jurisdictional challenges

Applicants challenging jurisdiction must satisfy a single three-limbed test, rather than establish a ‘good arguable case’ and ‘better of the argument’.

By Oliver E. Browne and George Schurr

The English Court of Appeal has clarified the correct test to be applied by the English courts when adjudicating a jurisdictional challenge. In the recent case of KAEFER Aislamientos SA de CV v AMS Drilling Mexico SA de CV and others [2019] EWCA Civ 10, the Court ruled that the correct test is that laid down by the UK Supreme Court in Goldman Sachs International v Novo Banco SA [2018] UKSC 34, which is a single test composed of three limbs, replacing the old two-part test of ‘good arguable case’ and ‘better of the argument’.

Facts

KAEFER Aislamientos SA de CV (the Claimant) was retained pursuant to the terms of a Purchase Order dated 16 August 2013 (the Purchase Order) to carry out refurbishment works to a cantilever jack-up rig known as the Atlantic Tiburon 1. Although the Purchase Order was executed by Atlantic Marine Services BV (AMS, the Second Defendant), its terms indicated that invoices for work carried out thereunder should be addressed to AMS Drilling Mexico SA de CV (AMS Mexico, the First Defendant) for settlement.