Evialis S.A. v S.I.A.T. & Ors

For the purposes of Council Regulation (EC) No 44/2001, a jurisdiction agreement must be demonstrated with clear and precise consensus. In an insurance contract evidenced by an open cover and a certificate, both documents may express the parties’ contractual intention, although the certificate will usually carry greater weight for the particular risk. A service clause providing an address for proceedings in England may confer jurisdiction on the English courts without making that jurisdiction exclusive. Where English and foreign proceedings concern the same underlying liability, the proceedings should ordinarily be considered as a whole. The court second seised must stay them under article 27, and related jurisdictional claims may also be stayed under article 28.

Evialis, a French company, claimed indemnity under cargo insurance issued by four Italian insurers. The insurers had commenced proceedings in Genoa seeking declarations that Evialis’ claim was time-barred, excluded by inherent vice, or subject to reduction for failure to mitigate. Evialis subsequently commenced proceedings in England seeking indemnity, declarations concerning jurisdiction, damages and anti-suit relief.

The applications concerned the governing law and contractual content of the insurance, the effect of a service clause referring to an address in the United Kingdom, whether the English and Italian proceedings involved the same cause of action or related actions, and whether the English court should restrain the Italian proceedings.

1. Contractual documents and governing law. The open cover and certificate were to be considered together in identifying the insurance contract. The certificate was likely to receive greater weight because it addressed the particular shipment, but incorporation did not require express reference in the certificate. Under the applicable insurance-law provisions, Italian law governed because no choice of English law had been expressed or demonstrated with reasonable certainty (paras [36]–[42]).
2. English jurisdiction. The service clause was highly likely to confer on Evialis an option to sue the insurers in England. It did not confer exclusive jurisdiction and did not prevent the insurers from seeking non-liability declarations in another Member State. Evialis therefore showed a good arguable case that the English court had jurisdiction under article 23 of the Brussels Regulation (paras [59]–[71]).
3. Same cause of action. The English proceedings included a substantive indemnity claim. Looking at the proceedings realistically and as a whole, their central issue was the insurers’ liability for the cargo damage, which was also the essential issue in the Italian proceedings. The jurisdictional relief did not justify fragmenting the proceedings into separate causes of action (paras [81]–[89], [126]–[131]).
4. Stay. The court was bound by Continental Bank NA v Aeakos Compania Naviera SA and declined to distinguish it merely because the Brussels Regulation, rather than the Convention, applied. The insurance provisions did not create an exception to article 27 at the stage of a stay. The proceedings were also related actions under article 28 because separate determination created a risk of inconsistent judgments (paras [90]–[115], [119]–[125]).
5. Anti-suit relief. Evialis had not shown a sufficiently arguable contractual, regulatory or unconscionability basis for an injunction. The Brussels Regulation supplied its own machinery for determining jurisdiction. There was also a real risk that the Italian courts would regard an English injunction as an affront to their jurisdiction. The applications for injunctive relief were dismissed and the English proceedings were stayed (paras [136]–[143]).