RIX J: I am concerned with two identical actions between the same
parties in each of which the defendant disputes the jurisdiction of the
English court: in the first action on the ground of forum non conveniens,
and in the second action under the terms of the Lugano Convention on
Jurisdiction and the Enforcement of Judgments in Civil and Commercial
Matters of 16 September 1988 (the convention). That convention was
designed to extend to the member states of the European Free Trade
Association the terms of the Brussels Convention of 27 September
1968, as amended upon the successive enlargements of the European
Communities. The text of the convention is to be found set out, by virtue
of s 1(3) of and Sch 1 to the Civil Jurisdiction and Judgments Act 1991,
as Sch 3C to the Civil Jurisdiction and Judgments Act 1982. It took effect
with the force of law in the United Kingdom from 1 May 1992, but Sweden
only became a contracting state with effect from 1 January 1993.
The plaintiffs in each action are sixteen insurance or reinsurance
companies, and one Lloyd's syndicate acting by a representative member,
who have variously reinsured the defendant, F.X. N. (N.), in respect of
the 1990 and 1991 policy years under successive contracts of bond and
credit surplus treaty reinsurance. The 1990 contract involved the first
to sixteenth plaintiffs (as well as one other company who is not party
to these proceedings), and the 1991 contract involved the first to tenth
and seventeenth plaintiffs. The plaintiffs are all engaged in insurance
and reinsurance business in the London market, and N. was, before its
bankruptcy, a Swedish insurance company which wrote, inter alia, bond
and credit insurance and reinsurance, that is to say the insurance of
financial guarantees, performance bonds, advance payment bonds and
other forms of bonds and borrowing liabilities.
The 1990 contract, so far as it concerns these plaintiffs, is contained in
a slip No CP6090S prepared by H. F. Insurance Broking Limited (H. F.),
acting as brokers for and on behalf of N., and was for a signed line total
of 17775% of the overall treaty. The 1991 contract is contained in a slip
No CP6090T, also prepared by H. F., and was for a signed line total of
25775%. Both slips stated that the reinsurance covered 'risks domiciled in
Europe' (in other words not exclusively Swedish risks), that the wording
was to be agreed by leading underwriter only (that was T. I. plc, the first
plaintiff), that accounts were to be quarterly, and that an intermediary
clause naming H. F. was incorporated as part of the general conditions.
An 'intermediary' on the London market is a broker with recognised
status in the contract as the intermediary through whom the contract
was negotiated and through whom all correspondence and usually, but
not inevitably, all communications of any kind including accounting and
settlement communications are to be passed. No particular intermediary
clause was in fact agreed under these contracts, but H. F.'s standard
clause provided for 'all communications' to pass through them and that
was in practice what happened. Although both slips contemplated that
treaty wording would be agreed with the leading underwriter, no wording
was in fact ever agreed. The contracts in question always remained those
contained in the two slips which I have mentioned.
N. also placed further lines for the surplus treaty reinsurance with
continental insurers. Indeed for the 1990 year 6571% was placed on the
continent (and 17715% was unplaced) and for the 1991 year 6276%
was placed on the continent (and 11765% was unplaced). The plaintiffs
obviously realised there might be other markets participating or being
asked to participate in the reinsurance, but were unaware which markets
were involved, or to what extent, or on what terms.
On 4 September 1991 N. was declared bankrupt by the District Court
of Stockholm and its affairs came to be put in the hands of three joint
trustees or liquidators. The two actions with which I am concerned
in these proceedings are both against N. in liquidation. Following its
insolvency, N.'s affairs came to be investigated by the S. F. I. Board
(the SFIB). The SFIB produced a report dated 8 November 1991 which
was then passed for their comments to N.'s former board members and
auditors as well as its former credit insurance manager, Ola Rosendahl,
who was the author of the placing information on the basis of which
the two contracts with the plaintiffs were broked by H. F.. Following
the receipt of comments on the report, the SFIB then drew up a
memorandum dated 13 December 1991, on the basis of which it rendered
a 'decision' or 'judgment' dated 19 December 1991. These revealed a
situation which the plaintiffs characterised as gross mismanagement of
N.: serious failings by its board, the risking of insolvency, the granting
of loan guarantees in amounts considerably in excess of the risk-bearing
capital of the company without adequate reinsurance protection. The
decision of the SFIB concluded that the conditions within N. had been so
grave that the SFIB would have intervened, if they had known; that, as
it was, their only sanction was to issue a grave admonition to N. and its
board; and that the matter would be transferred to the Swedish public
prosecutor to examine whether there had been any contraventions of
the criminal or other codes. Among the criticisms revealed by the SFIB's
memorandum was that individuals with leading positions in N., both on
and outside its board, had business or other close relations with clients for
whom N. had signed loan guarantees.
Following N.'s collapse and the SFIB's criticism, the plaintiffs were
concerned that serious misrepresentations may have been made to them
which would justify avoidance of the reinsurance contracts or at any rate
that claims by N. might have to be rejected. They therefore instructed,
in collaboration with some of the foreign market reinsurers and co-
ordinated by the in-house legal department of one of Sweden's leading
insurance companies, Sk. International Insurance Corp, a small team of
reinsurance experts led by Mr Goran E. (the E. team) to attend at N.'s
offices to carry out a preliminary inspection of N.'s books and records.
Meanwhile on 24 March 1992 Sweden's Official Receiver issued his report
on N.'s insolvency. Again, a grave picture of mismanagement and dubious
underwriting practices, especially in relation to the bond and credit
business, was revealed. The plaintiffs allege that the documents inspected
by the E. team support the criticisms made by the SFIB and the Official
Receiver with greater detail and reveal heavy over-exposure, the writing
of a single risk in excess of N.'s balance sheet worth upon the dubious
security of unlimited shares, other risks accepted upon doubtful security,
and unrealistic, missing or otherwise inadequate property valuations.
As a result the plaintiffs have concluded that there is clear evidence of
material misrepresentation and non-disclosure by N. in relation to the
conclusion of the 1990 and 1991 contracts, and have accordingly sought
to avoid both contracts by letters sent on their behalf by their solicitors
dated 14 July 1992. The plaintiffs point to the placing information
contained in N.'s letter of 27 November 1989, as updated briefly for the
following year's contract by N.'s letter of 18 October 1990, to indicate, as
they submit, the disparity between what they were told and the results of
the investigations of N.'s affairs following its insolvency. For instance, the
following passage in the letter of 27 November 1989 is relied upon:
'We judge the bankers way and if offered security is not enough we either
reject or ask for additional security. When property is taken as security an
independent market evaluation is done. Shares taken as security must be
noted on the stock exchange. We will not normally exceed the following
limits without asking for additional security:
Property 85% of market value
Shares 70% of market value
First charge 75% of value.'
The plaintiffs contrast N.'s placing information, asserting its careful,
objective and controlled approach to bond and credit insurance
underwriting, its assessment of risks, its observance of limits and the
obtaining of security, with the state of affairs subsequently revealed.
Accordingly, on 29 September 1992 the plaintiffs sought and obtained ex
parte an order for the issue and service out of the jurisdiction of a writ
against N., and on 1 October 1992 that writ was issued and on 6 October
it was served on N.'s liquidators in Sweden. Ex parte leave was obtained
under RSC Ord 11, r 1(1)(d) on the three grounds that the contracts had
been made within the jurisdiction, that they were made by or through
an agent (H. F.) trading or residing within the jurisdiction and that the
contracts were by implication governed by English law. This action was
designated as 1992 Folio No 2772, and I refer to it as the 'first action'.
In due course the plaintiffs issued their points of claim and N. issued its
summons under RSC Ord 12, r 8 dated 29 December 1992 to set aside
the writ and its service. The writ and points of claim claimed the following
relief: declarations that the plaintiffs were entitled to avoid and had
validly avoided the two contracts; an order for the repayment of all claims
paid by the plaintiffs under the two contracts less premiums received;
and/or an order for the taking of an account in respect of all claims paid
less premiums received under the two contracts.
On 4 January 1993 N.'s evidence in support of its summons came forward
in the form of the first affidavit of Mr T W Brentnall, a partner in the
firm of Messrs Elborne Mitchell, N.'s London solicitors. That affidavit
made clear that the grounds in support of N.'s application were that the
contracts were governed by Swedish law and that Sweden is the natural
and only appropriate jurisdiction.
On 1 January 1993 the convention took effect in relation to Sweden, and
on 17 February 1993 the plaintiffs accordingly issued another writ against
N. in a second action, 1993 Folio No 267, on the basis that, without
prejudice to their submission that they are entitled to uphold the validity
of their writ in the first action, nevertheless, seeing that that writ had
been challenged, they would seek an alternative basis of jurisdiction in
England under the terms of the convention itself. The writ and points of
claim in the second action are identical to those in the first action.
The writ in the second action was served on Mr Rolf Abjornsson, one of
N.'s liquidators, on 19 February 1993. For these purposes the plaintiffs
relied on art 5(1) of the convention, as follows:
'A person domiciled in a Contracting State may, in another Contracting
State, be sued:
1. in matters relating to a contract, in the courts for the place of
performance of the obligation in question...'
The 'obligation in question', submitted Mr Toulson QC on behalf of the
plaintiffs, was the duty of N. to make a fair presentation of the risk and to
disclose all material matters; the place of performance for that obligation
was London.
Immediately following service of the writ in the second action, N. itself on
22 February 1993 issued proceedings in the District Court of Stockholm
against the plaintiffs, and served those proceedings on the plaintiffs on
23 February 1993. Separate summonses appear to have been issued and
served against each plaintiff (Actions Nos T4-265-93 to T4-281-93). A
translation of a representative summons in those proceedings indicates
that the claim in them is the reverse of the English actions, namely 'to
establish that the Reinsurer lacked the right to revoke the reinsurance
contracts for 1990 and 1991 and the reinsurance contracts for 1990 and
1991 are valid'.
No financial claims (other than for litigation costs) appear to be made
in the Swedish summons. There is a reference under the heading of '1.
Background... 1.4 Losses' to claims made against N. and the potential
therefore of claims against the plaintiffs under the reinsurance contracts.
However, the summons states:
'Only after all reinsured guarantees have been concluded can a final list of
the claims against the Reinsurer be made.'
However, as already stated, no financial claims under the reinsurance
contracts appear to be made at present in the Swedish proceedings.
Nevertheless, the Swedish summons ends with the following paragraph on
'forum':
'The Lugano Convention... Article 5, point 1, states that in the case of
contractual disputes, the court in the location where the contractual
obligation referred to in the dispute should be discharged is the proper
venue. In this case, the question is fulfilment of payment obligations
under reinsurance contracts. Payment obligations should be discharged by
the creditor, in this case N..'
It appears, therefore, that jurisdiction in Sweden over the plaintiffs
has been claimed on the grounds that the 'obligation in question' in
proceedings seeking to establish the validity of the contracts is the
obligation to pay claims. I do not know what the current status of
the Swedish proceedings is, or whether the plaintiffs have challenged
jurisdiction in Sweden on grounds other than art 21 of the convention.
The latter does appear from the affidavits before me to have been
invoked. Article 21 provides:
'Where proceedings involving the same cause of action and between the
same parties are brought in the courts of different Contracting States,
any court other than the court first seised shall of its own motion stay its
proceedings until such time as the jurisdiction of the court first seised is
established. Where the jurisdiction of the court first seised is established,
any court other than the court first seised shall decline jurisdiction in
favour of that court.'
Following the issue of the second English action and the Swedish
proceedings, the return date fixed for N.'s summons in the first action
was adjourned to enable the parties to file further evidence and to bring
on N.'s challenge to the jurisdiction of the English court in both actions
at the same time. On 24 March 1993 N. issued its summons in challenge
to the English court's jurisdiction in the second action, supported by a
further affidavit of Mr Brentnall dated 25 March 1993. In that affidavit
Mr Brentnall sought to make three points. First, he deployed evidence to
the effect that service on N.'s liquidators in Sweden was defective: this
was no doubt to lay the ground for a submission that in any event N.'s
Swedish proceedings took precedence over the plaintiffs' second action.
That point, however, has now been abandoned. It is now accepted by N.
that, subject to the challenge made to the second action as a whole, N.
was effectively served with process of the plaintiffs' second action before
the Swedish court was seised of N.'s Swedish proceedings against the
plaintiffs.
Secondly, it was submitted in Mr Brentnall's affidavit that art 11 of the
convention was the principal article governing the matter and destroyed
the plaintiffs' second action. Article 11 provides:
'Without prejudice to the provisions of the third paragraph of Article 10,
an insurer may bring proceedings only in the courts of the Contracting
State in which the defendant is domiciled, irrespective of whether he is
the policy-holder, the insured or a beneficiary...'
However, this point has also been abandoned by N., for it is recognised
that art 11, like the whole of Section 3 of Title II of the convention (arts 7
to 12A, dealing with 'Jurisdiction in matters relating to insurance'), does
not apply to reinsurance. Articles 7 to 12 of the convention reproduce the
same numbered provisions of the Brussels Convention, as amended by
the Convention of Accession signed at Luxembourg on 9 October 1978,
when the United Kingdom acceded to the Brussels Convention. The 1978
convention was the work of a working party under the chairmanship
of Professor Dr Peter Schlosser, whose report was submitted to the
governments of the member states together with the draft convention
and was published with the 1978 convention on 5 March 1979 in the
Official Journal of the European Community (see OJ 1979 C59 p 71). The
Schlosser Report states (at p 117, para 151):
'Reinsurance contracts cannot be equated with insurance contracts.
Accordingly, Articles 7 to 12 do not apply to reinsurance contracts.'
O'Malley and Layton European Civil Practice (1989) comment (at para
18.07):
'This interpretation cannot be derived from the express words of the
Convention, but it is sensible and accords with the overall purpose of this
section of the Convention, not least because considerations of inequality
of bargaining power generally have no place in re-insurance.' …
Thirdly, Mr Brentnall's affidavit submitted that it was not art 5(1) but art 2
of the convention that governed the second action. Article 2 of course sets
out the basic rule of the convention:
'Subject to the provisions of this Convention, persons domiciled in a
Contracting State shall, whatever their nationality, be sued in the courts
of that State.'
To that basic rule, art 5 is an exception. Mr Brentnall had two points to
make about the plaintiffs' reliance on art 5(1). The first was that the
'obligation in question' was not the duty to make a fair presentation, but
the obligation to pay claims. He stated:
'The relevant obligation which arises under these contracts and which the
reinsurers seek to avoid is the obligation to pay claims.'
The place of performance of that obligation, he further submitted, was
governed by the proper law of the contracts, namely Swedish law, and
that under Swedish law the place of performance for payment of claims
was the place of business of the creditor, namely in Sweden. The second
point was that in any event, and even if the relevant obligation was the
obligation to make a fair presentation of the risk, such an obligation was
not an 'obligation' for the purposes of art 5(1). This latter submission was
not further developed in Mr Brentnall's affidavit but I shall in due course
refer to the submissions of Mr Gee QC on behalf of N. in that regard.
It is against this background that I approach the issues which have been
argued before me in respect of the plaintiffs' claim for leave (in respect
of the first action) or as of right (in respect of the second action) to issue
and serve English proceedings on N. in Sweden out of the jurisdiction. Of
course, if leave in respect of the first action were to be upheld, the second
action would presumably be discontinued.
The first action: forum non conveniens
It is accepted on behalf of N. that the two contracts were made in
England, by and through an agent residing within England, and that,
albeit it is disputed that the contracts are governed by English law,
there is therefore jurisdiction within Ord 11, r 1(d)(i) and (ii) for the
issue and service of the writ in the first action out of the jurisdiction on
N. in Sweden. It is said, however, that England is not the appropriate
forum, and that Sweden is, and that this is so whether or not the proper
law of the contracts is English or Swedish; if necessary, however, N.
would contend that the proper law is Swedish. On behalf of the plaintiffs,
however, the reliance on English proper law is an important part of their
submission that the appropriate forum is in England. It is common ground
that the principles that I must apply are to be derived from Spiliada
Maritime Corp v Cansulex Ltd, The Spiliada [1986] 3 All ER 843 esp at
857-859, [1987] AC 460 esp at 480-482 per Lord Goff of Chieveley.
The burden is upon the plaintiffs to show that England is clearly the
appropriate forum for the trial of the action as being the forum in which
the case can suitably be tried for the interests of all the parties and for
the ends of justice.
…In my judgment these factors do not outweigh the strong presumption
that reinsurance written on the London market is written on the basis of
an implied or imputed English proper law. Although these reinsurances
contemplated that N. would put forward treaty wording, H. F. did not
do so at any time before N.'s insolvency and no agreed treaty wording
is in fact relied upon. There is a dispute about whether H. F. at a later
date showed to T. I. a proposed treaty wording containing a Swedish
law and arbitration clause or whether such a clause would have been
acceptable in any event. If it mattered, such a dispute could hardly be
resolved at this stage on affidavit; but in my view it does not matter, since
by then T. I. had, following N.'s insolvency, cancelled the reinsurances.
I recognise that this case is in at least one respect not as strong as the
situation in Vesta v Butcher [1989] 1 All ER 402, [1989] AC 852, where
the English reinsurance covered 90% of the primary risk, with a balance
of 10% presumably resting with the primary insurers. Nevertheless, in
the absence of the plaintiffs being put on notice of the terms on which
other markets were contracting, the London reinsurances ultimately
have to be regarded on their own terms, and the intermediary clause
is itself a strong pointer that all aspects of the contracts would be dealt
with through H. F. in London. It will be recalled that H. F.'s intermediary
clause was of a wide kind, and in practice all accounting matters including
payment of premiums and claims were dealt with through them in
London, and I infer that that is what the parties must be regarded as
contemplating would happen from the outset. In all the circumstances it is
my judgment that the reinsurances in question were governed by English
law.
Nevertheless, I am not persuaded, and of course the burden of persuasion
is upon the plaintiffs, that England is the clearly appropriate forum for the
parties' dispute. It seems to me that Mr Gee is right to say that the real
focus of the dispute raised by the plaintiffs' writ is not so much as to the
materiality of what was or was not said in N.'s placement information, but
as to the conduct of N.'s business affairs in Sweden. This case therefore is
in its own way not unlike Amin Rasheed Shipping Corp v Kuwait Insurance
Co [1983] 2 All ER 884, [1984] AC 50. In that case a Kuwaiti insurance
company had insured a Liberian company whose business was carried
on from Dubai in respect of a small cargo vessel under a policy whose
form was based upon the Lloyd's standard form of marine policy but gave
Kuwait as the place of issue and provided for claims to be payable there.
Bingham J ([1982] 1 WLR 961 at 970) had held that the proper law of the
policy was Kuwaiti law, but that even if he had held that it was English
law he would still have exercised his discretion under Ord 11, r 4(2)
against leave. The House of Lords disagreed as to the proper law, which
in their view was English law, but even so upheld the alternative ground
of decision that Kuwait was the appropriate forum. In that case too there
were issues of English law to be decided, but the dispute was primarily
one of fact: was the vessel engaged in smuggling when she was seized
by the Saudi Arabian authorities, and if so was the loss excluded under
the Institute War and Strike Clauses as being due to 'arrest, restraint or
detainment... by reason of infringement of any customs regulations'. Lord
Diplock said ([1983] 2 All ER 884 at 892-893, [1984] AC 50 at 67-68):
'…True it is that either directly through a choice of forum clause in
commercial contracts or indirectly through an English arbitration clause,
the Commercial Court in London is much resorted to by foreign nationals
for resolution of disputes; and true it is that its judges have acquired
unrivalled expertise in such matters, including marine insurance where
that insurance is governed by English law. The latter fact no doubt
accounts for the popularity of the court with foreign litigants, but their
submission to its jurisdiction in the case of contracts which contain such
clauses is voluntary and not, as in the instant case, sought to be forced
on an unwilling defendant in the exercise by an English court of what can
be classified only as an exorbitant jurisdiction which it does not recognise
as possessed by foreign courts.'
Lord Wilberforce said ([1983] 2 All ER 884 at 896, [1984] AC 50 at 72):
'The intention must be to impose on the plaintiff the burden of showing
good reasons why service of a writ, calling for appearance before an
English court, should, in the circumstances, be permitted on a foreign
defendant. In considering this question the court must take into account
the nature of the dispute, the legal and practical issues involved, such
questions as local knowledge, availability of witnesses and their evidence
and expense. It is not appropriate, in my opinion, to embark on a
comparison of the procedures, or methods, or reputation or standing of
the courts of one country as compared with those of another (cf [Aratra
Potato Co Ltd v Egyptian Navigation Co, The El Amria [1981] 2 Lloyd's
Rep 119 at 126] per Brandon LJ).'
It seems to me that that decision and those observations are apposite
to this case. Here too the proper law of the contracts is, in my view,
English law, and there will be English legal issues to be decided; but the
main burden of the dispute is a factual one with its centre in Sweden, in
connection with which Swedish factual and expert witnesses will have to
be called.
Here too the submission that the Swedish courts are unfamiliar or less
familiar than the Commercial Court in London with respect to the hearing
of reinsurance disputes in general or reinsurance disputes under English
law in particular is not an appropriate submission. I am in any event
confident both that the Swedish court is far better placed than this court
to hear and determine issues as to the business practices of a Swedish
insurance company, and also that it is not unused to applying foreign law,
if indeed the principles of English law regarding the fair presentation of a
risk are materially different from those of Sweden. I therefore set aside
the writ and all subsequent proceedings in the first action.
The second action: art 5(1) of the Lugano Convention
The basic philosophy concerning jurisdiction in the convention is of course
that a person should be sued in the courts of the state in which that
person is domiciled. This philosophy is expressed in art 2. It is therefore
accepted by the plaintiffs that if after 1 January 1993 they wished to sue
N., they must do so in Sweden -- unless they can bring themselves within
the exception to be found in art 5(1). …
The plaintiffs say that the obligation in question, which was to be
performed in London, was the obligation to make a fair presentation of
the risk; alternatively, if N. is right to say that the obligation in question
which the plaintiffs by their action are seeking to avoid is the payment of
claims, then that obligation too fell for performance in London.
…The competing submissions make it necessary to look at the relevant
authorities in greater detail. In the De Bloos case de Bloos, a Belgian
company, commenced proceedings in Belgium against Bouyer, a French
company, claiming that their exclusive distributorship agreement had
been repudiated by Bouyer, an order for the dissolution of the agreement,
and damages. De Bloos relied upon art 5(1) of the Brussels Convention,
but Bouyer said that it must be sued in France. It appears that de Bloos's
complaint was that Bouyer had broken its agreement to grant to de Bloos
exclusive rights to distribute Bouyer's products in Belgium, Luxembourg
and Zaore. Presumably, but it is not quite clear, Bouyer had supplied
other distributors or customers in Belgium. The Belgian court of first
instance found that the place where the products under the agreement
were to be delivered was at Bouyer's office in France, and therefore
declined jurisdiction on the ground that performance under the agreement
was to be made in France and not in Belgium. The Belgian Cour d'Appel
referred the case to the Court of Justice, asking for these purposes what
the relevant 'obligation' in art 5(1) was: whether it was any obligation
under the contract, or only the 'obligation in dispute or forming the basis
of the legal proceedings', and if the latter, whether it was the original
obligation (namely the obligation not to sell to others in the territories
agreed upon) or the obligation to pay damages or compensation. The
following paragraphs from the judgment of the court are relevant ([1976]
ECR 1497 at 1508-1509 (paras 8-16)): …
10. …Article 5(1) of the Convention cannot be interpreted as referring to
any obligation whatsoever arising under the contract in question.
11. On the contrary, the word "obligation" in the article refers to the
contractual obligation forming the basis of the legal proceedings...
13. It follows that for the purposes of determining the place of
performance within the meaning of Article 5, quoted above, the obligation
to be taken into account is that which corresponds to the contractual right
on which the plaintiff's action is based.
14. In a case where the plaintiff asserts the right to be paid damages or
seeks a dissolution of the contract on the ground of the wrongful conduct
of the other party, the obligation referred to in Article 5(1) is still that
which arises under the contract and the non-performance of which is
relied upon to support such claims.
15. For these reasons, the answer to the first question must be that, in
disputes in which the grantee of an exclusive sales concession charges
the grantor with having infringed the exclusive concession, the word
"obligation" contained in Article 5(1) of the Convention of 27 September
1968 on jurisdiction and the enforcement of Judgments in Civil and
Commercial Matters refers to the obligation forming the basis of the
legal proceedings, namely the contractual obligation of the grantor which
corresponds to the contractual right relied upon by the grantee in support
of the application.
16. In disputes concerning the consequences of the infringement by the
grantor of a contract conferring an exclusive concession, such as the
payment of damages or the dissolution of the contract, the obligation to
which reference must be made for the purposes of applying Article 5(1) of
the Convention is that which the contract imposes on the grantor and the
non-performance of which is relied upon by the grantee in support of the
application for damages or for the dissolution of the contract.'
After some uncertainty caused by the decision of the Court of Justice in
the context of contracts of employment in Ivenel v Schwab Case 133/81
[1982] ECR 1891, the basic rule in De Bloos was confirmed in the case
of contracts other than contracts of employment by the judgment of the
Court of Justice in Shenavai v Kreischer Case 266/85 [1987] ECR 239 at
255-256 (paras 16-19):
'16. In that connection it should first be observed that contracts of
employment, like other contracts for work other than on a self-employed
basis, differ from other contracts … by virtue of certain particularities:
they create a lasting bond which brings the worker to some extent
within the organizational framework of the business of the undertaking
or employer, and they are linked to the place where the activities are
pursued, which determines the application of mandatory rules and
collective agreements. It is on account of those particularities that the
court of the place in which the characteristic obligation of such contracts
is to be performed is considered best suited to resolving the disputes to
which one or more obligations under such contracts may give rise.
17. Where no such particularities exist, it is neither necessary nor
appropriate to identify the obligation which characterizes the contract and
to centralize at the place of performance thereof jurisdiction, based on
place of performance, over disputes concerning all the obligations under
the contract. The variety and multiplicity of contracts as a whole are such
that the above criterion might in those other cases create uncertainty
as to jurisdiction, whereas it is precisely such uncertainty which the
Convention is designed to reduce.
18. On the other hand, no such uncertainty exists for most contracts
if regard is had solely to the contractual obligation whose performance
is sought in the judicial proceedings. The place in which that obligation
is to be performed usually constitutes the closest connecting factor
between the dispute and the court having jurisdiction over it, and it is
this connecting factor which explains why, in contractual matters, it is the
court of the place of performance of the obligation which has jurisdiction.
19. Admittedly, the above rule does not afford a solution in the particular
case of a dispute concerned with a number of obligations arising under
the same contract and forming the basis of the proceedings commenced
by the plaintiff. However, in such a case the court before which the matter
is brought will, when determining whether it has jurisdiction, be guided
by the maxim accessorium sequitur principale; in other words, where
various obligations are at issue, it will be the principal obligation which
will determine its jurisdiction. That complication does not, however,
arise in the case referred to in the question raised by the Landgericht
Kaiserslautern.'
The distinction between contracts of employment and other contracts
has now been confirmed by a change in the wording of art 5(1) of the
Brussels Convention to that now to be found in art 5(1) of the Lugano
Convention. …
In Kalfelis v Bankhaus Schrvder, Mnchmeyer, Hengst & Co Case 189/87
[1988] ECR 5565 at 5585-5586 (paras 19-20), in the context of an issue
arising out of art 5(3) of the Brussels Convention, the Court of Justice
said:
'19. With respect to the second part of the question, it must be observed,
as already indicated above, that the "special jurisdictions" enumerated
in Articles 5 and 6 of the Convention constitute derogations from the
principle that jurisdiction is vested in the courts of the State where the
defendant is domiciled and as such must be interpreted restrictively. It
must therefore be recognized that a court which has jurisdiction under
Article 5(3) over an action in so far as it is based on tort or delict does not
have jurisdiction over that action in so far as it is not so based.
20. Whilst it is true that disadvantages arise from different aspects of
the same dispute being adjudicated upon by different courts, it must
be pointed out, on the one hand, that a plaintiff is always entitled to
bring his action in its entirety before the courts for the domicile of the
defendant and, on the other, that Article 22 of the Convention allows the
first court seised, in certain circumstances, to hear the case in its entirety
provided that there is a connection between the actions brought before
the different courts.'
In Barclays Bank plc v Glasgow City Council [1994] 4 All ER 865, [1993]
QB 429 Hirst J had to consider a claim for restitution arising out of the
aftermath of the decision in Hazell v Hammersmith and Fulham London
BC [1991] 1 All ER 545, [1992] 2 AC 1 that interest swap agreements
were ultra vires the local authority concerned and therefore void ab
initio. Barclays Bank sued Glasgow City Council in England, relying,
inter alia, upon art 5(1) for founding jurisdiction in England for an action
which would otherwise have had to have been pursued in Scotland. It
was common ground that the place of performance of the obligation in
question (that is to make restitution), if it existed, was England. The issue
turned rather on the words 'in matters relating to a contract'…
The issues in that case primarily concern the place of restitutionary claims
within the context of art 5, and in particular the ambit of the words 'in
matters relating to a contract'. Those precise issues are not the issues
before me, although it is of course possible that the judgment of the
Court of Justice will in due course contain remarks which are relevant
to this case: in particular, if restitutionary claims were to be held to be
within art 5(1), it would follow that the word 'obligation' must have a
meaning which is wider than 'contractual obligation'. How much wider,
however, could well even on that hypothesis remain an open question. In
the circumstances it seems to me right that I should proceed to a decision
without awaiting any such assistance as the judgment of the Court of
Justice in that case might afford me.
What guidance do these authorities give me in the present case? It seems
to me that the following principles and conclusions can be derived from
the decisions cited above. First, that concepts such as 'in matters relating
to a contract' and 'the obligation question' have to be interpreted and
applied not simply on the basis of national law, but with a view principally
to the scheme and purposes of the convention. Secondly, that because
art 5(1) is a derogation from the underlying philosophy that jurisdiction
is vested in the courts of the state where the defendant is domiciled, it
must as such be interpreted restrictively (see Kalfelis [1988] ECR 5565
at 5585 (para 19)). Thirdly, that because the concept of 'matters relating
to a contract' may extend beyond contracts stricto sensu to at any rate
consensual relationships partaking of the same nature as a contract, the
concept of 'obligation' may correspondingly have to be interpreted on a
somewhat extended basis (see Peters [1983] ECR 987 at 1002 (para 13)).
Fourthly, that, despite my third principle, the language of the judgments
cited above repeatedly regard the 'obligation in question' as a contractual
obligation: see again Peters [1983] ECR 987 at 1002 (para 13), but also
De Bloos [1976] ECR 1497 at 1508 (paras 11, 13 and 15), Shenavai
[1987] ECR 239 at 256 (para 18), Arcado [1988] ECR 1539 at 1555 (para
13), Union Transport plc [1992] 1 All ER 161 at 165, [1992] 1 WLR 15
at 19, and Barclays Bank plc v Glasgow City Council [1994] 4 All ER 865
at 876, [1993] QB 429 at 439. Fifthly, that regard must at all times be
had to the particular obligation upon which the plaintiff's action is based
and the non-performance of which is relied upon to support the plaintiff's
claims (De Bloos), and if there is more than one such obligation, the
principal such obligation (Shenavai and Union Transport plc), rather than
to the remedies which are claimed as flowing from that obligation and
its non-performance (De Bloos [1976] ECR 1497 at 1509 (para 16) and
Arcado). Sixthly, and as a corollary to the last point, that the connecting
factor which justifies the vesting of jurisdiction in the courts of a state
other than the state of the defendant's domicile is that the obligation in
question was to be performed in that former state (Shenavai [1987] ECR
239 at 256 (para 18)).
I turn therefore to apply these principles and conclusions to the instant
case. I consider first of all the concept of 'matters relating to a contract'.
Mr Gee did not, I think, expressly submit that the case with which I am
concerned falls outside these words, but he did so by implication by
relying on Monro v Bognor UDC [1915] 3 KB 167, [1914-15] All ER Rep
523. In that case it was held that an arbitration clause covering disputes
'upon or in relation to or in connection with the contract' did not cover a
claim for damages for fraudulent misrepresentation and for a declaration
that the contract be rescinded. …
In my judgment, the plaintiffs' claim to avoid the contracts falls within the
words 'in matters relating to a contract', and none the less so because a
claim in restitution is included in their writ as a claim consequent upon
the declaration which the writ seeks as to the successful avoidance of
the contracts. I say that for two reasons. First, the claim in restitution
is secondary to the claim to avoid the contracts on the ground of non-
disclosure and misrepresentation; it is not the principal obligation in
question, and indeed the plaintiffs did not rely on it as such; it is rather
a remedy to which the plaintiffs may be entitled if first they can establish
that they have validly avoided the contracts (see Shenavai and Arcado).
Therefore, whether claims in restitution fall within or outside art 5(1) is
not directly in issue or relevant. Secondly and in any event, however, I
would myself have been inclined to regard a claim in restitution arising
out of the avoidance of a contract as being a claim 'in matters relating
to a contract' (cf for instance Government of Gibraltar v Kenney [1956]
3 All ER 22, [1956] 2 QB 410). I recognise, however, that in an obiter
passage in Barclays Bank plc v Glasgow City Council [1994] 4 All ER 865
at 876-877, [1993] QB 429 at 440 Hirst J doubted whether --
'quasi-contractual claims, even where a contract is involved, are properly
to be treated as falling per se within art 5(1), having regard both to the
general considerations I have already advanced in my analysis of the
cases such as the Peters case and also because it is difficult to locate a
place of performance for a quasi-contractual obligation.'
In that passage, however, it seems to me that Hirst J was probably asking
himself not whether quasi-contractual claims arising out of contractual
relationships could come within the concept of 'in matters relating to a
contract', but rather the different question whether a quasi-contractual
obligation could suffice to found jurisdiction within art 5(1) as the
'obligation in question'.
I therefore turn to the concept of the 'obligation in question', for it
was on this that Mr Gee principally relied, making the submission that
only a contractual obligation would suffice to found jurisdiction. On this
ground, it seems to me that the passage which I have just cited from
the judgment of Hirst J in Barclays Bank plc v Glasgow City Council, as
well as the earlier passage I cited from his judgment, do support N..
Indeed, it is a refrain running throughout the cases both in the Court of
Justice and here in England that the obligation in question is a contractual
one. I hesitate, however, to say that the refrain is that the obligation
must be a contractual one, for that question was not in issue in most
of the cases to which I have referred. However, in two only of those
cases the issue did arise, albeit rather obliquely. In Peters the question
was whether a consensual relationship akin to contract but assumed
not to be in fact contractual fell within the words 'in matters relating
to a contract'. It was held that it did, and the reasoning involved the
consideration that because membership of an association reproduced
'close links of the same kind as those which are created between the
parties to a contract' therefore the obligations between such members or
between a member and the association, for instance to pay contributions,
may be 'regarded as contractual' (see [1983] ECR 987 at 1002 (para
13)). In other words, 'contract' in art 5(1) should be understood in
a somewhat expanded sense, so as to embrace at least consensual
relationships closely akin to contract, and there is then no difficulty in
regarding obligations arising within such a relationship as contractual
in an equally somewhat expanded sense. The assumption, but not the
reasoning, appears to be that the obligation, in the expanded sense, must
be contractual, but the issue rather related to the different concept of
'matters relating to a contract' and the decision involved the premise
that an obligation which was not in fact contractual could nevertheless
be regarded as such for the purposes of the article. It could be said,
therefore, that the Peters case has something, in theory at any rate, for
both sides of the argument. The other case in which the width of the
expression 'obligation' did arise, albeit again rather obliquely, was of
course Barclays Bank plc v Glasgow City Council. There, as in Peters,
the issue debated was as to the width of the concept 'in matters relating
to a contract' (see [1994] 4 All ER 865 at 870, [1993] QB 429 at 433).
Nevertheless, Hirst J approached that issue in part by reference to
his conclusion that the cases of Peters, Arcado, De Bloos and Union
Transport all suggested that what was needed was a contract giving rise
to contractual obligations or at any rate consensual relations akin to
contract giving rise to comparable obligations and that even a contract
leading to a quasi-contractual obligation was not enough (see [1994] 4
All ER 865 at 876-877, [1993] QB 429 at 439-440). This case therefore
supports Mr Gee, but has now been referred by the Court of Appeal to the
Court of Justice.
At the end of the day, however, even Mr Gee was inclined to accept
that a claim which turned on the continuing obligation of good faith
after the conclusion of an insurance contract could properly be said to
involve an 'obligation' which was contractual for the purposes of art 5(1),
even though as a matter of English law it arises only as an independent
obligation imposed by law and one that does not sound in damages as a
term of the contract (see The Good Luck [1989] 3 All ER 628 at 658-660,
[1990] 1 QB 818 at 886-888). It is necessary, therefore, to consider the
obligations relied upon by Mr Toulson to see whether they should similarly
be regarded as contractual in a legitimately extended sense of that term.
Mr Toulson's essential submission was that the pre-contractual duty
concerned, whether it be described as a duty of good faith, a duty
of disclosure, or a duty to make a fair presentation of the risk, is not
only properly called an 'obligation' (Glasgow Assurance Corp v William
Symondson & Co [1911] 16 Com Cas 109 at 121 and The Good Luck
[1989] 3 All ER 628 at 659, [1990] 1 QB 818 at 888) but in the latter
case is called an 'incident of the contract of insurance' (see [1989] 3 All
ER 628 at 660, [1990] 1 QB 818 at 889). If no contract is ever entered
into, there is no obligation. The obligation only arises at the moment of
contract. However, I do not think that is correct. In The Good Luck the
language of 'incident of the contract' is primarily directed to the post-
contractual duty. Moreover, it may be that a breach of the pre-contractual
duty will have no legal consequences if no contract is ever entered into:
but that is not the same as saying that the duty does not exist before the
contract. On the contrary, the judgment in The Good Luck [1989] 3 All ER
628 at 659-660, [1990] 1 QB 818 at 887-888 speaks of the duty as being
'pre-contractual' and as arising at the 'pre-contract stage'. The Marine
Insurance Act 1906, s 18(1), says:
'... the assured must disclose to the insurer, before the contract is
concluded, every material circumstance...'
In Bell v Lever Bros Ltd [1932] AC 161 at 227, [1931] All ER Rep 1 at 32
Lord Atkin said of contracts uberrimae fidei:
'In such cases the duty does not arise out of contract; the duty of a
person proposing an insurance arises before a contract is made...'
In truth, the right to avoid a contract, whether for non-disclosure in
contracts of uberrimae fidei, or for positive misrepresentation in any
kind of contract, does not depend on contract at all, but seems to rest
on underlying principles of equity: see Banque Financihre de la Citi
SA v Westgate Insurance Co Ltd [1989] 2 All ER 952 at 991-997 esp
995-996, [1990] 1 QB 665 at 773-781 esp 779, where Slade LJ, giving
the judgment of the Court of Appeal, said:
'In Merchants' and Manufacturers' Insurance Co Ltd v Hunt [1941] 1
All ER 123 at 136, [1941] 1 KB 295 at 318 Luxmoore LJ (with whom
Scott LJ agreed on this point (see [1941] 1 All ER 123 at 128, [1941]
1 KB 295 at 312)) said: "Whatever may be the decision with regard to
non-disclosure, as to which I say nothing, I am satisfied that in a case
of positive misrepresentation the right to avoid a contract, whether of
insurance or not, depends not on any implied term of the contract, but
arises by reason of the jurisdiction originally exercised by the Courts of
Equity to prevent imposition."'
Though Luxmoore and Scott LJJ found it unnecessary to decide this
further point, we think that the right to avoid a contract uberrimae fidei
in the case of non-disclosure must be founded on the same jurisdiction.
Moreover, if there be negligence or fraud in the misrepresentation, then
the right is not merely one to avoid a contract, but gives rise to a cause of
action in tort.
In my judgment these considerations militate against regarding the
obligation upon which the plaintiffs rely in this action as being within
the term 'obligation in question' in art 5(1), and that is so whether or
not that term is limited more or less strictly to contractual obligations. A
pre-contractual duty of disclosure is akin to a duty not even innocently
to misrepresent: in either case a resulting contract can be avoided. If
the former duty is to be regarded as an 'obligation' for the purposes
of art 5(1), then there is no reason why the latter duty should not be
regarded similarly. And if that be the position, then why should negligent
or fraudulent misrepresentation ultimately be regarded differently,
at any rate if they were relied on primarily to avoid a contract? If the
question were merely whether claims arising from non-disclosures or
misrepresentations were in 'matters relating to a contract', I could
readily accept that they should be so regarded. The question, however,
is whether such obligations which arise before contract and in the
circumstances of the formation of contract are apposite to be the subject
matter of an article which provides an exceptional jurisdiction based
upon the connecting link of the place of performance in matters relating
to contract. At the end of the day I believe this to be the critical factor.
Article 5(1) is concerned with the place where contracts are to be
performed, not with the place where contracts are made. It may well
be, and it does not arise for decision here, that, in the context of the
performance or non-performance of a contract, the critical obligation in
question could be an obligation which might not be a strictly contractual
or promissory obligation, for example the continuing post-contractual
obligation of good faith in an insurance contract. The Jenard Report on the
Brussels Convention (OJ 1979 C59 p 1 at pp 23-24) states that art 5(1)
represents a compromise between various national laws and in particular
between those which recognise the jurisdiction of the forum solutionis
and those which also recognise the jurisdiction of the courts for the place
'where the obligation arose'. There was concern that to accept the latter
might, by indirect means, sanction the jurisdiction of the forum of the
plaintiff. In my judgment, it would infringe this distinction to hold that an
obligation to avoid misrepresentations or non-disclosures in the making
of a contract is an obligation which founds jurisdiction at the place of
performance. After all, such an obligation gives no right to contractual
performance at all or to damages in lieu. The only remedy for its breach
is the right to avoid the contract, or, in the case of negligence or deceit, a
right to damages in tort and not in contract.
On the basis, therefore, that the obligation in question, as the plaintiffs
contend, is the obligation to make a fair presentation of the risk, I hold
that the plaintiffs have failed to bring themselves within art 5(1) of the
convention.
The plaintiffs, however, have an alternative case…The plaintiffs' suit
is founded on the obligation to make a fair presentation of the risk.
In Sweden, N.'s suit appears to be the mirror-image of the plaintiffs'
suit, namely an action to uphold the validity of the contract against the
challenge presented by the plaintiffs based upon the alleged failure to
make a fair presentation of the risk. The suit in Sweden might have
been a straightforward suit to enforce the payment of claims under the
reinsurance contracts, but it seems to me that it is not. But whatever
may be the position in Sweden, and I certainly must not be taken to be
deciding anything here which is ultimately a matter for the Swedish court
to consider and rule upon, the plaintiffs' suit here is not, in my judgment,
based upon any question as to the performance or non-performance of an
obligation to pay claims. To hold otherwise would, it seems to me, be to
revert to the test which was rejected in De Bloos and limited in Shenavai
to contracts of employment, namely a test by which the characteristic
obligation of a contract was to be identified as the obligation in question
-- as distinct from the correct test under which the obligation 'forming the
basis of the legal proceedings' has to be identified (see De Bloos [1976]
ECR 1497 at 1508 (para 11)).
For these reasons, I hold that the plaintiffs' second action, which seeks
to found jurisdiction in England under the terms of art 5(1) of the
convention, must be set aside. An irony of this litigation is that, if I am
right in thinking that claims are payable under these two contracts in
London, then any suit by N. against the plaintiffs for the payment of
claims, whether viewed under art 2 or under art 5(1), would itself have
to be based in England. Nevertheless, what I have had to consider is
whether the plaintiffs can found jurisdiction in England for their action,
and in my view they cannot.
The application of the convention to the first action
There remains for mention a form of postscript which only arose as a
matter of concern after oral submissions had been concluded, when
I inquired of Mr Gee and Mr Toulson by what exact process and as of
what time the provisions of the convention were given the force of law
in England vis- -vis parties domiciled in Sweden. It appears that the
following is the position. The United Kingdom ratified the convention
on 5 February 1992 and pursuant to art 61(4) of the convention itself
it followed that the convention took 'effect... in relation to' the United
Kingdom on 1 May 1992. In the meantime, and subject to the making
of an instrument bringing the statute into effect, the convention was
inserted into the Civil Jurisdiction and Judgments Act 1982 by means of
the Civil Jurisdiction and Judgments Act 1991 (see s 1(1) of the 1991
Act and s 3A of the 1982 Act). Section 3A of the 1982 Act gives the
convention the force of law in the United Kingdom. The 1991 Act, and
hence s 3A of the 1982 Act, was brought into effect on 1 May 1992,
the same day as the United Kingdom's ratification took effect under
art 61(4), by means of the Civil Jurisdiction and Judgments Act 1991
(Commencement) Order 1992, SI 1992 No 745, made under s 5(3) of
the 1991 Act. At this time Sweden had not yet ratified the convention.
Sweden ratified the convention on 9 October 1992, and so under art 61(4)
the convention took effect in relation to Sweden on 1 January 1993. It
followed that under s 1(3) of the 1982 Act (as amended by the 1991
Act) Sweden became a 'Lugano Contracting State' as from that date,
1 January 1993. Pursuant to ex parte leave granted on 25 September
1992, the first action was commenced by writ on 1 October 1992, after
the convention had the force of law in England, but before Sweden's
ratification and before the convention took effect in relation to Sweden
and thus before Sweden became a 'Contracting State' for the purposes of
the 1982 Act. The summons to set aside service in the first action is dated
29 December 1992. It says nothing about the convention. A question
arises therefore, whether, following 1 January 1993, this court, which has
been obliged to give to the convention the force of law in England since 1
May 1992, is obliged to treat Sweden as a 'Contracting State' in relation
to the first action, although it was not a 'Contracting State' at the date of
issue or service of the writ in that action, or at the date of the summons
challenging English jurisdiction, or at the date when ex parte leave to
bring the action was obtained.
Many provisions of the convention are written in terms of the act of
being 'sued'. Thus, art 2 states that persons domiciled in a 'Contracting
State' (ie N., but only after 1 January 1993) 'shall... be sued' in the courts
of that state. Article 5(1) provides that a person domiciled in a contracting
state 'may... be sued' in the courts for the place of performance of
the obligation in question. These provisions would seem to suggest
that the critical time for determining whether the convention applies to
proceedings as involving suit against persons domiciled in a contracting
state is the time when suit is begun. Whether that means upon issue
or upon service of the writ would make no difference on the facts of
this case, but see on this subject Dresser UK Ltd v Falcongate Freight
Management Ltd, The Duke of Yare [1992] 2 All ER 450, [1992] QB 502,
where it was held that for the purpose of the concept under arts 21 to 23
of the Brussels Convention of the court being 'seised' of proceedings, the
relevant time is that of service of proceedings, not of their issue.
Other provisions of the convention, however, suggest that for the purpose
of giving effect to the jurisdictional requirements of the convention, the
critical time may be later than the time when suit is begun. Thus the first
paragraph of art 20 provides:
'Where a defendant domiciled in one Contracting State is sued in a court
of another Contracting State and does not enter an appearance, the
court shall declare of its own motion that it has no jurisdiction unless its
jurisdiction is derived from the provisions of this Convention.'
The hypothesis 'is sued... and does not enter an appearance' suggests
that a point of time later than the time of suit is looked at. For
the purpose of the first action, the court's jurisdiction, subject to
any challenge, was derived from RSC Ord 11, r 1 and not from the
convention; but, in the absence of such an appearance as accepts
jurisdiction, the court is obliged to decline jurisdiction unless its
jurisdiction can be derived from the convention. Article 21, moreover,
refers to the concept of the jurisdiction of a court being 'established': that
again seems to point to a time later than the commencement of suit and
indeed later than the time when the court is seised of the proceedings.
Article 54, one of the 'Transitional Provisions' of the convention, provides
by its first paragraph that:
'The provisions of this Convention shall apply only to legal proceedings
instituted... after its entry into force in the State of origin...'
This provision emphasises the time of the commencement of suit, but
by reference to the date when the convention enters into force in the
state of origin of the proceedings (in the present case, in England),
rather than in the state where the defendant is domiciled. It could
be argued that the provision points both ways: it suggests that the
convention applies to the first action, because it was instituted after 1
May 1992; but by emphasising the date of the institution of proceedings
it raises the question whether it can apply for relevant purposes to
proceedings against a party domiciled at that time in a state which was
not a contracting state.
In written submissions addressed to me since the conclusion of the oral
hearing, counsel for both the plaintiffs and N. have referred me to the
provisions of the Acts and of the convention which I have cited above. On
the part of the plaintiffs it has been contended that the critical time for
considering whether Sweden is a 'Contracting State' is the time at which
leave to issue the proceedings was granted (see eg ISC Technologies Ltd
v Guerin [1992] 2 Lloyd's Rep 430 at 434) and that any other approach
would lead to retrospective effect being given to the convention. On the
part of N. it has been contended that as long as N.'s challenge to the
jurisdiction of the English courts is still under adjudication so that there is
no appearance by N. in England other than for the purposes of contesting
the jurisdiction, the English court is obliged to take into account the
fact that N. is domiciled in what is now a contracting state, both for the
purposes of the convention and as a matter of the general approach
of English law to the merely provisional nature of an ex parte order for
leave to issue and serve proceedings out of the jurisdiction (see eg WEA
Records Ltd v Visions Channel 4 Ltd [1983] 2 All ER 589 at 593-594,
[1983] 1 WLR 721 at 727).
…Even if the convention did apply to the first action, it would merely have
the same effect, to set aside those proceedings, in the light of my decision
on the second action. Moreover these new issues on the convention have
not been fully argued before me, indeed I have heard no oral submissions
on them at all. Neither party has requested a further hearing, and I have
not thought it right to put them to the expense of one. Still further, the
issues are in one sense of importance, since they concern the application
of the convention, and therefore no decision should be made without full
argument; while on the other hand, since they concern the transitional
application of the convention, it may be highly unlikely that they will ever
arise again. For these reasons, while recording the parties' submissions,
for which I am grateful, I consider it appropriate to say nothing further
about them.
In the result, I set aside all proceedings in both actions.
DISPOSITION:
Actions dismissed.