Investec Bank Plc v Pavlo Protopapa & Anor

Where parties have agreed to English jurisdiction, a stay on forum non conveniens grounds requires strong, or potentially very strong, reasons. Foreseeable matters of convenience, related foreign proceedings, foreign assets, and connections with another jurisdiction ordinarily do not suffice. The contractual choice of forum must be given substantial weight.

An agreement that the English courts are the most appropriate and convenient forum, coupled with a promise not to argue otherwise, may create a contractual estoppel. A party is thereby precluded from contending that another forum is more suitable, subject only to any narrowly available exception for unforeseen and exceptional circumstances.

A defendant’s indication of an intention to defend and request for an extension to serve a defence do not necessarily amount to submission to jurisdiction. In any event, submission does not prevent an application for a forum non conveniens stay where jurisdiction is accepted but its exercise is challenged.

Investec Bank Plc advanced substantial credit facilities to Pavlo Protopapa and Abdallah Chatila. The facilities contained English governing-law and jurisdiction provisions, including an agreement that the English courts were the most appropriate and convenient forum and a promise not to argue otherwise.

Following alleged defaults, Investec commenced proceedings in England after serving the claim form on the contractually appointed service agent. The defendants accepted that the English court had jurisdiction but applied under CPR rule 11(1)(b) for a stay and for the claim form to be set aside, contending that Switzerland was the more suitable forum.

The court considered forum non conveniens, contractual estoppel, and whether the second defendant had submitted to jurisdiction.

1. The applications were dismissed. The defendants failed to establish strong or sufficiently strong reasons for staying proceedings brought pursuant to the contractual English jurisdiction agreements.
2. The ordinary forum non conveniens inquiry under Spiliada Maritime Corporation Appellants v Cansulex Ltd was materially constrained by the parties’ contractual selection of England. The court had to respect party autonomy and commercial certainty. Foreseeable matters of convenience, including the location of parties and assets, related Swiss proceedings, possible contribution claims, and the risk of multiplicity of proceedings, did not justify departure from the bargain.
3. The related agreements governed by Swiss law and containing Swiss jurisdiction clauses served distinct purposes. They did not prevent the claimant from suing the defendants in England for alleged defaults under facilities governed by English law. The claims were conceptually straightforward and did not depend on obtaining relief under the related agreements.
4. The parties’ agreement that the English courts were the most appropriate and convenient courts to settle disputes was distinct from the accompanying promise not to argue otherwise. Applying contractual estoppel, the defendants were precluded from contending that England was not the more suitable forum. The court would in any event have refused a stay on that additional ground.
5. Had the issue been material, the second defendant had not submitted to jurisdiction. The court assessed the whole of his conduct objectively. Filing an acknowledgment indicating an intention to defend could not alone amount to submission, and a request for an extension of time to serve a defence was equivocal in the circumstances. The later notification of an intention to apply under CPR Part 11 reinforced that conclusion.
6. Even if there had been submission to jurisdiction, that would not have prevented an application for a stay. Submission establishes or confirms jurisdiction; it does not resolve whether the court should exercise that jurisdiction on forum non conveniens grounds.