EUPillar Deutsche Bank AG v Asia Pacific Broadband Wireless Communications Inc [2008] EWCA Civ 1091

Summary

The claimant, Deustche bank, provided a credit facility (some $210 million) available to the defendants, APBW – members of a group of company controlled by the Wang family. There was an English jurisdiction clause. The defendant was declared in default. The claimants made demands for payments, and initiated proceedings in England by relying on the jurisdiction clause. The jurisdiction was challenged – the authority of the signatory, Mr Wang, was questioned. It was questioned whether any alternative claims for misrepresentation and restitution would be within the scope of the jurisdiction agreement. The English High court held: that it had no jurisdiction because the claimant could not establish a real consent. Mr Justice Flaux held that: “34 In my judgment, consensus is not demonstrated here merely by showing those outward indicia. Although the ECJ does not give much if any assistance as to what will amount to “consensus”, it seems to me that the mere fact that the relevant jurisdiction clause is in writing forming part of an agreement ostensibly signed by both parties is not sufficient in a case such as the present, where the relevant alternative claims are predicated upon the agreement containing the jurisdiction clause being unauthorised and void. The use by the European Court of concepts such as “real consent” and “the independent will of the parties” suggests very strongly that in a case such as the present the European Court would not consider that consensus was established simply by showing an agreement signed by an agent whose authority to do so was denied: see also Briggs & Rees: Civil Jurisdiction and Judgments , 4th edn, para.2–105.” [34] An appeal was made. The Court of Appeal allowed the appeal. It was held that there was a valid jurisdiction agreement, and the English court had jurisdiction to hear and determine the question whether there is an authorised agreement (and the relevant consquences). Lord Justice Longmore held that: “31 In [31]–[34] of his judgment, the judge appears to contemplate that there might be sufficient consensus between the parties that the primary dispute as to authority can be resolved by the English court but not sufficient consensus that the court should determine alternative claims “predicated upon the agreement containing the jurisdiction clause being unauthorised and void”. To my mind this is a curious conclusion. To require separate consensuses for separate claims is an artificial concept which is most unlikely to accord with contracting parties' intentions and is unlikely to have commended itself to the framers of the Regulation. 32 Mr Butcher relied on Kleinwort Benson Ltd v Glasgow City Council (No.2) [1999] 1 A.C. 153; [1998] I.L.Pr. 350 as showing that restitutionary claims are different from contractual claims for the purpose of art.5 of the Regulation and submitted that the same position applied under art.23 . In that case the House of Lords held that a claim for return of money paid pursuant to an ultra vires swap contract could not be brought in England pursuant to the domestic equivalent of art.5 of the Regulation which entitled a claimant to sue “in matters relating to a contract, in the courts for the place of performance of the obligation in question”. If there was no contract there could be no place of performance of the contractual obligation and the claim had to be brought in the defendants domicile (Scotland). That was a very different case. Here the question is whether there was a jurisdiction agreement and, if so, what claims come within that agreement. As a matter of English law there was such an agreement and the alternative claims come within the agreement. The fact that the terms of art.23 of the Regulation have to be (and can be seen to have been) complied with should make no difference.” [2008] EWCA Civ 1091 [31 and 32]