IGCF SPV 21 Limited v Al Jomaih Power Limited and another (Cayman Islands)

Submission to a foreign jurisdiction depends on the substance and purpose of the steps taken, assessed under Cayman law and in all the circumstances. A party does not submit merely by appearing to contest jurisdiction or by seeking a stay in favour of arbitration or another court. No distinction exists between challenging the existence and the exercise of jurisdiction: both are protests against the assumption of jurisdiction. Submission usually requires a step that is only necessary or useful if a jurisdiction objection has been waived. Relief consequential on a successful jurisdictional challenge does not amount to substantive participation. The rule in Henry v Geoprosco International Ltd [1976] QB 726 forms no part of Cayman law.

The appellants and respondent were shareholders in a Cayman company that held an interest in a Pakistani utility company. The parties’ shareholders’ agreement contained an exclusive jurisdiction clause in favour of the courts of England and Wales or the Grand Court of the Cayman Islands.

After the appellants commenced proceedings in Pakistan and obtained an interim injunction, the respondent issued applications under section 4 of the Pakistan Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act 2011 and Order 39 Rule 4 of the Pakistan Civil Procedure Code. It then sought an anti-suit injunction in the Grand Court. Segal J granted the injunction, and the Court of Appeal dismissed the appeal on 2 July 2024. The central issue before the Board was whether those steps amounted to submission to the Pakistan court and whether the rule in Henry v Geoprosco International Ltd remained part of Cayman law.

Appeal dismissed. The Board advised His Majesty accordingly.

1. Geoprosco. The rule in Henry v Geoprosco International Ltd [1976] QB 726 rested on a false distinction between challenging the existence of jurisdiction and challenging its exercise. Both are protests against the foreign court’s assumption of jurisdiction. The Board agreed with the criticism of that distinction expressed in In re Dulles’ Settlement (No 2) [1951] Ch 842.
2. Cayman law. Cayman courts may decline to follow an English decision where there is good reason. Relevant considerations included the widespread criticism of Geoprosco, its statutory reversal in England and Wales by section 33 of the Civil Jurisdiction and Judgments Act 1982, and its rejection or non-application in other common-law jurisdictions. Geoprosco should form no part of Cayman law.
3. Applicable test. The law of Cayman should reflect the current law of England and Wales. Under Rubin v Eurofinance SA [2012] UKSC 46, [2013] 1 AC 236, submission is inferred from all the facts. The usual question is whether the party took a step only necessary or useful if an objection to jurisdiction had been waived. The same rule applies in anti-suit injunction and foreign-judgment enforcement cases. The foreign court’s own procedural characterisation is not determinative.
4. Application. The Order 39 and section 4 applications were genuine attempts to resist the Pakistan court’s assumption of jurisdiction. The relief concerning the appointment of directors was consequential on a successful jurisdictional challenge, rather than substantive relief seeking adjudication by the Pakistan court. The respondent therefore had not submitted to that jurisdiction, and the anti-suit injunction was properly granted.

1. Privy Council — [2025] UKPC 54: appeal dismissed; advice given to His Majesty.
2. Court of Appeal of the Cayman Islands — 2 July 2024: appeal from Segal J dismissed.
3. Grand Court of the Cayman Islands — Segal J gave judgment for the respondent on 20 July 2023 and granted an anti-suit injunction by order dated 16 August 2023.