This is part of a series of bulletins for US lawyers and parties who may have litigation or disputes in England, issued by partner Stephen Rosen who heads our UK/USA Transatlantic disputes team.

Bulletins from our UK/USA Transatlantic disputes team:

1) Pro-active steps to obtaining deposition evidence under the Hague Convention

2) Care needed when serving US proceedings in the UK

3) Collective actions: England cautious – catch-up with the US

4) Comparison of Chapter 11 US insolvencies with the UK approach 

5) Enforcing US Judgments in England

6) Obtaining documentary evidence from a witness in England

7) US challenges to English court jurisdiction

The focus of this bulletin is on US parties brought into the orbit of the English High Court and how they might challenge the jurisdiction of the court to hear their dispute. It refers to two recent cases of interest involving US defendants, one a US$14 billion fraud claim where US defendants successfully challenged the court’s jurisdiction and the other the “Barry Manilow case” where he was unsuccessful in doing so.

The two main scenarios for challenges are firstly, that there is a clause in the agreement between the parties specifying the jurisdiction of the English court[1] but that the US defendant[2] objects to jurisdiction based on forum non conveniens principles or on other grounds. The second is where the US court has been given exclusive jurisdiction by an agreement but despite that the proceedings have been brought in England.

The starting point is that the UK is a Contracting State to the Hague Convention on Choice of Courts Agreement 2005 which strengthens the effectiveness of exclusive jurisdiction clauses. The US, however, signed the Convention but did not ratify it and consequently there are no relevant treaty obligations between the two countries. Accordingly, challenges to the English court’s jurisdiction by a US defendant in transatlantic litigation will be decided according to established English common law principles.

The applicable English procedural rules

The procedure for disputing the jurisdiction of the English High Court is set out in Part 11 of the 1998 Civil Procedure Rules (“CPR”)[3]. This will enable a US defendant served with a claim to apply to the English court for an order declaring that (a) the court has no jurisdiction to hear the claim and/or; (b) that any jurisdiction which the court may have should not be exercised.

Rule 11(2) provides that a defendant who wishes to challenge the court’s jurisdiction must first file an Acknowledgment of Service of the Claim within the required time limit. However, to avoid any subsequent argument that the defendant has submitted to the jurisdiction, the Acknowledgment of Service should expressly state that the defendant intends to dispute the court’s jurisdiction. As a matter of practice, this simply involves the ticking of a box on the standard form of Acknowledgment of Service. included within the Response Pack that accompanies service of the proceedings.

An application disputing the court’s jurisdiction must then be filed within 14 days[4] of filing the Acknowledgment of Service and be supported by evidence, usually a detailed witness statement, failing which the defendant will be treated as having submitted to the court’s jurisdiction. There is power for the court to extend the period of time, however, there is in any event a requirement for jurisdiction challenges to be brought promptly and extensions will not readily be granted without powerful reasons.

Typically, an application made by a defendant under Part 11, CPR will include both an allegation that the court lacks jurisdiction and an alternative plea that the court should not exercise any jurisdiction which it might have. They are, however, conceptually distinct arguments.

Grounds for challenging jurisdiction

Part 11 CPR does not itself list the substantive grounds upon which a defendant can challenge the court’s jurisdiction. Nevertheless, the reported authorities reveal a small number of frequently raised arguments in support of applications challenging jurisdiction.

First, defendants will frequently focus on the court’s requirements for permission to serve out of the jurisdiction and argue that the order that the claimant obtained granting permission to serve the Claim Form on them out of the jurisdiction should be set aside. Applications premised upon this ground will typically focus on one or more of three distinct arguments arising from the requirements that the claimant had to meet when obtaining permission to serve out of the jurisdiction, namely:

• That the claimant cannot properly place the claim within one of the gateways permitting service out of the jurisdiction, numbered (1) to (25) inclusive set out in Practice Direction 6B, CPR[5];
• That there is no serious issue to be tried on the merits; and
• That England is not the appropriate forum for the trial of the dispute.

These mirror the requirements for obtaining permission to serve out of the English jurisdiction as summarised by the Privy Council[6] in AK Investment CJSC v Kyrgyz Mobil Tel Limited and Others [2011] UKPC 7, at [71]. Each of these requirements has been the subject of a wealth of reported authorities, examples of which can be seen on a regular and ongoing basis in the courts.

Second, a US defendant may challenge jurisdiction on the basis that the commencement of proceedings in England constitutes a breach of an agreement that chose US courts. Commercial contracts will typically include within them both choice of law and jurisdiction clauses.

At common law, the English courts reasoned that if contracting parties agree to give a particular court (eg US)  exclusive jurisdiction to rule on claims between those parties, and a claim falling within the scope of the agreement is brought in England, the English court will generally uphold that clause unless the claimant can show “strong reasons” for issuing proceedings in England (Donohue v Armco Inc [2001] UKHL 64).

Finally, the US defendant may argue not that the English court lacks jurisdiction to hear the claim but that the court ought not exercise the discretion which it has to try the claim. Here, defendants invoke the so-called Spiliada Principles, taken from the decision of the House of Lords[7] in in Spiliada Maritime Corp v Consulex Ltd (The Spiliada) [1987] A.C. 460, which emphasises that the Court:

“has to identify in which forum the case could most suitably be tried for the interests of all the parties and for the ends of justice.”

In The Spiliada, Lord Goff in giving judgement identified six principles to be applied when seeking to identify the appropriate forum for the trial of a dispute. Those principles have been summarised in the leading English civil procedure practitioner text (the “White Book” (2025)) as follows:

• The basic principle is that a stay of the English court proceedings will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction (eg the US), which is the appropriate forum for the trial of the action, i.e., in which the case may be tried more suitably for the interests of all the parties and the ends of justice.
• In general, the burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay. However, each party will seek to establish the existence of factors which it relies upon, and in respect of any such matter the evidential burden will rest on the party who asserts its existence. If the English court is satisfied that there is another available forum which is prima facie the appropriate forum, the burden will shift to the claimant to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in England.
• The defendant has the burden not just to show that England is not the natural or appropriate forum for the trial, but to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum.
• Since the question is whether there exists some other forum that is clearly more appropriate for the trial of the action, the court will look first to see what factors there are which point in the direction of another forum. The natural forum is that with which the action has the most real and substantial connection. Connecting factors will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction, and the places where the parties respectively reside or carry on business.
• If the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action, it will ordinarily refuse a stay.
• If, however the court concludes at that stage that there is some other available forum which prima facie is clearly more appropriate for the trial of the action, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that the stay should nevertheless not be granted. In this inquiry, the court will consider all the circumstances of the case, including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions. One such factor can be the fact, if established objectively by cogent evidence, that the claimant will not for some reason obtain justice in the other and the burden is on the claimant to prove this.

Factors that the court will consider include:

• Where the parties are domiciled or resident.
• Where the relevant events occurred.
• Where the contract was negotiated and performed.
• Where witnesses are located.
• Where documentary evidence is situated.
• Which law governs the dispute.
• Whether related proceedings are already taking place elsewhere.
• Whether a fair trial can be obtained in the alternative forum courts.

No single factor is decisive.

Forum non conveniens arguments are much harder where the parties have agreed to an exclusive jurisdiction clause. English courts generally hold parties to their contractual choice of forum unless there are strong reasons not to do so. Conversely, where the contract contains an exclusive foreign jurisdiction clause, that is usually a powerful reason for the English court to stay its proceedings.

Consequential matters

Whether an application challenging jurisdiction succeeds or not, the court will need to consider certain consequential matters. If the application succeeds, the court will grant an order declaring that it has no jurisdiction or will not exercise its jurisdiction. Consequential orders may involve setting aside the Claim Form or the service of the Claim Form, discharging any orders made before the claim was issued or before the Claim Form was served or staying the proceedings.

If the challenge fails, directions will then need to be given for any further acknowledgment of service and filing of a defence.

Two recent transatlantic cases

Magomedov v TPG Group Holdings (SBS), LP & Ors 2025 – a win for the US defendants

In January 2025 in a 22-party claim for over USD 14 billion including against US private equity defendants and after a 13 day jurisdiction challenge the Commercial Court in a 126 page judgement held that none of the pleaded jurisdictional gateways was available that allowed service of the proceedings out of the jurisdiction and that England was not clearly and distinctly the most appropriate forum.  Russia (or alternatively Cyprus for some claims) was regarded as being the natural forum. A link to the judgement is attached.[8] The claimant applied for permission to appeal but this was rejected by the Court of Appeal on the grounds that an appeal would have no real prospect of success.

As a consequence, defendants sued in England now have a stronger recent authority supporting robust jurisdiction challenges where the dispute only has limited connections with England.

Hipgnosis SFH1 Ltd v Barry Manilow 2025– a loss for the US defendant

The Court of Appeal rejected the argument that the English Court lost jurisdiction when a party (Barry Manilow) exercised a contractual option to commence proceedings in the US under an asymmetric jurisdiction clause commonly used in finance and commercial agreements. Mr Manilow had invoked a contractual option in a music catalogue agreement to litigate certain pricing disputes in the US and challenged the English court jurisdiction over those claims.

As a result of the decision US counterparties will find it harder to argue that commencing proceedings in the US automatically displaces English jurisdiction. Parallel proceedings in England and the US may become more common because the Court of Appeal expressly recognised that such overlap may be inherent in certain contractual structures. The significance is that English courts remain highly protective of contractual jurisdiction bargains and will generally seek to give effect to them. A link to the judgement is attached.[9]

Conclusion

The popularity and stellar reputation of the English Commercial Court brings significant and highly complex litigation into the English jurisdiction by parties based overseas[10]. There are, however, limitations on the extent to which overseas disputes can be litigated and tried in England and jurisdiction challenges form a significant proportion of court time. The principles can be complex and difficult to apply, a fact reflected by the significant volume of reported cases on the topic each year and early advice should be obtained if a challenge to the jurisdiction may be possible.

By Stephen Rosen head of Collyer Bristow’s transatlantic disputes team – prepared in conjunction with Phillip Patterson of Gatehouse Chambers.

[1] References to “England” and “English” include Wales.

[2] Much of this bulletin can apply also to non- US defendants.

[3] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part11

[4] 28 days in the Commercial Court and in the London Circuit Commercial Court

[5] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06/pd_part06b

[6] The Supreme Court is the UK’s final court; the Privy Council is mainly a final court for other jurisdictions (such as certain Commonwealth countries) that have chosen to retain that route of appeal, The judges of the two courts are often the same.

[7] The Appellate Committee of the House of Lords is the direct institutional predecessor of the UK Supreme Court.

[8] https://www.judiciary.uk/judgments/ziyavudin-magomedov-and-others-v-tpg-group-holdings-sbs-lp-and-others/

[9] https://www.judiciary.uk/judgments/hipgnosis-sfh-1-limited-v-barry-manilow-and-others/

[10] An estimated 75% of the work of the Commercial Court involves at least one party based out of the jurisdiction and 40% involves no domestic parties at all.