The Public Institution for Social Security v Al Rajaan & Ors

A jurisdiction clause expressed to govern the parties’ legal or contractual relationship may extend beyond the individual contract in which it appears. It can cover non-contractual claims where the alleged wrongdoing is connected with that relationship, including wrongdoing said to have induced transactions or constituted a concurrent breach of contractual duties.

Article 6 jurisdiction must be applied restrictively. The court must consider whether assuming jurisdiction would create inconsistent judgments concerning closely connected claims against the same defendant in a foreign forum selected by agreement. A separate forum non conveniens inquiry requires the claimant to show that England is clearly the appropriate forum.

The claimant brought extensive claims arising from alleged corruption and concealment of secret commissions involving financial institutions and individuals in several jurisdictions. Ten defendants challenged the jurisdiction of the Commercial Court.

The bank defendants relied on exclusive jurisdiction clauses in favour of Geneva or Luxembourg. The claimant also relied on Lugano Convention article 6(1) and Recast Brussels Regulation article 8(1) to bring connected claims against other defendants in England. Two further defendants sought to set aside service on forum non conveniens grounds.

The central issues were the incorporation, material validity and scope of the jurisdiction clauses; the interaction between those clauses and article 6 or article 8 jurisdiction; and whether England was clearly the appropriate forum for claims against the remaining defendants.

1. Formal validity and incorporation. The formal requirements in Lugano Convention article 23 and Recast Brussels Regulation article 25 are autonomous and exclude any additional domestic-law requirement concerning incorporation. A written contract which expressly incorporates general conditions containing a jurisdiction clause satisfies the formal requirements, even if the conditions were not separately supplied. The same conclusion would follow under the relevant Swiss law. The jurisdiction clauses relied on by Banque Pictet, Pictet Europe and Mirabaud were therefore incorporated, with alternative conclusions applying to later versions of the conditions.
2. Material validity and scope. The jurisdiction clauses concerned the totality of the legal relationships forming part of the relevant banker-customer relationships, not merely individual accounts. Their broad wording covered claims connected with those relationships, including claims alleging bribery or secret commissions where the alleged corruption induced investments or transactions, was referable to remuneration earned from them, or would amount to a concurrent breach of contractual duties under Swiss Code of Obligations articles 398 and 400. The deliberate or concealed character of the alleged wrongdoing did not take it outside the clauses.
3. Limits of the clauses. Accessory claims concerning the laundering of commissions obtained under unrelated schemes were not sufficiently connected with the contractual relationships and fell outside the clauses. The same distinction applied to the corresponding claims against the relevant former partners. M. Amouzegar, as an employee and non-party to the agreements, could not rely on the bank’s jurisdiction clauses. The clauses also did not cover the post-2009 claims against M. Mirabaud.
4. Article 6 and article 8. The court must consider the policy of avoiding concurrent and irreconcilable judgments, not merely the connection between the anchor claim and the proposed additional claim. Assuming jurisdiction over claims outside a jurisdiction clause may be inappropriate where it would create a serious risk of inconsistent findings against the same defendant on closely connected issues in the chosen foreign forum. Article 6 is a limited derogation from domicile-based jurisdiction and must be construed restrictively.
5. Forum non conveniens. England was not clearly the appropriate forum for claims against Pictet Bahamas and Pictet Asia. Their claims were closely bound up with the Pictet claims required to proceed in Geneva, while the principal evidence, witnesses and banking relationship were connected with Switzerland.
6. The jurisdiction challenges succeeded. The claims against the relevant defendants were to be pursued in Geneva, Luxembourg or another appropriate foreign forum as specified by the judgment, and jurisdiction was declined over Pictet Bahamas and Pictet Asia.