Exclusive jurisdiction: where is the obligation not to sue to be performed?

A nice point of potential importance in conflict of laws: see AMT Futures Ltd v Marzillier & Ors [2017] UKSC 13 today. If someone in Germany has a contract with you providing for exclusive jurisdiction in England and they nevertheless sue in Germany, do the English courts have jurisdiction under Brussels I to hear your claim for damages? Against the other contracting party, clearly Yes. But what if you want to sue a third party for bankrolling the action and thereby inducing the breach of the obligation? Is the harm suffered by you suffered here within Art.5.3 (Art.7.2 Recast)? No. The relevant obligation is to be construed as an obligation to refrain from suing in Germany, not an obligation to sue in England if you sue at all.

Another interesting point raised in the case was whether entertaining an action for breach of the obligation not to sue in Germany was itself contrary to the full faith and credit ethos lying behind the Brussels regime (as denied in West Tankers v Allianz [2012] EWHC 854 (Comm)). The SC refused to grasp this hot potato: perhaps wisely, since it may well not matter after Brexit.

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