Antec International Ltd v Biosafety USA Inc

A freely negotiated non-exclusive English jurisdiction clause, coupled with English law, ordinarily gives a strong prima facie basis for retaining proceedings in England. The court should hold the parties to that bargain unless the defendant shows overwhelming or very strong reasons. Foreseeable witness, document and convenience factors do not suffice, and a standard The Spiliada [1987] AC 460 balancing exercise is inappropriate in that context. Later or threatened proceedings elsewhere, especially where generated by the defendant, do not ordinarily justify a stay. A difficult anterior question of European jurisdiction law may be left undecided where the application fails on its merits in any event.

Antec brought contractual proceedings against Biosafety under a distribution agreement containing a non-exclusive English jurisdiction clause. Biosafety accepted that the English court had jurisdiction, but sought a stay on forum non conveniens grounds, relying on witness and documentary convenience, changed corporate ownership, and related proceedings commenced in Florida. The court dismissed the application on the merits. It also considered whether Article 23 of the Judgments Regulation (EC) 44/2001 excluded forum non conveniens, following the decision in Owusu v Jackson, but declined to determine that difficult question because the stay application failed even on the assumption that the power existed.

Disposition. Biosafety’s application to set aside or stay the English proceedings was dismissed. Jurisdiction was accepted because Antec was domiciled in the United Kingdom, the claims arose from contract, and the parties had submitted to the non-exclusive jurisdiction of the English courts. Article 23 of the Judgments Regulation (EC) 44/2001 applied to a non-exclusive jurisdiction clause, so permission to serve out was unnecessary under CPR 6.19(1A)(6)(iii).

1. Contractual choice of forum. A freely negotiated clause selecting the English courts and English law creates a strong prima facie case for English jurisdiction. The claimant should be treated as having founded jurisdiction as of right, despite the clause being non-exclusive.
2. Strong reasons required. The parties should generally be held to their contractual choice unless there are overwhelming or at least very strong reasons for departure. The court should not undertake an ordinary The Spiliada [1987] AC 460 balancing exercise. Foreseeable convenience factors do not suffice. The defendant must identify an unforeseeable factor or an exceptional reason connected with the interests of justice, and even that does not automatically release the party from its bargain.
3. Parallel proceedings. The commencement or threatened commencement of proceedings in another jurisdiction is not ordinarily a strong or compelling reason for a stay. A party should not be able to evade a non-exclusive jurisdiction agreement by commencing proceedings elsewhere, and reliance on parallel proceedings which the party itself may create is unattractive.
4. Application. Biosafety’s anticipated inconvenience was foreseeable when the agreement was made. Antec remained the contracting party, its manufacturing and relevant documents were principally in England, and DuPont’s involvement did not alter the jurisdictional position. Any inconvenience was offset by Antec’s English and European evidence, while DuPont’s undertaking to accept service in England removed prejudice concerning possible counterclaims. No strong or overwhelming reason existed.

Owusu point. The court explained that Owusu v Jackson treated Article 2 as mandatory and excluded forum non conveniens in the circumstances of that case. It also observed that In re Harrods (Buenos Aires) Limited [1992] Ch 72 could no longer be regarded as good law. The judge declined to decide whether the same consequence followed for Article 23 and a non-exclusive jurisdiction clause. That question was logically anterior, difficult, and unnecessary to resolve because the stay failed on its merits. Costs were reserved for further argument, and permission to appeal was refused.

This was a first-instance interlocutory application. The judgment records an earlier oral judgment on 8 August 2005 dismissing Biosafety’s application, with full reasons reserved. The reasoned judgment confirmed that order and refused permission to appeal.