Astrazeneca UK Ltd v Albemarle International Corp & Anor

On an application to serve proceedings out of the jurisdiction, the claimant must show that each claim falls within a jurisdictional gateway, raises a serious issue to be tried, and that England and Wales is the proper place for the claim. The claimant bears the general burden on forum conveniens. Where a defendant relies on a foreign jurisdiction agreement, however, the defendant must establish its scope, applicability and validity. A broad jurisdiction clause may cover closely connected tort claims, including conspiracy, even where one defendant is not a party to the contract. A stay for case-management reasons requires rare and compelling circumstances. Contractual claims governed by English law were allowed to proceed in England, while related duress and conspiracy claims were stayed to respect an exclusive South Carolina jurisdiction clause.

AstraZeneca brought claims against Albemarle for breach of a 2005 supply agreement, economic duress arising from a later 2008 supply agreement, and conspiracy by unlawful means. The defendants applied to set aside or stay service out of the jurisdiction, relying on the 2008 agreement’s South Carolina jurisdiction clause and on related proceedings in South Carolina.

The court considered whether the claims came within the jurisdictional gateways, whether there were serious issues to be tried, whether England was the proper forum, whether the 2008 agreement superseded the 2005 agreement, and whether the foreign jurisdiction clause covered and was impeached by the duress and conspiracy claims.

1. The court had jurisdiction over all three claims. The contractual claims fell within the contractual gateways because the 2005 agreement was governed by English law and provided for English jurisdiction, and because the alleged breaches occurred within the jurisdiction. The duress claim also fell within the restitution gateway: the alleged withholding of deliveries in England could constitute the relevant acts. The conspiracy claim fell within the tort gateways because substantial loss was suffered in England and the withholding of deliveries there was a substantial and efficacious act.

2. The applicable standard for a jurisdictional gateway was a good arguable case. The court proceeded on the basis that this required the claimant to show that it clearly had much the better of the argument. Each claim also raised a serious issue to be tried.

3. The defendant relying on a foreign jurisdiction agreement bore the burden of establishing the agreement, its scope, applicability and validity. The court adopted the reasoning in Konkola Copper Mines v Coromin Ltd, while noting the unresolved nature of some issues in that decision.

4. The 2008 agreement did not clearly supersede the 2005 agreement or remove accrued contractual claims or the English jurisdiction clause. AstraZeneca therefore had much the better argument on that issue.

5. The South Carolina clause was broad enough to cover the duress claim and, because the conspiracy claim was closely bound up with it and depended on many of the same facts, also covered the conspiracy claim. The allegations of duress did not specifically impeach the jurisdiction clause itself. Applying the separability reasoning in Premium Nafta Products v Fili Shipping and El Nasharty v J Sainsbury plc, the clause could be relied upon.

6. No strong reason existed to disregard the exclusive jurisdiction agreement. The overlap in evidence and the possibility that the English contractual findings would be relevant in South Carolina did not create parallel proceedings on the same claims or a risk of directly inconsistent decisions.

7. A case-management stay pending the United States appeal was refused. The circumstances were not rare and compelling. The English court had jurisdiction independently of the disputed jurisdiction clause, AstraZeneca had the better prospects on the supersession issue, and further delay would be unjustified.

8. The contractual claims under the 2005 agreement were allowed to proceed in England. The duress and conspiracy claims were stayed in favour of the South Carolina courts.

First-instance decision. The judgment records related proceedings in the United States, including an appeal from the dismissal of the 2008 Action, but this court refused to stay the English contractual claims pending that appeal.