Lloyd's Maritime and Commercial Law Quarterly
Damages for breach of English jurisdiction clauses: more than meets the eye
Chee Ho Tham *
Besides anti-suit injunctions, recent cases suggest that breaches of jurisdiction clauses may also be remedied by damages. Without distinguishing between types of jurisdiction clauses or the manner of breach, existing analyses appear to assume that these damages must be contractual, by analogy with breaches of arbitration clauses. In relation to breaches of
English jurisdiction clauses, this may be inappropriate, given that the basis and effect of English judgments are distinct from those of arbitral awards. Contractual damages for breach of English jurisdiction clauses may thus be difficult to justify. However, tortious damages may arguably be available as an alternative
.
A. INTRODUCTION
In three recent cases, namely Donohue
v. Armco
(“Armco
”),1
Union Discount Co Ltd
v. Zoller
(“Zoller”
),2
and A/S D/S Svendborg D/S of 1912 A/S Bodies Corporate trading in partnership as “Maersk Sealand”
v. Akar (“Akar”)
,3
English courts have considered whether damages may be awarded for breach of an exclusive English jurisdiction clause.4
They have apparently concluded that they may be. This has excited some discourse within
* Assistant Professor of Law (Singapore Management University). I should like to thank Adrian Briggs and Edwin Peel for their invaluable assistance in bringing this article to fruition. Any errors, of course, remain my sole responsibility.
The following abbreviations are used in this article:
Briggs & Rees: A. Briggs, and P. Rees (ed), Civil Jurisdiction and Judgments
, 3rd edn (London, 2000).
Carty: H. Carty, An Analysis of the Economic Torts
(Oxford, 2001).
Clerk & Lindsell
: A. Dugdale (Gen ed), Clerk & Lindsell on Torts
, 18th edn (Sweet and Maxwell, London, 2000).
Dicey & Morris
: L. Collins (Gen ed), Dicey & Morris on the Conflict of Laws
, 13th edn (Sweet & Maxwell, London, 2000).
Mustill & Boyd
: M.J. Mustill & S.C. Boyd, The Law and Practice of Commercial Arbitration in England
, 2nd edn (London, 1989).
Mustill & Boyd Companion
: 2001 Companion to the Second Edition
(London, 2001).
Peel: E. Peel, “Exclusive jurisdiction agreements: priority and pragmatism in the conflict of laws” [1998] LMCLQ 182.
Tan & Yeo: D. Tan & N. Yeo, “Breaking promises to litigate in a particular forum: are damages an appropriate remedy?” [2003] LMCLQ 435.
1. [2001] UKHL 64; [2002] 1 Lloyd’s Rep 425.
2. [2001] EWCA Civ 1755; [2002] 1 WLR 1517.
3. [2003] EWHC 797 (Comm).
4. The cases under discussion were not concerned with the question of breach of a distinct and separate jurisdiction agreement, entered into after
the dispute had arisen, and accordingly this article will not seek to examine the effect of breach of such an agreement.
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