Banco Nacional De Comercio Exterior SNC v Empresa De Telecommunicaciones De Cuba SA & Anor

The questions which arise on this appeal are whether the High Court had jurisdiction to grant a worldwide freezing order following registration of a judgment under Council Regulation (EC) 44/2001 (the Regulation) in this case and whether the order should have contained the usual undertaking that “if the court later finds that this order has caused [anyone other than the respondent] loss, and decides that such person should be compensated for that loss, the applicant will comply with any order the court may make”.

These questions arise out of a dispute between Banco Nacional De Comercio Exterior S.N.C. (BNC), a state owned Mexican bank and Empresa De Telecommunicaciones De Cuba S.A. (ETC), the state controlled Cuban telecommunications company. On 11 February 2000 ETC entered into an escrow agreement with BNC under which it secured the repayment of loans provided by BNC to the National Bank of Cuba. ETC was to do this from the proceeds of its worldwide telecom operations. The escrow agreement was governed by Italian law and subject to the exclusive jurisdiction of a competent court in Turin.

As a result of political differences which had arisen between the governments of Cuba and Mexico, on 30 April 2002 the Cuban government issued a decree which proclaimed that the facilities and guarantees provided by ETC as collateral for the obligations undertaken by the National Bank of Cuba with BNC should be “deemed legally null and void”. ETC contended that it could no longer comply with the escrow agreement and failed to do so. Proceedings followed in the shape of an ICC Arbitration and a claim by BNC against ETC in Turin. Following an award in the arbitration in which ETC’s reliance on the decree as force majeure was rejected, BNC obtained judgment in Turin against ETC on 18 November 2005 for $167m. plus interest and costs. This judgment stands and is not at present subject to any stay although it is subject to appeal.

BNC took steps to enforce the judgment in Italy but over £100m. is outstanding and BNC have sought to enforce it in other countries to which the Regulation applies. The enforcement proceedings in this country started on 29 September 2006 when Irwin J. on BNC’s without notice applications ordered that the Turin judgment should be registered as a judgment of the High Court pursuant to the Regulation and granted a domestic freezing order against ETC. The freezing order was directed at amounts which would become payable to ETC on 30 September for use of its network under roaming agreements with UK mobile telecom companies. The order specifically referred to debts due or becoming due from 4 such companies. The schedule of undertakings contained the usual provision for paying third parties’ costs of finding out whether they held any of ETC’s assets, but the judge was persuaded to omit any undertaking about third party losses caused by complying with the order on the ground that this was a post judgment freezing order.

ETC appealed the order for registration, as they were entitled to do, and the appeal has still to be heard by the commercial court for reasons which it is unnecessary to explain.

On 18 October 2006 pursuant to the disclosure obligation in the freezing order ETC’s solicitors wrote to say that its assets in England and Wales included about $1m. owed by fixed line operators, BT and Vectone, and about €1m owed under roaming agreements. It claimed however to have assigned the amounts due under the latter agreements on 19 September 2006 to another Cuban state controlled company, GTC. By this time BNC had taken enforcement proceedings in France, Luxemburg, Belgium, Germany and Spain with a view to attaching debts due to ETC under roaming and fixed line agreements made with telecom companies in those countries. A number of those companies had also been told that the debts had been assigned to GTC.

These developments prompted BNC to apply for a worldwide freezing order on the basis that ETC was attempting to dissipate its worldwide assets to avoid enforcement of the judgment. David Steel J. made such an order on BNC’s without notice application on 23 October. It was in the usual terms and applied to both domestic and worldwide assets. BT and Vectone were added to the debtors identified in the order which also referred to debts purportedly assigned to GTC. This order however did contain the standard undertaking in respect of third party losses which had been omitted from the earlier order.

Shortly after the worldwide order was made BNC discovered that ETC had threatened its roaming partners that if they did not pay
GTC it would suspend its roaming services to them. Vectone was told that as a result of BNC sequestering ETC’s assets in the UK it would immediately suspend its international telephone traffic services. Although it appears that ETC did not fully carry out all its threats, the affected third parties have said that they will look to BNC for compensation for any losses which they have suffered as a result of complying with the freezing orders. The first threats of such action led BNC to apply to vary the undertaking in the worldwide order on 27 October to bring it into line with the terms of the domestic order but Langley J. refused this application.

BNC’s next attempt to do this was heard by David Steel J. at the same time as he heard ETC’s application to discharge the worldwide order. This hearing took place on 17, 20 and 21 November 2006. At this hearing ETC accepted that the domestic freezing order should continue but submitted that the court had no jurisdiction to make the worldwide order which should not in any event have been granted because there was no risk of dissipation and as a matter of discretion. In his reserved judgment [2006] EWHC 19 (Comm) handed down on 24 January 2007 the judge held that he had jurisdiction to make the worldwide order, that there was a risk of dissipation and that this injunction should be continued as a matter of discretion. Lord Justice Rix granted ETC permission to appeal on the issue of jurisdiction. It does not now challenge the finding about risk of dissipation.

The judge refused to amend the worldwide order to delete the undertaking about third party loss and Lord Justice Chadwick adjourned BNC’s application for permission to appeal that part of the judgment, with appeal to follow if permission granted.

BT, as we have explained, is one of the third parties affected by the freezing orders. On 17 April 2007 David Steel J. heard its application to vary the domestic order to enlarge the undertaking to match that in the worldwide order. However, whilst he recognised the discrepancy between the two orders both of which applied to BT, the judge refused the application principally on the ground that this court would inevitably have to consider the scope of the undertaking and by giving BT permission to appeal his decision it could intervene in BNC’s appeal. That is what it has done. We have heard all three appeals together.

After this short introduction to the background to the dispute and the procedural history we can turn to the questions raised by the appeal. Both require reference to the Regulation, which replaced the Brussels and Lugano Conventions on jurisdiction and enforcement of judgments and was designed to produce “highly predictable” rules of jurisdiction and “free movement” of judgments between member states of the European Union.

Chapter II deals with jurisdiction. Article 22 (5) provides that in proceedings concerned with the enforcement of judgments, the courts of the Member State in which the judgment has been or is to be enforced shall have exclusive jurisdiction.

Article 31 says that:

Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that State, even if, under this Regulation, the courts of another Member State have jurisdiction as to the substance of the matter.

Chapter III deals with recognition and enforcement of judgments. By Article 38 a judgment shall be enforced in another Member State once it has been declared enforceable there. In England and Wales this means once it has been registered for enforcement here. Article 39 (2) provides that the local jurisdiction shall be determined by reference to the place of enforcement.

The formalities for registration are contained in Articles 53 to 56 and CPR 74 (1) (b) and (2) (e). The court is required to register the judgment immediately on completion of the formalities (Article 41). It is only then that the party against whom enforcement is sought can object. This he may do by appeal to the High Court (Article 43 (1) and 43 (2)) within the time limits specified by Article 43 (5). It is at this stage that he may contend that the judgment should not be recognised for one of the reasons set out in Article 34 or that it conflicts with some of the provisions for jurisdiction in Chapter II (Article 35), but under no circumstances may a foreign judgment be reviewed as to its substance (Article 36). Whether there is any basis for saying that the Turin judgment should not be recognised in this case is the subject of the appeal to the Commercial Court about which we say nothing.

The most important provision for present purposes is Article 47. This says:

(1)

When a judgment must be recognised in accordance with this Regulation nothing shall prevent the applicant from availing himself of provisional, including protective, measures in accordance with the law of the Member State requested without a declaration of enforceability under Article 41 being required.

(2)

The declaration of enforceability shall carry with it the power to proceed to any protective measures.

(3)

During the time specified for an appeal pursuant to Article 43 (5) against the declaration of enforceability and until any such appeal has been determined, no measures of enforcement may be taken other than protective measures against the property of the party against whom enforcement is sought.

It is common ground that Articles 47 (2) and/or (3) gave BNC the right to take protective measures against ETC’s property in this country after registration pending determination of the appeal. The domestic freezing order was made pursuant to these provisions.

Before the judge BNC submitted that Article 47 (1) gave the court jurisdiction to grant the worldwide order. ETC submitted that the only purpose of registration was to enforce the judgment against ETC’s assets in England. It followed that there was no basis for granting worldwide relief since this would extend to assets which would not be the subject of enforcement within the jurisdiction. In support of its submissions ETC relied on Article 31 and the decision of the ECJ in Van Uden BV v KG Deco-Line [1999] QB 1225 to the effect that the granting of provisional or protective measures under that Article was conditional on the existence of a real connecting link between the relief sought and the territorial jurisdiction of the State of the court applied to.

The judge rejected these submissions. He contrasted Chapters II and III of the Regulations and after citing Article 47 (1) and (2) said:

29.

Accordingly, Article 47 provides an unrestricted and discrete code for the granting of provisional or protective measures in the context of enforcement. I detect no basis for restricting the measures to the freezing of domestic assets and/or for limiting the disclosure to domestic assets.

30.

The limitations on such measures in Article 31, exemplified by the Van Uden case afford no analogy with the situation post judgment as the recitals to the Regulation demonstrate. This is all the more so where, as here, the court exercising substantive jurisdiction had no power to grant anything other than a domestic freezing order.

It is not clear which of the recitals the judge is referring to. He was right however to say that neither the Turin court or indeed any of the other courts in which enforcement proceedings have been taken had the power to grant worldwide relief.

Before us BNC supported the judge’s construction of Article 47 but also sought to put its case on jurisdiction in an alternative way. To that end they relied on section 25 (1) of the Civil Jurisdiction and Judgments Act 1982 which as amended gives the English court jurisdiction to grant interim relief where proceedings have been started in a state to which the Regulation applies. But section 25 (2) says that the court:

may refuse to grant that relief if, in the opinion of the court, the fact that the court has no jurisdiction apart from this section in relation to the subject matter of the proceedings in question makes it inexpedient for the court to grant it.

ETC submitted that BNC should not be allowed to put their case in this way. It had expressly disavowed any such case before the judge and should not be allowed to resile from this position now.

We decided that it would be wrong to prevent BNC from putting its case in this alternative way. It was largely a matter of argument and would not really prejudice ETC.

We will start with the Article 47 point. Mr Cran Q.C. for BNC reminded us that Article 47 (1) did not appear in the Brussels Convention. Article 39 had only contained the provisions which are now Articles 47 (2) and (3), which Mr Cran accepts apply only to domestic relief. But he says those provisions are concerned with enforcement; Article 47 (1) is not. It applies once a judgment has to be recognised. If so the applicant is able to avail himself of any protective measures available in the state concerned. The English court has the power to grant worldwide freezing orders under section 37 Supreme Court Act 1981 and this free-standing provision enables it to do so even if the judgment has not been registered. Recognition not registration is the basis for jurisdiction.

We do not accept these submissions. All parts of Article 47 are directed at enforcement. Article 47 (1) is simply dealing with the position before a declaration of enforceability/registration has taken place. All it is saying is that if the applicant is able to show that he has a judgment which must be recognised he is not prevented from availing himself of protective measures before the formalities which lead to registration have been completed. Such measures might well be necessary the moment judgment has been given in another member state or at least before the formalities required for registration, which include translation, have been completed. Each of the provisions of Article 47 deals with the time at which things can or cannot be done. Thus Article 47 (1) deals with the time before registration; (2) with the time after registration; and (3) with the time after registration where there is an appeal pending.

If Mr Cran’s submission was correct the addition of Article 47 (1) to the Regulation would have added significantly to the earlier provisions contained in Article 39 of the Brussels Convention. We therefore asked to see any travaux préparatoires or other material which cast light on what the Council intended by the addition of this new provision. The Regulation recites that, among other things, the Council had regard to the opinion of the Economic and Social Committee (OJC 117-26/4/2000). Paragraph 2.1.4.2 of this document says:

For provisional and protective measures, the regulation stipulates that a foreign decision which has not yet been declared enforceable in the state addressed, nevertheless does establish the existence of a credit claim warranting provisional and protective measures (according to the legislation of the state addressed). Such a measure will protect the interests of the creditor pending the enforcement decision.

We think this statement entirely supports our construction of Article 47 (1). A similar statement appears in 4.1.2.2 of this document. Nothing in the document or any of the other material which we were shown supports Mr Cran’s construction.

So we turn to consider section 25 of the 1982 Act as the basis for the courts jurisdiction to make the worldwide freezing order. Article 31 (formerly Article 24 of the Brussels Convention) enables an applicant to avail himself of this provision in a case to which the Regulation applies. These provisions have been the subject of a number of decisions of this court and the European Court to which we were referred. The applicable principles are well known and we do not need to rehearse them at any length in this judgment. In Credit Suisse Fides Trust S.A. v Cuoghi [1998] 1 QB 818 at 827 Millett LJ said:

It is a strong thing to restrain a defendant who is not resident within the jurisdiction from disposing of assets outside the jurisdiction …

Where a defendant and his assets are located outside the jurisdiction of the court seised of the substantive proceedings it is in my opinion most appropriate that protective measures should be granted by those courts best able to make their orders effective. In relation to orders taking direct effect against the assets, this means the courts of the state where the assets are located; …

In Van Uden, to which we have already referred, the ECJ said:

37.

…it must be remembered that the expression “provisional, including protective, measures” within the meaning of Article 24 of the Convention is to be understood as referring to measures which, in matters within the scope of the Convention, are intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is otherwise sought from the court having jurisdiction as to the substance of the case..

38.

The granting of this type of measure requires particular care on the part of the court in question and detailed knowledge of the actual circumstances in which the measures sought are to take effect…

39…the court held at para. 16 of Denilauler [[1980] ECR 1553] that the courts of the place – or, in any event, of the contracting state where the assets subject to the measures sought are located are those best able to assess the circumstances which may lead to the grant or refusal of the measures sought or to the laying down of procedures and conditions which the plaintiff must observe in order to guarantee the provisional and protective character of the measures authorised.

40.

It follows that the granting of provisional or protective measures on the basis of article 24 [article 31 of the Regulation] is conditional on, inter alia, the existence of a real connecting link between the subject matter of the measures sought and the territorial jurisdiction of the contracting state of the court before which those measures are sought.

Applying these principles to the facts of this case we think there can be no doubt that it would be inexpedient to grant BNC a worldwide freezing order. ETC is not resident here. Any assets here are protected by the domestic order. The worldwide order is only directed at assets outside the jurisdiction. There is therefore no connecting link at all between the subject matter of the measure sought and the territorial jurisdiction of this court. It is not suggested that the worldwide order should be made in order to assist the Italian court or any of the other courts of the Member States which have been involved in enforcement proceedings.

These reasons alone would justify refusing worldwide relief but there are additional reasons for doing so which we take from para. 115 of Motorola v Uzan & others [2003] EWCA Civ 752 where this court identified a number of particular considerations to be borne in mind when considering the question of inexpediency. It is not the policy of the Italian court to grant worldwide freezing orders. Given the multiplicity of enforcement proceedings in other member states there is a danger that an English worldwide freezing order would give rise to disharmony or confusion and/or risk conflicting, inconsistent or overlapping orders in other jurisdictions.

For these reasons we do not think this court had jurisdiction to make a worldwide freezing order in this case and we would allow ETC’s appeal and discharge the order first made by David Steel J. on 23 October 2006. When we say jurisdiction we do not mean jurisdiction in the strict sense but the obligation to disclaim or decline jurisdiction as a matter of principle having regard to the restrictions and limitations imposed by a combination of the provisions of the 1982 Act, the Regulation and judicial precedent.

As we have said the judge refused to allow BNC to vary its undertaking in the worldwide order. His reasons for doing so were:

41…a). it is part of the standard form;

b). it is limited to loss caused by the freezing order which the court decides should lead to compensation;

c). the very same matter was raised before Langley J. on 27 October; it was refused and no appeal was pursued.

The judge went on to reject a proposed alternative wording for the undertaking which excluded liability for loss caused by termination or non-performance of contractual arrangements by ETC.

BNC’s application for permission to appeal against this decision is now academic because we think the worldwide order should be discharged. But the question still remains on BT’s appeal from the judge’s refusal to require BNC to enlarge its undertaking in the domestic order.

Mr Cran first developed what he described as his narrow point. This was that Articles 47 (2) and (3) gave a judgment creditor an unqualified right to protective measures; the only protective measure available here was a freezing order and by requiring an applicant for such relief to give an undertaking the court was qualifying the right, which it could not do. In support of this argument Mr Cran relied on the decisions of the ECJ in Capelloni & Aquilini v Pelkmans [1986] 1 CMLR 388 and Brennero v Wendel [1984] ECR 3971 decided under the Brussels Convention.

In Capelloni a Dutch judgment was authorised for enforcement in Italy. The judgment debtors appealed but pending the appeal the judgment creditor arranged for the protective sequestration of their immovable property. The Italian court asked a number of questions directed to discovering whether Italian procedural rules relating to protective measures applied in such a case. Dealing with the questions generally the court said:

20.

…as in the case of enforcement properly so called, the Convention confines itself with respect to the protective measures referred to in Article 39, to laying down the principle that the party who has applied for enforcement may, during the period indicated in that Article, proceed with such measures. By contrast, the Convention leaves the matter of resolving any question not covered by specific provisions of the Treaty to the procedural law of the court hearing the proceedings.

21.

It must nevertheless be made clear that the application of the requirements of the national procedural law of the court hearing the proceedings must not in any circumstances lead to frustration of the principles laid down in that regard whether expressly or by implication by the Convention itself and by Article 39 thereof in particular. Accordingly the question whether any given provision of the national procedural law of the court hearing the proceedings is applicable to protective measures taken pursuant to Article 39 depends upon the scope of each provision of national law and upon the extent to which it is compatible with the principles laid down by Article 39.

The court then examined the particular aspects of Italian procedural law in question to see whether they were compatible with Article 39 and concluded that the requirements for prior authorisation and subsequent confirmation of the protective measures in question were not compatible because under Article 39 the decision authorising enforcement carried with it the right to protective measures. Nor was the Italian rule which required protective sequestration to be carried out within a fixed period because the Convention allowed for such measures to be taken during the time in which the appeal was pending.

In Brennero an Italian judgment was authorised for enforcement in Germany. The judgment debtor appealed and the appeal court made an interim order making enforcement conditional upon the judgment creditor providing security even if enforcement was restricted to protective measures. The ECJ were asked whether it was permissible for the court to make such an order before its judgment on the appeal. Article 38 of the Convention (now Article 46 of the Regulation) deals with appeals and its second paragraph includes a provision that the court may make enforcement conditional on the provision of such security as it shall determine. The ECJ answered the question as follows:

11.

Article 39 of the Convention governs the rights of the party who obtained the decision authorising enforcement which is contested by the appeal. Until judgment is given on that appeal that party may according to that provision take only “protective measures … against the property of the party against whom enforcement is sought”. It follows that no enforcement measures may be taken until the court with which the appeal has been lodged gives judgment thereon.

12.

That is the context in which the second paragraph of Article 38 of the Convention under which the court with which the appeal has been lodged may make enforcement conditional on the provision of such security as it shall determine, must be set. The whole significance of that provision lies in the fact that as soon as the court gives judgment on the appeal the restrictions provided for by Article 39 cease to be applicable . Enforcement measures may therefore be taken …

13

It follows that the second paragraph of Article 38 of the Convention must be interpreted as meaning that a court with which an appeal has been lodged against a decision authorising enforcement, given pursuant to the Convention, may make enforcement conditional on the provision of security only when it gives judgment on the appeal.

Put shortly Mr Cran submits that Capelloni shows that BNC’s right to the only protective measure available to it in this jurisdiction should not be qualified by our procedural requirement for an undertaking to protect affected third parties from loss. Brennero, he submits, reinforces this point. He says that no other member state requires such an undertaking as a condition of obtaining protective measures.

Mr Cran’s wider point is that a post-judgment freezing order should not be subject to the same restrictions as a pre-judgment order. This, he submits, appears to have been recognised by Lord Donaldson in DST v Rakoil where the Court of Appeal did not require DST to give the undertaking to a third party (see [1991] AC 295, 317, 361).

Mr Cran accepts that a freezing order which preserves assets is different from a third party debt order which attaches the asset itself. But he argues that a third party affected by a post judgment freezing order is in much the same position as someone against whom an interim third party debt order has been made. No undertaking from the judgment creditor is required in such a case. The requirement for an undertaking creates huge uncertainty for a judgment creditor faced with a potential liability which, provided the third party can show causation, is dependant upon the court’s own view as to whether he should be compensated. This uncertainty opens the way for an unscrupulous judgment debtor to put pressure on the judgment creditor by exposing it to potential claims under the undertaking resulting from actual or threatened termination of its contractual relations with affected third parties.

From the outset of their exercise of the freezing order jurisdiction the English courts have been concerned to protect the interests of innocent third parties who may be affected by the making of such orders. This has been made clear in a number of cases. For example in Galaxia Maritime S.A. v Mineralimportexport [1982] 1 Lloyds Rep. 351, 354 Lord Justice Kerr said:

Where the effect of service of the injunction on the third party substantially interferes with the third parties business, the rights of the third party must in my view always prevail over the desire of the plaintiff to secure the ultimate recovery of debts or damages from the defendant with which the third party is in no way concerned.

Standard forms containing the undertaking were attached to a Practice Direction first issued in 1994 and the wording has remained unchanged ever since. It now appears in the Practice Direction to CPR 25 and in the Admiralty & Commercial Court Guide. The practice has been to require the undertaking both before and after judgment. This can obviously be justified because the need to protect innocent third parties does not change when judgment is given. The judgment will of course make the judgment creditor’s claim much more certain, but it is unlikely to affect any loss caused to third parties from the fact that the judgment debtor’s assets have been frozen. The need for the undertaking does not therefore change and so far as that undertaking is concerned we can see no good reason for distinguishing between the situation before and after judgment.

Nothing in any of Mr Cran’s submissions on his wider point persuade us that this conclusion is wrong. We cannot glean anything of assistance from the very complicated facts of DST which was ultimately concerned with a garnishee order. Such an order is very different from a freezing order because it attaches to a particular asset or assets. A freezing order usually prevents the party affected from dealing with assets generally and does not attach them. It will be granted because there is a risk of dissipation, but if the risk proves to have been ill founded third parties may have suffered loss unnecessarily. Accordingly we see no reason to treat a freezing order in the same way as an interim third party debt order. We accept that there is an element of uncertainty about the effect of any undertaking although the position of the applicant is protected to the extent that the third party must prove causation and satisfy the judge that it is right that he should be compensated. Such uncertainty as there is and the fact that an unscrupulous judgment debtor may be able to exploit the position does not in our judgment outweigh the need for the court to protect innocent third parties.

So for these reasons we do not accept Mr Cran’s wider point generally or on its application to the facts of this case. There may be exceptional cases, where for example the third party is not innocent, in which it might not be appropriate to require the undertaking, but this is not such a case. The undertaking should have been required in this case unless Mr Cran’s narrow point compels a contrary conclusion.

We do not think it does. As paragraph 20 of Capelloni makes clear the Convention and now the Regulation confine themselves to laying down the principle that the party who has a declaration of enforceability/registered a judgment may proceed with protective measures. Matters not covered by specific provisions are left to the procedural law of the court hearing the proceedings. Neither Article 47 nor any of the other provisions of the Regulation says anything about the character or scope of the protective measure required or indeed about the need to have any such measures at all. It seems to us therefore that an applicant for such measures must take them as he finds them in the jurisdiction where he seeks to enforce his judgment. So, if a particular measure has a certain feature, either the applicant accepts it or chooses not to avail himself of it. In this country a freezing order is available as a protective measure, but it has certain features which include the requirement for an undertaking to protect third parties. It does not seem to us that an applicant for this measure can say that he will not give the undertaking and is entitled to the measure without it. If this was the case such an applicant would be in a better position than a judgment creditor seeking to enforce an English judgment here.

In Capelloni it seems that the judgment creditor was able to arrange for protective sequestration of the judgment debtor’s property without a court order. There is no equivalent right here. The applicant must apply to the court for a freezing order but if, for example, as a condition of granting such relief the court required him to prove the claim which gave rise to the judgment, that would obviously not be compatible with Article 47. Similarly, as in Capelloni, the court could not impose a time limit on the freezing order which was different from that laid down in Article 47 (3). But there is nothing incompatible with the Regulation in saying to an applicant who seeks a particular measure in a particular jurisdiction that he must take the measure as he finds it or not at all.

We do not think Brennero casts doubt on this conclusion. There the court required the applicant to provide security before the appeal had been determined. Article 38 only permitted security to be ordered as a condition of enforcement and enforcement could not start until the appeal had been determined. The German court’s order was therefore obviously incompatible with the Convention. There is as we have said no such incompatibility here.

For these reasons we would allow BT’s appeal and vary the domestic freezing order to include the undertaking which, as we understand it, BNC will accept if this court so decides.