Court of Appeal rules that Kuwaiti institution’s claims must be heard in Geneva
The Court of Appeal has confirmed that the English court has no jurisdiction to hear claims brought by Kuwait’s Public Institution for Social Security against Peters & Peters’ client, Swiss national Mr Philippe Bertherat.
The Public Institution for Social Security (which administers the Kuwaiti social security and pension scheme) alleges that through secret commissions and money-laundering, its former director general, Fahad Maziad Rajaan Al-Rajaan and various financial institutions (among others) perpetrated a fraud on it to the value of around $850 million. The case is one of the largest ever fraud disputes heard by the Commercial Court and featured in The Lawyer’s Top 20 cases of 2020.
In November 2020, the High Court held that under the Lugano Convention, the claims against Mr Bertherat must be heard in Geneva. Following a three-day hearing in December 2021, the Court of Appeal upheld the High Court’s decision.
The court noted that until this case, neither the English courts nor the Court of Justice of the European Union had expressly considered the correct operation of Article 6 of the Lugano Convention when there are: (i) overlapping claims against the same defendant, some of which must be considered in that defendant’s state of domicile pursuant to an exclusive jurisdiction clause under Article 23; and (ii) connected claims against another defendant. It was held that “the court’s consideration is not limited to a consideration of the risk of irreconcilable judgments between the claim against the anchor defendant and the claim(s) against the proposed Article 6 defendant(s) but that, “where relevant, the court can consider the risk of irreconcilable judgments between the claims sought to be made against the proposed defendant and other claims in other member states.”
The judgment can be found here.
Keith Oliver and David Fitzpatrick acted for Mr Bertherat. They instructed Jonathan Adkin QC and Charlotte Beynon (both of Serle Court).