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Ferrexpo V. Gilson Notes

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FERREXPO V. GILSON FACTS The claimant was a Swiss company (Ferrexpo) owned by a public company listed on
the London Stock Exchange. The proceedings concerned a Ukrainian company
(OJSC) which owned and operated a mine in Ukraine. Ferrexpo claimed to own 98
per cent of the shares in OJSC, and the indirect interest in the mine was the only
significant asset of Ferrexpo and its parent. The defendants were English companies
which held shares in OJSC and had agreed to sell them in 2002. The Ukrainian courts held in 2010 that the 2002 share sale agreement was invalid. The
defendants in 2011 brought proceedings in Ukraine seeking to restore their
shareholders' interests in OJSC to what it was before the 2002 agreement. Ferrexpo brought English proceedings to resolve the ownership dispute,
contending that it would not be treated fairly if the matter was heard in Ukraine.
The only connections with the jurisdiction were that the defendants were English
companies and were served in England and that Ferrexpo's parent company was
English. The defendants argued that, notwithstanding the decision in Owusu v Jackson , the
court had power to decline jurisdiction or to stay the proceedings and should exercise
that power. It should apply art. 22 of the Regulation 'reflexively' with the result that
the Ukrainian court should be regarded as having exclusive jurisdiction over the
subject­matter of the dispute; similarly art. 28 should be applied reflexively on the
basis that the proceedings were related and the Ukrainian court was the court first
seised. HOLDING Power to stay is derived not from the Regulation, but from CPR The argument that the law does require a reflexive application of these articles of the
Brussels Regulation (rather than the law should do so) does not, as I see it, suppose
that the Brussels Regulation itself confers on the court the power to decline
jurisdiction or stay proceedings. Rather it is that the Regulation allows the court to
exercise the powers available to it under its national law: here the CPR('CPR')
include a power to 'stay the whole or part of any proceedings or judgment either
generally or until a specific date or event' (CPR 3.1(2)(f)). Coreck Maritime - Exception for exclusive jurisdiction clauses They refer to the decision of the ECJ in Coreck Maritime GmbH v Handelsveem BV
(Case C­387/98) [2001] CLC 550, which concerned article 17 of the Brussels
Convention , an article about jurisdiction agreements (broadly corresponding to article
23 of the Brussels Regulation ). Although article 17 referred to an agreement that a
court or the courts of a contracting state should have exclusive jurisdiction to settle
disputes and therefore did not apply to agreements designating a court of a non­
contracting state, the ECJ did not consider that therefore the Brussels Convention

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