Intransigent defendants: Prestige 4.0

Most parties who lose English court cases or arbitrations give in (relatively) gracefully. In the long and ongoing Prestige saga, however (already well documented in this blog: see here, here, here, and here), the French and Spanish governments have chosen to fight tooth and nail, something that is always apt to give rise to interesting legal points. Last Friday’s episode before Butcher J (SS Mutual v Spain [2020] EWHC 1920 (Comm)) was no exception, though in the event nothing particularly novel in the way of law emerged.

To recap, nearly twenty years ago the laden tanker Prestige sank off northern Spain, grievously polluting the French and Spanish coasts. Steamship Mutual, the vessel’s P&I Club, accepted that it might be potentially liable to direct suit up to the CLC limit, but pointed out that its cover was governed by English law, contained a “pay to be paid” clause and required arbitration in London. Nothing daunted, the French and Spanish governments came in as parties civiles when the owners and master were prosecuted in Spain, and claimed their full losses. The Club meanwhile protected its position by obtaining declaratory arbitration awards in England against both governments that all claims against it had to be arbitrated here; for good measure it then successfully transmuted these awards into High Court judgments under s.66 of the 1996 Arbitration Act (see The Prestige (No 2) [2013] EWHC 3188 (Comm). These decisions the French and Spanish governments blithely ignored, however; instead they took proceedings in Spain to execute the judgments they had obtained there.

In the present litigation, the Club’s claim (slightly simplified) was against both governments for damages for continuing the Spanish proceedings, based either on breach of the arbitration agreement, or in the alternative on failure to act in accordance with the s.66 judgments. The object, unsurprisingly, was to establish an equal and opposite liability to meet any claim asserted by the governments under their judgments in the Spanish proceedings.

The Club sought service out on the French and Spanish governments: the latter resisted, arguing that they were entitled to state immunity, and that in any case the court had no jurisdiction.

On the state immunity point, the Club succeeded in defeating the governments’ arguments. The proceedings for breach of the arbitration agreement were covered by the exception in s.9 of the State Immunity Act 1978 as actions “related to” an arbitration agreement binding on the governments. Importantly, Butcher J regarded it as unimportant that the proceedings did not relate to the substantive matter agreed to be arbitrated, and that the governments might be bound not by direct agreement but only in equity on the basis that they were third parties asserting rights arising from a contract containing an arbitration clause.

The proceedings on the judgments, by contrast, were not “related to” the arbitration agreement under s.9: understandably so, since they were based on failure to give effect to a judgment, the connection to arbitration being merely a background issue. But no matter: they were covered by another exception, that in s.3(1)(a), on the basis that the breach alleged – suing in the teeth of an English judgment that they had no right to do so – was undoubtedly a “commercial transaction” as defined by that section.

The judge declined to decide on a further argument now moot: namely, whether suing abroad in breach of an English arbitration agreement was a breach of a contractual obligation to be performed in England within the exception contained in s.3(1)(b) of the 1978 Act. But the betting, in the view of this blog, must be that that exception would have been inapplicable: there is a big and entirely logical difference between a duty not to do something other than in England, and an obligation actually to do (or omit to do) something in England, which is what s.3(1)(b) requires.

State immunity disposed of, did the court have jurisdiction over these two governments? Here the holding was yes, but only partly. The claim based on the s.66 judgments was, it was held, subject not only to the Brussels I Recast Regulation but to its very restrictive insurance provisions dealing with claims against injured parties (even, note, where the claims were being brought, as some were in the case of Spain, under rights of subrogation). Since the governments of France and Spain were ex hypothesi not domiciled in England, but in their respective realms, there could be no jurisdiction against them.

On the other hand, the claims based on the obligations stemming from the arbitration award were, it was held, within the arbitration exception to Brussels I, and thus outside it and subject to the national rules in CPR, PD6B. The only serious question, given that the arbitration gateway under PD6B 3.1(10) or the “contract governed by English law” gateway under PD6B 3.1(6)(c) pretty clearly applied, was whether there was a serious issue to be tried as to liability in damages. Here Butcher J had no doubt that there was, even if the governments were not directly party to the agreements and the awards had been technically merely declaratory of the Club’s rights. It followed that service out should be allowed in respect of the award claims.

Further than this his Lordship did not go, for the very good reason that he had no need to. But in our view the better position is that indeed there would in principle be liability under the award claims. If, as is now clear, an injunction is available on equitable grounds to prevent suit in the teeth of an arbitration clause by a third party despite the lack of any direct agreement by the latter, there seems no reason why there should not also be an ability to an award of damages, if only under Lord Cairns’s Act (now the Senior Courts Act 1981, s.50). Further, there seems no reason why there should not be a an implied obligation not to ignore even a declaratory award by suing in circumstances where it has declared suit barred.

For final answers to these questions we shall have to await another decision. Such a decision might even indeed come in the present proceedings, if the intransigence of the French and Spanish governments continues.

One other point to note. The UK may be finally extricating itself from the toils of the EU at the end of this year. But that won’t mark the end of this saga. Nor indeed will it mark the end of the Brussels regime on jurisdiction, since the smart money is on Brussels I being replaced with the Lugano Convention, which is in fairly similar terms. You can’t throw away your EU law notes quite yet.

An odd decision over contribution, but no need to worry.

As they used to say as often as they could in the Hitch-Hiker’s Guide to the Galaxy, “Don’t panic!”

What rules govern contribution proceedings between tortfeasors? In Roberts v SSAFA [2020] EWCA Civ 926 a little boy, presumably a service child, was injured in hospital in Germany owing to SSAFA’s negligence. SSAFA claimed contribution from the MoD, alleging they were concurrently liable. The MoD said, correctly, that German law applied to the contribution proceedings and under German law they were out of time. SSAFA said yes, but then struck a remarkably nationalistic note. The English Civil Liability (Contribution) Act 1978, it argued, ought to apply to all proceedings in the English court even if the liability would otherwise be governed by foreign law: and since that said the claim against the MoD wasn’t statute-barred that was an end of it.

One decision directly in point, Arab Monetary Fund v Hashim [1994] CLY 3555, supported SSAFA; the law professors, by contrast, broadly supported the MoD. The Court of Appeal, after a lengthy analysis of the 1978 Act, came down on the side of SSAFA: on a proper interpretation the Act it, and its scheme of liability, were meant to apply to any proceedings brought here, full stop.

To put things neutrally, this blog would have been with the law professors. The decision will hardly do much for comity; nor does the result make much sense as part of a sensible scheme of private international law, since where it applies it is an open invitation to come and do some socially-distanced forum-shopping in England.

But, as we said at the beginning, don’t panic. The parties’ names in this case might well have been not Roberts and SSAFA but Jarndyce and Jarndyce: the events took place as long ago as 2000 (!). Since 2009 we have had a more sensible rule about contribution in Art.10 of Rome II, which essentially subjects contribution claims to the law governing the main tort. In just about every case you come across these days, barring outliers like this one, it will apply. Whatever else you may think of the EU, Rome I and Rome II are much better provisions than the common law rules they replaced; and even better than that, it seems a racing certainty they will they will continue serenely on post-Brexit. So litigation lawyers can pour that large gin and tonic with a clear conscience this evening.

Prestige 3.0 — the saga continues

The Spanish government and SS Mutual are clearly digging in for the long haul over the Prestige pollution debacle eighteen years ago. To recap, the vessel at the time of the casualty was entered with the club under a contract containing a pay to be paid provision and a London arbitration clause. Spain prosecuted the master and owners and, ignoring the arbitration provision, came in as partie civile and recovered a cool $1 bn directly from the club in the Spanish courts. The club meanwhile obtained an arbitration award in London saying that the claim against it had to be arbitrated not litigated, which it enforced under s.66 of the AA 1996 and then used in an attempt to stymie Spain’s bid to register and enforce its court judgment here under Brussels I (a bid now the subject of proceedings timed for this coming December).

In the present proceedings, London Steam-Ship Owners’ Mutual Insurance Association Ltd v Spain (M/T PRESTIGE) [2020] EWHC 1582 (Comm) the club sought essentially to reconvene the arbitration to obtain from the tribunal an ASI against Spain and/or damages for breach of the duty to arbitrate and/or abide by the previous award, covering such things as its costs in the previous s.66 proceedings. By way of machinery it sought to serve out under s 18 of the 1996 Act. Spain claimed sovereign immunity and said these further claims were not arbitrable.

The immunity claim nearly succeeded, but fell at the last fence. There was, Henshaw J said, no agreement to arbitrate under s.9 of the State Immunity Act 1978, which would have sidelined immunity: Spain might be bound not to raise the claim except in arbitration under the principle in The Yusuf Cepnioglu [2016] EWCA Civ 386, but this did not amount to an agreement to arbitrate. Nor was there, on the facts, any submission within s.2. However, he then decided that s.3, the provision about taking part in commercial activities, was applicable and allowed Spain to be proceeded against.

Having disposed of the sovereign immunity point, it remained to see whether the orders sought against Spain — an ASI or damages — were available in the arbitration. Henshaw J thought it well arguable that they were. Although Spain could not be sued for breach of contract, since it had never in so many words promised not to sue the club, it was arguable that neither Brussels I nor s.13 of the 1978 Act barred the ASI claim in the arbitration, and that if an ASI might be able to be had, then there must be at least a possibility of damages in equity under Lord Cairns’s Act.

No doubt there will be an appeal. But this decision gives new hope to P&I and other interests faced with opponents who choose, even within the EU, to treat London arbitration agreements as inconsequential pieces of paper to be ignored with comparative immunity.

Classification societies are commercial — OK?

There is an easy side, and also a more wide-ranging and difficult one, to the CJEU’s decision last week in RINA SpA, Case 614/18, ECLI:EU:C:2020:349 on a point concerning the Brussels I Regulation.

Something over 14 years ago, a Red Sea ro-ro ferry, the Al Salam Boccaccio 98, sank with horrendous loss of life on a voyage between Duba in Saudi Arabia and Safaga in Egypt. She was registered in Panama and classed with Italian classification society RINA SpA.

A number of passengers sued RINA in its home state, Italy, for negligently certifying the vessel fit to sail, relying on what is now Art.4 of Brussels I Recast (the case actually concerned the previous 2001 jurisdiction regulation). RINA however had a trick up its sleeve. It pleaded sovereign immunity, on the basis that although it had been chosen and paid by the owners of the vessel, it had been acting on behalf of the Panamanian government. For that reason it argued that the Italian court had no jurisdiction over it in this respect, and that the Brussels Regulation was beside the point since this was not a civil or commercial matter. The Tribunale di Genova, faced with interesting issues of EU and public international law, understandably made a reference to the CJEU on the matter; was the claim covered by the Regulation?

The court, following the Advocate-General, had no doubt that RINA’s plea was misconceived. Even if the society had been acting for the Panamanian authorities in certifying the vessel so that those authorities in turn could, as the organs of the state of registration, give her the necessary clean bill of health, this was a matter governed by private law principles. According to the generally accepted rules of public international law, there was no way this could be construed as an act iure imperii; it was therefore covered by the Regulation.

It follows that in so far as it is sought to make a classification society liable for damage, loss or injury (a matter on which European and other legal systems differ considerably, and which we have no intention of going into here), lawyers can at least sleep easy on this point: as regards jurisdiction, it is simply a matter of looking up the relevant provisions of Brussels I Recast. It is a fair inference that the same also goes for other certification bodies (something likely to be relevant for international product liability cases) and probably state licensing bodies such as the CAA in so far as they are sued under private law provisions.

So much for the easy bit. Now for the harder one. Does this mean that state immunity law has now been quietly Europeanised as a matter of principle? This issue is not dealt with as such, and was explicitly left open by the Advocate-General in Para [106] of his opinion. The original Jurisdiction Regulation said nothing about it either; and although the Recast version adds a further few words to Art.1.1 saying explicitly that it does not apply to acts done iure imperii, this takes us little further.

The answer seems to be that we do have de facto Europeanisation, but only partly. RINA, read closely, says merely that in so far as Brussels I applies to an EU-based defendant, it is not open to a member state to apply a more generous home-grown version of state immunity and decline jurisdiction. It does not state the converse; namely, that if EU law regards a matter as covered by state immunity then an EU domestic court must not take jurisdiction at all. Why the case ended up in the CJEU in the first place is apparent only from a careful look at the facts: Italy indeed does as a matter of domestic law apply a very generous doctrine of state immunity, and it was this that the claimant sought, successfully, to sideline.

So for the moment – and, assuming Lugano or something similar to Brussels I applies after the transition period – English lawyers can breathe easy on this point too. There’s life yet in their well-thumbed copies of the State Immunity Act 1978.

The murky world of anti-suit injunctions — with a new twist

When it comes to remedies in international litigation, what matters in most cases is not whether the court can give them, but when it will. The point is nicely illustrated in a decision yesterday from Cockerill J about anti-suit injunctions (see Times Trading Corporation v National Bank of Fujairah [2020] EWHC 1078 (Comm)). Essentially the issue was this. A person who sues abroad in blatant breach of an arbitration or jurisdiction agreement will be enjoined almost as of course on the basis of The Angelic Grace [1995] 1 Lloyd’s Rep 87 and Donohue v Armco Inc [2002] 1 All ER 749. But what if this is not so (for instance, where the injunction defendant is an assignee, or where the existence of a direct contract between the two is controverted)? Jurisdiction is not in doubt: but does the ASI run almost as of course as before, or does the person seeking it have to jump the fairly high hurdle of showing oppression? Cockerill J plumped for the former solution.

To over-simplify, a cargo of coal carried in the 57,000 dwt bulker Archangelos Gabriel was delivered without production of the bills of lading, which were held by NBF, a Fujairah bank financing the buyer. It was common ground that the bills incorporated a London arbitration clause. NBF, mindful that the twelve-month Hague-Visby time-bar expired in June 2019, intimated a claim to the vessel’s owners R in December 2018; they issued in rem proceedings in Singapore in January 2019 and served them ten months later. In addition they issued arbitration proceedings in London against R in June, just within the time-bar. Then came a bombshell: after some procedural skirmishing R alleged with considerable plausibility that the vessel had actually been bareboat chartered to T, with which it seemed to have fairly close relations, and that the relevant bills, issued on behalf of the master, were charterers’ bills and not theirs.

Caught on the hop, and with a claim against T now out of time, NBF made it clear that they would add T to the Singapore proceedings and attempt to add them as a respondent to the London arbitration. T, fairly confident that it could resist the latter attempt, sought an ASI to prevent continuation of the Singapore proceedings against it, relying on the arbitration clause.

Had it been admitted that T and NBF were both party to a contract containing the arbitration clause, the case would have been easy: but it was not. However incongruously given its claim against T in Singapore under the bill of lading, in London NBF put in issue the question whether T was party to that document at all. Was this a case where the ASI should normally run as of course? T said it was: NBF that it was not. Having discussed the authorities, Cockerill J fairly unhesitatingly supported T’s position. The claim for the ASI here was “quasi-contractual” in the same way as if the injunction defendant were an assignee of some sort seeking to enforce an obligation without respecting an arbitration clause in it (as in cases like The Yusuf Cepnioglu [2016] 1 Lloyd’s Rep 641); true that here the claim was that T rather than NBF was a technical third party, but that was irrelevant. And in all such cases, she said, the rule in The Angelic Grace [1995] 1 Lloyd’s Rep 87 applied. And rightly so in our view; what should matter in international litigation cases is a clear illegitimate attempt to make an end-run around a clear contractual arbitration or jurisdiction clause, not technical questions of rights to enforce, or duties to perform, a particular contractual obligation.

Not that this mattered in the event. Had push come to shove, her Ladyship would, in a no-nonsense way reminiscent of Bertie Wooster’s Aunt Agatha, have decided T was the carrier under the bill of lading and so applied The Angelic Grace anyway (see at [80]). But that is beside the point for our purposes.

We should add the final twist to the story. In the event T’s victory on this point was for another reason entirely Pyrrhic, the only gainers being the lawyers. NBF had acted fairly reasonably in proceeding against R, and T’s merits were not entirely sparkling. In the circumstances the judge, while clearly willing to injunct NBF, did so only on terms that T would not take any time-bar points in the London arbitration. Ironically these were exactly the terms on which NBF had offered to discontinue the Singapore proceedings in the first place. But at least we now know that their judgment was right; and in addition we have some very useful clarification on the subject of ASIs generally.

A Brussels I glitch for underwriters, but perhaps no great harm

The sequel to the Atlantik Confidence debacle hit the Supreme Court this week. That court determined that UK courts won’t be doing any more deciding on the affair.

To recap, the Atlantik Confidence, a medium bulk carrier, was scuttled by her owners just over seven years ago in an insurance scam. Her hull underwriters, who had paid out some $22 million in all innocence to Credit Europe, the bank assignee of the policy, understandably asked for their money back. Unfortunately the bank was Dutch, and stood on its right to be sued in the Netherlands under Art.4 of Brussels I Recast, and also under Art.14, which says that insurers can only sue a policyholder or beneficiary in his own jurisdiction. Teare J held (as we noted here) that in so far as the underwriters could prove misrepresentation by the bank (which they had a chance of doing) they could sue in tort in England, since the effects of the misrepresentation had been felt here. Art.14 was no bar, since although this was a matter relating to insurance that provision was predicated on the person sued by the insurer being a weaker party (see Recital 18 to the Regulation), and no sensible person could think Credit Europe needed to be protected from the foul machinations of overbearing insurers. The Court of Appeal agreed (see Aspen Underwriting Ltd & Ors v Credit Europe Bank NV [2018] EWCA Civ 2590), citing the Advogate-general’s view in Kabeg v Mutuelles Du Mans Assurances (Case C-340/16) [2017] I.L. Pr. 31 that Art.14 could be disapplied to a subrogee “regularly involved in the commercial or otherwise professional settlement of insurance-related claims who voluntarily assumed the realisation of the claim as party of its commercial or otherwise professional activity”.

The Supreme Court was having none of it: see Aspen Underwriting Ltd & Ors v Credit Europe Bank NV [2020] UKSC 11. It was brief and to the point. This was a matter related to insurance; there was no agreement binding on the bank to submit to English jurisdiction; and Art.14, as so often in the case of Euro-law, should be interpreted as seeking bureaucratic certainty rather than nuanced determination. Any reference to relative weakness was merely background, there to explain why the EU has a bright line rule that insurers can’t ever be allowed to sue except in the defendant’s domicile.

Where from here? On present indications our final Brexit disentanglement from the EU will be no escape, since the present intention is for the UK to jump sideways from Brussels I to Lugano, which also has identical provisions about insurers (for Art.14 read Art.12).

But remember that in the case of marine insurance Art.14 can be ousted; and the sting of this decision might well be able to be drawn by some nifty drafting. Obviously every policy must have a provision under which the policyholder submits expressly to the jurisdiction of the English courts. There needs to be added to this a provision that no assignee can enforce payment except against the giving of an express undertaking to submit to English jurisdiction in the event of any dispute; and a cast-iron practice of never making payment to any assignee except against receipt of such an undertaking by the underwriter.

Of course we don’t know what the ECJ would say about this (though it’s difficult to see how it could object). But that may not matter. By the time the issue comes to be tested, we are likely to be outside the clutches of that court anyway.

A new tort in the common law world. Corporations in Canada can be liable for aiding and abetting violations of customary international law.

 

Eritrea is a new country, having only been in existence since 1993. It is also a very poor country, ranking 164th out of the world’s 194 states. 80% of its population are engaged in subsistence agriculture. Eritrea’s major source of foreign currency is its Bisha mine at Asmara. Construction began in 2008 and by 2013 gold exports amounted to US$143m, almost all derived from the Bisha mine. The mine is owned by the Bisha Mining Share Company (BMSC) in which a Bermudan subsidiary of a Canadian mining company, Nevsun, holds a 60% share.

However, all that glitters is not gold. Eritrea has a national service programme requiring its adult citizens to serve in the military for 18 months. In 2002 this was extended to an indefinite period of service. Conscripts in the national service programme (NSP) have provided the labour for the Bisha mine. Three Eritrean refugees, Gize Yebeyo Araya, Kesete Tekle Fshazion, and Mihretab Yemane Tekle, brought an action against Nevsun in the courts of British Columbia. They allege that they were conscripted into the NSP and then forced to provide labour to two for profit construction companies, Segen and Mereb, the latter allegedly owned by members of the Eritrean military. They allege that Nevsun and/or its Eritrean subsidiary, BMSC, engaged Segen and Mereb for the construction of the Bisha Mine.

As well as framing their claims under domestic tort law, the plaintiffs also brought the action against Nevsun for violations of customary international law (CIL) as incorporated into the law of Canada, for: the use of forced labour; torture; slavery; cruel, inhuman or degrading treatment; and crimes against humanity. Nevsun mounted a jurisdictional challenge to the claims on three grounds: forum non conveniens; Act of State; denial of the existence of a cause of action based on CIL.

At first instance, Abrioux J dismissed the application to stay proceedings on grounds of forum non conveniens finding that Nevsun had not established that Eritrea was the more appropriate forum. He also dismissed the Act of State application and decided that the CIL claims were not bound to fail and should proceed to trial. The case then proceeded to the Court of Appeal of British Colombia  which upheld the decision on forum non conveniens, decided that in the light of the UK Supreme Court’s decision in Belhaj v Straw [2017] UKSC 3; [2017] A.C. 964. the Act of State doctrine would not bar the claims against Nevsun and that there was enough plausibility to the existence of a cause of action base on CIL to allow those claims to proceed.

In January 2019 the Canadian Supreme Court heard Nevsun’s appeal on the Act of  State and CILissues. It has now decided (1) 7-2 that the Act of State doctrine does not form part of the law of Canada and (2) 5-4 that a cause of action based on CIL exists. The trial judge will now have to decide whether Nevsun breached customary international law and—if it did—how it should be held responsible.

So is Canada the new frontier for claims against transnational corporations of the sort that we have seen in the US under the Alien Tort Statute? And if Canada, why not the UK? Maybe, but some unanswered questions remain. The claim is against the parent corporation, but the mine was operated by a subsidiary? How is the parent corporation implicated in the alleged aiding and abetting of the Eritrean State’s violations of CIL? What is the mens rea of this new tort – knowing assistance or purposive assistance? What is the applicable statute of limitations for such a tort?

In the meantime, a useful corrective to the excitement that this decision will inevitably provoke may be found by looking at the 2009 decision of Judge Shira Schiendlin in the South African Apartheid claims brought under the Alien Tort Statute in New York.  The basis of the claim was aiding and abetting  by foreign corporations of violations of CIL by the apartheid regime in South Africa in the 1980s. The mens rea of the tort was knowing assistance. Companies who had supplied military vehicles to the regime which were used to suppress civilian protests, and companies who had supplied IT systems which were then used in the denationalisation of South African citizens could potentially be liable, but not banks who had provided finance to the South African government. Merely doing business in the apartheid state was not enough to constitute aiding and abetting. To supply a violator of the law of nations with funds, even funds that could not have been obtained but for those loans, was not sufficiently connected to the primary violation.

Sounds a bit like the relationship of Nevsun and the Bermudan subsidiary to the Bisha mine project.

 

[1] Araya v Nevsun Resources Ltd  2016 BCSC 1856

[2] Araya v. Nevsun Resources Ltd., 2017 BCCA 401

England v Spain grudge match. Appeal against registration of ‘Prestige’ judgment against London Club likely to be heard in December 2020.

 

Following the break up of ‘The Prestige’, Spain brought proceedings for compensation for the resulting pollution against various defendants, including the owner’s P&I Club. The Club got its response in early by obtaining an arbitration award against Spain which declared that, as a result of the “pay to be paid” clause in the policy the Club had no liability to Spain. The arbitrator’s jurisdiction was challenged unsuccessfully in the English Courts and the award was converted into a judgment. London SS Mutual v Kingdom of Spain, [2015] EWCA Civ 333; [2015] 2 Lloyd’s Rep. 33

In 2016 the Spanish Supreme Court held that the owners and their club were liable for the damage caused and in execution proceedings in La Coruna the court held that the club would liable in respect of the claims up to a global limit of liability in the sum of approximately €855 million. Spain has obtained an order in England registering the Spanish judgment to enable its enforcement here in England. The Club have appealed against that order, principally on the ground that, under art 34.3 of the Brussels Regulation the judgment is irreconcilable with the previous decisions of the English courts converting the award into a judgment.

In a Case Management Conference before Teare J [2020] EWHC 142 (Comm) it was ordered that the trial be after 1 December 2020. It is estimated that it will last 5-6 days. Disclosure has been ordered of documents held by Spain which relate to the alleged refusal of the Spanish Courts  to allow the master to participate in an underwater investigation of the strength of the vessel’s hull and to disclose the results of the investigation (so that there was a breach of the master’s right to equality of arms and to be able to prepare a defence) or whether the results were disclosed to the master in sufficient time to allow him to prepare his defence.

The Club were also given permission to adduce evidence of a naval architect on the question whether the results of the underwater inspections enabled conclusions to be drawn as to the strength of the hull and if so what those conclusions were. On both issues the Club is to provide its evidence first.

UK withdraws accession to 2005 Hague Convention on Choice of Court.

As expected, 31 Jan 2020 saw the following

 

31-01-2020
With reference to depositary notification Choice of Court No. 01/2019, dated 2 January 2019, regarding the accession to the Convention by the United Kingdom, and with reference to depositary notifications Choice of Court No. 03/2019, dated 29 March 2019, Choice of Court No. 04/2019, dated 12 April 2019, and Choice of Court No. 07/2019, dated 31 October 2019, regarding the suspended accession of the United Kingdom to the Convention, the depositary communicates that the Instrument of Accession, Note Verbale and Declarations were withdrawn by the United Kingdom on 31 January 2020.

 

In the meantime the UK keeps riding along in the Convention due to the EU’s accession.

Don’t worry, another UK accession will probably be along later in the year as the UK approaches ‘third party state’ day (TPS day) on 31 December 2020 – possibly to be followed by another ‘withdrawal’ in the event that the UK and the EU conclude an agreement on judgments and jurisdiction before the end of the implementation period.

Parent company duties of care. Hearing date set for Okpabi appeal to Supreme Court.

I have been informed by Leigh Day, acting on behalf of the appellants, that their appeal will be heard by the UK Supreme Court on 23 June 2020

These observations of Lord Briggs in Lungowe v Vedanta [61] may prove to be significant in the forthcoming appeal.

“[I]t seems to me that the parent may incur the relevant responsibility [for the
tort of a subsidiary] to third parties if, in published materials, it holds itself out as exercising that degree of supervision and control of its subsidiaries, even if it does not in
fact do so.   In such circumstances its very omission may constitute the
abdication of a responsibility which it has publicly undertaken.”