Third Eye Projects Ltd & Anor v Mint S.p.A

The court applied the Extended Fiona Trust principle to construe a broadly drafted jurisdiction clause (clause 9.2) in a shareholders' SPA and concluded that the present dispute (including claims about the validity of dilution and cancellation of shares and the alleged subsequent settlement, the "Mint Agreement") fell within the clause's wide scope. The judge treated Spiliada (the forum non conveniens test) as the governing common-law test for forum, but found that, even if the SPA clause did not apply, the defendant had not shown Italy to be "clearly and distinctly" the more appropriate forum. Key legal questions included construction of an exclusive jurisdiction clause, application of the Extended Fiona Trust principle to multi-contract disputes, and the Spiliada factors in the post-Brexit common-law context. The application to decline jurisdiction and stay the claim was dismissed because the SPA clause covered the dispute or, alternatively, England was the natural forum.

This is an application by the defendant to decline English jurisdiction and stay proceedings on the basis that Italy (the Court of First Instance of Milan) was a more appropriate forum. The claimant is an English company (Third Eye) and its sole director; the defendant is an Italian company (Mint). The dispute concerns alleged unlawful dilution and cancellation of Third Eye's 1.5% shareholding in an English subsidiary (Myntelligence) and a subsequent informal agreement by which Third Eye was to receive equivalent shares in Mint (the "Mint Agreement") following a cross-border merger by absorption. The SPA (2016) contained a very wide English-law exclusive jurisdiction clause (clause 9.2) and the Consultancy Agreement included a narrower English exclusive jurisdiction clause.

The nature of the application: the defendant sought a stay on forum non conveniens grounds (Italy) or, implicitly, relied on the effect of differing jurisdictional clauses. The court identified two issues: (i) whether the dispute fell within the scope of clause 9.2 of the SPA (the Jurisdiction Clause Issue), and (ii) if not, whether Italy was clearly and distinctly the more appropriate forum (the Forum Issue).

The court's analysis:

• On the Jurisdiction Clause Issue the court applied the Extended Fiona Trust principle (as explained in Fiona Trust and developed in Terre Neuve) and concluded that clause 9.2 — covering "any claim, dispute or issue (including non-contractual claims) which may arise out of or in connection with this Agreement" — was sufficiently wide to cover the present dispute, including proprietary estoppel and alternative claims arising from the alleged dilution and cancellation of shares in Myntelligence and the Mint Agreement reached to resolve that dispute.
• Alternatively, the court considered the Forum Issue under Spiliada (common-law test post-Brexit). The defendant accepted Italy was available and would accept jurisdiction, but failed to discharge the burden of showing Italy to be clearly and distinctly the more appropriate forum. The judge weighed factors including governing law questions (Rome I/II issues), the location and language of documents and witnesses, the Companies Act 2006 issue (s.561) and the substance of the dispute (the lawfulness of dilution/cancellation of shares in an English company), the parties' prior choice of English law and jurisdiction in related agreements, and the risk of fragmentation of related claims. The judge concluded England had strong connections and that Italian law issues were either peripheral or prospective enforcement matters; consequently Italy was not clearly and distinctly preferable.

The court therefore dismissed the defendant's application to decline jurisdiction and stay the claim. The judge noted the defendant had not advanced a clear pleaded defence and had not rebutted the connection between the SPA and the Mint Agreement.

The Application is dismissed. The judge held that the SPA's exclusive jurisdiction clause (clause 9.2) was wide enough to cover the dispute about the dilution/cancellation of Third Eye's shares and the subsequent Mint Agreement; alternatively, if the clause did not apply, the defendant had not shown that Italy was clearly and distinctly the more appropriate forum under the Spiliada test. The application to stay or decline jurisdiction therefore failed.