TANIA RAPPO v ACCENT DELIGHT INTERNATIONAL LTD & Anor

Facts

Accent Delight International Ltd and Xitrans Finance Ltd, British Virgin Islands companies owned by trusts of Russian businessman Mr Dmitry Rybolovlev, bought artworks over more than a decade through art dealer Mr Yves Bouvier and his company MEI Invest Limited. Ms Tania Rappo, a friend of the Rybolovlev family, had introduced the two men. After the relationship broke down in 2014, the companies alleged that Mr Bouvier had dishonestly inflated prices while acting as their agent. They sued him, MEI Invest and Ms Rappo in Singapore in Suit No 236 of 2015, alleging breach of fiduciary duty, deceit, dishonest assistance, knowing receipt and conspiracy.

In 2017 the Court of Appeal stayed the Singapore suit in favour of Switzerland as the more appropriate forum, relying on written and oral undertakings by the defendants to accept the jurisdiction of the Geneva civil courts and to submit to a determination on the merits there. The court said the stay could be revisited if the Swiss courts declined jurisdiction. The companies then pursued their civil claims within Swiss criminal proceedings. In July 2022 the Geneva Court of Appeal held that transactions outside the 15-year criminal limitation period could not be investigated, which covered eight early purchases made by Xitrans. Xitrans said it could still sue on those claims in separate Swiss civil proceedings, but the defendants would not confirm they agreed. By Summonses Nos 2 and 3 of 2023 Xitrans asked for the stay to be lifted for those claims.

Issues

1. Whether the defendants had reneged on their undertakings, so that the basis of the stay had fallen away.
2. Whether delay in the Swiss proceedings amounted to a departure from the basis on which the stay was granted.
3. Whether other factors weighed against partially lifting the stay.

Holding

The Court of Appeal dismissed both applications, holding that there was no departure from the basis of the stay. For each summons it ordered costs and disbursements in the aggregate sum of $20,000, in favour of the Bouvier parties and Ms Rappo respectively, with the usual consequential orders.

Reasoning

The undertakings had to be read in context. They were given so that the Swiss courts would have jurisdiction under a Swiss rule that confers jurisdiction where a defendant proceeds on the merits without reservation. The reference in the oral undertaking to a determination on the merits meant no more than that. It did not oblige the defendants to give up substantive defences such as limitation. The court observed that it could not properly have required them to do so. Xitrans did not suggest the defendants would contest Swiss jurisdiction, and a time-bar defence goes to the merits, not jurisdiction, which matched the Swiss law expert evidence. So no undertaking had been breached.

On delay, the court accepted that the stay rested on an assumption that the claimants would not suffer delay amounting to a denial of substantial justice in Switzerland. But the Geneva Court of Appeal had itself found no unjustified delay by the Swiss prosecutor, and a court should be cautious before finding that a well-established foreign system denies substantial justice. The earlier assumption was therefore not mistaken.

Although it did not need to decide the point, the court noted that partially lifting the stay would split closely overlapping claims between Singapore and Switzerland, which would have weighed against Xitrans. The continuing power to lift a stay is not meant for reopening settled issues because a litigant meets setbacks.

From the judgment