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Privy Council to clarify application of forum non conveniens principles in the BVI

The Court of Appeal has granted JSC MCC Eurochem and Eurochem Trading GmbH leave to appeal the Court’s own decision in which it applied the principles relating to forum non conveniens in the context of a jurisdictional challenge brought by various of the eighteen defendants to the proceedings.

Eurochem contended that the Court of Appeal was wrong to find, in a decision handed down in October 2018, that the BVI court did not have jurisdiction over a claim arising out of an international fraud where large bribes were paid to various companies incorporated in the BVI.

The Court of Appeal, guided by the decision in Pacific Wire v Texan Management, granted Eurochem leave to appeal to the Privy Council on two bases:

  1. That the questions of whether Eurochem (and claimants generally) are under a duty to plead and prove any applicable foreign law in respect of the commission of an alleged tort and whether Rule 25 of Dicey & Morris applies in the context of a forum dispute are issues of such great general and public importance that they ought to be considered by the Privy Council; and
  2. That it would be of assistance to have clarification from the Privy Council as to how courts are to treat, and the weight to be attached to, the place of incorporation of companies that are said to be instruments used in international fraud within the context of a forum challenge.

In coming to its decision, the Court of Appeal recognised the frequency with which jurisdiction challenges come before the BVI courts and recognised the utility in having authority on these points from the highest appellate court.

The appeal will generate a defining authority on the way in which forum non conveniens principles are to be applied in the BVI and other EC courts going forward.

Clarification of principles

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