The English Court of Appeal in KAEFER Aislamientos SA de CV v AMS Drilling Mexico SA de CV and others [2019] EWCA Civ 10 has tried to clarify the correct test to apply when considering whether the Court has jurisdiction over parties that are alleged undisclosed principals to a contract. 

In dismissing the appeal and ruling that the alleged undisclosed principals were not bound by the exclusive jurisdiction clause, the Court ruled that the correct test to determine jurisdiction is that set out by the UK Supreme Court in Goldman Sachs International v Novo Banco SA [2018] UKSC 34.  The Court set out the three limbs of the test as:

  • The claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway
  • If there is an issue of fact about the relevant jurisdictional gateway, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so
  • However, the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it.

This test remains somewhat opaque and complex, so should be applied carefully. 

See the Court's decision here.