Perella Weinberg Partners UK LLP & Anor v Codere SA

A non-exclusive jurisdiction clause ordinarily permits the named party to invoke the chosen court’s jurisdiction but does not, without clear wording, prevent either party from suing elsewhere or bringing parallel proceedings. Construction depends on the substance of the parties’ agreement, the language used and the relevant factual matrix. An express reference to non-exclusive jurisdiction is a strong indication that any presumption of exclusivity has been rebutted. The court should not impose an exclusive or anti-suit obligation merely because the clause confers a benefit on one party.

Perella had been retained by Codere in connection with a financial restructuring. The engagement letter provided that Codere agreed, for Perella’s benefit, that the English courts would have non-exclusive jurisdiction over disputes arising from the engagement.

Codere subsequently commenced proceedings in Spain. Perella brought proceedings in England, alleging that the Spanish proceedings breached the jurisdiction clause and seeking related indemnity relief. Codere challenged the English court’s jurisdiction and sought a stay or a declaration that the court lacked jurisdiction.

The court first determined the meaning of the jurisdiction clause and the significance of “exclusive jurisdiction” under article 31.2 of the recast regulation.

1. Construction of the jurisdiction clause. Applying English principles of contractual construction, including the approach in Rainy Sky SA v Kookmin Bank [2011] UKSC 50, the court considered the meaning which the clause would convey to a reasonable person with the relevant background knowledge. The commercial context included the parties’ sophistication and the likely application of the recast regulation.
2. Effect of “non-exclusive jurisdiction”. Article 25.1 contains a presumption that an agreed jurisdiction is exclusive unless the parties agree otherwise. The express words “non-exclusive jurisdiction”, together with the absence of wording normally used to prohibit proceedings elsewhere, rebutted that presumption. The clause gave Perella the benefit of being able to invoke the English courts, but did not require Codere to sue only in England or prevent parallel proceedings.
3. Article 31.2. For article 31.2, an agreement conferring exclusive jurisdiction must also debar the restricted party from invoking the courts of other member states. The asymmetry of the clause did not prevent an agreement from being exclusive for that purpose, but the clause in this case was not exclusive in substance.
4. The court adopted the general approach stated by Toulson LJ in Deutsche Bank AG v Highland Crusader Partners LP [2009] EWCA Civ 735: a non-exclusive jurisdiction clause does not ordinarily make proceedings in another jurisdiction a breach, although the particular wording may have that effect.
5. Codere’s construction of clause 9.1 was correct. The court rejected Perella’s fallback argument, based on Sabah Shipyard v Pakistan [2002] EWCA (Civ) 1643, that Codere was required to discontinue the Spanish proceedings once Perella invoked the English jurisdiction. Consequential issues, including the remaining jurisdiction issues, the indemnity claim, costs and permission to appeal, were left for further consideration.