Re Harrods (Buenos Aires) Ltd (No. 2)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date19 Dec 1991

Court of Appeal

Before Lord Justice Dillon, Lord Justice Stocker and Lord Justice Bingham

In re Harrods (Buenos Aires) Ltd

Jurisdiction - conflict - discretion

Discretion in conflict of jurisdictions

Where the defendant to proceedings initiated in England whose subject matter came within the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 was domiciled in England but there was a conflict of jurisdiction between the English court and a state which was not a party to the Convention, the English court retained its discretion to stay or strike out the proceedings on the basis of the doctrine of forum non conveniens.

The Court of Appeal so held in reserved judgments when ruling on a preliminary issue, on an appeal by Intercomfinanz SA, owners of 51 per cent of the issued share capital of Harrods (Buenos Aires) Ltd from Mr Justice Harman who had dismissed a summons by Intercomfinanz seeking, inter alia, an order that a petition brought under the Companies Act 1985 and the Insolvency Act 1986 by Ladenimor SA, the owners of the remaining 49 per cent of the shares in the company, be stayed on the ground that there was a more appropriate forum for the trial of the issues raised.

The hearing of the appeal on the question of what was the appropriate forum stood adjourned to a later date.

Mr Alan Boyle for Intercomfinanz; Mr Michael Briggs for Ladenimor.

LORD JUSTICE DILLON said that the company was incorporated in England, but its business was exclusively carried on in Argentina and its central management and control was exercised there. Both the shareholder companies were incorporated in Switzerland.

By their petition Ladenimor, who asserted that the affairs of the company were being conducted in a manner unfairly prejudicial to them, sought an order under section 459 of the 1985 Act that Intercomfinanz purchase Ladenimor's shares in the company, alternatively that the company be wound up compulsorily under the 1986 Act. By the relevant statutory rules the company was a necessary party to the proceedings.

The judge held, inter alia, that the English court and not the Argentine court was the appropriate forum for the trial of the action. But in their Lordship's court a preliminary issue of importance had been taken on behalf of Ladenimor.

It was submitted that as a result of the 1968 Convention the English court had no jurisdiction to refuse on the ground of forum non conveniens to decide the issues raised by the petition, since for the purposes of the Convention the company was domiciled in England, albeit also domiciled in Argentina.

The Convention was set out in Schedule 1 to the Civil Jurisdiction and Judgments Act 1982, by section 2 of which it had the force of law in the United Kingdom. With exceptions presently immaterial, the Convention applied in all civil and commercial matters.

Article 2, which was fundamental to the preliminary issue, provided: "Subject to the provisions of this Convention, persons...

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