Amir Soleymani v Nifty Gateway LLC

Amir Soleymani v Nifty Gateway LLC

The English court does not have jurisdiction under s.15B CJJA over a freestanding claim for a declaration that an arbitration clause in a consumer contract is unfair and not binding, as such a claim falls within the arbitration exception in Article 1(2)(d) of the Recast Regulation. However, where the court has jurisdiction over substantive claims (such as the Governing Law and Gambling Act Claims), and the validity of the arbitration agreement is raised as a defence to a stay under s.9 AA, the court should direct a trial of the s.9(4) issue (validity of the arbitration agreement) rather than staying the proceedings, especially where consumer protection rights under the CRA are invoked.

Parties
Claimant/appellant: Amir Soleymani; Defendant/respondent: Nifty Gateway LLC; Intervener: Competition and Markets Authority
Jurisdiction
England and Wales
Judgment Date
06 October 2022
Procedural Posture
Civil Appeal / Appeal From High Court Judgment on Jurisdiction and Stay of Proceedings
Outcome
Appeal dismissed on Grounds 1 and 2; Appeal allowed on Ground 3
Legal Topics
Jurisdictional Protection for Consumers, Unfair Contract Terms, Arbitration Agreements in Consumer Contracts, Enforcement of Foreign Arbitral Awards, Choice of Law Clauses, Kompetenz Kompetenz, Stay of Proceedings Under Arbitration Act
Consumer Protection Arbitration Private International Law Jurisdictional Protection for Consumers Unfair Contract Terms Arbitration Agreements in Consumer Contracts Enforcement of Foreign Arbitral Awards Choice of Law Clauses +2 more

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Parties

Amir Soleymani

Claimant/appellant

Nifty Gateway LLC

Defendant/respondent

Competition and Markets Authority

Intervener

Procedural Posture

Civil Appeal / Appeal From High Court Judgment on Jurisdiction and Stay of Proceedings

Legal Issues

  1. 1 Whether the English court has jurisdiction under s.15B Civil Jurisdiction and Judgments Act 1982 (CJJA) over a claim for a declaration that an arbitration clause is unfair and not binding in a consumer contract
  2. 2 Whether the arbitration exception in Article 1(2)(d) of the Recast Regulation applies to the Arbitration Claim
  3. 3 Whether the court should stay the Governing Law and Gambling Act Claims under s.9 Arbitration Act 1996 (AA) or direct a trial of the s.9(4) issue (validity of the arbitration agreement)

Ratio Decidendi

The English court does not have jurisdiction under s.15B CJJA over a freestanding claim for a declaration that an arbitration clause in a consumer contract is unfair and not binding, as such a claim falls within the arbitration exception in Article 1(2)(d) of the Recast Regulation. However, where the court has jurisdiction over substantive claims (such as the Governing Law and Gambling Act Claims), and the validity of the arbitration agreement is raised as a defence to a stay under s.9 AA, the court should direct a trial of the s.9(4) issue (validity of the arbitration agreement) rather than staying the proceedings, especially where consumer protection rights under the CRA are invoked.

Court Disposition

Appeal dismissed on Grounds 1 and 2; Appeal allowed on Ground 3

Orders

  • The appeal is dismissed on Ground 1 (jurisdiction over Arbitration Claim) and Ground 2 (effect of s.15D(1) CJJA).
  • The appeal is allowed on Ground 3; there will be a trial of the issue whether the arbitration agreement is null and void, inoperative, or incapable of being performed under s.9(4) Arbitration Act 1996 in respect of the Governing Law and Gambling Act Claims.