Mauritius Commercial Bank Ltd v Hestia Holdings Ltd & Anor

A contractual choice of law governing a jurisdiction agreement may be changed prospectively by agreement, including by amendment and restatement. An asymmetric jurisdiction clause may validly require one party to sue exclusively in the chosen forum while preserving the other party’s right to sue elsewhere, depending on its proper construction. A severable service-of-process clause may remain effective even if the jurisdiction clause is invalid. Service on an agent appointed in England can establish jurisdiction as of right; the party seeking a stay must then show that another forum is clearly more appropriate.

A Mauritian bank claimed approximately US$15 million plus interest from a Mauritian borrower and its Indian parent guarantor under an English-law amended and restated facility agreement. The agreement contained an exclusive English jurisdiction clause, subject to the lender’s right to bring proceedings elsewhere, and a separate clause appointing an agent in England for service.

The defendants applied to set aside the claim form and stay the proceedings. They argued that the jurisdiction clause remained governed by Mauritian law, was invalid under Mauritian law, and was impermissibly one-sided under English law. They also argued that the service clause depended on the validity of the jurisdiction clause.

The defendants’ application was dismissed.

1. The parties could prospectively change the law governing their jurisdiction agreement. Contractual autonomy supported giving effect to that change, absent an overwhelming policy objection. The amendment and restatement also operated as a new agreement replacing the earlier facility agreement.
2. Clause 24.1(c) preserved the lender’s ability to sue in any court which otherwise had jurisdiction. It did not confer jurisdiction on every court worldwide. Clause 24.1(a) required the defendants to sue in England and subjected the lender to the English courts, subject to its liberty to bring claims abroad. Properly construed, the asymmetric arrangement was valid under English law.
3. Although Mauritian law was irrelevant to the result, the court considered there was a good arguable case that the clause would be valid under Mauritian law despite Banque Privee Edmond de Rothschild Europe v X.
4. Clause 24.2 was severable and independently provided for service in England. Service on the designated English agent under CPR 6.11(1) established in personam jurisdiction as of right. The defendants had not shown that Mauritius or India was clearly the more appropriate forum.