KMG INTERNATIONAL NV v. MELANIE ANNE CHEN & ANOR  EWHC 1078 (Comm)
PCB act for the Claimant, KMG, a Dutch company with international oil operations in various countries throughout Europe and Central Asia. It is seeking to enforce an arbitral award in the sum of US$200 million against DP Holdings (“DPH”), a Swiss company. It has commenced in the English Court proceedings against DPH’s former managing director, Melanie Chen and a BVI company controlled by her in connection with their role in facilitating the dissipation of an asset of DPH worth approximately €60 million that would have been available for enforcement of the arbitral award. The dissipation took place through a transfer of the asset out of the DPH group of companies using a series of transactions involving offshore entities based in the Caribbean. The asset was ultimately sold to a listed company registered in England. The claims are primarily based on Dutch law torts. The proceedings were personally served on Ms Chen in England. This gave the English Court in personam jurisdiction. Ms Chen sought to challenge the jurisdiction of the English Court on the basis that it was not the most convenient forum for the claim and the matter should proceed through the Dutch Courts, primarily because the claims are based on Dutch law. The English Court concluded that (a) the Dutch Court was no better placed than the English Court to address and determine the underlying factual issues of the claim given their international nature with no specific association with the Netherlands, and (b) having determined those factual issues it is able, with the assistance of Dutch law expert evidence, to apply the Dutch Law for the purposes of determining the claims. It therefore dismissed the challenge to its jurisdiction on the basis that it could not be said that the Dutch Court was clearly or distinctly more appropriate forum than the English Court to determine the claim.