In the decision rendered in the case Koza Ltd & Anor v Akcil & Ors [2017] EWCA Civ 1609, the Court of Appeal has held that the English courts had exclusive jurisdiction to hear a claim brought by an English subsidiary company against Turkish domiciled defendants including its parent company.
The decision confirms that when considering whether or not to apply article 24(2) of the recast Brussels Regulation (1215/2012) – according to which, where proceedings have as their object the validity of a company’s constitution or the decisions of its organs, the EU member state of that company’s seat will have exclusive jurisdiction over the proceedings, regardless of the defendant’s domicile and where the defendant is EU domiciled, they also act as an exception to the general rule under the Brussels regime that defendants should be sued in the courts of the member state where they are domiciled – it is necessary to look at the proceedings as a whole and determine what they are principally concerned with. A mere link to a decision of the company which is ancillary to the heart of a contractual or other dispute is insufficient. In contrast where, as here, the validity of decisions of the organs of the company is at the heart of the claim, it does not matter that other issues are also raised, nor does it matter who the defendants are. The position is however different where two independent claims are made in the same proceedings.
The Court of Appeal also noted, obiter, that the Turkish parent had not submitted to the jurisdiction by counterclaiming. This is the latest in a number of recent cases which have found that steps taken in the proceedings do not necessarily amount to an unequivocal submission to the jurisdiction.
