PABLO STAR LTD V EMIRATES INTEGRATED TELECOMMUNICATIONS COMPANY PJSC

[2009] EWCA Civ 1044, Court of Appeal, Lord Justice Waller, Lord Justice Ward and Lord Justice Wall, 14 October 2009

Conflict of laws - Jurisdiction - Service out - Whether parties had entered into an exclusive jurisdiction agreement - Whether contract governed by English law - Whether England was the most appropriate forum - Council Regulation (EC) No 44/2001, article 23 - Civil Procedure Rules 6.37 and Practice Direction 6B - Rome Convention 1980, articles 4(2) and 4(5)

PS commenced proceedings in England against EITC, a Dubai company, alleging that PS had been appointed to provide EITC with a multimedia package with a minimum spend of US$30,000 a month. PS alleged that EITC had failed to pay for sums outstanding, and sought permission to serve EITC outside the jurisdiction on the grounds that: (a) there was an exclusive jurisdiction agreement nominating England; (b) the contract was governed by English law; and (c) EITC had broken the contract in England. The judge dismissed all three grounds of jurisdiction and refused permission for service out. The Court of Appeal allowed the appeal. It held that there was no good arguable case that there was no agreement on jurisdiction or applicable law but simply a situation in which PS had tendered its own terms which had not been accepted by EITC. As to the applicable law, there was presumption in article 4(2) of the Rome Convention that the applicable law was that of PS's place of business, ie England, and that in the present case that presumption was not ousted by article 4(5) because the contract was performed in England and the language of negotiation was English - there was no stronger connection with any other jurisdiction. Accordingly, jurisdiction had been established. In the circumstances England was the most appropriate forum for the dispute to be resolved under CPR 6.37 and permission to serve out would be granted.