2) exclusive jurisdiction clause – effect on enforcement: Foreign law Motacus Constructions Ltd v Paolo Castelli SpA [2021] EWHC 356 (TCC) (22 February 2021) HHJ Hodge QC The court had to consider a novel point on which there was no direct authority: did a jurisdiction clause conferring exclusive jurisdiction on the courts of Paris, France, oust the English court’s power to grant summary judgment to enforce an adjudicator’s award?
" The decision of the adjudicator shall be binding on the parties, and they shall comply with it until the dispute is finally determined by legal proceedings, by arbitration (if the contract provides for arbitration or the parties otherwise agree to arbitration) or by agreement between the parties." 6. Accordingly, pursuant to ss. 108 (3), 108 (5) and 114 (4) of the Act and para. 23 of the Scheme, it was an implied term of the contract that the decision of the adjudicator would bind the parties until the final determination of the dispute. 7. A dispute arose which was submitted to adjudication in which both parties participated. There was no challenge to threshold jurisdiction although the defendant noted its reliance on the exclusive jurisdiction clause and that the enforcement of any decision would have to take place in the courts of Paris. 8. The adjudicator issued his award on 15 December 2020, in favour of the claimants awarding payment of £454,678.65 plus VAT. 9. The Civil Jurisdiction and Judgments Act 1982 ('the 1982 Act') governs the jurisdiction of the English courts where there is a dispute over which national court should entertain jurisdiction over a dispute. The 1982 Act was amended by the Private International Law (Implementation of Agreements) Act 2020, with effect from the end of the implementation period which followed the UK's departure from the European Union. Jurisdictional questions were no longer determined by the Brussels Regulation but by the Convention on Choice of Court Agreements concluded on 30 June 2005 at the Hague ('the 2005 Hague Convention'). The European Union (and, through the EU, France) was a contracting state.
The following facts and matters were crucial to a consideration of the answer.
1. The parties’ construction contract conferred exclusive jurisdiction on the courts of Paris, France, to determine all disputes of whatever nature, between the parties.
2. The proper law of the contract was Italian law.
3. Part II of the Act applied to the contract regardless of whether or not the law of England and Wales (or Scotland) was otherwise the applicable law in relation to the contract: see s. 104 (7) of the Act. 4. The right to enforce an adjudicator's decision was a right which derived from the parties' contract: s. 108 of the Act.
5. The Scheme applied to the contract, paragraph 23 of which provided:
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