Dell Emerging Markets (EMEA) Ltd and Another v IB Maroc.com SA (A Body Corporate)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Teare,Mr Justice Teare |
| Judgment Date | 04 October 2017 |
| Neutral Citation | [2017] EWHC 2397 (Comm) |
| Docket Number | Case No: CL-2017-000398 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 04 October 2017 |
[2017] EWHC 2397 (Comm)
Mr. Justice Teare
Case No: CL-2017-000398
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Rolls Building, 7 Rolls Buildings
Fetter Lane,
London EC4A 1NL
Sara Masters QC and Andrew Feld (instructed by Osborne Clarke) for the Claimants
Romie Tager QC and Philip Kremen (instructed by Cubism Law) for the Defendant
Hearing date: 20 July 2017
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is the judgment of the court upon the application by the First Claimant (to whom I shall refer as Dell UK) and by the Second Claimant (to whom I shall refer as Dell Maroc) for an order continuing the anti-suit injunction granted by Knowles J. on 30 June 2017. The purpose of the anti-suit injunction is to restrain the Defendant (to whom I shall refer as IB Maroc) from pursuing a claim commenced in the Commercial Court of Casablanca. The continuation of the injunction has been opposed by IB Maroc.
Dell UK and IB Maroc entered into a contract on or about 15 February 2010 in the form of the Dell International Distributor Agreement ("the IDA") pursuant to which IB Maroc was granted the right to market and distribute Dell products and services in Morocco. Clause 31 provided as follows:
"Any dispute arising out of or in connection with this contract, including but not limited to any question regarding its existence formation performance interpretation validity or termination, shall be handled through the English courts………."
The IDA refers to affiliates of Dell UK, of whom Dell Maroc is one. However, such affiliates were not described as a party to the IDA and clause 13.4 provided (i) that it was not intended that any third party may enforce the IDA and (ii) that accordingly the terms of the Contracts ( Third Parties) Act 1999 did not apply to the IDA.
In or about August 2014 IB Maroc entered into a contract with Maroc Telecom SA to provide it with an integrated cloud computing solution. To perform its obligations under that contract IB Maroc needed to utilise the services of Dell UK under the IDA. A "Work Order" was agreed, which incorporated the terms of the IDA.
In late 2015 disputes emerged between Maroc Telecom and IB Maroc. In consequence it appears that IB Maroc wished to make a claim against a company described as Dell Morocco. Thus by letter dated 13 November 2015 from a Casablanca advocate on behalf of IB Maroc addressed to Dell Maroc notice of a claim was given. It was stated that IB Maroc had concluded a contract to supply a Public Cloud and to realise this contract IB Maroc had "subcontracted with Dell Morocco". It was further stated that Maroc Telecom had served notice of default on IB Maroc and that unless Dell Maroc remedied the alleged defaults legal action would be taken. On 3 December 2015 Dell Maroc replied to the advocate, commenting upon each of the alleged defaults. It would appear that the letter was written upon the assumption that Dell Maroc was party to the IDA. It has however been stated on behalf of Dell UK that the letter was written on behalf of Dell UK but, due to an administrative error, the letter was sent on Dell Maroc's headed paper. The same letter was sent to IB Maroc on 9 December 2015.
On 31 March 2017 IB Maroc issued proceedings before the Commercial Court in Casablanca against "Dell Company" with whom it was said to have entered into an agreement. The agreement enclosed with the claim was the Work Order. It was alleged that Dell Company had breached the contract and compensation was sought.
On 2 May 2017 Dell UK wrote pointing out that Dell Maroc was not a party to the IDA or Work Order and that pursuant to clause 31 of the IDA any disputes were subject to the exclusive jurisdiction of the English courts. On 4 May 2017 Dell Maroc filed a Response Memorandum with the court in Casablanca in which it said that the claim was inadmissible because Dell Maroc was not a party to the IDA or Work Order.
On 25 May 2017 IB Maroc filed a Rejoinder against Dell UK and Dell Maroc. It was made clear that the "Dell Company" against whom the action was brought was intended to be Dell UK but it was also made clear that IB Maroc intended to bring a claim against Dell Maroc on the grounds that it was "jointly" liable. It was said that Dell Maroc had been "entrusted" by Dell UK "to complete the deal".
It is now accepted that Dell UK is entitled to an injunction restraining IB Maroc from pursuing a claim against it other than before the English courts. What is in dispute is whether Dell UK and Dell Maroc are entitled to an injunction restraining IB Maroc from pursuing a claim against Dell Maroc other than before the English courts. It was submitted by Miss Masters QC on behalf of Dell UK and Dell Maroc that they are so entitled. Mr. Tager QC on behalf of IB Maroc submitted that they are not so entitled.
Miss Masters relied upon two arguments. One is described as the "quasi-contractual" argument pursuant to which a contractual claim cannot be brought by a person without respecting the exclusive jurisdiction clause contained in the contract, even if those seeking the injunction deny the existence of the contract on which the claim is based. This remedy is said to be available to both Dell UK and Dell Maroc. The other is described as the contractual claim which, as its description suggests, is more straight forward. In essence it is said that the IDA obliged IB Maroc not to bring claims against an affiliate of Dell UK other than before the English courts. This remedy is only available to Dell UK.
I shall deal with the contractual claim first. It involves a question of construction of the IDA. The question is whether the agreement in clause 31 that disputes arising out of or in connection with the IDA shall be handled through the English courts extended not only to claims which IB Maroc wished to bring against Dell UK but extended also to claims which IB Maroc wished to bring against affiliates of Dell UK such as Dell Maroc.
Miss Masters submitted that it did; the words were wide enough to include such claims and such a construction would encourage "one stop adjudication" which is what the parties as reasonable businessmen must have intended. She relied in particular on the observations of Lord Scott in Donohue v Armco [2002] 1 Lloyd's Law Reports 425 at paragraph 61 where he said that an exclusive jurisdiction clause, depending upon its terms, can be broken if any proceedings within the scope of the clause are commenced in a foreign jurisdiction, whether or not the person entitled to the protection of the clause is joined as a defendant to the proceedings. This approach was followed in Winnetka Trading Corporation v Julius Baer International [2009] Bus LR 1006 at paragraphs 27–29 by Norris J.
Mr. Tager submitted that clause 31 did not extend to claims brought by IB Maroc against affiliates of Dell UK. He pointed out that although several clauses of the IDA referred to affiliates clause 13.4 stated in uncompromising terms that third parties could not enforce the IDA and that the Contracts (Rights of Third Parties) did not apply. Thus he submitted that there was a clear intention that affiliates could not enforce the IDA. That submission appeared to me to be misplaced because the question is not whether an affiliate can enforce the IDA (it was accepted by Miss Masters that it could not) but whether clause 31 contained a promise made by IB Maroc to Dell UK that if it sued an affiliate of Dell UK it would only do so in the English courts. In that regard Mr. Tager relied upon, in particular, Credit Suisse First Boston v MLC (Bermuda) Limited [1999] 1 Lloyd's Reports 767 and Morgan Stanley v China Haisheng Juice Holdings [2010] 1 Lloyd's Reports 265. In both of those cases it was held that an exclusive jurisdiction did not apply to disputes between persons other than the parties to the contract in which the exclusive jurisdiction clause was found.
The question is one of construction and the terms of the IDA are different from the contracts considered in any of the above cases. The court must construe the terms of the IDA.
The terms of clause 31 refer to the English courts "any dispute arising out of or in connection with this contract". That phrase could refer to disputes between the contracting parties alone but it is wide enough to refer to disputes between IB Maroc and an affiliate of Dell UK so long as such disputes arise out of or in connection with the IDA. It is possible to envisage such claims because clause 2.5 contemplates that affiliates of Dell UK may provide products. On the other hand it may be said that the natural construction of an exclusive jurisdiction clause is that it concerns only disputes between the parties to the underlying contract.
Clause 27 of the IDA is entitled Limitation of Actions and provides:
"No claim may be brought by Distributor [IB Maroc] against Dell or any of its Affiliates or licensors pursuant to this Agreement unless such claim is brought within (1) year of the date on which the cause of action accrued ("Limitation Period") and any claim which is made shall, if it has not been previously satisfied, settled or withdrawn, be deemed to have been withdrawn and shall become fully barred and unenforceable on the expiry of the Limitation Period."
This clause therefore expressly contemplates claims by IB Maroc against an affiliate of Dell UK and requires that any such claim be brought within the one year limitation period. That being...
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