AUTONOMOUS CHARACTERISATION UNDER THE BRUSSELS I REGULATION RECAST

Extract

IN Arcadia Petroleum Ltd. v Bosworth [2016] EWCA Civ 818, three companies in the Arcadia Petroleum Group sued their de facto CEO and CFO and others in England for siphoning off money for their own benefit. One of the companies was incorporated in England, the others in Singapore and Switzerland. The companies claimed for unlawful means conspiracy, breach of fiduciary duty, dishonest assistance and knowing receipt. Could these claims all be litigated in England under the Lugano Convention, which allocates jurisdiction to determine disputes among the members of EFTA (the provisions at issue are identical to those of the Brussels I Regulation (No 44/2001) applicable in the EU)? The conclusion depended on whether the claims related to a contract of employment, or were contractual or were tortious. Each characterisation led to a different court with jurisdiction. The Court of Appeal held that mostly they could be litigated in England; only those for breach of fiduciary duty arising during the period of the directors' employment could not.