Forum non conveniens waiver overruled


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In Standard Chartered and Others v Independent Power Tanzania and Others [2015] EWHC 1640 (Comm) the parties had entered into various agreements which were governed by English law and contained non-exclusive English jurisdiction clauses with forum non conveniens waivers and an express acceptance of the possibility of concurrent proceedings in different jurisdictions, together with provisions for service in England.

The claimants brought proceedings in England under the facility agreement and security deed, but the defendants applied to stay the proceedings on the grounds that Tanzania was the appropriate forum.

The Commercial Court held that a forum non conveniens waiver combined with a non-exclusive English jurisdiction clause did not preclude an application for a stay on forum grounds.  Even in the case of an exclusive jurisdiction clause there might be strong reasons in the interests of justice for not giving effect to the clause.  The court considered that the bargain that the defendant had made in entering the contract was that it would not seek to argue that England was not an appropriate forum on grounds which were foreseeable at the time that the relevant agreement was made.  If strong or exceptional grounds were demonstrated that were unforeseen and unforeseeable at the time of the agreement, a stay would be granted.  In this case, those criteria were not met.

Paul Howcroft, Partner, Fladgate LLP (phowcroft@fladgate.com)

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