Standard Chartered Bank (Hong Kong) Ltd & Anor v Independent Power Tanzania Ltd & Ors

An express non-exclusive jurisdiction clause, coupled with a forum non conveniens waiver, gives a strong prima facie basis for litigating in the chosen court. On the assumed basis that displacement requires strong or exceptional grounds unforeseen when the agreement was made, foreseeable parallel proceedings and expenditure on interlocutory steps do not suffice. A case-management stay remains available in rare and compelling cases where it promotes orderly litigation. Issue estoppel requires a competent and final decision on the merits, the same parties or privies, and the same issue. A subsidiary’s commercial interest in its parent’s foreign litigation does not ordinarily create privity. A foreign forum decision on a parent company’s tort claim does not determine the forum for a subsidiary’s separate contractual claim. Contractually permitted proceedings will rarely be abusive.

Standard Chartered Bank (Hong Kong) Limited and Standard Chartered Bank Malaysia Berhad brought English proceedings against Independent Power Tanzania Limited, VIP Engineering and Marketing Limited and Pan African Power Solutions (T) Limited concerning financing documents, security and shares in a Tanzanian power project.

The agreements contained non-exclusive English jurisdiction clauses, forum non conveniens waivers and provisions permitting concurrent proceedings. The appellants sought stays, or dismissal for abuse of process, relying on Tanzanian proceedings and a New York decision directing related tort proceedings against the parent bank to Tanzania. Flaux J refused the applications in a judgment reported at [2016] 1 All E.R. (Comm.) 233. The central issues were whether the contractual clauses could be displaced, whether the New York decision created an estoppel or collateral-attack problem, and whether case management required a stay.

1. Appeals dismissed. The court proceeded on the basis that Flaux J had correctly stated the law in paragraph 109, without finally determining the respondent’s stricter submission that even unforeseeable circumstances could not justify a stay.
2. A non-exclusive jurisdiction clause with a forum non conveniens waiver does not exclude a case-management stay. Such relief remains available in rare and compelling cases, particularly where it promotes an orderly process of litigation. The Tanzanian proceedings were not ready, or nearly ready, for trial. The October 2013 hearings concerned interlocutory injunctions. There was no evidence that the substantive entitlement under the facility or the proposed defence would be conclusively determined. Expenditure on interlocutory battles therefore did not amount to strong or exceptional grounds for a stay.
3. The requirements for issue estoppel, identified in The Sennar (No. 2) [1985] 1 WLR 490, were not met. The New York proceedings involved SCB, not SCBHK or SCBMB. Applying the factors stated in Resolution Chemicals v Lundbeck A/S [2014] RPC 5, a general commercial interest was insufficient to establish privity. SCBHK was not in reality a party to the New York proceedings. Treating it as such would disregard separate corporate personality and the limited scope of veil piercing recognised in Prest v Prest [2013] 2 AC 415.
4. The New York decision addressed the appropriate forum for VIP’s tort claim against SCB by comparing New York and Tanzania. It did not address England, the English jurisdiction clauses or SCBHK’s contractual claims. The issues were therefore different, and the English proceedings were not a collateral attack. Although abuse can arise without issue estoppel, such cases are rare where the proceedings are contractually permitted.
5. A stay application based on case management had to be assessed when made, rather than by later developments during the appeal. There was no basis to interfere with the judge’s discretionary refusal of a stay. The appellants were ordered to pay the respondents’ appeal costs.

• Court of Appeal (Civil Division) — appeals dismissed. The appellants were ordered to pay the respondents’ costs, and sums paid into court were released.
• High Court, Queen’s Bench Division, Commercial Court — Flaux J refused applications under the Civil Procedure Rules 1998 for stays, dismissal or setting aside of the English proceedings, including on forum non conveniens, case-management and abuse-of-process grounds. The decision was reported at [2016] 1 All E.R. (Comm.) 233.