Soleymani v Nifty Gateway LLC [2022] EWCA Civ 1297 (06 October 2022)

Soleymani v Nifty Gateway LLC [2022] EWCA Civ 1297 (06 October 2022)

The English court lacks jurisdiction to determine the Arbitration Claim because its essential subject matter is arbitration, falling within the arbitration exclusion in Article 1(2)(d) of the Recast Regulation and section 15A of the CJJA. The statutory consumer protections do not override this exclusion. The Governing Law Claim and Gambling Act Claim are stayed under section 9 of the Arbitration Act 1996, as the arbitrator in New York has Kompetenz-Kompetenz to determine his own jurisdiction and the fairness of the arbitration clause.

Citation
[2022] EWCA Civ 1297
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
Appeal From High Court (commercial Court) / Court of Appeal Judgment
Outcome
Appeal dismissed
Legal Topics
Unfair Terms in Consumer Contracts, Arbitration Clauses, Jurisdictional Protections for Consumers, Governing Law Clauses, Gambling Act Illegality
Consumer Protection Arbitration Jurisdiction Unfair Terms in Consumer Contracts Arbitration Clauses Jurisdictional Protections for Consumers Governing Law Clauses Gambling Act Illegality

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Parties

Amir Soleymani

Claimant/appellant

Nifty Gateway LLC

Defendant/respondent

Competition and Markets Authority

Intervener

Procedural Posture

Appeal From High Court (commercial Court) / Court of Appeal Judgment

Legal Issues

  1. 1 Does the English court have jurisdiction under section 15B of the Civil Jurisdiction and Judgments Act 1982 for a claim challenging an arbitration clause in a consumer contract?
  2. 2 Should proceedings be stayed under section 9 of the Arbitration Act 1996 pending arbitration in New York?
  3. 3 Are the arbitration and governing law clauses unfair under the Consumer Rights Act 2015?

Ratio Decidendi

The English court lacks jurisdiction to determine the Arbitration Claim because its essential subject matter is arbitration, falling within the arbitration exclusion in Article 1(2)(d) of the Recast Regulation and section 15A of the CJJA. The statutory consumer protections do not override this exclusion. The Governing Law Claim and Gambling Act Claim are stayed under section 9 of the Arbitration Act 1996, as the arbitrator in New York has Kompetenz-Kompetenz to determine his own jurisdiction and the fairness of the arbitration clause.

Court Disposition

Appeal dismissed

Orders

  • Declaration that the English court has no jurisdiction over the Arbitration Claim
  • Stay of the Governing Law Claim and Gambling Act Claim under section 9 of the Arbitration Act 1996