Vava & Ors v Anglo American South Africa Ltd

For the purposes of Regulation EC 44/2001, a company has its central administration where the company itself carries out its internal management and entrepreneurial functions. A parent’s influence, group policies or strategic oversight does not place a subsidiary’s central administration where the parent operates unless agency, delegation, usurpation or another legally recognised basis is established. Infrequent board meetings do not, without more, establish management usurpation. The three limbs of article 60(1) are alternative. On the evidence, AASA’s central administration was in South Africa, so the English court lacked jurisdiction.

Two related actions concerned claims arising from events in South Africa and Botswana against Anglo American South Africa Ltd (“AASA”), a company incorporated in South Africa with its registered office in Johannesburg. The claimants relied on article 60(1)(b) of Regulation EC 44/2001, arguing that AASA had its central administration in England because its ultimate parent, Anglo American plc, and group management committees operated from London.

The claimants sought a reference to the Court of Justice under article 267 TFEU. The court had to decide whether they had shown a good arguable case that AASA had its central administration in England when proceedings were issued.

1. Applications granted. The defendants’ jurisdictional applications succeeded. The court declined to make a reference under article 267 TFEU.
2. Article 60(1) of Regulation EC 44/2001 provides three alternative bases of domicile: statutory seat, central administration and principal place of business. Satisfaction of any one limb is sufficient. The concepts are autonomous and must be interpreted uniformly.
3. The good arguable case standard applied. It reflects the limitations of an interlocutory jurisdiction hearing and does not apply to questions of law, which the court decides on the application unless the law is developing and findings of fact would assist.
4. “Central administration” concerns the company’s internal management, including decisions about entrepreneurial matters and possibly dealings with regulators. Board decisions can form part of the administrative process and may be decisive, depending on the facts.
5. A subsidiary’s central administration may be located with its parent where the subsidiary’s constitutional organs have been usurped, or where agency, delegation or another legally recognised basis means that the subsidiary acts through the parent. Ordinary parental influence, group strategy, reporting lines and approval requirements do not suffice.
6. The evidence showed that AASA carried out its functions in South Africa. Its board met there and dealt with its holding-company functions, guarantees, dividends, appointments, audit arrangements, liquidity, litigation and regulatory matters. Anglo American plc strongly influenced AASA but did not take decisions on AASA’s behalf.
7. There was no real uncertainty on the decisive question. AASA’s central administration was in South Africa, and the claimants had no arguable case that it was in England. The English court therefore had no jurisdiction to hear the claims.

First-instance jurisdiction applications. The judgment records an earlier disclosure decision by Silber J in [2012] EWHC 1969 (QB) , which did not determine the substantive jurisdiction issue.