British American Tobacco v Exel Europe

Contracts for the international carriage of goods by road, concluded on the basis that the CMR Convention1 applies to them, are made against a specific and comprehensive background of substantive obligations and procedural regulations. Among the procedural regulations are provisions for the jurisdiction of certain courts and non-jurisdiction of other courts which might otherwise have had it. As the nature of such carriage is that the haulage may be subcontracted, and that more than once, the CMR Convention also deals with jurisdiction, and non-jurisdiction, over subcontractors. The question of jurisdiction will often have three components. The point of departure is to examine the contractual framework actually put in place by the parties, for if this gives the court jurisdiction over the particular claim, there will be little more to be said.2 If it does not give jurisdiction, the second question is whether the Convention provides a non-contractual basis for jurisdiction. The third question is whether European law displaces the answer which has been arrived at by superimposing on the CMR scheme certain non-negotiable principles of European law.3 All three of these questions came before the Supreme Court in British American Tobacco Switzerland SA v Exel Europe Ltd,4 and the three points may be taken in turn.

The CMR Convention concerns “the Contract for the International Carriage of Goods by Road”. It therefore makes sense to start with the contractual framework, for this will provide the foundation for an assessment of the jurisdictional provision. In summary, if the relevant parties to the claim5 had agreed by contract that the English court would have jurisdiction to entertain the claim made by the one against the other, that would be both beginning and end6 of the jurisdictional argument.