In Litasco SA v Banque El Amana SA [2025] EWHC 312 (Comm) Hutton DJ engaged (on an software for abstract judgment) ia with a difficulty that one doesn’t see all too typically in litigation: a change in governing legislation beneath Article 3(2) Rome I; and with the applying of Article 9 Rome I’s overriding obligatory legislation aka lois de police provision.
On the primary situation, Litasco as claimant argue that the impact of a SWIFT message (SWIFT being an inter-bank digital messages platform) was to vary the relevant legislation for the related StandBy Letter of Credit score – SBLC, into English legislation, pursuant to A3(2) Rome I, which allows the events to “comply with topic the contract to a legislation apart from that which beforehand ruled it”.
[15] each events seemingly agreed that “whether or not the SWIFT message was efficient to make that change needs to be resolved as a matter of English legislation (whether or not because the putative relevant legislation, by reference to Article 10 of Rome I, or because the lex fori, which it mentioned was supported by the Supreme Courtroom’s evaluation in Enka Insaat Ve Sanayi AS v OOO Insurance coverage Firm Chubb [2020] 1 WLR 4117 at [33]).” In that para the SC held
on The Battle of Legal guidelines, fifteenth ed (2012) observe, at para 32-036
Underneath a correct Rome I evaluation nonetheless (reminder that Rome I is assimilated UK legislation) for my part there may be CJEU authority for neither the lex fori method nor the putative legislation method (clearly put up Brexit [Enka was a pre-Brexit case] there binding character of the CJEU is extra difficult). In Nikiforidis a task for A10’s putative legislation was mentioned viz the query of temporal software of Rome I and a task for mentioned putative legislation on that situation was not the result.
For the precise declare at situation the query is arguably much less related seeing as events agree, subsequently the dedication of the lex causae to settle the effectiveness of the change debatable might a thought of as having been completed per Article 3(1) Rome I.
On the details at situation, [22] the decide holds that advancing an argument that the lex contractus was not amended by the related SWIFT message, wouldn’t have an actual prospect of success.
[23] ff take care of the problem whether or not Mauritian civil proceedings could also be recognisable in England and have an effect on present declare. Nevertheless [28] it’s held that claimant in present declare didn’t undergo these proceedings and that as such they’re clearly not recognisable for present functions. [29] ff ff maintain the identical viz related legal proceedings.
[43] ff then focus on the applying of the Ralli Bros precept and lois de police. I’ve mentioned in my overview of Banco San Juan Internacional Inc v Petroleos De Venezuela SA why for my part the applying of lois de police could also be thought of to have been exhaustively regulated by Rome I, therefore displacing any software of Ralli Bros. The choice view is that Ralli Bros continues to use as a precept of the relevant lex contractus, English legislation.
In present case, the decide absolutely conflates Article 9 Rome I with Ralli Bros, taking [6] it appears defendant’s counsel cue:
BEA as a substitute depends on orders made by the Mauritanian courts as offering a defence to Litasco’s declare, initially pursuant to the rule in Ralli Brothers v Compania Naviera Sota y Aznar [1920] 2 KB 287 (CA) and likewise pursuant to Article 9(3) of the Rome I Regulation however within the skeleton for this listening to, Mr Energy (counsel for BEA) indicated that BEA was content material to proceed on the premise that Article 9(3) provides nothing to the Ralli Bros precept (which he famous was the view taken by Cockerill J in Banco San Juan Internacional Inc v Petroleos de Venezuela SA [2021] 2 All ER (Comm) 590 at [118]).
– it is a related route because the one taken in Celestial Aviation Providers, and whereas the substantive consequence often is the identical as if one had pursued an Article 9 Rome I evaluation, the shortcut nonetheless doesn’t persuade me.
[84] the conclusion is {that a} Ralli Bros defence has no cheap prospect of success and abstract judgment is granted.
An fascinating judgment.
Geert.
European Non-public Worldwide Regulation, 4th ed. 2024, 3.90.
https://x.com/GAVClaw/standing/1891417588841750955
