Trappit SA & Ors v American Express Europe LLC & Anor

A jurisdiction clause covering disputes arising in connection with an agreement may extend to tortious, equitable and intellectual-property claims where those claims stem from the contractual relationship and access to confidential information created by the agreement. The court must first determine whether the clause binds the parties and then construe its scope. Under Article 29 of the Brussels I Recast, lis pendens requires concurrent proceedings when the court second seised determines the issue. Criminal proceedings provisionally dismissed and archived in Spain, with no realistic prospect of reopening, were no longer pending for that purpose. A provisional dismissal which is not final and binding under the foreign law cannot create an issue estoppel. Abuse of process remains a cautious, merits-based jurisdiction and was not established on the facts.

The claimants alleged that the defendants had copied or misused the ARPO computer programme and confidential information supplied during negotiations for a possible business collaboration. The defendants applied to strike out or stay the English proceedings.

They relied on the Spanish-law NDA and its Madrid jurisdiction clause, parallel Spanish criminal proceedings concerning alleged plagiarism, and abuse of process. The Spanish proceedings had been provisionally dismissed and the appeal against that dismissal had failed. The central issues were whether the NDA jurisdiction clause applied to the claims and bound the relevant parties, whether Article 29 applied, and whether the English proceedings were abusive.

1. Jurisdiction clause. The court applied the two-stage approach under Article 25: first, whether the clause bound the parties; secondly, whether the disputes fell within its scope. The wording of clause 18, referring to “any dispute or controversy arising in connection with” the NDA, was of the widest scope. It covered claims for copyright infringement, breach of confidence in equity and conspiracy where the alleged wrongdoing depended on access to ARPO under the NDA. The claims therefore stemmed from the legal relationship created by the NDA.
2. Parties bound. The reference in the definition of Confidential Information to subsidiaries and affiliates did not make those entities parties to the NDA. Trappit SA and AmEx Europe, as signatories, were bound. The Tec Transfer could transfer accrued rights of action but did not transfer Trappit SA’s NDA rights and obligations or subject later causes of action to clause 18. The transfer to GBT UK required consent under clause 14. Trappit SA’s silence did not amount to tacit consent, and the statutory doctrine of universal succession did not apply to an asset transfer between non-Spanish companies. The jurisdiction clause therefore bound only Trappit SA and AmEx Europe.
3. Lis pendens. Article 29 applied only while concurrent proceedings remained pending when the issue was determined. The Spanish proceedings had been provisionally dismissed, closed and archived. Although technically capable of reopening if appropriate evidence emerged, reopening was extremely unlikely after the extensive investigation. The Spanish courts were therefore no longer seised for Article 29 purposes.
4. Issue estoppel and abuse. The provisional dismissal was not final and binding under Spanish law and did not prevent later civil proceedings. The English proceedings were close to the margins of abuse, but the power to strike out for vexatious or oppressive relitigation had to be exercised cautiously. The Spanish proceedings were criminal investigations, did not produce a final merits judgment after trial, and the Spanish court had recognised the availability of civil or commercial remedies. The abuse arguments, including Henderson v Henderson, therefore failed.
5. Disposition. The court had no jurisdiction over the claims between Trappit SA and AmEx Europe under clause 18 and made orders accordingly. The defendants’ application was otherwise dismissed.

First-instance jurisdictional application. No prior decision of an appellate court is stated in the judgment.