Neutral Citation Number: [2015] EWCA Civ 82 8 
  Case No: A2/2015/164 6 
IN THE COURT OF APPEAL (CIVIL DIVISION)  
ON APPEAL FROM THE HIGH COURT OF JUSTICE  
QUEEN'S BENCH DIVISION  
Mr. Justice Cook e 
[2015] EWHC 1498 (QB)   
  Royal Courts of Justice  
Strand, London, WC2A 2L L 
  27th July 201 5 
B e f o r e :  
LORD JUSTICE MOORE -BICK  
Vice -President of the Court of Appeal, Civil Division  
LORD JUSTICE VOS  
and 
LORD JUSTICE SALE S 
____________________  
Between:  
 
 JAMES PETTER  Claimant  
Appellant in 
2015/1646  
Respondent in 
2015/1759  
 - and -  
 (1) EMC EUROPE LIMITED  
(2) EMC CORPORATION  First 
Defendant  
Second 
Defendant  
Respondent in 
2015/1646  
Appellant in 
2015/1759  
____________________  
(Transcript of the Handed Down Judgment of  
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____________________  
Mr. Paul Goulding Q.C. and Mr. Andrew Scott (instructed by Allen & Overy 
LLP) for Mr.  Petter  
Mr. Selwyn Bloch Q.C.  and Mr. Sam Neaman (instructed by DAC Beachcroft 
LLP) for EMC Corporation  
 
Hearing dates : 14th & 15th July 2015   
____________________  
HTML VERSION OF JUDGMENT
 
____________________  
Crown Copyright ©  
Lord Justice Moore -Bick :   
Background  
1. There are two appeals before the court which arise out of interlocutory 
skirmishing between the parties to the substantive proceedings. The claimant 
in those proceedings is Mr. James Petter who until recently was employed by 
EMC Europe Ltd ("EMC Europe"), an English company whose ultimate 
parent is a Massachusetts company, EMC Corporation ("EMC"). EMC's 
business is the provision worldwide of data storage hardware and services.  
2. From 1st January 2009 Mr. Petter was employed by EMC Europe as Director, 
Global Accounts - EMEA. As such he was regarded as an important employee 
who could be expected to make a significant contribution to the success of 
EMC's overall business. In order to reward and encourage such employees 
EMC operated a share distribution scheme kn own as a "Stock Plan", under 
which awards of common stock of EMC were made available to them on a 
deferred basis. The value of such awards could be substantial and in the years 
immediately preceding his departure from EMC Europe they formed a 
significant p art of Mr.  Petter's total remuneration.  
3. In early 2015 Mr. Petter decided to leave EMC Europe and take up 
employment with a local subsidiary of another American company, Pure 
Storage Inc., a competitor of EMC. On 15th January 2015 he gave notice to 
EMC Eur ope of his intention to resign and began his job with the new 
company on 16th February 2015. As a result, on 27th February 2015 EMC 
started proceedings against Mr. Petter in Massachusetts seeking declarations 
that it was entitled under the terms of the Sto ck Plan and related agreements to 
rescind the most recent awards of stock to him. On 13th March 2015 Mr.  Petter 
responded by starting proceedings against EMC and EMC Europe in the High 
Court seeking declarations that the restrictive covenants in his contra ct of 
employment were unenforceable as being an unreasonable restraint on trade, 
that the provisions of the Stock Plan under which EMC purported to rescind 
awards of stock were unenforceable and that he had not acted in breach of his 
contract of employment . He also sought an interim injunction prohibiting 
EMC from pursuing the proceedings against him in Massachusetts.  
4. The claim form in the High Court action was served on EMC abroad without 
the permission of the court pursuant to CPR rule 6.33(2)(b)(iii). F ollowing 
service of the proceedings, EMC challenged the jurisdiction of the English 
court on the grounds that the contracts between itself and Mr. Petter under 
which stock had been awarded to him contained an express choice of 
Massachusetts law and an excl usive jurisdiction agreement in favour of the 
courts of Massachusetts.  
5. The scene was thus set for the two competing applications which were heard 
by Cooke J. over two days in May this year. For reasons I shall explain 
shortly, both applications turned to a considerable degree on the effect of 
Section 5 of Regulation (EU) No. 1215/2012 on jurisdiction and the 
recognition and enforcement of judgements in civil and commercial matters 
(recast), known for convenience as 'Brussels I (Recast)', as interpreted and  
applied by this court in Samengo -Turner v J & H Marsh and McLennan 
(Services) Ltd  [2007] EWCA Civ 723 , [2008] ICR 18 . The judge held that by 
virtue of Articles 22, 23(1) and 25(4) of the Regulation as interpreted in 
Samengo -Turner  the Massachusetts exclusive jurisdiction clause was of no  
effect and that the court had jurisdiction over EMC. However, he declined to 
grant an anti -suit injunction to prevent EMC from pursuing the proceedings in 
Massachusetts. EMC appeals against the judge's decision on jurisdiction; Mr. 
Petter appeals against his refusal to grant an anti -suit injunction.  
The contracts  
6. Before going any further it is necessary to examine a little more closely the 
terms of the various contracts between Mr. Petter and the EMC companies. 
They are described in paragraphs 11 -13 of th e judgment below, which I need 
not repeat in full. The following are the salient features for the purposes of the 
present appeal:  
(i) Mr. Petter's contract of employment was with EMC Europe. It incorporated 
the company's standard Statement of Terms and Co nditions and its Employee 
Handbook. The Terms and Conditions included a restrictive covenant in the 
form of a non -competition clause, by which Mr. Petter agreed not to market or 
sell products or services which competed with those being offered by EMC 
Europ e for a period of 12 months. The Handbook contained a Key Employee 
Agreement which formed part of the terms of his employment.  
(ii) The Key Employee Agreement contained an undertaking in favour of 
EMC and its subsidiaries not to compete with them for a per iod of 12 months 
following the termination of his employment nor during that period to solicit 
any of EMC's employees to terminate their employment.  
(iii) The Stock Plan established a scheme under which EMC as the parent 
company of the group awarded stock to employees who were thought to be in 
a position to make a significant contribution to the success of EMC itself and 
its subsidiaries. Awards were made by the acceptance by an employee in 
writing of an offer contained in a document known as a Restricted S tock Unit 
Agreement ("RSU agreement"). The Stock Plan contained provisions 
governing the exercise, vesting and termination of awards. Clause 6.7 
provided for the cancellation and rescission of awards if a recipient engaged in 
"Detrimental Activity", define d as including a failure to comply with the terms 
of the Key Employee Agreement. Clause 13 contained an express choice of 
Massachusetts law and an exclusive submission to the jurisdiction of the 
Massachusetts courts.  
(iv) Each offer of an award was contai ned in a separate RSU agreement which 
the employee had to accept in order to become entitled to receive it. It was 
common ground, at least for the purposes of the appeal, that until he accepted 
the offer contained in an RSU agreement an employee had no leg al right to 
receive a stock award, whatever his expectations might have been. By signing 
and accepting the RSU agreement the employee formally acknowledged that 
he thereby became bound by its terms, which included the following:  
"I . . . hereby:  
o understand  that neither the Plan nor this Restricted Stock Unit 
Agreement gives me any right to any Service Relationship with the 
Company or any Company subsidiary, as the case may be, and that the 
Award is not part of my normal or expected compensation; and  
o unders tand and acknowledge that the grant of the Award is expressly 
conditioned on my adherence to, and agreement to the terms of, the 
Key Employment Agreement with the Company."  
The Regulation  
7. Section 5 of the Regulation contains provisions governing the exerc ise of 
jurisdiction in relation to individual contracts of employment. It re -enacts, 
with some amendments, provisions which appeared in Section 5 of the original 
Regulation, Council Regulation (EC) No 44/2001, but for all practical 
purposes the provisions are the same. The following are of particular 
importance in relation to this appeal:  
"Article 21  
1. An employer domiciled in a Member State may be sued:  
. . .  
(b) in another Member State:  
(i) in the courts for the place where or from where the employee habitually 
carries out his work or in the courts for the last place where he did so …  
. . .  
2. An employer not domiciled in a Member State may be sued in a court of a 
Member State in accordance with point (b) of paragraph 1.  
Article 22  
1. An employer may bring proceedings only in the courts of the Member State 
in which the employee is domiciled.  
Article 23  
The provisions of this Section may be departed from only by an agreement:  
(1) which is entered into after the dispute has arisen;  
Section 7  
Prorogation of jurisdiction  
Article 25  
. . .  
4. Agreements . . . conferring jurisdiction shall have no legal force if they are 
contrary to Articles . . . 23 . . ."  
Samengo -Turner v Marsh and McLennan  
8. Questions very similar (Mr. Goulding Q.C. would  say identical) to those 
which arise in this case were considered by this court in Samengo -Turner . The 
claimants in that case were employed by an English subsidiary of the Marsh 
McLennan group, of which the third defendant, Marsh & McLennan 
Companies Inc. ("MMC") was the holding company. MMC operated an 
incentive plan under which awards of cash and stock in MMC were made to 
attract, retain and motivate senior employees of the various companies within 
the group. Each claimant signed a bonus agreement with th e second defendant, 
Guy Carpenter & Co LLC ("GC"), another company in the group, under the 
auspices of the plan. The agreements contained an express choice of New 
York law and a New York exclusive jurisdiction clause and also provided for 
cancellation and rescission if the recipient engaged in detrimental activity, 
which included attempting to recruit or solicit any employee of the company 
to work for a competitor. As in this case, MMC and GC began proceedings 
against the claimants (in that case in New York ) seeking repayment of the 
awards and the claimants began proceedings in this country for declarations 
that the court had jurisdiction over MMC and GC and for an injunction to 
prevent them from pursuing the proceedings in New York.  
9. The judge below decline d to grant an injunction. He concluded that, since the 
claimants were not employed by the second or third defendants, the 
proceedings did not relate to individual contracts of employment and had not 
been brought by the claimants' employer within the meanin g of Section 5. 
However, on appeal this court held that the question for decision was simply 
whether the claim was based on a contract of employment. Such a contract did 
not need to be in a single document or made at one time, and an agreement 
varying or a dding to the terms of an earlier contract of employment would 
become part of that contract, even if on its own it did not contain all the terms 
one would expect. Accordingly, the bonus agreement, on which the claim in 
New York was based, was part of the cl aimants' contracts of employment for 
the purposes of Article 18(1) (now Article 20). MMC was to be regarded as 
the claimants' employer for the purposes of the Regulation and Section 5 of 
the Regulation was therefore engaged. It followed that the exclusive 
jurisdiction clause had to be disregarded.  
10. When considering the question of an anti -suit injunction Tuckey L.J. accepted 
that in general parties who have agreed to an exclusive jurisdiction clause 
should be held to their bargain, but recognised that the c ourt could not give 
effect to the clause in that case and did not think that doing nothing was an 
option. In his view the only way to give effect to the Regulation was to grant 
an anti -suit injunction.  
11. The decision in Samengo -Turner  provided the backdrop to all the parties' 
submissions. Understandably, perhaps, Mr. Goulding Q.C. submitted that it 
was binding on us both in relation to the question of jurisdiction and in 
relation to the grant of an anti -suit injunction. Mr. Bloch Q.C., on the other 
hand, sub mitted that the present case was distinguishable on the facts and that 
EMC could not properly be regarded as Mr. Petter's employer, with the result 
that the exclusive jurisdiction clause in favour of the courts of Massachusetts 
was binding and the English courts should decline to exercise jurisdiction over 
it. He also submitted that, since the grant of an injunction always lies within 
the discretion of the court, it was open to the judge in this case to conclude 
that it was not in the interests of justice t o grant one.  
The proper approach to the judge's decision  
12. It was common ground before the judge and before us that a claimant will 
establish that the court has jurisdiction if he can show "a good arguable case" 
to that effect. In the present case that means a good arguable case that the 
court has jurisdiction under Section 5 of the Regulation. For these purposes it 
is accepted that "a good arguable case" means "having much the better of the 
argument" or "a much better argument than  the defendant" on the basis of the 
material before the court. In the present case the facts were not significantly in 
issue and the question therefore ultimately turned on the meaning of the words 
"employee", "employer" and "contract of employment" in Sec tion 5 of the 
Regulation. Deciding whether one party or the other has the better of the 
argument requires an evaluation and an appellate court should generally 
exercise a degree of circumspection before overruling the judge below: see 
Trust Risk Group S.p. A. v AmTrust Europe Ltd  [2015] EWCA Civ 437 . 
However, there are cases in which the issue turns on a question of law or the 
construction of a document to which , in the nature of things, there can be only 
one right answer and in cases of that kind the court may consider that it can 
properly decide the question for itself. Inevitably, perhaps, Mr. Bloch sought 
to persuade us that we could, and should, decide the q uestion ourselves 
without much circumspection, whereas Mr. Goulding emphasised the need to 
proceed with caution. For my own part, for reasons which will become 
apparent, I do not think that anything turns on this question.  
Jurisdiction  
13. I find it convenien t to begin by considering the effect of the various 
documents to which I have referred. I have no doubt that in conventional 
English law terms Mr.  Petter's contract of employment was contained in the 
letter of appointment and the documents which it incorpo rated. The fact that 
the Key Employee Agreement purported to create obligations in favour of 
EMC does not in my view affect that. The RSU agreements, on the other hand, 
took the form of communications from EMC itself to Mr. Petter offering him 
an award whi ch he was at liberty to accept or decline. If he accepted it, as in 
each case he did, a relationship of some kind came into being between him 
and EMC. What was the precise nature of that relationship and how it 
affected, if at all, his contract of employme nt, is another matter.  
14. Mr. Bloch submitted that RSU agreements were not intended to, and did not, 
give rise to contractual rights and obligations between EMC and those to 
whom they were directed. They contained, he said, nothing more than 
conditions which  attached to the award, and since they did not create a 
contractual obligation in favour of EMC on the part of Mr. Petter to comply 
with the terms of the Key Employee Agreement, the acceptance of the award 
did not vary in any respect his contract of employ ment with EMC Europe. 
This was not a case, therefore, (unlike Samengo -Turner ) in which a contract of 
employment was to be found in more than one document.  
15. Mr. Bloch's submission gains something from the penultimate bullet point in 
the RSU agreement, by wh ich Mr. Petter acknowledged that neither the Stock 
Plan nor the RSU agreement gave him any right to a service relationship with 
EMC itself or any of its subsidiaries. It also gains something from the last 
bullet point by which he acknowledged that the gran t of the award was 
"conditioned" on his adherence to and agreement to the terms of the Key 
Employee Agreement. However, I am not persuaded that a purely linguistic 
approach to the interpretation of a commercial document of this kind is likely 
to provide a reliable guide to its meaning. No doubt the language used in these 
bullet points could support the meaning for which Mr. Bloch contended, but 
they are just as capable, if not more capable, of supporting the conclusion 
advocated by Mr. Goulding. Viewing the  document as a whole, I think one can 
detect clear indications that it was intended to give rise to a bilateral contract 
between Mr. Petter and EMC of the usual kind. In particular, it is described as 
an agreement and contains clauses, such as an entire ag reement clause, of a 
kind that naturally form part of a contract. It required formal signature in order 
to indicate acceptance and incorporated the terms of the Stock Plan by which 
Mr. Petter agreed to be bound. I think Mr.  Goulding was right to submit tha t 
the purpose of the penultimate bullet point was to confirm that the RSU 
agreement gave Mr. Petter no right to insist on maintaining a contract of 
employment in order to ensure that his award vested. The final bullet point is 
in my view more consistent wi th the creation of a contract than with the 
imposition of a simple condition.  
16. For these reasons I am satisfied that each of the RSU agreements constituted a 
contract between Mr. Petter and EMC under which he agreed to comply with 
the conditions of the Key  Employee Agreement, but I also agree with the 
judge that the creation of that additional contractual relationship did not make 
EMC Mr. Petter's employer in the sense in which that term is generally used in 
English law. However, like the judge, I do not th ink that provides an answer to 
the question we have to decide. It was common ground that the expressions 
"employer", "employee" and "employment" as used in Section 5 of the 
Regulation must be given an autonomous meaning, which may not be the 
same as that w hich domestic law would give them (a point more recently 
reaffirmed in Mahamdia v People's Democratic Republic of Algeria  Case C -
154/11 [2013] I.C.R., at paragraph 42). One difficulty in this case is that, apart 
from Samengo -Turner , there is very little au thority on the meaning that should 
be given to those expressions and none in the jurisprudence of the 
Luxembourg court.  
17. In WPP Holdings Italy S.r.l. v Benatti  [2006] EWHC 1641 (Comm) , [2006] 2 
CLC 142 Field J. identified three characteristics of a contract of employment 
for the purposes of Section 5 of the Regulation. They were: (i) the provision of 
services by one party over a period of time for which remun eration is paid; (ii) 
control and direction over the provision of the services by the counterparty; 
and (iii) integration to some extent of the provider of the services within the 
organizational framework of the counterparty. Those indicia were derived 
from such authority as existed on the distinction between contracts of 
employment and contracts for the provision of services. In my view they are 
helpful, but it is of equal importance to have regard to the judge's exhortation 
to bear in mind that the underl ying policy of Section 5 is to protect employees 
because they are considered from a socio -economic point of view to be the 
weaker parties to the contract. This has recently been reaffirmed by the Court 
of Justice in Mahamdia v Algeria , at paragraphs 46 and  60.  
18. Mr. Bloch accepted that the expressions "employer" and "employee" might 
have to be construed more broadly than they would be in domestic law, but he 
submitted that there was nothing to suggest that they should be construed so 
broadly as to encompass a situation in which there was no contractual 
relationship between the parties of the kind envisaged in WPP v Benatti . In my 
view, however, there is no reason to make what is no more than an assumption 
based on domestic law views of what is required for th e relationship of 
employer and employee to exist. When seeking to interpret European 
legislation it is important to ascertain the purpose which it is designed to 
achieve, since that is likely to provide a surer guide to its meaning than a close 
scrutiny of  the words used. In the present case the purpose of Section 5 is 
identified in recitals 18 and 19, which state as follows:  
"18. In relation to insurance, consumer and employment contracts, the weaker 
party should be protected by rules of jurisdiction more  favourable to his 
interests than the general rules.  
19. The autonomy of the parties to a contract other than an insurance, 
consumer or employment contract where only limited autonomy to determine 
the courts having jurisdiction is allowed,  should be respec ted subject to the 
exclusive grounds of jurisdiction laid down in this Regulation." (Emphasis 
added.)  
19. These two recitals make it clear that even a principle as important as party 
autonomy is required to give way to prescriptive rules in favour of the 
prote ction of employees as the weaker parties in disputes relating to contracts 
of employment. In those circumstances it is necessary to interpret the whole of 
Section 5 in a way that will most effectively afford employees the degree of 
protection which those w ho framed the Regulation intended them to receive. 
That is most likely to be achieved by looking at the substance of the 
relationship rather than the legal structure within which it sits.  
20. This brings me back to the provisions of Section 5 and in particula r Article 
20(1) which provides that "In matters relating to individual contracts of 
employment jurisdiction shall be determined by this Section." "Relating to" is 
an expression capable of being given a broad interpretation. The decision of 
this court in Alfa-Laval Tumba AB v Separator Spares International Ltd  
[2012] EWCA Civ 1569 , [2013] ICR 455  demonstrates that a dispute may 
"relate to" a contract of employment even though the claim itself sounds in 
tort. If in the present case one asks whether the dispute between Mr. Petter and 
EMC "relates to" his contract of employment, it is not difficult to see that in 
reality and substance it does. Although he may have had no right in law to 
receive an award of stock units, I have little doubt that he, and for that matter 
both EMC and EMC Europe , regarded such awards as intrinsically bound up 
with his contract of employment. They were made available to him as an 
important employee and were intended to act as a reward for past efforts and 
an incentive to make efforts in the future. They were proba bly also viewed by 
EMC as a way of retaining highly valued employees. The awards were made 
by EMC as the parent company both for its own benefit and for the benefit of 
the subsidiaries by whom recipients were employed. A dispute between 
Mr. Petter and EMC over the terms on which awards of stock were made to 
him as an employee of EMC Europe is a dispute of a kind in which he is 
properly to be described as the weaker party and thus entitled to protection in 
accordance with the purposes of Section 5. Leaving a side the decision in 
Samengo -Turner , therefore, I am satisfied that the dispute between Mr. Petter 
on the one hand and EMC and EMC Europe on the other is one that "relates to 
his contract of employment" within the meaning of Article 20(1) and that both 
EMC  and EMC Europe are to be regarded as his employers for the purposes of 
the Regulation.  
21. That conclusion is reinforced by the decision in Samengo -Turner . The facts in 
that case are strikingly similar to those of the present case. The court accepted 
in that  case that the expressions used in the Regulation have to be given an 
autonomous meaning and that one of the objectives of the Regulation is the 
protection of employees as the weaker party in disputes with employers 
relating to their contracts of employmen t. The court clearly had no doubt that 
the bonus agreements (equivalent to the RSU agreements in the present case) 
related to the claimants' contracts of employment, which was sufficient to 
bring the disputes within the scope of Article 20(1) and thereby S ection 5 as a 
whole. Whether MMC and GC were to be regarded as the claimants' 
employers was, perhaps, a more difficult question, but again, the court 
considered that since MMC and GC were entitled to sue under the bonus 
agreements, and because the claims w ere claims relating to the claimants' 
contracts of employment, they were to be regarded as their employers for 
those purposes. This was the court's view even though neither MMC nor GC 
could be regarded as the claimants' employers under English law. Despite  
some minor differences in the language of the agreements, I can see no 
substantial ground of distinction between Samengo -Turner  and the present 
case. In my view, not only does it reinforce the conclusion to which I have 
come, it is binding authority for t he proposition that a company which 
provides benefits to employees of associated companies within the same group 
may be regarded as an employer for the purposes of the Regulation if it 
provides those benefits in order to reward and encourage those employee s for 
the benefit of their immediate employer and the group as a whole.  
22. Mr. Bloch submitted that the scope of Article 20(1) of the Regulation is 
unclear and that there is room for argument about whether it extends to 
relationships of the kind that existed  between Mr. Petter and EMC in this case. 
He therefore submitted that we should refer the question to the Court of 
Justice of the European Union for its opinion. In my view that would not be 
appropriate. The terms of the Regulation and the existing case la w of the court 
(limited though it is) combine to make it clear that the Regulation applies in a 
case of this kind. For my part I consider the matter to be acte clair.  
23. For these reasons I think the judge was right to hold that Mr. Petter had much 
the better of the argument that Section 5 of the Regulation applies in this case 
and that the court is therefore bound to disregard the Massachusetts exclusive 
jurisdiction clause and assume jurisdiction over EMC in r elation to the issues 
that are raised by his claim.  
Anti-suit injunction  
24. Although the grant of an injunction is a matter of discretion, it is trite law that 
judicial discretion must be exercised according to principle. It is not sufficient, 
therefore, sim ply to say that the judge had a discretion whether to grant or 
refuse the relief sought in this case. It is equally trite law, however, that there 
may be a range of possible decisions open to the court and that this court 
cannot set aside the judge's decis ion merely because it would have come to a 
different conclusion. If it is to do so, it must be satisfied that the judge has 
erred in law, that he has taken into account an irrelevant factor or has failed to 
take into account a relevant factor, or that his decision falls outside the range 
of what is reasonably permissible. In many cases there is room for legitimate 
disagreement within the range of permissible decisions. Mr. Bloch submitted 
that this is one such case and that, even if we disagreed with the ju dge, his 
decision could not be impugned. Mr. Goulding submitted that the court should 
as a matter of principle grant an anti -suit injunction to protect Mr. Petter's 
right to be sued in this country and that in any event the judge was bound by 
the decision in Samengo -Turner  to grant one.  
25. In matters of jurisdiction English law has always attached considerable 
importance to upholding and giving effect to exclusive jurisdiction clauses. 
Although the courts have recognised that there may be rare cases in which it 
would be wrong to give effect to a clause of that kind, it will normally do so 
and will, if necessary, grant an injunction to restrain one or other party from 
pursuing proceedings in contravention of the clause. Lord Bingham stated the 
position clearly in Donohue v Armco Inc.  [2001] UKHL 64 , [2002] 1 Lloyd's 
Rep 425  as follows:  
"24. If contracting parties agree to give a particular court exclusive jurisdiction 
to rule on claims between those parties, and a claim falling within the scope of 
the agreement is made in proceedings in a forum other th an that which the 
parties have agreed, the English court will ordinarily exercise its discretion 
(whether by granting a stay of proceedings in England, or by restraining the 
prosecution of proceedings in the non -contractual forum abroad, or by such 
other p rocedural order as is appropriate in the circumstances) to secure 
compliance with the contractual bargain, unless the party suing in the non -
contractual forum (the burden being on him) can show strong reasons for 
suing in that forum. I use the word "ordina rily" to recognise that where an 
exercise of discretion is called for there can be no absolute or inflexible rule 
governing that exercise, and also that a party may lose his claim to equitable 
relief by dilatoriness or other unconscionable conduct. But the  general rule is 
clear: where parties have bound themselves by an exclusive jurisdiction clause 
effect should ordinarily be given to that obligation in the absence of strong 
reasons for departing from it. Whether a party can show strong reasons, 
sufficient  to displace the other party's prima facie entitlement to enforce the 
contractual bargain, will depend on all the facts and circumstances of the 
particular case."  
26. In the present case, by signing the RSU agreements (which incorporated the 
terms of the Stock  Plan) Mr. Petter agreed that the Massachusetts courts 
should have exclusive jurisdiction over any disputes that might arise between 
himself and EMC in relation to the Stock Plan and did so in order to obtain the 
benefits being offered to him under it. In the ordinary way, therefore, the court 
could be expected to hold him to that agreement and since no reasons for 
doing otherwise (apart from the Regulation) have been put forward, it could 
hardly have been criticised for doing so. The present case is unusua l, however. 
For reasons I have already given, I am satisfied that the claim which EMC 
seeks to pursue in Massachusetts falls with the scope of Article 20(1) of the 
Regulation and that EMC is to be regarded as Mr. Petter's employer for that 
purpose. That me ans that Articles 23(1) and 25(4) apply and that the exclusive 
jurisdiction agreement has no legal force as far as this court is concerned. 
Moreover, it is said that by virtue of Article 22(1), Mr. Petter has the right not 
to be sued elsewhere than in the courts of this country, where he is domiciled.  
27. The judge declined to grant an anti -suit injunction in this case. He considered 
that he was not bound by Samengo -Turner  to do so, because his decision 
involved the exercise of discretion. The need to grant an  injunction, he said, 
always depends on the particular facts of the case, but he recognised that he 
had to have regard to the reasoning in that case. By the time the matter came 
before the judge the court in Massachusetts had held that disputes arising out  
of the Stock Plan were subject to its exclusive jurisdiction, so that there was an 
irreconcilable clash between the courts of this country and the courts of 
Massachusetts in relation to the question of jurisdiction. The judge was of the 
view that an inter im injunction would for practical purposes be final in its 
effect, because the English courts would decide the matters in issue between 
Mr. Petter and EMC and the grant of an injunction would almost certainly 
prevent EMC pursuing its claim in the forum cho sen by the parties 
(paragraph  59). However, later in his judgment he said:  
"63. I should therefore work on the assumption, it seems to me, that although 
this court does not lightly assume that its orders will not be observed, EMC 
Corporation is likely to continue with proceedings in the court of 
Massachusetts and not play any part in proceedings in this country. If 
proceedings continue in both courts, the losing party in each jurisdiction 
would be likely to resist enforcement in the other jurisdiction and to succeed 
in doing so because of the perceived lack of jurisdiction of the other court, and 
issues of public policy, res judicata and issue estoppel would be unlikely to 
apply.  
64. Whilst I can understand the desire of the Court of Appeal to grant a final  
anti-suit injunction in Samengo -Turner in similar circumstances, it seems to 
me that the requirements of comity do not allow such a solution in the present 
case."  
28. I respectfully doubt whether the judge was entitled on the basis of the 
evidence before him to proceed on the basis that EMC would not comply with 
an order of this court, but even if he was, I do not think that provides a 
satisfactory basis for distinguishing this case from Samengo -Turner . However, 
if the judge thought it was a factor, it was cer tainly not the only one he took 
into account, because he then proceeded to consider a number of academic 
articles in which various commentators have expressed criticisms of the 
decision in Samengo -Turner . He then concluded:  
"69. I consider that the grant of anti -suit injunctions is essentially inimical to 
the Regulation which certainly does not allow such in the context of 
jurisdictional disputes where the jurisdictions in question are the courts of 
Member States. Common Law jurisdiction may grant anti -suit injunctions 
outside the context of the Recast Regulation but, once matters are governed by 
the Regulation, even if it is open to the court, it would not seem appropriate to 
do so on the grounds of a jurisdiction granted solely by the Recast Regulation, 
as opposed to jurisdiction founded on an agreement between the parties.  
70. This is not a case where it is said that the existence of proceedings in 
Massachusetts is vexatious and oppressive and it cannot be said that the 
rulings of the Massachusetts court on its own jurisdiction are in breach of 
customary international law. Regard must be had to the parties' free choice of 
law which applies, namely Massachusetts law, and the requirements of comity 
in relation to the decision of that court."  
He therefore dec lined to grant the injunction which Mr. Petter sought.  
29. Some commentators have suggested that the effect of Article 22(1) of the 
Regulation is to create rights of a public, rather than a private, nature which 
are not capable of being protected by injunction . However, no argument of 
that kind was addressed to us and it would in any event have been precluded 
by the decision in Samengo -Turner , in which the existence of a right capable 
of protection by injunction was the foundation of the decision.  
30. It does not appear that problems arising from a conflict between a contractual 
exclusive jurisdiction clause and the requirements of legislation binding on the 
English courts has been considered in any case other than Samengo -Turner . 
Counsel drew our attention to two authorities, OT Africa Line Ltd v Magic 
Sportswear Corpn [2005] EWCA Civ 710 , [2005] 2 Lloyd's Rep 170  and Akai 
Pty Ltd v People's Insurance Co. Ltd  [1999] I.L.Pr. 24, [1998] 1 Lloyd's Rep. 
90, but neither of them shed much light on the present problem because in 
each case the legislation  was that of a foreign country and not binding on the 
English court. There was not the same reason, therefore, for the court not to 
give effect to the exclusive jurisdiction clause.  
31. The judge may or may not have been right to assume that EMC would 
disregard any injunction granted by the English court and pursue the 
proceedings in its home court, leading ultimately to a stalemate, but with great 
respect to him, I do not think that he was entitled to depart from the appr oach 
adopted in Samengo -Turner  on the grounds that the requirements of comity 
precluded the grant of an injunction in this case. Although the grant of an 
injunction is a matter of discretion, that discretion must be exercised in 
accordance with established  principles. Whatever criticisms may have been 
made of the decision in Samengo -Turner , there can be little doubt that the 
court (which had the requirements of comity well in mind) did not consider 
that they required it to withhold relief. If it is necessar y to spell out the 
principle which emerges from the judgment it is that in a case falling within 
Section 5 of the Regulation an anti -suit injunction should ordinarily be granted 
to restrain an employer from bringing proceedings outside the Member States 
in order to protect the employee's rights.  
32. The fact that it is not permissible for the courts of one Member State to grant 
anti-suit injunctions to restrain proceedings in the courts of another Member 
State does not seem to me to be of any significance. The  restriction on the 
right to grant anti -suit injunctions to restrain a party from pursuing 
proceedings in another Member State rests primarily on the existence of 
legislation regulating the exercise of jurisdiction within the Union and the 
need for Member States to trust each other to implement it properly: see 
Turner v Grovit  (C-159/02) [2005] 1 AC 101 . Not only is an anti -suit 
injun ction unnecessary in that context, it would involve an interference with 
the working of the Regulation. In cases where proceedings are threatened or 
pending in the courts of a state outside the Union, no such inhibition exists.  
33. Nor can I accept Mr. Bloch' s submission that the fact that courts of other 
Member States do not have the power to grant anti -suit injunctions (if that be 
the case) indicates that it is not necessary to grant an injunction to protect the 
employee's right. The scope of the powers avai lable to the courts of the 
different Member States to protect and vindicate rights may vary and each 
court is entitled to resort to the powers available to it to protect a party's rights 
once they have been established. The fact that the right to be protec ted itself is 
derived from an EU Regulation does not seem to me to provide any reason for 
withholding a suitable form of relief if the court has power to grant it. What is 
necessary in the interests of justice will depend on the particular facts of the 
case. If doing nothing was thought not to be an option in Samengo -Turner , it is 
difficult to see how it can be an option in this case.  
34. Finally, Mr. Goulding submitted that it was appropriate for the court to grant 
an anti -suit injunction in this case in orde r to protect its own jurisdiction, as it 
was held in Stitching Shell Pensioenfonds v Krys  [2014] UKPC 41 , [2015] 2 
WLR 289  to be necessary in relation to the insolvency jurisdiction. The facts 
with which the court was there concerned were some way removed from those 
of the present case, but I can s ee some force in the argument that the court 
should take such steps as are open to it to ensure that its jurisdiction under 
Section 5 of the Regulation is not undermined. However, it is unnecessary to 
pursue that question any farther in this case.  
35. For all  these reasons I have reached the conclusion that the judge was wrong 
in this case to withhold the grant of an injunction.  
Conclusion  
36. I would dismiss EMC's appeal against the judge's order dismissing its 
challenge to the jurisdiction, but I would allow Mr . Petter's appeal against the 
judge's order dismissing his application for an anti -suit injunction.  
Lord Justice Vos  : 
37. I have had the benefit of reading the judgments of both Moore -Bick and Sales 
LJJ in draft. I agree with Moore -Bick LJ on both points, bu t would wish to add 
a few words of my own in relation to the question of the grant of an anti -suit 
injunction against EMC Corporation ("EMC"). Moore -Bick LJ has taken the 
view, with which I agree, that we are bound as to the grant of an injunction by 
the d ecision in Samengo -Turner . I would like to explain first why I have also 
reached that conclusion.  
38. There was some argument before us as to precisely what Samego -Turner v. 
J&H Marsh McLenna Ltd  supra  decided. One should, I think start with the 
relevant pass ages from Tuckey LJ's judgment as follows: -  
"[38] So does it follow that we should grant an anti -suit injunction? Mr 
Dunning submits that we should because it is the only way to make the 
claimants' statutory right to be sued here effective. Damages would not be an 
effective remedy. Mr Rosen accepted that we could grant an anti -suit 
injunction if we found that Section 5 was engaged but urges us not to do so as 
a matter of discretion and judicial restraint and in the interests of com ity. 
[39] The position we are in is as follows. The New York court has rejected the 
challenge to its jurisdiction because of the clear and unambiguous terms of the 
exclusive New York jurisdiction clause in the bonus agreements. Had we not 
been concerned wi th the contracts of employment we should have upheld such 
a clause as well. But, as it is, our law says that we cannot give effect to it. The 
claimants can only be sued here. What shall we do? The only choice it seems 
to me is between an anti -suit injuncti on or nothing.  
[40] An anti -suit injunction is not a remedy to be dispensed lightly, 
particularly where the defendants sought to be restrained have brought 
proceedings in courts of high repute in a friendly foreign state. The injunction 
of course is direct ed at the litigating party and not the court. The premise for 
the remedy is that this party should not be litigating in that court and so the 
principles of comity are not offended by granting an injunction which does no 
more than require that party to comp ly with his legal obligations and ensure 
for the claimant that he does so. Although this is the correct analysis, one can 
understand why not everyone would see the situation in quite this way which 
is why the court should always be cautious before granting  such relief.  
[41] We were referred to various English cases which have dealt with these 
problems in the context of commercial disputes where injunctions have been 
claimed on the basis of an exclusive jurisdiction clause or forum conveniens. 
But no case wa s cited to us where the exclusive jurisdiction of the English 
court was mandated by statute. Mr Dunning submitted that where that was so, 
the case for an injunction was at least as strong as a case based on an exclusive 
jurisdiction clause. I do not necess arily accept this. In general, if parties agree 
an exclusive jurisdiction clause they should be kept to their bargain; if, as 
here, the exclusive jurisdiction of the English courts is imposed by statute it 
can be said that the case for an injunction is not  so strong, particularly where 
the statute has provided that an agreed exclusive jurisdiction clause is of no 
effect.  
[42] The converse of this problem arose in OT Africa Line Ltd v Magic 
Sportswear Corp  [2005] EWCA Civ 710 , [2006] 1 All ER (Comm) 32  where 
a cargo claim under a bill of la ding containing an English law and exclusive 
jurisdiction clause was made in Canada relying on Canadian legalisation 
which allowed such a claim to be made there in spite of the clause. This court 
granted an anti -suit injunction to restrain the Canadian pro ceedings on the 
ground that the parties should be kept to their English law bargain. This is an 
illustration of the court giving full effect to party autonomy which under art 23 
of the Jurisdiction Regulation it is required to do, but under arts 20 and 21 it 
cannot. We are in the latter position: we cannot give effect to the exclusive 
New York jurisdiction clause.  
[43] Doing nothing is not an option in my judgment. The New York court 
cannot give effect to the Jurisdiction Regulation and has already decided in 
accordance with New York law on conventional grounds that it has exclusive 
jurisdiction. The only way to give effect to the English claimants' statutory 
rights is to restrain those proceedings. A multinational business must expect to  
be subject to the employment laws applicable to those they employ in different 
jurisdictions. Those employed to work in the MM group in London who are 
domiciled here are entitled to be sued only in the English courts and to be 
protected if that right is n ot respected. There is nothing to prevent MMC and 
GC or any other company in the MM group from enforcing their rights under 
the bonus agreements here".  
39. The reasoning encapsulated in these passages can be summarised as follows: -  
(i) English law says that t he English court cannot give effect to the clear and 
unambiguous terms of the exclusive New York jurisdiction clause in the bonus 
agreements. That law provides that the claimants can only be sued in England. 
The only choice is between an anti -suit injuncti on or nothing.  
(ii) The correct legal analysis is that the premise for an anti -suit injunction is 
that the injuncted party should not be litigating in the overseas court, which is 
why the principles of comity are not offended by granting an injunction whic h 
does no more than require that party to comply with his legal obligations.  
(iii) No previous authority was cited where an injunction was sought on the 
basis of the exclusive jurisdiction of the English court mandated by statute. 
The case for an injunctio n in such a case is not necessarily as strong in that 
situation as where the injunction is sought on the basis of an exclusive 
jurisdiction clause, particularly where the statute has provided that an agreed 
exclusive jurisdiction clause is of no effect.  
(iv) The converse of the problem arose in OT Africa Line Ltd v Magic 
Sportswear Corp  [2005] EWCA Civ 710 , where the court gave full effect to 
party autonomy. In  this case, that cannot be done because of articles 22 and 23 
of what is now the Brussels I Recast Regulation.  
(v) Doing nothing is not an option, because the New York court cannot give 
effect to the Regulation and has decided that it had exclusive jurisdi ction, so 
that the only way to give effect to the English employee's statutory rights is to 
restrain the overseas proceedings.  
(vi) A multinational business must expect to be subject to the employment 
laws applicable to those they employ in different juri sdictions.  
(vii) English employees domiciled in England are entitled to be sued only in 
the English courts and to be protected if that right is not respected.  
40. Mr Selwyn Bloch QC, counsel for EMC, argued persuasively that points (iii) 
and (iv) in the Same ngo-Turner reasoning (as I have summarised it) showed 
that the statutory right of an English employee to be sued in England did not 
weigh as heavily in the balance, when an anti -suit injunction was being 
considered, as a freely -entered into exclusive juris diction clause to which that 
employee had agreed. But that is not, in my judgment, the ratio decidendi  of 
this part of the decision. That ratio  is, I think, that it is not open to the court to 
refuse an injunction where the overseas court cannot give and h as not given 
effect to the Regulation, so that the only way to give effect to the English 
employee's statutory rights is to restrain the overseas proceedings. Moore -Bick 
LJ described the ratio as being that in a case falling within section 5 of the 
Regulat ion an anti -suit injunction should ordinarily be granted to restrain an 
employer from bringing proceedings outside the Member States in order to 
protect the employee's rights. The difference between the formulations is 
probably not material and, whichever formulation is adopted, the judge was 
bound to follow the decision in Samengo -Turner  and to grant the anti -suit 
injunction sought.  
41. In these circumstances, it may not be appropriate to say much more about the 
problem that this case and Samengo -Turner  raise d, since to do so will 
undoubtedly fuel the academic debate that has followed the Court of Appeal's 
previous decision. I should, however, like to say a few words on the legal 
principles that might be thought to be applicable. First, it is axiomatic that 
every grant of an injunction is a discretionary matter, so that it is potentially 
problematic to lay down principles that put the court in a position in which 
precedent demands that the grant of an injunction is in any sense automatic. 
Such a situation does not give full weight to the authorities that make clear the 
caution that a court should exercise in considering the grant of an anti -suit 
injunction.  
42. Moreover, I am not sure that the ratio  of Samengo -Turner  takes full account of 
Tuckey LJ's own justifiabl e instinct that the case for an injunction based on a 
statutory right is not as strong as the case for an injunction based on an 
exclusive jurisdiction clause to which the parties have agreed. There was, as it 
seems to me, something of a disconnect between  the reasoning in paragraph 
41 of Samengo -Turner and the conclusion in paragraph 43. It is normal, but 
not automatic, for an anti -suit injunction to be granted on the basis of an 
exclusive jurisdiction clause (see the citation from Lord Bingham's speech in  
Donohue v. Armco Inc. supra  at paragraph 25). Why, one might wonder, 
should it be automatic in the case of a statutory European or English law right? 
Moreover, I question whether it is right to say that the principles of comity are 
not offended by grantin g an injunction which does no more than require that 
party to comply with his legal obligations, when the opposing party has agreed 
an exclusive jurisdiction clause that is in clear conflict with those obligations 
and his own statutory employment rights.  
43. I understand and accept that the effect of articles 23(1) and 25(4) is, as Moore -
Bick LJ has said, that the exclusive jurisdiction agreement has no legal force 
as far as this court is concerned, and that the effect of article 22(1) is that EMC 
is required to bring proceedings against Mr. Petter only in the courts of this 
country, where he is domiciled. But these statements do not take full account 
of the fact that Mr Petter has agreed an exclusive jurisdiction clause either 
knowing or being presumed to know  of the existence of these rights and 
protections.  
44. In my view, there are powerful arguments that ought perhaps to have required 
closer attention to the balance between the enforcement by anti -suit injunction 
of a statutory domestic or European employment right on the one hand, and 
the need, on the other hand, to give effect to the freely -agreed exclusive 
jurisdiction clause conflicting with that statutory right. What if, for example, 
an employee in Mr Petter's position had expressly agreed that he would no t 
take advantage of the protections in the Regulation when signing up to the 
Stock Plan and the RSU agreements? Even in our situation, it seems to me that 
the judge's solution of allowing the two pieces of litigation to continue had 
some merit. At least, i t did not put EMC on the horns of an impossible 
dilemma between either having to give up its undoubted contractual rights to 
proceed in Massachusetts or to be in contempt of an English court order. It is 
not, I think a conclusive answer to this problem to say, as Tuckey LJ did, that 
the overseas corporation has chosen to employ people in London where the 
Regulation gives them certain rights, because the employees in question have 
agreed to be bound by a contract for their own benefit that is in conflict wit h 
those rights. The decision is, therefore, in my judgment, rather more nuanced 
and fact dependent than Samengo -Turner  allows.  
45. Despite what I have said, since we are bound by the decision in Samengo -
Turner  on the second point, I agree that Mr Petter's app eal should be allowed.  
Lord Justice Sales :  
46. I agree with the judgment of Moore -Bick LJ and with the reasons he gives. I 
add some words of my own because I find myself in respectful disagreement 
with the suggestion by Vos LJ that this court might have been  in error in the 
conclusions it came to in Samengo -Turner . In my opinion, there are good 
arguments of principle in favour of the conclusions reached by the court in 
that case.  
47. Like Moore -Bick LJ, I can identify no relevant point of distinction on the facts 
between the present case and Samengo -Turner . I think the only material 
distinction from Samengo -Turner  is the judge's finding at paragragh [63] of 
the judgment that EMC would not respect an injunction against it. But in my 
view that was not a finding which the judge was entitled to make. There was 
no statement from EMC to that effect and EMC addressed no argument to him 
to suggest or support such a finding. Mr Petter was not pu t on notice of it as a 
point and had no opportunity to rebut it. In any event, the proper approach is 
that there is an evidential presumption in modern times that in a globalised 
market -place a trading company with international interests such as EMC may 
be expected to respect an order of the English Court (see Stichting Shell 
Pensioenfonds  at [37]), and there was no argument or evidence on the basis of 
which the judge was entitled to conclude otherwise. Therefore, I consider that 
the present case is indist inguishable from Samengo -Turner  and the result 
ought in principle to be the same.  
48. The basis for a court of equity to intervene to grant an anti -suit injunction is 
the right of a person to be protected from undue harassment in the form of 
inappropriate lit igation in more than one place. The jurisdiction is to be 
exercised when the ends of justice require it: Société Nationale Industrielle 
Aerospatiale v Lee Kui Jak  [1987] 1 AC 871, 892. This jurisdiction founds 
both the forum non conveniens  principle (which  applies even where there is no 
contractual right to litigation in any particular jurisdiction) and the grant of 
injunctions where there is an exclusive jurisdiction agreement. The principles 
which govern the grant of injunctive relief (to prevent litigati on abroad) or a 
stay (to prevent litigation in England) are heavily informed by public policy 
concerns relating to the comity of nations, the rational and proper distribution 
of litigation to resolve disputes in a fair and a cost -effective way and other 
matters.  
49. Where there is an exclusive jurisdiction agreement, a tension may arise 
between the principle of respect for party autonomy by holding them to the 
promises they have made (the principle of pacta sunt servanda , to use the 
time-honoured Latin phrase)  and other public policy concerns. Those other 
public policy concerns may arise in the state where an anti -suit injunction is 
being sought or in the state where the addressee of the proposed injunction is 
seeking to litigate.  
50. Pacta sunt servanda  is itself  a principle of public policy and, moreover, one 
which is widely recognised across states. This means that it provides a strong 
source of guidance regarding the appropriate general approach for the English 
courts to adopt. But it is not an absolute princip le. Lord Bingham pithily 
summarises the position in Donohue v Armco Inc.  in the passage set out by 
Moore -Bick LJ above. The principle may be outweighed if there are "strong 
reasons" why it should be.  
51. Where, as here, a party is seeking to sue in England th ere may be "strong 
reasons" of public policy against simply respecting the parties' contractual 
choice which are based on the public policy of the foreign state (which the 
English court may be prepared to recognise and give weight to on grounds of 
comity) or which are based on the public policy which is inherent or reflected 
in English law. But the two do not necessarily have the same force: see e.g. 
Akai Pty Ltd v People's Insurance Co Ltd , [46] -[57]. It is recognised that an 
English court may grant an ant i-suit injunction where that is necessary "to 
prevent the litigant's evasion of the important public policies of the [English] 
forum": Bank of Tokyo Ltd v Karoon (Note) [1987] AC 45, 58, per Robert 
Goff LJ, cited in Masri v Consolidated Contractors Interna tional (UK) Ltd 
(No. 3)  [2008] EWCA Civ 625 ; [2009] QB 503 , at [86] per Lawrence Collins 
LJ. But an English court does not automatically have to give weight to the 
public policies of the foreign forum.  
52. Whether the public policy of the foreign forum is to be given weight requires 
an evalu ative assessment by the English court, including by inquiry whether 
the foreign restriction on the party's choice of law or venue corresponds to 
restrictions in English or EU law (see Akai Pty Ltd , [56]) or to public policy 
recognised or reflected in that law (see OT Africa Line Ltd v Magic 
Sportsware  at [78] -[79] per Rix LJ). The more it does so, the easier it will be 
for the English court to consider it should recognise such public policy 
concern s on grounds of comity and expected reciprocity. Similarly, the 
English court's assessment may include issues such as the nature of the rule of 
foreign law (e.g. whether it is permissive, as for the Canadian legislation in 
issue in OT Africa Line , or precl usive, as in the case of Article 22 of the 
Regulation, since this is likely to reflect the force of the public policy which 
underlies the rule in question) and whether the foreign public policy calls in 
question the weight to be given to party autonomy on grounds which would be 
recognised as having force by an English court (e.g. is the foreign rule 
designed to protect a party which may be expected to have less bargaining 
power when making the agreement in the first place: see OT Africa Line at 
[47], [74] a nd [77] per Rix LJ, emphasising the strength of the bargaining 
power of the parties in that case, who "had nothing of the consumer about 
them"; cf the discussion below in relation to the converse situation of 
protection of employees under English/EU law, w ho are recognised to be in a 
weaker social and economic bargaining position than employers). In Akai Pty 
Ltd and in OT Africa Line  the English court found that the foreign public 
policy in question in each case should not override the pacta sunt servanda  
principle in relation to an English exclusive jurisdiction clause.  
53. By contrast, where the English court has to consider whether public policy as 
reflected in English law should be given weight so as to outweigh party 
autonomy and the principle of pacta sun t servanda  in respect of a foreign 
country exclusive jurisdiction clause (as in our case), the effect of the law and 
its role to protect public policy considerations which are to be recognised in 
the English domestic jurisdiction are much more direct and t he discretion of 
the English court to disregard it or give it little weight is much less. The 
domestic legislator (including for these purposes the EU legislator when 
enacting directly effective EU law, as in the Regulation) has the primary 
responsibility for identifying what public policy requires and for enacting law 
to give effect to that public policy; and its judgment on that question may be 
very direct and clear, as it is in the provisions in section 5 of the Regulation.  
54. The case of protection of an English insolvency regime is a particular example 
of the wider principle that English public policy may outweigh ordinary party 
choice regarding the forum in which to litigate: see Stichting Shell 
Pensioenfonds , [42] (the case concerned an insolvency of a British Virgin 
Islands company, but the law was taken to be the same as English law). An 
anti-suit injunction was granted to ensure the operation of English public 
policy in the form of imposition of an orderly regime for distribution of the 
assets of the insolvent company between creditors. I think the same result 
would have followed if the foreign litigation had been commenced pursuant to 
an exclusive jurisdiction clause in favour of the foreign jurisdiction.  
55. In my view, section 5 of the Regulation refle cts and seeks to give expression 
to a clear public policy to protect employees in relation to litigation relating to 
their employment, because they are taken to be in a weaker negotiating 
position by reason of their economic and social status as against em ployers. 
The decision in Samengo -Turner  gives effect to this public policy, as reflected 
in the Regulation. In my opinion, it was legitimate for the court in Samengo -
Turner  to do this.  
56. I think it is also relevant in assessing how to weigh up domestic pub lic policy 
concerns reflected in English law against the usual principle of party 
autonomy to consider whether the relevant English public policy and law are 
themselves intended to reflect a judgment regarding the force to be accorded 
to party autonomy and  whether there are party autonomy factors which 
provide reasons to favour England as the place to litigate despite a foreign 
exclusive jurisdiction clause.  
57. As to the first of these, where a case falls within section 5 of the Regulation, 
the object of the section is to deprive foreign exclusive jurisdiction clauses of 
effect when the English court is asked to apply them and to require a person 
who is an "employer" for the purposes of the Regulation to litigate against the 
employee in the courts of the emplo yee's place of domicile. The policy and the 
precise legal rules in the Regulation which reflect the policy are clearly 
directed to protecting employees as a category of persons who are assessed to 
be in a weaker social or economic position than employers a s a category, so 
that weight should not be given to contractual choices an employee has made 
as to jurisdiction. The public policy and law are specifically designed to 
derogate from party autonomy and the pacta sunt servanda  principle, so that 
the employee  is not to be treated as stuck with what he has contracted for. I 
would add that the Regulation treats employers and employees as general 
categories for the purposes of this public policy: it has not been thought 
appropriate to provide in the legislation f or individualised assessments of 
relative bargaining power of employer and employee to be made case by case. 
That would be an invidious, very difficult and costly exercise to try to 
undertake.  
58. As regards the second factor, there are additional reasons why  overriding 
weight should not be given to party autonomy as reflected in the relevant 
contract. MMC in the Samengo -Turner case and EMC in ours are US 
corporations operating on an international basis, with subsidiaries in other 
countries. As Tuckey LJ said in Samengo -Turner at [43], "A multinational 
business must expect to be subject to the employment laws applicable to those 
they employ in other jurisdictions." Both MMC and EMC and their groups 
chose to employ staff in countries outside the US, with the att endant 
possibility that local employment laws might include provisions like those in 
the Regulation to protect employees. This tends to undermine the extent to 
which weight should be given to the expression of choice of jurisdiction in the 
relevant contrac t: see also Stitchting Shell Pensioenfonds  at [43] ("[Shell] 
invested in a company incorporated in the BVI and must, as a reasonable 
investor, have expected that if that company became insolvent it would be 
wound up under the law of that jurisdiction").  
59. Both these sets of factors are ones which it is reasonable to think that a 
common law court in New York or Massachusetts would understand and 
regard as being capable of respect on grounds of comity. Recognition that 
employees may often be in a weaker posit ion than employers is something 
which is not unknown in common law jurisdictions, as well as in civilian 
jurisdictions such as those in the European Union. The idea that an 
international company may enter into dealings with someone based in a 
foreign juris diction, whose ties are strongest with that jurisdiction, and hence 
may be taken to have chosen to have accepted the risk of having the 
jurisdictional rules of that jurisdiction applied to it, is again something which I 
think can readily be understood by c ourts in common law jurisdictions as a 
potentially relevant consideration. Further, in Samengo -Turner no relevant 
public policy of the State of New York and in the present case no relevant 
public policy of the State of Massachusetts (apart from the general  desire to 
give effect to party autonomy) was identified to be weighed in the balance 
against the public policy factors which are relevant in the jurisdiction of 
England. There is thus a reasonable prospect that another common law court 
in New York or Mass achusetts may come to accept, upon reading the reasoned 
decisions of this court, that on grounds of comity it should accept that an 
employee such as the claimants in Samengo -Turner or Mr Petter should be 
allowed to litigate in England, the country of their  domicile and the country 
with which their employment was most closely connected.  
60. Like Moore -Bick LJ, I do not think that the fact that it is possible that the 
courts in some other EU Member States do not have power according to the 
domestic law of those states to grant anti -suit injunctions detracts from the 
argument under English law. The public policy underlying section 5 of the 
Regulation is clear and is expressed in mandatory and unambiguous terms. 
The English court has the means to give effect to it and therefore should do so. 
The Regulation does not harmonise the remedial regimes of Member States in 
relation to litigation in third states, but only as regards allocation of litigation 
within the European Union itself. There is no rule in the Regulation  which 
forbids an English court to grant an anti -suit injunction in relation to litigation 
in a third state. If, by a lacuna in the panoply of remedial measures under their 
domestic law, the courts of other Member States do not have power to grant an 
anti-suit injunction, it does not follow that an English court which does have 
that power should not exercise it. In my opinion, this would simply mean that 
the English court is in a position to protect fully the public policy underlying 
and the operation of th e jurisdictional rules in section 5 of the Regulation and, 
applying domestic principles of private international law, should do so, 
whereas the courts in those other countries would not be able to do so and to 
that extent a party like MMC or EMC will be ab le to circumvent that policy 
and those rules when dealing with employees domiciled in those countries. If 
the public policy and the rules are to be taken seriously, as presumably they 
are, and the means to do that are available, then there is strong reason  to 
employ those means.  
61. Returning to the guidance given by Lord Bingham in Donohue v Armco Inc , if 
EMC invited the English court to stay its proceedings in favour of EMC's right 
to proceed in Massachusetts according to the exclusive jurisdiction clause, t he 
English court would have to apply the terms of the Regulation and would 
inevitably decline to stay its proceedings. That is because the Regulation gives 
priority to a policy in favour of employee protection, and does so in clear and 
mandatory terms. Tha t being the relevant English public policy, which in the 
context of the present applications can only be given full practical effect by 
the grant of an anti -suit injunction, I think there is considerable force in the 
submission that an English court should  be prepared to grant such an 
injunction in accordance with the guidance in Donohue , Bank of Tokyo and 
Masri  and as this court in fact did in Samengo -Turner .