The Court of Appeal has decided that, when basing jurisdiction on the Brussels Regulation, it is not possible to deem agreement or consent to jurisdiction from the factual circumstances.
In Antonio Gramsci Shipping v Aivars Lembergs  EWCA Civ 730, the claimant was the owner of vessels chartered to companies controlled by the defendant, who was not domiciled in the jurisdiction. It was alleged that the companies were set up and the charterparties entered into as part of a fraudulent scheme to divert profits from the claimant. The charterparties contained English jurisdiction clauses, and the claimant brought proceedings against the companies in England and obtained judgment.
The claimant then sought to claim against the defendant on the basis that it could "lift the corporate veil" because of the fraud. By lifting the veil, the claimant would effectively be deemed to be the true party to the charterparties. As they contained jurisdiction clauses, the defendant would be deemed to have agreed to the jurisdiction clauses.
The claimant relied on Article 23 of the Brussels Regulation, which provides that where the parties have agreed that a court of a member state shall have jurisdiction, then that court may exercise it. However, the question of whether a party has consented to jurisdiction was "an autonomous question of EU law" and the parties’ consensus on jurisdiction must be clearly and precisely demonstrated. Accordingly, EU law did not support deemed, rather than actual, consent to a jurisdiction agreement, and the English law that permitted the raising of the corporate veil could not overcome the clear and conflicting EU law on consent.
Paul Howcroft, Partner, Fladgate LLP (firstname.lastname@example.org)