Baturina v Chistyakov

A stay for forum non conveniens should be granted where the defendant establishes an available foreign forum that is clearly or distinctly more appropriate for the trial, unless the claimant shows special circumstances making a stay contrary to the interests of justice. An express choice of governing law is relevant but does not amount to a choice of jurisdiction. The court must distinguish the law governing the contract from the law governing tort claims. In assessing the alternative forum, the court may consider the applicable conflicts rules, limitation, the availability of remedies, the ability to apply foreign law and the practical location of witnesses and documents.

The claimant alleged fraudulent misrepresentations and breaches of a joint venture agreement concerning development projects in Morocco. The agreement was made in Russia and selected English law, but contained no jurisdiction clause. The defendant, served in England while visiting London, applied for a stay in favour of Russia. The central questions were whether Russia was an available forum clearly or distinctly more appropriate than England and whether a stay would nevertheless cause injustice.

1. The application for a stay succeeded. Russia was an available forum and was clearly and distinctly more appropriate than England.
2. The court applied the principle in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460: the defendant had to establish another competent forum in which the dispute could be tried more suitably for the interests of the parties and the ends of justice. If that burden was met, the claimant had to show special circumstances requiring an English trial.
3. The agreement’s English governing-law clause did not confer English jurisdiction. Choice of law and choice of forum were distinct. The clause was a factor favouring England, but its weight was reduced because the agreement contained no jurisdiction clause and most related agreements were governed by Russian law and provided for Russian jurisdiction.
4. For the alleged tort claims, sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995 pointed to Russian law. The representations were principally made in Russia, the parties were Russian nationals with Russian business interests, and the claimant acted in Russia. The English governing-law clause did not make it substantially more appropriate to apply English law to the tort claims.
5. The factual and practical connections with Russia were overwhelming. Most witnesses and documents were Russian, the negotiations and agreements took place there, the defendant resided and carried on business there, and the alleged damage was suffered there. The Russian court could ascertain and apply English law, and the evidence did not establish that the claims would necessarily be unavailable or time-barred there.
6. The claimant’s anxiety about returning to Russia did not establish the special injustice required to refuse a stay. The proceedings were stayed in favour of Russia.