When considering whether an English court is the appropriate forum in which to resolve international commercial disputes, achieving the ends of justice is usually the ultimate deciding factor. That was certainly so in one case concerning an alleged conspiracy to thwart enforcement of a $200 million arbitration award.
The award had been made in a Dutch company’s favour against a Swiss company. The Swiss company’s principal asset was its indirect ownership of shares in a German company. The Dutch company claimed that those shares had been dissipated in a deliberate attempt to prevent it collecting on the award. The shares were said to have been transferred away from the Swiss company’s control via an array of corporate entities, registered in various Caribbean jurisdictions and Luxembourg, before they were ultimately acquired by an English company. The Dutch company launched proceedings in London, seeking compensation from a businesswoman who was said to have orchestrated or facilitated the transfers with a view to personal enrichment.
In seeking to block the proceedings, the businesswoman argued that England was not the natural or appropriate forum for resolution of the dispute and that the matter should be tried in the Netherlands. Amongst other things, she pointed out that the award had been made by Dutch arbitrators and that the Dutch company’s principal claim was brought under the Dutch Civil Code. The matter would raise complex issues of Dutch law that would be unfamiliar to English corporate lawyers.
In dismissing her application, however, the court noted that the substantive location of the alleged wrongdoing was not limited to the Netherlands, but was spread over a number of jurisdictions. The dispute involved companies registered in many different countries and witnesses would find it no easier to travel to give evidence in the Netherlands, rather than in England.
Although the Dutch courts were clearly best suited to determine questions of Dutch law, it was unlikely that an English commercial judge would have difficulty in finding the relevant facts, and applying Dutch legal principles to them, in order to achieve justice. The businesswoman had failed to establish that the Netherlands would provide a clearly or distinctly more appropriate forum than England. It was also open to the Dutch company to proceed in England against a British Virgin Islands-based company that the businesswoman was alleged to control.