Joyvio Group Co, Ltd & Ors v Isidoro Ernesto Quiroga Moreno & Ors

On an application for a stay on forum non conveniens grounds, the defendant must first show that the foreign court is available and clearly or distinctly more appropriate. The claimant must then provide cogent evidence that substantial justice requires the English court to retain the case. Availability concerns the foreign court’s jurisdiction; practical accessibility and procedural disadvantages ordinarily arise at the second stage. A stay is preferable to dismissal because the English proceedings can be revived if the foreign court declines jurisdiction or limitation problems arise. Where the claim is overwhelmingly connected with the foreign state, a stay may be made conditional on submission to that jurisdiction and waiver of limitation accrued during the English proceedings.

The defendants applied for a stay of claims arising from the sale of a Chilean salmon-farming business. The claims included Chilean-law claims concerning alleged environmental overproduction, fraud, misrepresentation, restitution, breaches of duty and corporate mismanagement. The claimants had established English jurisdiction as of right by serving the defendants in England.

The defendants contended that Chile was available and clearly or distinctly the more appropriate forum. The claimants disputed Chilean jurisdiction, relied on the English court being first seised, and argued that claims might be time-barred in Chile. The central issues were whether Chile was an available forum, whether the connecting factors favoured Chile, and whether substantial justice required the English proceedings to continue.

1. Stay granted. Chile was an available forum and clearly and distinctly the more appropriate forum. The stay was conditional on the defendants submitting to the jurisdiction of a Chilean court and waiving any limitation defence accruing between issue of the English claim and commencement in Chile. The First Defendant’s undertaking was to preserve his position concerning arbitration.
2. The court applied the two-stage test in Spiliada Maritime Corp v Cansulex. At stage 1 the defendants had to establish an available foreign forum which was clearly or distinctly more appropriate. At stage 2 the claimants had to show by cogent evidence that substantial justice required the English court to retain the case.
3. Under Chilean law, Articles 109 and 112 of the Organic Code of Courts concerned relative competence rather than jurisdiction or absolute competence. They did not prevent the Chilean courts accepting the claims, whether because the provisions did not apply internationally or because the English court could cede jurisdiction by staying the proceedings. The defendants could waive any objection and submit to Chilean jurisdiction.
4. The connecting factors strongly favoured Chile. The parties, businesses, witnesses, experts, documents, applicable law, alleged wrongdoing and related arbitration and criminal investigations were principally Chilean. The Joyvio and Australis claims should not be fragmented; their unity favoured Chile rather than England.
5. There was no real risk that the claims would be time-barred or that the Chilean courts would decline jurisdiction. In any event, the limitation waiver removed the relevant risk. Dismissal or strike out was inappropriate because a stay preserved the ability to revive the English proceedings if necessary.