Petter v EMC Europe Ltd & Anor

There are two appeals before the court which arise out of interlocutory skirmishing between the parties to the substantive proceedings. The claimant in those proceedings is Mr. James Petter who until recently was employed by EMC Europe Ltd (“EMC Europe”), an English company whose ultimate parent is a Massachusetts company, EMC Corporation (“EMC”). EMC’s business is the provision worldwide of data storage hardware and services.

From 1^st January 2009 Mr. Petter was employed by EMC Europe as Director, Global Accounts - EMEA. As such he was regarded as an important employee who could be expected to make a significant contribution to the success of EMC’s overall business. In order to reward and encourage such employees EMC operated a share distribution scheme known as a “Stock Plan”, under which awards of common stock of EMC were made available to them on a deferred basis. The value of such awards could be substantial and in the years immediately preceding his departure from EMC Europe they formed a significant part of Mr. Petter’s total remuneration.

In early 2015 Mr. Petter decided to leave EMC Europe and take up employment with a local subsidiary of another American company, Pure Storage Inc., a competitor of EMC. On 15^th January 2015 he gave notice to EMC Europe of his intention to resign and began his job with the new company on 16^th February 2015. As a result, on 27^th February 2015 EMC started proceedings against Mr. Petter in Massachusetts seeking declarations that it was entitled under the terms of the Stock Plan and related agreements to rescind the most recent awards of stock to him. On 13^th March 2015 Mr. Petter responded by starting proceedings against EMC and EMC Europe in the High Court seeking declarations that the restrictive covenants in his contract of employment were unenforceable as being an unreasonable restraint on trade, that the provisions of the Stock Plan under which EMC purported to rescind awards of stock were unenforceable and that he had not acted in breach of his contract of employment. He also sought an interim injunction prohibiting EMC from pursuing the proceedings against him in Massachusetts.

The claim form in the High Court action was served on EMC abroad without the permission of the court pursuant to CPR rule 6.33(2)(b)(iii). Following service of the proceedings, EMC challenged the jurisdiction of the English court on the grounds that the contracts between itself and Mr. Petter under which stock had been awarded to him contained an express choice of Massachusetts law and an exclusive jurisdiction agreement in favour of the courts of Massachusetts.

The scene was thus set for the two competing applications which were heard by Cooke J. over two days in May this year. For reasons I shall explain shortly, both applications turned to a considerable degree on the effect of Section 5 of Regulation (EU) No. 1215/2012 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (recast), known for convenience as ‘Brussels I (Recast)’, as interpreted and applied by this court in Samengo-Turner v J & H Marsh and McLennan (Services) Ltd [2007] EWCA Civ 723, [2008] I.C.R. 18. The judge held that by virtue of Articles 22, 23(1) and 25(4) of the Regulation as interpreted in Samengo-Turner the Massachusetts exclusive jurisdiction clause was of no effect and that the court had jurisdiction over EMC. However, he declined to grant an anti-suit injunction to prevent EMC from pursuing the proceedings in Massachusetts. EMC appeals against the judge’s decision on jurisdiction; Mr. Petter appeals against his refusal to grant an anti-suit injunction.

Before going any further it is necessary to examine a little more closely the terms of the various contracts between Mr. Petter and the EMC companies. They are described in paragraphs 11-13 of the judgment below, which I need not repeat in full. The following are the salient features for the purposes of the present appeal:

Section 5 of the Regulation contains provisions governing the exercise of jurisdiction in relation to individual contracts of employment. It re-enacts, with some amendments, provisions which appeared in Section 5 of the original Regulation, Council Regulation (EC) No 44/2001, but for all practical purposes the provisions are the same. The following are of particular importance in relation to this appeal:

“Article 21

1.

An employer domiciled in a Member State may be sued:

. . .

(b)

in another Member State:

(i)

in the courts for the place where or from where the employee habitually carries out his work or in the courts for the last place where he did so …

. . .

2.

An employer not domiciled in a Member State may be sued in a court of a Member State in accordance with point (b) of paragraph 1.

Article 22

1.

An employer may bring proceedings only in the courts of the Member State in which the employee is domiciled.

Article 23

The provisions of this Section may be departed from only by an agreement:

(1)

which is entered into after the dispute has arisen;

Section 7

Prorogation of jurisdiction

Article 25

. . .

4.

Agreements . . . conferring jurisdiction shall have no legal force if they are contrary to Articles . . . 23 . . .”

Questions very similar (Mr. Goulding Q.C. would say identical) to those which arise in this case were considered by this court in Samengo-Turner. The claimants in that case were employed by an English subsidiary of the Marsh McLennan group, of which the third defendant, Marsh & McLennan Companies Inc. (“MMC”) was the holding company. MMC operated an incentive plan under which awards of cash and stock in MMC were made to attract, retain and motivate senior employees of the various companies within the group. Each claimant signed a bonus agreement with the second defendant, Guy Carpenter & Co LLC (“GC”), another company in the group, under the auspices of the plan. The agreements contained an express choice of New York law and a New York exclusive jurisdiction clause and also provided for cancellation and rescission if the recipient engaged in detrimental activity, which included attempting to recruit or solicit any employee of the company to work for a competitor. As in this case, MMC and GC began proceedings against the claimants (in that case in New York) seeking repayment of the awards and the claimants began proceedings in this country for declarations that the court had jurisdiction over MMC and GC and for an injunction to prevent them from pursuing the proceedings in New York.

The judge below declined to grant an injunction. He concluded that, since the claimants were not employed by the second or third defendants, the proceedings did not relate to individual contracts of employment and had not been brought by the claimants’ employer within the meaning of Section 5. However, on appeal this court held that the question for decision was simply whether the claim was based on a contract of employment. Such a contract did not need to be in a single document or made at one time, and an agreement varying or adding to the terms of an earlier contract of employment would become part of that contract, even if on its own it did not contain all the terms one would expect. Accordingly, the bonus agreement, on which the claim in New York was based, was part of the claimants’ contracts of employment for the purposes of Article 18(1) (now Article 20). MMC was to be regarded as the claimants’ employer for the purposes of the Regulation and Section 5 of the Regulation was therefore engaged. It followed that the exclusive jurisdiction clause had to be disregarded.

When considering the question of an anti-suit injunction Tuckey L.J. accepted that in general parties who have agreed to an exclusive jurisdiction clause should be held to their bargain, but recognised that the court could not give effect to the clause in that case and did not think that doing nothing was an option. In his view the only way to give effect to the Regulation was to grant an anti-suit injunction.

The decision in Samengo-Turner provided the backdrop to all the parties’ submissions. Understandably, perhaps, Mr. Goulding Q.C. submitted that it was binding on us both in relation to the question of jurisdiction and in relation to the grant of an anti-suit injunction. Mr. Bloch Q.C., on the other hand, submitted that the present case was distinguishable on the facts and that EMC could not properly be regarded as Mr. Petter’s employer, with the result that the exclusive jurisdiction clause in favour of the courts of Massachusetts was binding and the English courts should decline to exercise jurisdiction over it. He also submitted that, since the grant of an injunction always lies within the discretion of the court, it was open to the judge in this case to conclude that it was not in the interests of justice to grant one.

It was common ground before the judge and before us that a claimant will establish that the court has jurisdiction if he can show “a good arguable case” to that effect. In the present case that means a good arguable case that the court has jurisdiction under Section 5 of the Regulation. For these purposes it is accepted that “a good arguable case” means “having much the better of the argument” or “a much better argument than the defendant” on the basis of the material before the court. In the present case the facts were not significantly in issue and the question therefore ultimately turned on the meaning of the words “employee”, “employer” and “contract of employment” in Section 5 of the Regulation. Deciding whether one party or the other has the better of the argument requires an evaluation and an appellate court should generally exercise a degree of circumspection before overruling the judge below: see Trust Risk Group S.p.A. v AmTrust Europe Ltd [2015] EWCA Civ 437. However, there are cases in which the issue turns on a question of law or the construction of a document to which, in the nature of things, there can be only one right answer and in cases of that kind the court may consider that it can properly decide the question for itself. Inevitably, perhaps, Mr. Bloch sought to persuade us that we could, and should, decide the question ourselves without much circumspection, whereas Mr. Goulding emphasised the need to proceed with caution. For my own part, for reasons which will become apparent, I do not think that anything turns on this question.

I find it convenient to begin by considering the effect of the various documents to which I have referred. I have no doubt that in conventional English law terms Mr. Petter’s contract of employment was contained in the letter of appointment and the documents which it incorporated. The fact that the Key Employee Agreement purported to create obligations in favour of EMC does not in my view affect that. The RSU agreements, on the other hand, took the form of communications from EMC itself to Mr. Petter offering him an award which he was at liberty to accept or decline. If he accepted it, as in each case he did, a relationship of some kind came into being between him and EMC. What was the precise nature of that relationship and how it affected, if at all, his contract of employment, is another matter.

Mr. Bloch submitted that RSU agreements were not intended to, and did not, give rise to contractual rights and obligations between EMC and those to whom they were directed. They contained, he said, nothing more than conditions which attached to the award, and since they did not create a contractual obligation in favour of EMC on the part of Mr. Petter to comply with the terms of the Key Employee Agreement, the acceptance of the award did not vary in any respect his contract of employment with EMC Europe. This was not a case, therefore, (unlike Samengo-Turner) in which a contract of employment was to be found in more than one document.

Mr. Bloch’s submission gains something from the penultimate bullet point in the RSU agreement, by which Mr. Petter acknowledged that neither the Stock Plan nor the RSU agreement gave him any right to a service relationship with EMC itself or any of its subsidiaries. It also gains something from the last bullet point by which he acknowledged that the grant of the award was “conditioned” on his adherence to and agreement to the terms of the Key Employee Agreement. However, I am not persuaded that a purely linguistic approach to the interpretation of a commercial document of this kind is likely to provide a reliable guide to its meaning. No doubt the language used in these bullet points could support the meaning for which Mr. Bloch contended, but they are just as capable, if not more capable, of supporting the conclusion advocated by Mr. Goulding. Viewing the document as a whole, I think one can detect clear indications that it was intended to give rise to a bilateral contract between Mr. Petter and EMC of the usual kind. In particular, it is described as an agreement and contains clauses, such as an entire agreement clause, of a kind that naturally form part of a contract. It required formal signature in order to indicate acceptance and incorporated the terms of the Stock Plan by which Mr. Petter agreed to be bound. I think Mr. Goulding was right to submit that the purpose of the penultimate bullet point was to confirm that the RSU agreement gave Mr. Petter no right to insist on maintaining a contract of employment in order to ensure that his award vested. The final bullet point is in my view more consistent with the creation of a contract than with the imposition of a simple condition.

For these reasons I am satisfied that each of the RSU agreements constituted a contract between Mr. Petter and EMC under which he agreed to comply with the conditions of the Key Employee Agreement, but I also agree with the judge that the creation of that additional contractual relationship did not make EMC Mr. Petter’s employer in the sense in which that term is generally used in English law. However, like the judge, I do not think that provides an answer to the question we have to decide. It was common ground that the expressions “employer”, “employee” and “employment” as used in Section 5 of the Regulation must be given an autonomous meaning, which may not be the same as that which domestic law would give them (a point more recently reaffirmed in Mahamdia v People’s Democratic Republic of Algeria Case C-154/11 [2013] I.C.R., at paragraph 42). One difficulty in this case is that, apart from Samengo-Turner, there is very little authority on the meaning that should be given to those expressions and none in the jurisprudence of the Luxembourg court.

In WPP Holdings Italy S.r.l. v Benatti [2006] EWHC 1641 (Comm), [2006] 2 CLC 142 Field J. identified three characteristics of a contract of employment for the purposes of Section 5 of the Regulation. They were: (i) the provision of services by one party over a period of time for which remuneration is paid; (ii) control and direction over the provision of the services by the counterparty; and (iii) integration to some extent of the provider of the services within the organizational framework of the counterparty. Those indicia were derived from such authority as existed on the distinction between contracts of employment and contracts for the provision of services. In my view they are helpful, but it is of equal importance to have regard to the judge’s exhortation to bear in mind that the underlying policy of Section 5 is to protect employees because they are considered from a socio-economic point of view to be the weaker parties to the contract. This has recently been reaffirmed by the Court of Justice in Mahamdia v Algeria, at paragraphs 46 and 60.

Mr. Bloch accepted that the expressions “employer” and “employee” might have to be construed more broadly than they would be in domestic law, but he submitted that there was nothing to suggest that they should be construed so broadly as to encompass a situation in which there was no contractual relationship between the parties of the kind envisaged in WPP v Benatti. In my view, however, there is no reason to make what is no more than an assumption based on domestic law views of what is required for the relationship of employer and employee to exist. When seeking to interpret European legislation it is important to ascertain the purpose which it is designed to achieve, since that is likely to provide a surer guide to its meaning than a close scrutiny of the words used. In the present case the purpose of Section 5 is identified in recitals 18 and 19, which state as follows:

“18.

In relation to insurance, consumer and employment contracts, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules.

19.

The autonomy of the parties to a contract other than an insurance, consumer or employment contract where only limited autonomy to determine the courts having jurisdiction is allowed, should be respected subject to the exclusive grounds of jurisdiction laid down in this Regulation.” (Emphasis added.)

These two recitals make it clear that even a principle as important as party autonomy is required to give way to prescriptive rules in favour of the protection of employees as the weaker parties in disputes relating to contracts of employment. In those circumstances it is necessary to interpret the whole of Section 5 in a way that will most effectively afford employees the degree of protection which those who framed the Regulation intended them to receive. That is most likely to be achieved by looking at the substance of the relationship rather than the legal structure within which it sits.

This brings me back to the provisions of Section 5 and in particular Article 20(1) which provides that “In matters relating to individual contracts of employment jurisdiction shall be determined by this Section.” “Relating to” is an expression capable of being given a broad interpretation. The decision of this court in Alfa-Laval Tumba AB v Separator Spares International Ltd [2012] EWCA Civ 1569, [2013] ICR 455 demonstrates that a dispute may “relate to” a contract of employment even though the claim itself sounds in tort. If in the present case one asks whether the dispute between Mr. Petter and EMC “relates to” his contract of employment, it is not difficult to see that in reality and substance it does. Although he may have had no right in law to receive an award of stock units, I have little doubt that he, and for that matter both EMC and EMC Europe, regarded such awards as intrinsically bound up with his contract of employment. They were made available to him as an important employee and were intended to act as a reward for past efforts and an incentive to make efforts in the future. They were probably also viewed by EMC as a way of retaining highly valued employees. The awards were made by EMC as the parent company both for its own benefit and for the benefit of the subsidiaries by whom recipients were employed. A dispute between Mr. Petter and EMC over the terms on which awards of stock were made to him as an employee of EMC Europe is a dispute of a kind in which he is properly to be described as the weaker party and thus entitled to protection in accordance with the purposes of Section 5. Leaving aside the decision in Samengo-Turner, therefore, I am satisfied that the dispute between Mr. Petter on the one hand and EMC and EMC Europe on the other is one that “relates to his contract of employment” within the meaning of Article 20(1) and that both EMC and EMC Europe are to be regarded as his employers for the purposes of the Regulation.

That conclusion is reinforced by the decision in Samengo-Turner. The facts in that case are strikingly similar to those of the present case. The court accepted in that case that the expressions used in the Regulation have to be given an autonomous meaning and that one of the objectives of the Regulation is the protection of employees as the weaker party in disputes with employers relating to their contracts of employment. The court clearly had no doubt that the bonus agreements (equivalent to the RSU agreements in the present case) related to the claimants’ contracts of employment, which was sufficient to bring the disputes within the scope of Article 20(1) and thereby Section 5 as a whole. Whether MMC and GC were to be regarded as the claimants’ employers was, perhaps, a more difficult question, but again, the court considered that since MMC and GC were entitled to sue under the bonus agreements, and because the claims were claims relating to the claimants’ contracts of employment, they were to be regarded as their employers for those purposes. This was the court’s view even though neither MMC nor GC could be regarded as the claimants’ employers under English law. Despite some minor differences in the language of the agreements, I can see no substantial ground of distinction between Samengo-Turner and the present case. In my view, not only does it reinforce the conclusion to which I have come, it is binding authority for the proposition that a company which provides benefits to employees of associated companies within the same group may be regarded as an employer for the purposes of the Regulation if it provides those benefits in order to reward and encourage those employees for the benefit of their immediate employer and the group as a whole.

Mr. Bloch submitted that the scope of Article 20(1) of the Regulation is unclear and that there is room for argument about whether it extends to relationships of the kind that existed between Mr. Petter and EMC in this case. He therefore submitted that we should refer the question to the Court of Justice of the European Union for its opinion. In my view that would not be appropriate. The terms of the Regulation and the existing case law of the court (limited though it is) combine to make it clear that the Regulation applies in a case of this kind. For my part I consider the matter to be acte clair.

For these reasons I think the judge was right to hold that Mr. Petter had much the better of the argument that Section 5 of the Regulation applies in this case and that the court is therefore bound to disregard the Massachusetts exclusive jurisdiction clause and assume jurisdiction over EMC in relation to the issues that are raised by his claim.

Although the grant of an injunction is a matter of discretion, it is trite law that judicial discretion must be exercised according to principle. It is not sufficient, therefore, simply to say that the judge had a discretion whether to grant or refuse the relief sought in this case. It is equally trite law, however, that there may be a range of possible decisions open to the court and that this court cannot set aside the judge’s decision merely because it would have come to a different conclusion. If it is to do so, it must be satisfied that the judge has erred in law, that he has taken into account an irrelevant factor or has failed to take into account a relevant factor, or that his decision falls outside the range of what is reasonably permissible. In many cases there is room for legitimate disagreement within the range of permissible decisions. Mr. Bloch submitted that this is one such case and that, even if we disagreed with the judge, his decision could not be impugned. Mr. Goulding submitted that the court should as a matter of principle grant an anti-suit injunction to protect Mr. Petter’s right to be sued in this country and that in any event the judge was bound by the decision in Samengo-Turner to grant one.

In matters of jurisdiction English law has always attached considerable importance to upholding and giving effect to exclusive jurisdiction clauses. Although the courts have recognised that there may be rare cases in which it would be wrong to give effect to a clause of that kind, it will normally do so and will, if necessary, grant an injunction to restrain one or other party from pursuing proceedings in contravention of the clause. Lord Bingham stated the position clearly in Donohue v Armco Inc. [2001] UKHL 64, [2002] 1 Lloyd’s Rep. 425 as follows:

“24.

If contracting parties agree to give a particular court exclusive jurisdiction to rule on claims between those parties, and a claim falling within the scope of the agreement is made in proceedings in a forum other than that which the parties have agreed, the English court will ordinarily exercise its discretion (whether by granting a stay of proceedings in England, or by restraining the prosecution of proceedings in the non-contractual forum abroad, or by such other procedural order as is appropriate in the circumstances) to secure compliance with the contractual bargain, unless the party suing in the non-contractual forum (the burden being on him) can show strong reasons for suing in that forum. I use the word "ordinarily" to recognise that where an exercise of discretion is called for there can be no absolute or inflexible rule governing that exercise, and also that a party may lose his claim to equitable relief by dilatoriness or other unconscionable conduct. But the general rule is clear: where parties have bound themselves by an exclusive jurisdiction clause effect should ordinarily be given to that obligation in the absence of strong reasons for departing from it. Whether a party can show strong reasons, sufficient to displace the other party's prima facie entitlement to enforce the contractual bargain, will depend on all the facts and circumstances of the particular case.”

In the present case, by signing the RSU agreements (which incorporated the terms of the Stock Plan) Mr. Petter agreed that the Massachusetts courts should have exclusive jurisdiction over any disputes that might arise between himself and EMC in relation to the Stock Plan and did so in order to obtain the benefits being offered to him under it. In the ordinary way, therefore, the court could be expected to hold him to that agreement and since no reasons for doing otherwise (apart from the Regulation) have been put forward, it could hardly have been criticised for doing so. The present case is unusual, however. For reasons I have already given, I am satisfied that the claim which EMC seeks to pursue in Massachusetts falls with the scope of Article 20(1) of the Regulation and that EMC is to be regarded as Mr. Petter’s employer for that purpose. That means that Articles 23(1) and 25(4) apply and that the exclusive jurisdiction agreement has no legal force as far as this court is concerned. Moreover, it is said that by virtue of Article 22(1), Mr. Petter has the right not to be sued elsewhere than in the courts of this country, where he is domiciled.

The judge declined to grant an anti-suit injunction in this case. He considered that he was not bound by Samengo-Turner to do so, because his decision involved the exercise of discretion. The need to grant an injunction, he said, always depends on the particular facts of the case, but he recognised that he had to have regard to the reasoning in that case. By the time the matter came before the judge the court in Massachusetts had held that disputes arising out of the Stock Plan were subject to its exclusive jurisdiction, so that there was an irreconcilable clash between the courts of this country and the courts of Massachusetts in relation to the question of jurisdiction. The judge was of the view that an interim injunction would for practical purposes be final in its effect, because the English courts would decide the matters in issue between Mr. Petter and EMC and the grant of an injunction would almost certainly prevent EMC pursuing its claim in the forum chosen by the parties (paragraph 59). However, later in his judgment he said:

“63.

I should therefore work on the assumption, it seems to me, that although this court does not lightly assume that its orders will not be observed, EMC Corporation is likely to continue with proceedings in the court of Massachusetts and not play any part in proceedings in this country. If proceedings continue in both courts, the losing party in each jurisdiction would be likely to resist enforcement in the other jurisdiction and to succeed in doing so because of the perceived lack of jurisdiction of the other court, and issues of public policy, res judicata and issue estoppel would be unlikely to apply.

64.

Whilst I can understand the desire of the Court of Appeal to grant a final anti-suit injunction in Samengo-Turner in similar circumstances, it seems to me that the requirements of comity do not allow such a solution in the present case.”

I respectfully doubt whether the judge was entitled on the basis of the evidence before him to proceed on the basis that EMC would not comply with an order of this court, but even if he was, I do not think that provides a satisfactory basis for distinguishing this case from Samengo-Turner. However, if the judge thought it was a factor, it was certainly not the only one he took into account, because he then proceeded to consider a number of academic articles in which various commentators have expressed criticisms of the decision in Samengo-Turner. He then concluded:

“69.

I consider that the grant of anti-suit injunctions is essentially inimical to the Regulation which certainly does not allow such in the context of jurisdictional disputes where the jurisdictions in question are the courts of Member States. Common Law jurisdiction may grant anti-suit injunctions outside the context of the Recast Regulation but, once matters are governed by the Regulation, even if it is open to the court, it would not seem appropriate to do so on the grounds of a jurisdiction granted solely by the Recast Regulation, as opposed to jurisdiction founded on an agreement between the parties.

70.

This is not a case where it is said that the existence of proceedings in Massachusetts is vexatious and oppressive and it cannot be said that the rulings of the Massachusetts court on its own jurisdiction are in breach of customary international law. Regard must be had to the parties’ free choice of law which applies, namely Massachusetts law, and the requirements of comity in relation to the decision of that court.”

He therefore declined to grant the injunction which Mr. Petter sought.

Some commentators have suggested that the effect of Article 22(1) of the Regulation is to create rights of a public, rather than a private, nature which are not capable of being protected by injunction. However, no argument of that kind was addressed to us and it would in any event have been precluded by the decision in Samengo-Turner, in which the existence of a right capable of protection by injunction was the foundation of the decision.

It does not appear that problems arising from a conflict between a contractual exclusive jurisdiction clause and the requirements of legislation binding on the English courts has been considered in any case other than Samengo-Turner. Counsel drew our attention to two authorities, OT Africa Line Ltd v Magic Sportswear Corpn [2005] EWCA Civ 710, [2005] 2 Lloyd’s Rep. 170 and Akai Pty Ltd v People’s Insurance Co. Ltd [1999] I.L.Pr. 24, [1998] 1 Lloyd's Rep. 90, but neither of them shed much light on the present problem because in each case the legislation was that of a foreign country and not binding on the English court. There was not the same reason, therefore, for the court not to give effect to the exclusive jurisdiction clause.

The judge may or may not have been right to assume that EMC would disregard any injunction granted by the English court and pursue the proceedings in its home court, leading ultimately to a stalemate, but with great respect to him, I do not think that he was entitled to depart from the approach adopted in Samengo-Turner on the grounds that the requirements of comity precluded the grant of an injunction in this case. Although the grant of an injunction is a matter of discretion, that discretion must be exercised in accordance with established principles. Whatever criticisms may have been made of the decision in Samengo-Turner, there can be little doubt that the court (which had the requirements of comity well in mind) did not consider that they required it to withhold relief. If it is necessary to spell out the principle which emerges from the judgment it is that in a case falling within Section 5 of the Regulation an anti-suit injunction should ordinarily be granted to restrain an employer from bringing proceedings outside the Member States in order to protect the employee’s rights.

The fact that it is not permissible for the courts of one Member State to grant anti-suit injunctions to restrain proceedings in the courts of another Member State does not seem to me to be of any significance. The restriction on the right to grant anti-suit injunctions to restrain a party from pursuing proceedings in another Member State rests primarily on the existence of legislation regulating the exercise of jurisdiction within the Union and the need for Member States to trust each other to implement it properly: see Turner v Grovit (C-159/02) [2005] 1 A.C. 101. Not only is an anti-suit injunction unnecessary in that context, it would involve an interference with the working of the Regulation. In cases where proceedings are threatened or pending in the courts of a state outside the Union, no such inhibition exists.

Nor can I accept Mr. Bloch’s submission that the fact that courts of other Member States do not have the power to grant anti-suit injunctions (if that be the case) indicates that it is not necessary to grant an injunction to protect the employee’s right. The scope of the powers available to the courts of the different Member States to protect and vindicate rights may vary and each court is entitled to resort to the powers available to it to protect a party’s rights once they have been established. The fact that the right to be protected itself is derived from an EU Regulation does not seem to me to provide any reason for withholding a suitable form of relief if the court has power to grant it. What is necessary in the interests of justice will depend on the particular facts of the case. If doing nothing was thought not to be an option in Samengo-Turner, it is difficult to see how it can be an option in this case.

Finally, Mr. Goulding submitted that it was appropriate for the court to grant an anti-suit injunction in this case in order to protect its own jurisdiction, as it was held in Stitching Shell Pensioenfonds v Krys [2014] UKPC 41, [2015] 2 W.L.R. 289 to be necessary in relation to the insolvency jurisdiction. The facts with which the court was there concerned were some way removed from those of the present case, but I can see some force in the argument that the court should take such steps as are open to it to ensure that its jurisdiction under Section 5 of the Regulation is not undermined. However, it is unnecessary to pursue that question any farther in this case.

For all these reasons I have reached the conclusion that the judge was wrong in this case to withhold the grant of an injunction.

I would dismiss EMC’s appeal against the judge’s order dismissing its challenge to the jurisdiction, but I would allow Mr. Petter’s appeal against the judge’s order dismissing his application for an anti-suit injunction.

I have had the benefit of reading the judgments of both Moore-Bick and Sales LJJ in draft. I agree with Moore-Bick LJ on both points, but would wish to add a few words of my own in relation to the question of the grant of an anti-suit injunction against EMC Corporation (“EMC”). Moore-Bick LJ has taken the view, with which I agree, that we are bound as to the grant of an injunction by the decision in Samengo-Turner. I would like to explain first why I have also reached that conclusion.

There was some argument before us as to precisely what Samego-Turner v. J&H Marsh McLenna Ltdsupra decided. One should, I think start with the relevant passages from Tuckey LJ’s judgment as follows:-

“[38] So does it follow that we should grant an anti-suit injunction? Mr Dunning submits that we should because it is the only way to make the claimants' statutory right to be sued here effective. Damages would not be an effective remedy. Mr Rosen accepted that we could grant an anti-suit injunction if we found that Section 5 was engaged but urges us not to do so as a matter of discretion and judicial restraint and in the interests of comity.

[39] The position we are in is as follows. The New York court has rejected the challenge to its jurisdiction because of the clear and unambiguous terms of the exclusive New York jurisdiction clause in the bonus agreements. Had we not been concerned with the contracts of employment we should have upheld such a clause as well. But, as it is, our law says that we cannot give effect to it. The claimants can only be sued here. What shall we do? The only choice it seems to me is between an anti-suit injunction or nothing.

[40] An anti-suit injunction is not a remedy to be dispensed lightly, particularly where the defendants sought to be restrained have brought proceedings in courts of high repute in a friendly foreign state. The injunction of course is directed at the litigating party and not the court. The premise for the remedy is that this party should not be litigating in that court and so the principles of comity are not offended by granting an injunction which does no more than require that party to comply with his legal obligations and ensure for the claimant that he does so. Although this is the correct analysis, one can understand why not everyone would see the situation in quite this way which is why the court should always be cautious before granting such relief.

[41] We were referred to various English cases which have dealt with these problems in the context of commercial disputes where injunctions have been claimed on the basis of an exclusive jurisdiction clause or forum conveniens. But no case was cited to us where the exclusive jurisdiction of the English court was mandated by statute. Mr Dunning submitted that where that was so, the case for an injunction was at least as strong as a case based on an exclusive jurisdiction clause. I do not necessarily accept this. In general, if parties agree an exclusive jurisdiction clause they should be kept to their bargain; if, as here, the exclusive jurisdiction of the English courts is imposed by statute it can be said that the case for an injunction is not so strong, particularly where the statute has provided that an agreed exclusive jurisdiction clause is of no effect.

[42] The converse of this problem arose in OT Africa Line Ltd v Magic Sportswear Corp [2005] EWCA Civ 710, [2006] 1 All ER (Comm) 32 where a cargo claim under a bill of lading containing an English law and exclusive jurisdiction clause was made in Canada relying on Canadian legalisation which allowed such a claim to be made there in spite of the clause. This court granted an anti-suit injunction to restrain the Canadian proceedings on the ground that the parties should be kept to their English law bargain. This is an illustration of the court giving full effect to party autonomy which under art 23 of the Jurisdiction Regulation it is required to do, but under arts 20 and 21 it cannot. We are in the latter position: we cannot give effect to the exclusive New York jurisdiction clause.

[43] Doing nothing is not an option in my judgment. The New York court cannot give effect to the Jurisdiction Regulation and has already decided in accordance with New York law on conventional grounds that it has exclusive jurisdiction. The only way to give effect to the English claimants' statutory rights is to restrain those proceedings. A multinational business must expect to be subject to the employment laws applicable to those they employ in different jurisdictions. Those employed to work in the MM group in London who are domiciled here are entitled to be sued only in the English courts and to be protected if that right is not respected. There is nothing to prevent MMC and GC or any other company in the MM group from enforcing their rights under the bonus agreements here”.

The reasoning encapsulated in these passages can be summarised as follows:-

Mr Selwyn Bloch QC, counsel for EMC, argued persuasively that points (iii) and (iv) in the Samengo-Turner reasoning (as I have summarised it) showed that the statutory right of an English employee to be sued in England did not weigh as heavily in the balance, when an anti-suit injunction was being considered, as a freely-entered into exclusive jurisdiction clause to which that employee had agreed. But that is not, in my judgment, the ratio decidendi of this part of the decision. That ratio is, I think, that it is not open to the court to refuse an injunction where the overseas court cannot give and has not given effect to the Regulation, so that the only way to give effect to the English employee’s statutory rights is to restrain the overseas proceedings. Moore-Bick LJ described the ratio as being that in a case falling within section 5 of the Regulation an anti-suit injunction should ordinarily be granted to restrain an employer from bringing proceedings outside the Member States in order to protect the employee’s rights. The difference between the formulations is probably not material and, whichever formulation is adopted, the judge was bound to follow the decision in Samengo-Turner and to grant the anti-suit injunction sought.

In these circumstances, it may not be appropriate to say much more about the problem that this case and Samengo-Turner raised,since to do so will undoubtedly fuel the academic debate that has followed the Court of Appeal’s previous decision. I should, however, like to say a few words on the legal principles that might be thought to be applicable. First, it is axiomatic that every grant of an injunction is a discretionary matter, so that it is potentially problematic to lay down principles that put the court in a position in which precedent demands that the grant of an injunction is in any sense automatic. Such a situation does not give full weight to the authorities that make clear the caution that a court should exercise in considering the grant of an anti-suit injunction.

Moreover, I am not sure that the ratio of Samengo-Turner takes full account of Tuckey LJ’s own justifiable instinct that the case for an injunction based on a statutory right is not as strong as the case for an injunction based on an exclusive jurisdiction clause to which the parties have agreed. There was, as it seems to me, something of a disconnect between the reasoning in paragraph 41 of Samengo-Turner and the conclusion in paragraph 43. It is normal, but not automatic, for an anti-suit injunction to be granted on the basis of an exclusive jurisdiction clause (see the citation from Lord Bingham’s speech in Donohue v. Armco Inc. supra at paragraph 25). Why, one might wonder, should it be automatic in the case of a statutory European or English law right? Moreover, I question whether it is right to say that the principles of comity are not offended by granting an injunction which does no more than require that party to comply with his legal obligations, when the opposing party has agreed an exclusive jurisdiction clause that is in clear conflict with those obligations and his own statutory employment rights.

I understand and accept that the effect of articles 23(1) and 25(4) is, as Moore-Bick LJ has said, that the exclusive jurisdiction agreement has no legal force as far as this court is concerned, and that the effect of article 22(1) is that EMC is required to bring proceedings against Mr. Petter only in the courts of this country, where he is domiciled. But these statements do not take full account of the fact that Mr Petter has agreed an exclusive jurisdiction clause either knowing or being presumed to know of the existence of these rights and protections.

In my view, there are powerful arguments that ought perhaps to have required closer attention to the balance between the enforcement by anti-suit injunction of a statutory domestic or European employment right on the one hand, and the need, on the other hand, to give effect to the freely-agreed exclusive jurisdiction clause conflicting with that statutory right. What if, for example, an employee in Mr Petter’s position had expressly agreed that he would not take advantage of the protections in the Regulation when signing up to the Stock Plan and the RSU agreements? Even in our situation, it seems to me that the judge’s solution of allowing the two pieces of litigation to continue had some merit. At least, it did not put EMC on the horns of an impossible dilemma between either having to give up its undoubted contractual rights to proceed in Massachusetts or to be in contempt of an English court order. It is not, I think a conclusive answer to this problem to say, as Tuckey LJ did, that the overseas corporation has chosen to employ people in London where the Regulation gives them certain rights, because the employees in question have agreed to be bound by a contract for their own benefit that is in conflict with those rights. The decision is, therefore, in my judgment, rather more nuanced and fact dependent than Samengo-Turner allows.

Despite what I have said, since we are bound by the decision in Samengo-Turner on the second point, I agree that Mr Petter’s appeal should be allowed.

I agree with the judgment of Moore-Bick LJ and with the reasons he gives. I add some words of my own because I find myself in respectful disagreement with the suggestion by Vos LJ that this court might have been in error in the conclusions it came to in Samengo-Turner. In my opinion, there are good arguments of principle in favour of the conclusions reached by the court in that case.

Like Moore-Bick LJ, I can identify no relevant point of distinction on the facts between the present case and Samengo-Turner. I think the only material distinction from Samengo-Turner is the judge’s finding at paragragh [63] of the judgment that EMC would not respect an injunction against it. But in my view that was not a finding which the judge was entitled to make. There was no statement from EMC to that effect and EMC addressed no argument to him to suggest or support such a finding. Mr Petter was not put on notice of it as a point and had no opportunity to rebut it. In any event, the proper approach is that there is an evidential presumption in modern times that in a globalised market-place a trading company with international interests such as EMC may be expected to respect an order of the English Court (see Stichting Shell Pensioenfonds at [37]), and there was no argument or evidence on the basis of which the judge was entitled to conclude otherwise. Therefore, I consider that the present case is indistinguishable from Samengo-Turner and the result ought in principle to be the same.

The basis for a court of equity to intervene to grant an anti-suit injunction is the right of a person to be protected from undue harassment in the form of inappropriate litigation in more than one place. The jurisdiction is to be exercised when the ends of justice require it: Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] 1 AC 871, 892. This jurisdiction founds both the forum non conveniens principle (which applies even where there is no contractual right to litigation in any particular jurisdiction) and the grant of injunctions where there is an exclusive jurisdiction agreement. The principles which govern the grant of injunctive relief (to prevent litigation abroad) or a stay (to prevent litigation in England) are heavily informed by public policy concerns relating to the comity of nations, the rational and proper distribution of litigation to resolve disputes in a fair and a cost-effective way and other matters.

Where there is an exclusive jurisdiction agreement, a tension may arise between the principle of respect for party autonomy by holding them to the promises they have made (the principle of pacta sunt servanda, to use the time-honoured Latin phrase) and other public policy concerns. Those other public policy concerns may arise in the state where an anti-suit injunction is being sought or in the state where the addressee of the proposed injunction is seeking to litigate.

Pacta sunt servanda is itself a principle of public policy and, moreover, one which is widely recognised across states. This means that it provides a strong source of guidance regarding the appropriate general approach for the English courts to adopt. But it is not an absolute principle. Lord Bingham pithily summarises the position in Donohue v Armco Inc. in the passage set out by Moore-Bick LJ above. The principle may be outweighed if there are “strong reasons” why it should be.

Where, as here, a party is seeking to sue in England there may be “strong reasons” of public policy against simply respecting the parties’ contractual choice which are based on the public policy of the foreign state (which the English court may be prepared to recognise and give weight to on grounds of comity) or which are based on the public policy which is inherent or reflected in English law. But the two do not necessarily have the same force: see e.g. Akai Pty Ltd v People’s Insurance Co Ltd, [46]-[57]. It is recognised that an English court may grant an anti-suit injunction where that is necessary “to prevent the litigant’s evasion of the important public policies of the [English] forum”: Bank of Tokyo Ltd v Karoon (Note) [1987] AC 45, 58, per Robert Goff LJ, cited in Masri v Consolidated Contractors International (UK) Ltd (No. 3) [2008] EWCA Civ 625; [2009] QB 503, at [86] per Lawrence Collins LJ. But an English court does not automatically have to give weight to the public policies of the foreign forum.

Whether the public policy of the foreign forum is to be given weight requires an evaluative assessment by the English court, including by inquiry whether the foreign restriction on the party’s choice of law or venue corresponds to restrictions in English or EU law (see Akai Pty Ltd, [56]) or to public policy recognised or reflected in that law (see OT Africa Line Ltd v Magic Sportsware at [78]-[79] per Rix LJ). The more it does so, the easier it will be for the English court to consider it should recognise such public policy concerns on grounds of comity and expected reciprocity. Similarly, the English court’s assessment may include issues such as the nature of the rule of foreign law (e.g. whether it is permissive, as for the Canadian legislation in issue in OT Africa Line, or preclusive, as in the case of Article 22 of the Regulation, since this is likely to reflect the force of the public policy which underlies the rule in question) and whether the foreign public policy calls in question the weight to be given to party autonomy on grounds which would be recognised as having force by an English court (e.g. is the foreign rule designed to protect a party which may be expected to have less bargaining power when making the agreement in the first place: see OT Africa Line at [47], [74] and [77] per Rix LJ, emphasising the strength of the bargaining power of the parties in that case, who “had nothing of the consumer about them”; cf the discussion below in relation to the converse situation of protection of employees under English/EU law, who are recognised to be in a weaker social and economic bargaining position than employers). In Akai Pty Ltd and in OT Africa Line the English court found that the foreign public policy in question in each case should not override the pacta sunt servanda principle in relation to an English exclusive jurisdiction clause.

By contrast, where the English court has to consider whether public policy as reflected in English law should be given weight so as to outweigh party autonomy and the principle of pacta sunt servanda in respect of a foreign country exclusive jurisdiction clause (as in our case), the effect of the law and its role to protect public policy considerations which are to be recognised in the English domestic jurisdiction are much more direct and the discretion of the English court to disregard it or give it little weight is much less. The domestic legislator (including for these purposes the EU legislator when enacting directly effective EU law, as in the Regulation) has the primary responsibility for identifying what public policy requires and for enacting law to give effect to that public policy; and its judgment on that question may be very direct and clear, as it is in the provisions in section 5 of the Regulation.

The case of protection of an English insolvency regime is a particular example of the wider principle that English public policy may outweigh ordinary party choice regarding the forum in which to litigate: see Stichting Shell Pensioenfonds, [42] (the case concerned an insolvency of a British Virgin Islands company, but the law was taken to be the same as English law). An anti-suit injunction was granted to ensure the operation of English public policy in the form of imposition of an orderly regime for distribution of the assets of the insolvent company between creditors. I think the same result would have followed if the foreign litigation had been commenced pursuant to an exclusive jurisdiction clause in favour of the foreign jurisdiction.

In my view, section 5 of the Regulation reflects and seeks to give expression to a clear public policy to protect employees in relation to litigation relating to their employment, because they are taken to be in a weaker negotiating position by reason of their economic and social status as against employers. The decision in Samengo-Turner gives effect to this public policy, as reflected in the Regulation. In my opinion, it was legitimate for the court in Samengo-Turner to do this.

I think it is also relevant in assessing how to weigh up domestic public policy concerns reflected in English law against the usual principle of party autonomy to consider whether the relevant English public policy and law are themselves intended to reflect a judgment regarding the force to be accorded to party autonomy and whether there are party autonomy factors which provide reasons to favour England as the place to litigate despite a foreign exclusive jurisdiction clause.

As to the first of these, where a case falls within section 5 of the Regulation, the object of the section is to deprive foreign exclusive jurisdiction clauses of effect when the English court is asked to apply them and to require a person who is an “employer” for the purposes of the Regulation to litigate against the employee in the courts of the employee’s place of domicile. The policy and the precise legal rules in the Regulation which reflect the policy are clearly directed to protecting employees as a category of persons who are assessed to be in a weaker social or economic position than employers as a category, so that weight should not be given to contractual choices an employee has made as to jurisdiction. The public policy and law are specifically designed to derogate from party autonomy and the pacta sunt servanda principle, so that the employee is not to be treated as stuck with what he has contracted for. I would add that the Regulation treats employers and employees as general categories for the purposes of this public policy: it has not been thought appropriate to provide in the legislation for individualised assessments of relative bargaining power of employer and employee to be made case by case. That would be an invidious, very difficult and costly exercise to try to undertake.

As regards the second factor, there are additional reasons why overriding weight should not be given to party autonomy as reflected in the relevant contract. MMC in the Samengo-Turner case and EMC in ours are US corporations operating on an international basis, with subsidiaries in other countries. As Tuckey LJ said in Samengo-Turner at [43], “A multinational business must expect to be subject to the employment laws applicable to those they employ in other jurisdictions.” Both MMC and EMC and their groups chose to employ staff in countries outside the US, with the attendant possibility that local employment laws might include provisions like those in the Regulation to protect employees. This tends to undermine the extent to which weight should be given to the expression of choice of jurisdiction in the relevant contract: see also Stitchting Shell Pensioenfonds at [43] (“[Shell] invested in a company incorporated in the BVI and must, as a reasonable investor, have expected that if that company became insolvent it would be wound up under the law of that jurisdiction”).

Both these sets of factors are ones which it is reasonable to think that a common law court in New York or Massachusetts would understand and regard as being capable of respect on grounds of comity. Recognition that employees may often be in a weaker position than employers is something which is not unknown in common law jurisdictions, as well as in civilian jurisdictions such as those in the European Union. The idea that an international company may enter into dealings with someone based in a foreign jurisdiction, whose ties are strongest with that jurisdiction, and hence may be taken to have chosen to have accepted the risk of having the jurisdictional rules of that jurisdiction applied to it, is again something which I think can readily be understood by courts in common law jurisdictions as a potentially relevant consideration. Further, in Samengo-Turner no relevant public policy of the State of New York and in the present case no relevant public policy of the State of Massachusetts (apart from the general desire to give effect to party autonomy) was identified to be weighed in the balance against the public policy factors which are relevant in the jurisdiction of England. There is thus a reasonable prospect that another common law court in New York or Massachusetts may come to accept, upon reading the reasoned decisions of this court, that on grounds of comity it should accept that an employee such as the claimants in Samengo-Turner or Mr Petter should be allowed to litigate in England, the country of their domicile and the country with which their employment was most closely connected.

Like Moore-Bick LJ, I do not think that the fact that it is possible that the courts in some other EU Member States do not have power according to the domestic law of those states to grant anti-suit injunctions detracts from the argument under English law. The public policy underlying section 5 of the Regulation is clear and is expressed in mandatory and unambiguous terms. The English court has the means to give effect to it and therefore should do so. The Regulation does not harmonise the remedial regimes of Member States in relation to litigation in third states, but only as regards allocation of litigation within the European Union itself. There is no rule in the Regulation which forbids an English court to grant an anti-suit injunction in relation to litigation in a third state. If, by a lacuna in the panoply of remedial measures under their domestic law, the courts of other Member States do not have power to grant an anti-suit injunction, it does not follow that an English court which does have that power should not exercise it. In my opinion, this would simply mean that the English court is in a position to protect fully the public policy underlying and the operation of the jurisdictional rules in section 5 of the Regulation and, applying domestic principles of private international law, should do so, whereas the courts in those other countries would not be able to do so and to that extent a party like MMC or EMC will be able to circumvent that policy and those rules when dealing with employees domiciled in those countries. If the public policy and the rules are to be taken seriously, as presumably they are, and the means to do that are available, then there is strong reason to employ those means.

Returning to the guidance given by Lord Bingham in Donohue v Armco Inc, if EMC invited the English court to stay its proceedings in favour of EMC’s right to proceed in Massachusetts according to the exclusive jurisdiction clause, the English court would have to apply the terms of the Regulation and would inevitably decline to stay its proceedings. That is because the Regulation gives priority to a policy in favour of employee protection, and does so in clear and mandatory terms. That being the relevant English public policy, which in the context of the present applications can only be given full practical effect by the grant of an anti-suit injunction, I think there is considerable force in the submission that an English court should be prepared to grant such an injunction in accordance with the guidance in Donohue, Bank of Tokyo and Masri and as this court in fact did in Samengo-Turner.