null and void”  or “inoperative” ,   the starting point must 
be the wording of section 9(4).  That stipulates that a stay will be granted unless the 
court is “satisfied” that the arbitration agreement is “null and  void” or “inoperative” 
or “incapable of being performed”.  The wording in Article II of the New York 
Convention is stronger:  it states “unless [the court] finds  that” the arbitration 
agreement is “null and void” and so forth.    The words “satisfied” and  “find” suggest 
that,  in the context of civil proceedings in the English court,  the standard of proof 
which must be attained in order that the court should refuse a stay is one of the 
balance of probabilities.      
78. I think that this must be correct.  After all, it is for the court finally to decide  the issue 
of whether or not to refuse a stay because the arbitration agr eement is “null and void” 
or “inoperative” .  No other tribunal has or can have  this jurisdiction.   
79.  In theory  I suppose the court could  order that there be a trial of an issue to determine 
whether the arbitration agreement was “null and void”  or “inoperative” .   But  if the 
evidence and possible findings going to the issue of whether the arbitration agreement 
                                                                                                                                                  
Arbitration Act 1975 , that “if the defendant can raise an arguable case in favour of validity,  a stay should be 
granted” does not accord with case law under section 9 of the AA 1996, which is in different terms from section 
1 of the 1975 Act.   See:  Ahmad Al -Naimi v Islamic Press Agency [2000] 1 Lloyd’s Rep 522,  referred to 
above.  
44 See Dicey,  Morris & Collins:  The Conflict of Laws 15th Ed (2012)  –  “Dicey” : Rule 64(1),  vol 1 page 829.  
45 See:  para 16 -177.  
 
 is “null and vo id” or “inoperative”  also impinge on the substantive rights and 
oblig ations of the parties  the court is unlikely to do so  unless such a trial can be 
confined to “a relatively circumscribed area of “investigation” .46   Otherwise,  i n such 
a case,  where the court is satisfied of the existence of the arbitration agreement  and 
that the matters in dispute are within its scope ,  then logic ally it must be for the 
arbitral tribunal finally to decide the “ section 9(4)  matters ”,  assuming it has 
compé tence -compétence  to do so.  47   In such a  case,  the right course for the court to 
take is to grant a stay under section 9(4) and let the arbitral tribunal get on with  
determining  the dispute.  
80. In JSC BTA Bank v Ablyazov  Christopher Clarke J held that,  in circumstances where 
the court could only definitively decide the question of whether the arbitration clause 
was “null and void”  by deciding the substantive issue between the parties and that was 
not a realistic option,  either at the interlocutory stage or by directing a trial of the 
issue,  then,  for the purposes of section 9(4),  it was sufficient for the applicant for a 
stay t o satisfy the court that there was an arguable case that the arbitration clause was 
valid.   This was because if it did so,  then it mu st follow that the party resisting  a stay 
could not discharge the burden on it of “satisfying” the court that the agreeme nt was 
null and void.48   In Golden Ocean Group Ltd v Humpuss Intermoda Transportasi 
Tbk Ltd49 Popplewell J emphasised that if the court can itself resolve the issue of 
whether the arbitration agreement is “null and void” (or “inoperative”),  then a 
“merely arguable case” that the arbitration agreement is a valid one will not suffice to 
obtain a stay under section 9;  it only does so if the co urt cannot decide or it cannot  or 
will not  direct an issue to be tried,  for reasons outlined above.50   
81. Application of the principles to  this case:   the doctrine of “double 
representation”.    In this case,  n either si de applied to the judge to direct a trial of 
the “double representation” issue.   Aeroflot may have decided not to do so because it 
was under a misapprehension as to the standard of proof that it needed to attain to 
prevent a stay,   but,  to my mind,  it cannot benefit from that.    
82. It follows from what I have said that ,  although I agree with much of the analysis of 
Floyd J on how the court should approach an application for a stay under section 9,  I 
respectfully disagree with the judge’s decision no t to decide the issue of whether the 
arbitration agreement is “null and void” on the written evidence  in respect of the 
doctrine of “double representation” .   It is not disputed  by A eroflot that,  on the face 
of it,  a written  arbitration agreement  was mad e.   It is argued that there was not true 
consent or that the arbitration agreement  is “null and void”  because of the doctrine of 
“double representation” in Swiss law,  the putative applicable substantive law of the 
arbitration agreem ent.   The judge concluded,  at [106],  that the extent of Mr 
Glushkov ’s continued involvement in the day to day  affairs of the Forus group was  
“at the heart of the allegations made in the action”,  and  so to decide the issue of the 
execution of the SCA in  the absence of Mr Glushkov  and independently of the trial of 
the action  “…would be undesirable”.   But  in that case, the judge should  have 
                                                
46 A v B [2007] 1 Lloyd’s Rep 237 at 261 per Colman J,  quoted in  JSC BTA Bank v Ablyazov [2011] 2 Lloyd’s 
Rep 129 at [50].    
47 A v B [2007] 2 CLC 157 at [133] – [139] per Colman J.   In England ,  that decision of the arbitrators can,  of 
course,  be challenged in the courts under section 67 of the AA 1996.  
48 [2011] 2 Lloyd’s Rept 129 at [31], [33],  [36] ,[46] and [49].   
49 [2013] EWHC 1240 (Comm) at [54].  
50 See [54].  
 
 considered granting  a stay under  the inherent jurisdiction of the court so as to allow 
those  matter s to be de cided b y the arbitral tribunal .   I appreciate that ran the risk that 
the arbitral tribunal might find that there was no valid arbitration agreement;  but that 
is inherent in the doctrine of comp étence -compétence.  
83. However,  Mr Marshall ’s primary submission  to us was that there is enough material 
before the court for it to be satisfied,   on a balance of probabilities,  that the re was no 
true consensus as to the  arbitration  agreement or that it is “null and void”  by virtue of 
the Swiss law doctrine of “ double representation”.   So, in my view,  this court has to 
decide whether (i) Cyprus has satisfied  the court  that there is a concluded arbitration 
agreement and,  if so,   (ii) whether Aeroflot  can resist a stay by satisfying this court 
that the arbitrat ion agreement is “null and void” or inoperative” by virtue of the Swiss 
law doctrine.  
84.  Swiss law:  To do so,   it is  first  necessary to analyse,  under the putative substantive 
law, the effect on the arbitration agreement in the ASCA  when there is a cha llenge to 
the validity of that agreement in which the arbitration agreement is to be found .   The 
Swiss law experts of the parties,  Prof Dr Nobel for the Forus defendants and Mr Paul 
Gully -Hart for Aeroflot,  agreed that,  under Swiss law:  
“…arbitration agreements are autonomous and independent of 
the validity of the main agreement containing the arbitration 
agreement.   However,  by way of exception,  there are cases in 
which a specific defect does not only affect the validity of the 
main agreement but e ntails the nullity of the arbitration 
agreement contained therein”.51 
 The experts disagree d on whether there would be  an “identity of defect” as between 
the main agreement and the sepa rate arbitration agreement within it in a situation 
where,  as Aeroflot alleges,  the agreement containing the arbitration agreement was 
entered into in a situation of “double representation”.52    Prof Dr Nobel considered 
that the defects that affected the validity of the agreement and also the arbitration 
agreement within it as well are very limited in Swiss law.   He considered that a 
situation of “double representation” could only affect the val idity of  the arbitration 
agreement if the “double representation” was “so seve re and had a direct significant  
intent on the inclusion of the arbitration agreement as opposed to a different dispute 
resolution clause or establishment of jurisdiction ”.53   Mr Gully -Hart considered that 
this position found no support in Swiss case law or legal doctrine.54 
85. The experts further agreed that  “Mr Glushkov  would be deemed to have acted in a 
situation of double representation if ,  as Mr Gully -Hart assumed,  Mr Glushkov  
instructed the representative(s) of Services to enter into the contracts containing the 
arbitratio n agreements with Aeroflot and  also  caused Aeroflot to enter into those 
contracts…”.55  They  also agreed that  the absence of prejudice is an exception to the 
prohibition of “double representation”,  which is exceptionally acceptable if the nature  
of the act excludes the risk of prejudice to the interests of the two represented 
                                                
51 Point 7 of the “Scott Schedule” of the Joint Memorandum on Swiss law.  
52 Point 8.  
53 Poin t 8, comment of Prof Dr Nobel.  
54 Point 8.  Mr Gully -Hart’s  view is expressed in his opinion at para 53,  but without any citation in support of it.  
55 Point 18  
 
 parties.56   Furthermore , they agreed that an arbitration agreement was a priori  
unlikely to cause per se  any prejudice to the interests of the party represented ,  
although Mr Gully -Hart opined that fragmentation of a dispute caused by different 
dispute resolution clauses may cause a prejudice to the party suffering from a 
situation of double representation .57 But  this view is based on Mr Gully -Hart’s 
opinion that the “abuse of right” theory has been used by the Swiss court to prevent a 
party from “abusively relying on different dispute resolution clauses which lead to a 
fragmentation of the resolution of the dispute”.58  He cite s no case law or doctrine to 
support his opinion that,  as a matter of law,  in a situation of “double repre sentation” 
an arbitration agreement  would,  itself,  be regarded as prejudicial.   
86. Was there a concluded arbitration agreement in the ASCA?  Con clusions :   I 
repeat,  on the face of things,  there is a valid written arbitration agreement in the 
ASCA.   It  is Aeroflot’s case that there wa s a lack of consensus to the arbitration 
agreement in the ASCA  because,  it asserts, Mr Glushkov was,  at the time of the 
conclusion of the SCA in November 1997,  acting for Services, or he controlled 
Services or he instructed representatives of Services to enter into the SCA, which 
contained the arbitration agreemen t.    Alternatively,  Aeroflot asserts that ,  at the time 
that Cyprus became a party to the ASCA,  under the second amendment in  June 
1998,  Mr Glushkov acted for,  or controlled or instructed representatives of Cyprus.   
There must be some evidential burden on Aeroflot to show  that this is so, in relation 
to the arbitration agreement in the ASCA,  otherwise,  the prima facie position must 
remain that there wa s a concluded written arbitration agreement in the ASCA.     
87. I am not satisfied that Aeroflot has discharged  any evid ential burden.   The evidence at 
the moment leans towards the conclusion that Mr Glushkov was formally removed 
from the Lausanne Commercial Register as a board member and signatory for 
Services on 5 September 1997,  that is before the conclusion of the SCA ,  which was 
between Aeroflot and Services .   There is no satisfactory evidence that Mr Glushkov 
“controlled”  Services  as at November 1997, (Mr Gully -Hart simply “assumes” that 
he did),  or that he instructed either Mr Kuppers or Mr Jenni to sign the SCA on 
behalf of Services.    In May 1998,  when the ASCA was signed,   Mr Glushkov was 
neither a director nor signatory for Services,  nor a director of Cyprus.  Nor is there 
satisfactory evidence that,  at that time,  he “controlled” Cyprus.    The findings of the 
Swiss criminal proceedings  concerning Mr Glushkov,  which are more concerned 
with his relations with Holdings and Finance tha n with Services or Cyprus, are very 
general and unspecific .  They certainly do not help o n the question of whether Mr 
Glushk ov had control for the purposes of proposing or agreeing the arbitration clause 
in the ASCA.   The findings  are not enough to satisfy me that Aeroflot has discharged 
any evidential burden to upset the prima facie position that there is a concluded 
arbitration agreement in the ASCA .  Accordingly,  overall I am not satisfied on the 
existing evidence that Mr Glushkov was in a position to create a situation of “double 
representation” as betwee n Aerof lot and Services/Cyprus.  
88. Aeroflot faces two other difficul ties as well.   First , even assuming that I were 
satisfied that the doctrine of “double representation” applied to the main agreement 
(ie.  the SCA or the ASCA),  then, given the Swiss law experts’ agreement that there 
                                                
56 Point 20  
57 Point 21 and 22.  
58 Opinion para 65.  
 
 has to be a “specific defect” that af fects both the main agreement and the arbitration 
agreement so as to nullify the arbitration agreement,   there must be some evidential  
burden  upon  Aeroflot to satisfy the court that there would  be such a  “specific defect ” 
that affected the arbitration agreement in the SCA/ASCA  in circumstances where the 
main agreement was entered into  in a situation of  “double representation”. Mr Gully -
Hart challenges Prof Dr Nobel’s view (as set out above) but provide s no support f or 
his assertion.   Thus  I would hold that Aeroflot has not fulfilled the evidential burden 
placed on it to show that the situation of “double representation” affected the 
arbitration clause as well as the main agreement.  
89. Secondly,   there must be an evident ial burden on Aerofl ot to show that,  in relation to 
the arbitration agreement , there was some prejudice,  given the experts’ agreement 
that,  a priori,  an arbitration agreement i s unlikely per se,   to cause any prejudice to 
the interests of a party “dou bly represented”.     Mr Gully -Hart has provided no 
support for his proposition that,  as a matter of Swiss law,   in a situation of “double 
representation” concerning the main agreement,  an arbitration clause thereby 
concluded would,  itse lf,  be regarde d as prejudicial.   Therefore  it seems to me that 
the position must be that no prejudice is demonstrated and so,  in the absence of such 
prejudice,  the prohibition of ‘double representation” will not apply to the arbitration 
agreement in the SCA/ASCA.   
90. Has Aeroflot “satisfied” the court that the arbitration agreement in the ASCA is 
“null and void” by virtue of the Swiss law doctrine of “double representation”?  
91. It must follow from my analysis above that Aeroflot cannot  discharge the burden on 
it to establish, on  the facts  and on Swiss law  that a situation of “double 
representation” existed at the material time, so that it also cannot “satisfy” the court 
that the arbitration agreement in the ASCA is “null and void”.   Therefore,  I  do not 
need to d ecide whether,  in terms of the English law concept of “null and void”,  proof 
of the applicability of the  Swiss law  doctrine of “double representation” in this case 
would  render the arbitration agreeme nt in the ASCA “null and void” for the purposes 
of section 9(4) of the AA 1996.     
92. In Mr Marshall ’s most recent written submissions,  he has reverted ,  I think in the 
alternative,  to the submission that this court should order a trial of the issues of 
whether Mr Glushkov caused Services/Cyprus to ent er into the arbitration agreement 
and whether he made a misrepresentation about the arbitration agreement being 
approved by the legal department.  As I have concluded that the issue of whether the 
arbitration agreement is valid or is “null and void” can be  decided  by this court  for the 
purposes of whether or not to grant a stay under section 9(1) and (4),  it would be 
wrong in principle to do so.  Thos e issues ,  which are part of the core dispu te between 
the parties,  concerning  the role played by Mr Glushk ov,  will be addressed by the 
arbitral tribunal .    
VII.    Issue Three (b):    Cyprus.   Is the arbitration clause in the Amended Second 
Credit Agreement “null and void”  or “inoperative”  for the purposes of section 9(4) of 
the AA 1996  by virtue of the Swiss law doctrine of “abuse of right”?  
93. As the judge correctly pointed out  at [109],  the very name of the Swiss law doctrine 
“abuse of right” presupposes that a  particular  right exists;  it therefore presupposes 
that there is otherwi se a valid arbitration agreement on which Cyprus could rely  to 
 
 obtain a stay ,  but for  the application of  this doctrine.  Given the experts’ agreement 
that there is a Swiss law doc trine of “abuse of right ,”  the  two questions remaining 
are:   (i)  whet her the doctrine  applies somehow to impugn  an arbitration agreement 
which  (it is assumed for these purposes)  is otherwise valid  by its putative applicable 
law,  viz .  Swiss law ;  and (ii)  if so,  whether this renders that arbitration clause “null 
and void”  or “inoperative” for the purposes of section 9(4) of the AA 1996.   The first 
question concerns Swiss law only.   T he second must involve both Swiss and English 
law,  which is the law by which this court must decide whether the arbitration clause 
in the ASC A is “null and void” or “inoperative”.   
94. Mr Gully -Hart has relied on t he decision of the Swiss Federal  Court  (Civil Division)  
of 8 December 1999 in Arthur Andersen Business Unit Member Firms v Anderson 
Consulting Business Unit Member Firms (“the Andersen case”) for the proposition 
that the doctrine of “abuse of right” can be applied to an arbitration agreement to 
prevent a party from relying on it so that the arbitration agreement is to be regarded as 
“null and void” or “inoperative”.    I have re -read the judgme nt in the  original  French 
version supplied to us.  The case concerned disputes that had arisen between 
Andersen Worldwide Société Coopérative  (AWSC) , a Swiss corporation whose 
members were Arthur Andersen companies worldwide ,  which compani es were 
themselves  grouped into two separate commercial units called Andersen Consulting 
Business Unit (ACBU) and Arthur And ersen Business Unit (AABU).    So all t he 
national Andersen entities belonged to either ACBU or AABU.   Each of the national 
entitie s entered into contracts with AWSC .  These contracts were called  “Member 
Firm  Agreement s” (MFIFA s).   Each of the MFIFAs contained a clause 24 stipulating 
that it cou ld only be altered by means of the  signed agreement by the parties.   Before 
1991 those contracts contained an arbitration clause.  That clause was modified in 
1991 so that any arbitration (whether in or outside Switzerland) would be conducted 
according to the rules of the International Chamber of Commerc e (called CCI in t he 
report  – la Chambre de Commerce Internationale ).   The 1991 arbitration clause was  
agreed to be  modified in 1994 following recommendations by the Board of Partners 
of AWSC and these changes were ratified by the associate members of AWSC.    
Then in 1997  44 member entities of ACBU deposited with the CCI a demand for 
arbitration against 97 members of the AABU and  against the  AWSC.  But at that 
stage only several MFIFAs  had been modified in accordance with clause 24 so as to 
contain  the modified 1994 versio n of the arbitration clause.   The key difference  in the 
clause  was the  identity of the  authority entitled to appoint the sole arbitrator in default 
of agreement.     68 of the respondent Andersen entities sought to challenge the 
validity of the CCI arbitr ation under the 1994 version of the arbitration clause on the 
ground th at many of the MFIFAs did not contain that version ,  because the ir MFIFAs  
had not been modified in accordance with clause 24.   
95. The CCI appointed arbitrator (under the 1994 version of the clause) held that he had 
jurisdiction.  The Swiss  Federal Tribunal agreed.    It characterised the key question 
as being whether the defendant entities,  members of AABU,  were bound by the 1994 
clause even though their contracts did not formally contain it.    The court analysed 
the circumstances in which the contracts and their modifications had been agreed and 
concluded that they were bound because the modified version corresponded to the 
intention of the parties.       
 
 96. Lastly the c ourt considered the argument that the contracts could only be modified by 
individual written and signed agreements  containing the modified clause in 
accordance with clause 24 of the MFIFAs.      It commented that one searched in vain 
to find a legitimate r eason for rejecting the 1994 version,  which differed on very few 
points,  the only s ignificant one being the identit y of the authority that could appoint 
an arbitrato r in default of agreement.    The court  held that the arbitrator was correct to 
consider that the challengers could not,  in good faith,  renounce their agreement and 
rely on the form o f clause  24 in their MFIFAs  in order to avoid the arbitration.     
Then,  in the  very last two sentence s of the judgment,  the court mentions the doctrine 
of “abus de droit ” for the first time and says:    
« Il y a manifestement abus de droit de la part des recourantes à 
invoquer la violation d’une prescription de forme à l’encontre 
d’une clause compromissoire qui corresponde à ce que leurs 
dirigeants  savaient  ;  pensaient et, en définitive, voulaient.   Au 
demeurant, on ne comprend guère pourquoi les recourant es 
critiquent la solution judicieuse consistant à charger un arbitre 
unique de démêler multipartite  » : 
97.  I am quite satisfied that Prof Dr Nobel is co rrect to say that the court did not,  by this 
statement,  elaborate a general rule on the applicability of the doctrine of “ab use of 
rights” to invalidate  an otherwise valid arbitration clause in circumstances where 
party A has disputes with several other parties B,  C,  D and E ,  where the result of 
upholding the arbitration clause  between A and B  would be to “fragment” the overall 
dispute.    To my mind,  all the court was saying was that it would be an abuse of the 
rights of parties to the MFIFAs to rely  on the formality of clause 24 of their contracts 
to insist that the modified arbitration clause be formally agreed in writing and signed,  
in circumstances where it was quite clear that a modification had,  in fact, been agreed 
between all parties and tha t is what they had wanted.    The court was not commenting 
at all on whether the reliance on a valid  arbitration clause by the claimant entities was 
itself an “abuse of right.”   In fact,  the court was saying the exact opposite;  ie. that it 
was an “abuse o f right” for the AABU members to challenge the existence of an 
agreed and valid arbitration clause.  
98. The decision is thus  a far cry from saying that Swiss law has developed the doctrine 
of “abuse of right” to the extent that it will hold that an otherwi se valid arbitration 
clause will be regarded as either “null and void” or “inoperative” for the purposes of  
the New York Convention in circumstances where ,  to uphold the arbitration clause ,  
there would necessarily be a “fragmentation” of a multi -party di spute  that one of the 
parties to the arbitration clause has with the other party to that clause and with  third  
parties.    With great respect ,  I find  the analysis of the judge at [92]  to the contrary  
unpersuasive.   First,  it presupposes,  that the doctrine of “abus de droit” can,  of 
itself,  prevent a party from relying on what would otherwise be a valid arbitration 
clause.  The Andersen   case does not support that proposition and  no other authority 
or doctrine of Swiss law wa s cited  which does so.   This is not surprising,  given that 
Switzerland is a party to the New York Convention and so must uphold arbitration 
agreements and give effect to them unless they are “null and void,  inoperative o r 
incapable of being performed” within Article II of the  Convention.      Secondly,  the 
judge does not explain how the Swiss law doctrine  of “abuse of right” ,  by itself,  can ,  
as a matter of Swiss law,  turn an otherwise valid arbitration clause into one that is 
 
 “null and void”,  or “inoperative”  to use the t erms of both the New York Convention  
and section 9(4) of the AA 1996 .     For these purposes,  I would accept Lightman J’s 
characterisation of “null and void” in the AA 1996 (and so the New York Convention) 
as being “devoid of legal effect” and that of “in operative” as being ‘ceasing to have 
legal effect’ altogether.59    At best,  the doctrine of “abuse of right” in Swiss law 
appears to amount  to a principle that,  in all the circumstances of the  case,  it would be 
“inequitable”  (to use English terminology)  for a party to rely on its strict legal rights.   
That, to my mind,  is nothing like a conclusion that,  as a matter of law,  an arbitration 
clause has become  “devoid of legal effect” or  “ceased to have legal effect ”.  
99. Having made this conclusion on the effect of the doctrine of “abuse of right” in Swiss 
law,  I can deal with the second question quickly.      If the Swiss law doctrine of 
“abuse of right” is no more than the principle  I have stated above,   in my judgment it 
is impossible to say that an application of  that  principle can,  for the purposes of 
section 9(4) of the AA 1996,  render the arbitration clause in the ASCA either “null 
and void” or “inoperative”.       At best,  the  doctrine  might give rise to a submission  
that,  in  all the circumstances,  the party seeking t o rely on the arbitration agreement  
should not be allowed to do so.  But that takes the court into an area of forming a 
judgment or exercising a discretion.    T he whole point about the New York 
Convention and section 9(4) of the 1996 Act is that  no exercise of judgment or  
discretion can be involved.   Either the arbitration agreement is valid,  in which case 
there must be a stay,  or the court is satisfied that i t is “null and void”  or 
“inoperative” or “incapable of  being performed”,  in which case there is not.   There is 
no halfway house in which the court can decide whether, on the facts,  it would be an 
“abuse of right” or “inequitable” to rely on an otherwis e valid arbitration agreement.  
100. Overall c onclusion  on the effectiveness of the arbitration agreement in the 
ASCA :  Accordingly,   I must disagree with the judge’s conclusion that Aeroflot is 
entitled to rely on the Swiss law doctrine of “abuse of righ t”  so as to make the 
arbitration agreement in the ASCA either “null and void” or “inoperative”.   Given 
my conclusions on “double representation”,  the overall result is that t he proceedings 
of Aeroflot against Cyprus must be stayed pursuant to section 9( 4) of the AA 1996.    
VIII.  Issue (4):   Can Aeroflot establish,  as against Holdings,  that there is a 
“serious issue to be tried”.   
101. It will be recalled that Hol dings is a Luxembourg company,  so that the issue of 
whether Aeroflot is entitled to invoke the English court’s jurisdiction against 
Holdings depends on whether Aeroflot can rely on Article 6(1) of the Judgments 
Regulation,  which provides:    
“A person do miciled 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 tog ether  to avoid the risk of irreconcilable 
judgments resulting from separate proceedings”.   
                                                
59 Albon v Naza Trading Sdn Bhd (No 3) [2007] 2 Lloyd’s Rep 1.  
 
 102. Mr Tregear’s argument is that it cannot be “expedient to hear and determine”  
Aeroflot’s claim against Holdings together with those  against the individual 
defen dants if,  in fact,  there is no arguable claim against Holdings.  So,  it is said,  
Aeroflot must first of all demonstrate that it has either a “good arguable case ” on the 
merits against Holdings or that there is,  at least,  a “serious issue to be tried”  as 
betwee n Aerof lot and Holdings.  It is said that o nly if that issue is decided in 
Aeroflot’s favour should the court go  on to consider whether there is a sufficient 
“connection” between Aeroflot’s case against the individual defendants and that 
again st Holdings to enable Aeroflot to establish the English court’s jurisdiction in 
relation to Holdings pursuant to Article 6(1).    
103. For this proposition Mr Tregear  relies on the decision of the Court of Appeal in 
Unilever Plc v Chefaro Proprietaries Ltd60 (“the Chefaro case”).   In that case the 
claimant sued the first defendant for alleged infringement of a n English patent.   The 
defence was “obviousness ” and the first defendant  counterclaimed revocation of the 
patent .  The  first defendant was the UK marketing company in an international group 
of which the second defendant,  Azko NV,  a Dutch company,   wa s the holding 
company.  The second defendant had developed and manufactured the product said to 
infringe the claimant’s p atent.   Azko NV  was served out of the jurisdiction without 
leave .   The report simply says that no leave was required because it was a Brussels 
Convention  case.  The basis  for invoking the English court’s jurisdiction  under the 
Convention  could have bee n either  the Convention equivalent of  Article 6(1) or that 
of Article 22(4)61 of the Judgment Regulation.    The Court of Appeal held that the 
claimant did not have an arguable case  that the second defendant  was party to a 
common design to commit acts which were alleged to constitute an infringement of  
the patent.   But the claimant  also  wished to ob tain discovery of documents from the 
parent company concerning the defendants’ product (said to have infringed the 
claimant’s patent)  to support its case against the “obviousness” defence.   
104. Glidewe ll LJ held that before Azko could b e served with proceedings out of the 
jurisdiction,  even when no leave was required because it was a Brussels Convention 
case,  it had to be demonstrated that there was an “good arguable claim” against the 
party to be served.62   McCowan LJ ag reed with Glidewell LJ.   Hoffmann LJ held 
that in a patent case,  when it wa s asserted  that the infringer in the UK was  one 
company in a group,  but the research and development had been done by  another 
company in the group which is either inside or outside the UK,  then “whether one 
can obtain discovery against the latter company in an RSC O rder 11 or Brussels 
Convention case depends,  as this court decided in Unilever Plc v Gillette (UK) Ltd63  
on whether “an arguable case ” can be shown for joining the company as a substantive 
defendant.  This will involve demonstrating that it was arguably party to a common 
design to commit the acts which are alleged to constitute infringement”.64   
105. From this Mr Tregear seeks to draw the general proposition that in a case where a 
claimant wishes to serve  proceedings (without needing permission) on a defendant 
                                                
60 [1994] FSR 135.  
61 This confers exclusive jurisdiction (regardless of domicile) in a case concerning the validity of a patent on the 
courts of the Member State where the patent has been registered.  
62 Page 141 -2. 
63 [1989] RPC 583  
64 Page 142  
 
 pursuant to the Judgment Regulation and CPR Pt 6.33,  on the basis that Article 6(1) 
of th e Regulation applies,  then,  as a matter of English procedural law,  there is a 
requirement that the claimant must establish that there be a “good arguable case” or a 
“serious issue to be tried” as against that defendant,  or else the service  on the forei gn 
defendant  must be set aside.    In effect,  he asserts that the Chefaro case imported 
into Brussels Convention cases (and so Lugano Convention and now Judgments 
Regulation cases) the first  part  of the tripartite test that has to be satisfied before 
permission will be granted to serve proceedings on a foreign defendant out of the 
jurisdiction in a CPR Pt 6.36 and PD 6 B para 3.1  case. 65 Mr Tregear accepted 
that there is no European case law that required the imposition of such a test and he 
also noted that there is no discussion of this point in Briggs & Rees.  
106. I do not accept that such a broad proposition can be derived from the Chefaro case.   
First,  in principle it is inappropriate simply to import into Judgment Regulation cases 
all or part of the tripartite test established in cases where CPR Pt 6.36 and PD 6B 
applies (ie. where permission to serve out of the jurisdiction is needed).    This is 
becau se in a Judgments Regulation case (or a Lugano Convention case),  I think that 
the sole question that has to be decided at this  “jurisdiction”  stage in the proc eedings 
is that stated by Lord Rodger of Earlsferry in the Bols Distilleries case:66  ie.  whether 
the court is satisfied “…or as satisfied as it can be having regard to the limitations 
which an interlocutory process imposes,  tha t factors exist which allow the court to 
take jurisdiction”.      The standard of “satisfaction” is that of a “good arguable case” , 
as the Privy Council decided in the Bols Distilleries case.   
107. Second ly, the ECJ has stated  in Freeport plc v Arnoldsson67 that in an Article 6(1) 
case,  it is for the national court to determine a single question:  whether there is a 
connection between the different claims brought before it,  “…that is to say,  a risk of 
irreconcilable judg ments if those claims were determined separately …”.     To 
determine this question,  the national court must “take account of all the necessary 
factors in the case file”,  which may require it to take into consideration also the legal 
bases of the actions brought before the court.    The ECJ also held in that case68 that, 
where it is asserted that the national court has jurisdiction by virtue of Article 6(1),  
the national court should not concern itself with the question of whether the claim 
again st the non -resident defendant was brought in those proceedings with the sole 
object of ousting the jurisdiction of the court of the Member State where that 
defendant is domiciled.    The ECJ therefore specifically rejected the proposition that 
the national  court should consider and decide whether other possible motives for 
bringing that defendant into the proceedings should be taken into account.  The 
judgment does not indicate,  at any stage,  that the national court has to assess the 
merits of the claiman t’s case against the non -domiciled defendant . The whole  
approach of the ECJ seems to me to be consistent with the principle that the 
Judgments Regulation is only concerned with the basis for establishing jurisdiction 
                                                
65 In Altimo Holdings & Investments Ltd v Kyrgyz Mobil tel Ltd [2012] 1 WLR 1804,  the Privy Council 
confirmed the rule that on an application for permission to serve a foreign defendant out of the jur isdiction,  the 
applicant must satisfy the court that:  (i) there is a serious issue to be tried on the merits again st that defendant,  
that (ii) there is a good arguable case that the claim fell within one of the classes of case in whi ch permission to 
serve out of the jurisdiction may be given and that (iii),  in all the circumstances England is clea rly or distinctly 
the appropriate forum for the trial of the dispute.  
66 [2007] 1 WLR 12 at [28].  
67 [2008] QB 634 at [41] and [47].  
68 At [54]  
 
 and has nothing to do with  assessing  the merits of the claims against the various 
defendants.  
108. Third ly,  in the Chefaro case itself,  it is not clear whether the basis for the English 
court’s jurisdiction was the Brussels Convention equivalent of Article 6(1) or Article 
22(4) of the Judgments Regulation.   So it is not clear that this Court was attempting  
specifically  to impose a further test in relation to Article 6(1).  Moreover,   the case on 
which the court relied for the imposition of a “good arguable case” test as t o the 
merits,  Unilever plc v Gillette (UK) Ltd ,69 was not a Brussels Convention case.  The 
foreign defendant  in that case  was a US company, so that leave to serve out was 
needed under  the non-Convention procedure then to be found in  RSC Order 11 rule 
1.  Under that regime, (as Mustill LJ noted in his judgment in Uniliver v Gillette ) it 
was long established that there had to be a “good arguable case” on the merits before 
leave to serve out would be granted.  
109. I would,  if necessary,  distinguish the  Chefaro case on its facts,  because it is clear 
that the prime motivation for including the second defendant in the proceedings was 
to obtain discovery and the court held that this was not good enough.   But, i n any 
event,  I think that a straightforward requirement that ,  in an Article 6(1) case,  the 
claimant must establish a “good arguable case” or  “serious issue to be tried” agains t 
the non -domiciled de fendant is inconsistent with the “autonomous”  construct ion of 
Article 6(1) taken by the ECJ in  Freeport plc v Andersson.     Insofar as the Forus  
argument might be that Aeroflot has joined Holding so as to establish English 
jurisdiction and to avoid the Luxembourg court having jurisdiction in any dispute 
against Holdings,  that c onsideration is impermissible,  as Freeport plc v Arnoldsson 
makes plain.  
110. Accordingly,  I reject Mr Trege ar’s subm issions on this issue.   I would ,  however,  
accept that,  in principle,   it must be open to Holdings,  once the ju risdiction issues 
have been determine d,  to attempt to strike out Aeroflot’s  claim against it.    That may 
be difficult where,  as here,  the claim is based on foreign law ,  which itself would 
therefore involve determination of issues of “fact”.   But that  is for another day.  
IX. Issue (5):  Holdings.   Has Aeroflot satisfied the Article 6(1) test ? 
111. I move on  then  to what I regard as the sole question to be answered  so far as Holdings 
is concerned :  has Aeroflot demonstrated a “good arguable case”  in the sense that it 
has shown that it has “the better of the argument ” that there is a connection between 
the differ ent claims brought before the English court  so that “…there would be a risk 
of irreconcilable judgments if those claims were determined se parately…” ?     To 
determine this question,  the national court must “take account of all the necessary 
factors in the case file”,  which may require it to take into consideration also the legal 
bases of the actions brought before the court.    In my view A eroflot has plainly 
satisfied this test.   The “anchor” claim of Aeroflot  to establish the English court’s 
jurisdiction  is that  against the individual defendants and that case  is based on an 
allegation of a conspiracy.   The anchor claim  relies primarily on breaches of Russian 
law.   That claim  will remain before the English court ,  despite the removal of the 
claims against Services and Cyprus if my views are shared  by my colleagues.     
                                                
69 [1989] RPC 583  
 
 112. The Amended Particulars of Claim allege that Holdings is a party t o this same 
conspiracy:   see paragraphs 24 and 25.   Factual issues about whether Mr Glushkov 
and Mr Berezovsky were parties to a conspiracy and whether they controlled Forus 
companies and used those companies to further their fraudulent aims affect both the 
claim against the individual defendants and against Holdings.    All the claims are 
primarily based on breaches of Russian law , although the precise bases of the claim in 
Russian law against Holdings may be different from that against the individual 
defendants.     In my judgment there is the necessary  context of “the same situation of 
law and fact”  referred to by the  ECJ in Freeport plc v Arnoldsson ,70  such that there is 
a risk that if the case against Holdings were tried in Luxembourg and those against the 
individual defendants in England,  there may be irreconcilable judgments.    I 
deliberately emphasise the word “risk”.   It does not have to be shown that there is any 
greater  probability of irreconcilable judgments if the cases were not to be tried 
together.  
113. Mr Tregear argued that there was a much closer connection between the claim against 
Holdings and those against Services and Finance and that the risk of “irreconcilab le” 
judgments in different jurisdictions was greater in respect of those claims.   That may 
be so  but it is irrelevant.   If Aeroflot pursues Services it must do so (on my ruling) in 
the Lausanne  court and if it pursues Cyprus it must do so in arbitration.    So,  
necessarily,  there are going to be different tribunals that deal with each of these 
claims.  That is simply the result of the jurisdictional agreements made between the  
parties.  It has nothing to do with the claims against the individual defendan ts,  which 
must be brought in England under Article 2 of the Judgments Regulation.   Mr 
Tregear suggested at one point that Aeroflot could pursue the individual defendants in 
any proceedings against Services in Lausanne.  That is wrong,  because the indivi dual 
defendants are entitled to be sued in their state of domicile  and now that the English 
Court is seised of that matter,  it would be impossible for th e Swiss court to take over 
such proceedings.    It is from the fact that Aeroflot has rightly chosen E ngland as the 
“anchor” forum against the individual defendants that it  is entitled to rely on Article 
6(1) to sue Holdings in England.  
114. Conclusion:  re Holdings.   I therefore conclude that Holdings’ challenge to the 
jurisdiction of the English court m ust fail.    
X.  Issue (6):   Finance:   Is there a “serious issue to be tried”?  
115.  Because Finance is a BVI company,  Aeroflot needed permission to serve 
proceedings on it out of the jurisdiction pursuant to CPR Pt 36 and Practice 
Direction 6B.  It relied on paragraph 3.1(3),  saying that Finance was a “necessary or 
proper party” to the proceedings against the individual defendants.    It is common 
ground that  Aeroflot therefore has to demonstrate that there is a “serious issue to be 
tried” as bet ween Aeroflot and Finance.   Mr Tregear submitted that there was 
insufficient in even the Amended Particulars of Claim to justify proceeding against 
Finance.  He pointed out that there is no allegation that Aeroflot had any dealings with 
Finance.  He said that the sole basis of the claim against it was that (a) it was one of 
the Forus group through which the individual defendants pursued their conspiracy to 
defraud Aeroflot;  and (b) each of the Forus companies assisted in the breaches of 
duty of Mr Glushko v,  in particular by taking fees and other payments,  knowing that 
                                                
70 at [40].   
 
 those payments were made as a result of breaches of duty by him.71   He submitted 
that there was no evidence to support these assertion s.   
116. The judge concluded that this claim was in need of further particularisation,  but there 
was enough in the pleaded case to meet “this not very demanding threshold”:  see 
[117].   I agree.     For the purposes of demonstrating that there is a “ser ious issue to 
be tried”,  Aeroflot can properly rely on the Swiss criminal court finding that, in the 
“Andava fraud” affair,  Finance was involved in the movement of funds whose origin 
was Aeroflot.       Mr Marshall argued that,  if necessary,  Aeroflot s hould be 
permitted to rely on evidence in the third witness statement of Mr Yuri Botiuk of 
McGrigors LLP,  Aeroflot’s solicitors,  which was produced during the hearing before 
Floyd J at short notice when it was appreciated that Finance was taking the “no 
serious issue to be tried” point.   In my view this material does not add much to the 
Swiss criminal court findings.   
XI. Issue (7):  Finance.    Has Aeroflot established that there is a “good arguable case” 
that Finance is a “proper party” to the proceed ings being brought against the individual 
defendants?  
117. Mr Tregear submitted that it does not make sense for a claim against Finance to be 
continued in the English court in the absence of both Services and Cyprus, which 
were the Forus companies with who m Aeroflot had contracts and through which,  if at 
all,  any sums due to Aeroflot were wrongfully diverted.   There is a greater 
“connection” between the claims against Services,  Cyprus and Finance than between 
Finance and the individual defendants.  
118. That may or may not be so,  but it is irrelevant for present purposes.  It seems to me to 
be obvious that if the claim against the individual defendants is continued in England 
then there is a “good arguable case” that it is “proper ” for one of the compani es 
through which the conspiracy is said to have been operated to be a party to those 
proceedings.   No more need be said.  
119. Conclusion on Finance.     I agree with the  judge’s decision.   Finance’s  appeal 
against the judge’s refusal  to set aside the per mission to serve proceedings on Finance 
out of the jurisdiction (originally granted by Master Bragge) should,  in my judgment,  
be dismissed.  
XII.   Overall conclusions and disposal  
120.  My overall conclusions and proposal for disposal of these appeals a nd cross -appeals 
is as follows:  
i) The appe al of Aeroflot against Floyd J ’s decision to decline jurisdiction in 
respect of Aeroflot’s claim against Se rvices should be dismissed.   The judge  
was correct to hold that Services has demonstrated a “goo d arguable case” that 
Article 17  of t he Lugano Convention applies, so the Lausanne jurisdiction 
clause in the Advisory Mandate governs the jurisdiction for the disputes 
between Aeroflot and Services . 
                                                
71 Paras 24 and 68 of the Amended Particulars of Claim.  
 
 ii) The appeal of Cyprus against the judge’ s decision holding that the arbitration 
agreement in the ASCA was “null and void” or “inoperable” within section 
9(4) of the AA 1996,  so that there should be no stay of the proceedings against 
Cyprus,  should be allowed.   The arbitration agreement in the  ASCA is valid 
and is not either “null and void” or “inoperative” within section 9(4)  by virtue 
of the Swiss  law doctrines of  “double representation” or “abuse of right”.   
iii) The appeal of Holdings against the judge’s decision not to decline jurisdicti on 
on the basis of Article 6(1) of the Judgments Regulation should be dismissed.     
The new argument of Holdings advanced on appeal that Aeroflot had 
additionally to demonstrate, for Article 6(1) purposes,  that there was a 
“serious issued to be tried” as  against Holdings,  should be rejected.  There is 
no such requirement upon a proper construction of the Regulation.   
iv) The appeal of Finance against the judge’s decision to refuse to set aside the 
permission to serve the proceedings on Finance out of th e jurisdiction should 
be dismissed.   There is a “serious issue to be tried” as between Aeroflot and 
Finance and Aeroflot has a “good arguable case” that Finance is a “proper 
party” to the proceedings in England against the individual defendants.  
Mr Justic e Mann:  
121. I agree.  
Lord Justice Laws:  
122. I also agree.  
 
***************  
Appendix 1  
Relevant provisions of Council Regulation (EC) No 44/2001;  the Lugano Convention 
(1988);  the Arbitration Act 1996 and the New York Convention 1958.  
 
(1) Council Regul ation (EC) No 44/2001 of 22 December 2000 on jurisdiction and 
the recognition and enforcement of judgments in civil and commercial matters  
Article 2  
1. Subject to the provisions of this Convention, persons domiciled in a contracting 
State shall, whatever t heir nationality, be sued in the courts of that State.  
2. Persons who are not nationals of the State in which they are domiciled shall be 
governed by the rules of jurisdiction applicable to nationals of that State.  
Article 6  
 
 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 toget her to avoid 
the risk of irreconcilable judgments resulting from separate proceedings;  
Article 23  
1. If the parties, one or more of whom is domiciled in a Member State, have agreed 
that a court or the courts of a Member State are to have jurisdiction to se ttle any 
disputes which have arisen or which may arise in connection with a particular legal 
relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall 
be exclusive unless the parties have agreed otherwise. Such an agreement conferring 
jurisdiction shall be either:  
 
(a) in writing or evidenced in writing; or  
 
(b) in a form which accords with practices which the parties have established 
between themselves; or  
 
(c) in international trade or commerce, in a form which accords with  a usage of 
which the parties are or ought to have been aware and which in such trade or 
commerce is widely known to, and regularly observed by, parties to contracts of 
the type involved in the particular trade or commerce concerned.  
 
2. Any communication by electronic means which provides a durable record of the 
agreement shall be equivalent to "writing".  
 
3. Where such an agreement is concluded by parties, none of whom is domiciled in 
a Member State, the courts of other Member States shall have no jurisdi ction over 
their disputes unless the court or courts chosen have declined jurisdiction.  
 
4. The court or courts of a Member State on which a trust instrument has conferred 
jurisdiction shall have exclusive jurisdiction in any proceedings brought against a 
settlor, trustee or beneficiary, if relations between these persons or their rights or 
obligations under the trust are involved.  
 
5. Agreements or provisions of a trust instrument conferring jurisdiction shall have 
no legal force if they are contrary to Ar ticles 13, 17 or 21, or if the courts whose 
jurisdiction they purport to exclude have exclusive jurisdiction by virtue of Article 22.  
 
Article 28  
 
1. Where related actions are pending in the courts of different Member States, any 
court other than the court first seised may stay its proceedings.  
 
2. Where these actions are pending at first instance, any court other than the court 
first seised may also, o n the application of one of the parties, decline jurisdiction if the 
 
 court first seised has jurisdiction over the actions in question and its law permits the 
consolidation thereof.  
 
3. For the purposes of this Article, actions are deemed to be related wher e they 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.  
(2) The revised Lugano Convention (2007 ) 
Article 2  
 
 
1. Subject to the provisions of  this Convention, persons domiciled in a State bound 
by this Convention shall, whatever their nationality, be sued in the courts of that State.  
 
2. Persons who are not nationals of the State bound by this Convention in which 
they are domiciled shall be go verned by the rules of jurisdiction applicable to 
nationals of that State.  
 
Article 6  
A person domiciled in a State bound by this Convention may also be sued:  
 1. where he is one of a number of defendants, in the courts for th e 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;  
 2. as a third party in an  action on a warranty or guarantee or in any other third party 
proceedings, in the court seised of the original proceedings, unless these were 
instituted solely with the object of removing him from the jurisdiction of the court 
which would be competent in his case;  
 3. on a counter -claim arising from the same contract or facts on which the original 
claim was based, in the court in which the original claim is pending;  
 4. in matters relating to a contract, if the action may be combined with an action 
against the same defendant in matters relating to rights in rem in immovable property, 
in the court of the State bound by this Convention in which the property is situated.  
 
Article 23  
 
1. If the parties, one or more of whom is domiciled in a State bound by this 
Convention, have agreed that a court or the courts of a State bound by this Convention 
are to have jurisdiction to settle any disputes which have arisen or which may arise in 
connect ion with a particular legal relationship, that court or those courts shall have 
jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed 
otherwise. Such an agreement conferring jurisdiction shall be either:  
 
 (a) in writing or evi denced in writing, or  
 
  (b) in a form which accords with practices which the parties have established 
between themselves, or  
 (c) in international trade or commerce, in a form which accords with a usage 
of which the parties are or ought to have been awa re and which in such trade or 
commerce is widely known to, and regularly observed by, parties to contracts of 
the type involved in the particular trade or commerce concerned.  
2. Any communication by electronic means which provides a durable record of the 
agreement shall be equivalent to "writing".  
  
3. Where such an agreement is concluded by parties, none of whom is domiciled in a 
State bound by this Convention, the courts of oth er States bound by this Convention 
shall have no jurisdiction over their disputes unless the court or courts chosen have 
declined jurisdiction.  
  
4. The court or courts of a State bound by this Convention on which a trust 
instrument has conferred jurisdic tion shall have exclusive jurisdiction in any 
proceedings brought against a settlor, trustee or beneficiary, if relations between these 
persons or their rights or obligations under the trust are involved.  
  
5. Agreements or provisions of a trust instrumen t conferring jurisdiction shall have 
no legal force if they are contrary to the provisions of Articles 13, 17 or 21, or if the 
courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue 
of Article 22.  
 
 
Article 28  
 
1. Where re lated actions are pending in the courts of different States bound by this 
Convention, any court other than the court first seised may stay its proceedings.  
  
2. Where these actions are pending at first instance, any court other than the court 
first seised  may also, on the application of one of the parties, decline jurisdiction if the 
court first seised has jurisdiction over the actions in question and its law permits the 
consolidation thereof.  
  
3. For the purposes of this Article, actions are deemed to be related where they 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.  
 
(3) The Arbi tration Act 1996  
Section 9  
 
(1) A party to an arbitration agreement against whom legal proceedings are 
brought (whether by way of claim or counterclaim) in respect of a matter 
which under the agreement is to be referred to arbitration may (upon notice to 
the other parties to the proceedings) apply to the court in which the 
 
 proceedings have been brought to stay the proceedings so far as they concern 
that matter.  
 
(4) On an application under this section the court shall grant a stay unless satisfied 
that the  arbitration agreement is null and void, inoperative, or incapable of 
being performed.  
 
(4) Convention on the Recognition and Enforcement of Foreign Arbitral Awards 
1985 (“the new York convention”)  
 
Article II  
 
(1) Each Contracting State shall recognize an agreement in writing under which 
the parties undertake to submit to arbitration all or any differences which have 
arisen or which may arise between them in respect of a defined legal 
relationship, whether contractu al or not, concerning a subject matter capable 
of settlement by arbitration.  
 
(2) The term “agreement in writing” shall include a arbitral clause in a contract or 
an arbitration agreement, signed by the parties or contained in an exchange of 
letters or tel egrams.  
 
(3) The court of a Contracting State when seized of an action in a matter in 
respect of which the parties have made an agreement within the meaning of 
this article, shall, at the request of one of the parties, refer the parties to 
arbitration, unl ess it finds that the said agreement is null and void, inoperative 
or incapable of being performed.