Summary
On the claimant’s side, there were multiple claimants. The dispute concerned a number of charterparties of vessels owned by Antonio Gramsci. On the defendant’s side, there were a number of corporate defendants as well as a number of individuals (i.e. beneficial owners of the companies.). The claimants brought a monetary claim for the amount of approximately $100 million. The defendants challenged the jurisdiction of the English court. This posed inter alia the question whether all defendants were bound by the jurisdiction agreement. The claimants further sought to pierce the corporate veil with a view to holding all defendants jointly and severally liable. The English court dismissed the jurisdictional challenge, noting that: “there is a good arguable case, in the sense referred to above, that the claimants will establish such consensus by and between the claimants and the defendant as puppeteer” [63]. In this context, Mr Justice Burton held:
“26 There is in my judgment no good reason of principle or jurisprudence why the victim cannot enforce the agreement against both the puppet company and the puppet who, all the time, was pulling the strings. The claimants seek to enforce the contract against both puppeteer and the puppet company.” [26]
Although no appeal was made against the judgment of Mr Justice Burton, the issue reappeared in Antonio Gramsci Shipping Corp & Ors v Recoletos Ltd & Ors [2012] I.L.Pr. 36 aff’d Antonio Gramsci Shipping Corpn and others v Recoletos Ltd and others [2013] EWCA Civ 730. In April 2011, the claimants joined another beneficial owner, Aivars Lembergs. On 24th August 2011, Mr Lembergs challenged the jurisdiction of the English court. In the meantime, the judgment of the English Court of Appeal in VTB Capital was rendered, overruling Mr Justice Burton’s judgment. In view of the developments, Mr Lembergs’s jurisdictional challenge was sustained by the English High Court. Mr Justice Teare held
“66 In circumstances where, on the evidence adduced by the claimants, Mr Lembergs has induced the claimants to contract with the Corporate Defendants on terms which included a jurisdiction clause in favour of the English court but where there is no evidence that Mr Lembergs has himself expressed or indicated any willingness (public or otherwise) that claims brought against him by the claimants may be tried in the English court, I do not consider that there is an arguable case that Mr Lembergs has indicated his willingness to be sued in the English court so as to give rise to the sort of consensus required by art.23. Just as it is not permissible to raise the corporate veil to reveal Mr Lembergs as party to the charterparties and to the jurisdiction clause within them so it is not possible, in my judgment, to raise the corporate veil to reveal Mr Lembergs as a person expressing his willingness to submit to the jurisdiction of the English court. It is, it seems to me, unrealistic (or, as the Court of Appeal has more forcibly put it, “pure fiction”) to say that Mr Lembergs has demonstrated a willingness to have claims against him brought in the English court when he has, on the claimants’ case, carefully avoided doing that and has, at best, demonstrated only a willingness that claims against the Corporate Defendants be brought in the English court.” [2012] I.L.Pr. 36 [61]. The decision was confirmed by the Court of Appeal. No reference to the CJEU was considered necessary. [2013] EWCA Civ 730 [67].