889457 Alberta Inc v Katanga Mining Ltd & Ors

In a forum non conveniens application, the court must first determine whether the proposed foreign forum is available and suitable for the interests of all parties and the ends of justice. A forum may be unavailable where the evidence shows that its judicial infrastructure cannot confidently and consistently uphold the rule of law, or where litigation would expose a party to an unacceptable risk of interference or insecurity.

For the purposes of Article 60 of the Judgments Regulation, central administration concerns the place where the company’s serious administrative and management responsibilities are performed. The jurisdiction to add necessary or proper parties is broad and is not confined to secondary defendants. An agreement to comply with foreign law does not necessarily confer exclusive jurisdiction on that country’s courts.

Alberta sought injunctions and alternative damages concerning its alleged shareholding and pre-emption rights in Kamoto Operating Limited. The defendants applied to stay the claim against Katanga and to set aside service on Tain and Wayland, arguing that the Democratic Republic of Congo was the natural and appropriate forum.

Alberta relied on Article 60 of Council Regulation (EC) No. 44/2001, arguing that Katanga’s central administration was in England and that the English court therefore had no forum non conveniens discretion against Katanga. It also disputed the existence and effect of any exclusive Congolese jurisdiction agreement. The issues were whether England or the DRC was the appropriate forum, whether the additional defendants were necessary or proper parties, and whether the Deed of Incorporation required proceedings in the DRC.

1. Katanga’s domicile. Article 60 of the Judgments Regulation treats central administration and principal place of business as alternative connecting factors. Central administration is assessed by examining where the company’s serious administrative responsibilities and management functions are carried out. Katanga’s administration and active management were centred in London. Its Canadian connection was principally strategic and tax-related. Katanga was therefore domiciled in England, and the court had no discretion to stay the claim against it.
2. Forum non conveniens. Applying the Spiliada Maritime Corporation v Cansulex approach, the DRC was not an available forum. The evidence showed an absence of developed state infrastructure within which the rule of law could be confidently and consistently upheld. There was also a real risk of attempted interference with the integrity of proceedings and unacceptable risks concerning the claimant’s ability to attend and participate safely. England was in any event clearly the more appropriate forum.
3. Necessary or proper parties. The power under CPR 6.20(3)(b) was as wide as the power to add parties under CPR 19.2(2). Tain and Wayland were proper parties because the claims against them and the claim against Katanga involved substantial factual overlap and should be resolved together. It was irrelevant that they might be regarded as the principal defendants; there was no rule that only secondary defendants could be proper parties.
4. Jurisdiction agreement. Article 131 of the Congolese Code of Judicial Organisation and Competence was treated as governing territorial competence within the DRC, not as creating exclusive jurisdiction excluding foreign courts. Even if the Deed contained an agreement conferring exclusive jurisdiction on the DRC, the court would have refused a stay under the principles in The Eleftheria. The English proceedings were substantially more convenient, the defendants did not genuinely seek a DRC trial, and the risks to the integrity of the proceedings supplied strong cause.
5. The defendants’ applications were dismissed.

First-instance decision. The judgment records no subsequent appellate history.