THE EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
TERRITORY OF THE VIRGIN ISLANDS
AMPLE SPEED LIMITED
The Hon. Dame Janice M. Pereira, DBE Chief Justice
The Hon. Mde. Gertel Thom Justice of Appeal
The Hon. Mr. Gerard St.C Farara, QC Justice of Appeal [Ag.]
Mr. Robert Nader for the Appellant
Mr. Andrew Gilliland for the Respondent
2019: July 20;
2020: September 16.
Interlocutory appeal — Forum non conveniens — Application for stay of
proceedings pursuant to CPR 9.7 — Whether learned judge erred in
exercise of discretion to refuse stay on grounds of forum non
conveniens — Whether learned judge failed to give sufficient weight to
relevant connecting factors — Whether learned judge erred in
concluding that BVI was the more appropriate forum
The appellant, Grain-Trans Limited, is a company incorporated in the
Territory of the Virgin Islands (“the BVI”). The respondent, Ample Seed
Limited, is a company domiciled in Hong Kong SAR (“Hong Kong”). The
respondent filed a claim (“the Claim”) in the BVI Commercial Court for
repayment of a loan of EUR 1,700,000.00 (USD 1,873,400.00) and contractual
interest pursuant to the terms of a loan agreement between the respondent,
as lender, and the appellant, as borrower (“the Loan Agreement”). The loan
was to be repaid within 7 days and the loan sum was to be transferred by
the respondent from its bank account in Latvia to the bank account of the
appellant also in Latvia. Repayment of the loan and interest was to be made
by crediting the said sums to the respondent’s said bank account in Latvia.
The appellant applied pursuant to CPR 9.7 to have the Claim stayed on
grounds of forum non conveniens. The appellant’s central
contentions were that Ukraine is not only an available forum but is the
most appropriate forum for the trial of the Claim. The appellant relied on
the following factors to ground its central contentions: (a) the likely
governing law of the agreement in respect of the loan is Ukrainian law; (b)
Ukraine is the center of business of the parties to the Loan Agreement or
their beneficial owners; (c) the Loan Agreement was executed by the
respondent’s Ukrainian director presumably in Ukraine; (d) the documentary
evidence in support of the Claim was likely to be in Russian or Ukrainian;
(e) the purpose of the Loan was to provide funding to a Ukrainian business;
and (f) the witnesses in the matter were located either in or near to
Ukraine. The appellant’s application was supported by affidavit evidence,
and by an expert on Ukrainian law who, in her report, reached several
conclusions as to the availability and appropriateness of Ukraine as the
forum for the trial and determination of the Claim.
The application for a stay was heard and determined by a judge of the
Commercial Court who on 24th July 2019 dismissed the
application, with costs to the respondent. The learned judge found that the
Loan Agreement was a simple agreement for a short-term loan between two
non-Ukrainian companies; that it had no connection with Ukraine; was not
governed by the laws of Ukraine; and Ukraine was not the appropriate forum
for the determination of the dispute concerning the alleged non-payment of
the loan by the appellant. Being dissatisfied with the judge’s refusal of
the application, the appellant appealed.
The Court of Appeal considered: (i) whether the judge erred by failing to
apply the correct test in Spiliada Maritime Corporation v Cansulex Ltd
 AC 460 by failing to consider fully the expert evidence in support
of the application for a stay and whether Ukraine was an available forum
for the hearing of the Claim; and (ii) whether the learned judge erred in
his determination that Ukraine was not the appropriate forum for the
hearing of the Claim in failing to consider or to give sufficient weight to
the connecting factors with Ukraine.
dismissing the appeal, confirming the orders made by the learned judge,
ordering that the respondent shall have its costs of the appeal to be
assessed by a judge of the Commercial Court at not more than two-thirds of
the costs below, if not agreed within 21 days, that:
- When a defendant seeks a stay on grounds of forum non conveniens, the court must determine whether there is
another available forum and whether that forum is more appropriate for the
trial of the case. While the learned judge did not deal extensively with
the expert evidence as to Ukrainian law and did not state, in precise
language, that the appellant had failed to establish that Ukraine was an
available forum, it is clear from the transcript that the judge considered
matters relevant to and did, in essence, arrive at such a conclusion. The
judge considered the nature of the Claim; that the Loan Agreement on its
face had no discernable connection with Ukraine nor was it governed by the
laws of Ukraine; that neither of the parties to the Loan Agreement were
incorporated in Ukraine and, that the appellant did not conduct any
business or have a presence in Ukraine. These are all matters which go to
the question of whether the appellant had shown that Ukraine was an
Spiliada Maritime Corporation v Cansulex Ltd
 AC 460 applied;
Livingston Properties Equities Inc et al v JSC MCC Eurochem Livingston
Properties Equities Inc et al v JSC MCC Eurochem
 ECSCJ No. 245, BVIHCMAP2016/0042-0046 (delivered 18th
September 2019) applied.
- The conclusions reached in the expert report filed in support of the
stay application were without any proper factual or legal basis, and
lacking in cogency, and must therefore be rejected. It is clear that the
Claim does not fall within any of the accepted categories of claims or
cases under Ukrainian private international law for which Ukrainian courts
would accept jurisdiction in proceedings involving a foreign element. In
circumstances where there is no evidence that the Loan Agreement was
executed, performed or breached in Ukraine, or that the appellant has a
presence, office, business or representative in Ukraine or is registered to
do business there, the appellant had failed to establish that Ukraine is an
available forum for the trial and determination of the Claim, and the
learned judge was correct in arriving at such a conclusion.
The connecting factors relied on by the appellant do not support the
conclusion that the Claim has its closest connection to Ukraine. The
appellant’s reliance on these connecting factors was either misplaced or
unsupported by the evidence before the court. The learned judge was
therefore correct in finding that the Claim had no real connection to
Ukraine, that Ukraine was not the appropriate forum, and that the BVI, as
the place of incorporation of the appellant, the borrower under the Loan
Agreement, was the appropriate forum. Accordingly, even if the appellant
had established that Ukraine was an available forum for the trial of the
dispute under the Loan Agreement, the BVI, as the forum with jurisdiction
as of right over the appellant, was the jurisdiction with which the dispute
has its closest connection.
 FARARA JA [AG.]: This is an interlocutory appeal made
pursuant to Rule 62.10 of the Civil Procedure Rules 2000,
as amended, (“the CPR”) from the decision and order of Adderley J [Ag.], a
judge of the Commercial Division of the High Court in the Territory of the
Virgin Islands (“the BVI”), handed-down on 24th July 2019. By
this decision the learned judge dismissed the appellant’s application dated
30th May 2019 for a stay, on grounds of forum non conveniens, of claim no. BVIHC(COM)2019/0055. The claim
was commenced by the respondent against the appellant on 16th
April 2019 (“the Claim”).
 The Claim is for repayment of a loan and contractual interest pursuant
to the terms of a loan agreement dated 6th July 2015 between the
respondent, as lender, and the appellant, as borrower (“the Loan
Agreement”). In its application for a stay, the appellant contended that
the Claim had its closest connection with Ukraine, and the BVI court ought
to stay the Claim in favour of the courts of Ukraine. This was rejected by
the learned judge who dismissed the application with costs. Leave to appeal
the order of dismissal was granted by a judge of this Court on 22 nd October 2019. Prior to commencing the Claim, the appellant
had been successful in an application to the Commercial Court to set aside
a statutory demand issued by the respondent on 12th June 2018 in
relation to the alleged debt under the Loan Agreement.
The Parties and the Documents
 The appellant company is incorporated in the BVI and is beneficially
owned by Mr. Alekszej Fedoricsev, a Hungarian national living in Monaco.
Its director, Sergey Annikov, executed the Loan Agreement, which was in
English, on its behalf. Mr. Fedoricsev has extensive business interest in
the grain industry in Ukraine, including the storage and transshipment of
grain, and owns certain transshipment terminals at the port of Yuzhne in
 The respondent is a company domiciled in Hong Kong SAR (“Hong Kong”)
and, at the material time, operated a business trading grain
internationally, with its focus of operations in Ukraine.
At the time of entering into the Loan Agreement the respondent was
beneficially owned by Mr. Oleg Shchurin, a Ukrainian national. Mr. Shchurin
purchased the respondent company ‘to use as a trading company for the
international grain market’ approximately one week before the respondent
entered into the Loan Agreement with the appellant.
Mr. Vitalii Shevchenko, who executed the Loan Agreement on behalf of the
respondent, was at the time an employee of the respondent with executive
authority to bind the respondent.
On 26th April 2016, after the Loan Agreement had been entered
into and after the principal sum and interest had become due and payable
thereunder, Mr. Robert Brovdi became a beneficial owner in the respondent
along with Mr. Shchurin. On 24th October 2017, Mr. Shchurin
transferred his interest in the respondent, having made the decision to
pursue his business interests in another industry.
 There is no suggestion that the Loan Agreement was drafted or executed
in the BVI or that the loan sum was transferred to an account of the
appellant held in the BVI. Accordingly, the only connection which this
matter has with the BVI is that the appellant, the borrower under the Loan
Agreement, is a BVI company.
 Furthermore, by an Agreement of Intent dated 24th April
2015, Mr. Shchurin and his partner Mr. Robert Brovdi on the one hand, and
Mr. Fedoricsev on the other, agreed to establish a joint business project
described as ‘a holding-type trade and logistic business’ (“the Project”).
This was to be effected through the structuring and integration of a group
of companies (assets) owned by the parties to the Agreement of Intent, into
a non-formalized holding type scheme to be called ‘TIS GRAIN HOLDING’, and
led by the company TIS Capital Management, which was to do what is
described in the Agreement of Intent as ‘performing coordination
functions’. The Agreement of Intent also provided that to implement the
Project the parties were to agree, within one month, a memorandum which
would ‘describe all the legal and financial parameters of the Project and
time of their final realization’. No such memorandum was produced in
evidence by either party. However, it is clear from the evidence that the
Project or joint project to be implemented by the parties to the Agreement
of Intent was short-lived and came to an end in 2016. Later in this
judgment, I deal more fully with both the Loan Agreement and Agreement of
 In the Claim, the respondent claims the sum of USD $1,873,400.00
together with contractual interest at the rate of 1 percent per annum
pursuant to the terms of the Loan Agreement. The stated purpose for the
loan, as pleaded, was to assist Mr. Fedoricsev to cover ‘a gap in cash flow
affecting his grain terminals’ in Ukraine. This request is said to have
been made during several telephone calls in the first week of July 2015
from Mr. Fedoricsev and Mr. Annikov to Mr. Shchurin. Mr. Fedoricsev had
requested prepayment for transshipment services to be provided, in the
future, to companies beneficially owned by Mr. Shchurin, by one or both of
Mr. Fedoricsev’s grain terminals in Yuzhne, Ukraine. However, Mr. Shchurin
was not prepared to agree to a prepayment, but offered instead a short-term
loan to Mr. Fedoricsev. This was accepted by Mr. Annikov on behalf of Mr.
Fedoricsev. On 6th July 2015, the Loan Agreement was entered
into with Mr. Fedoricsev electing to use the appellant, a company
incorporated in the BVI and beneficially owned by him, as borrower. On the
same day, the sum of USD $1,873,400.00 was transferred by the respondent
from its bank account in Riga, Latvia to the appellant’s bank account, also
in Riga, Latvia. The respondent’s case is that, in breach of the terms of
the Loan Agreement, the appellant failed to repay the principal sum, either
within the stated 7-day period under the Loan Agreement, or at all.
 On 30th May 2019, the appellant applied pursuant to CPR 9.7
for a declaration that the Commercial Court should decline to exercise
jurisdiction to try the Claim and for an order staying the Claim on grounds
of forum non conveniens. The appellant relied on the Agreement of
Intent dated 24th April 2015 entered into between Mr. Brovdi and
Mr. Shchurin, on the one hand, and Mr. Fedoricsev, on the other, whereby
these parties had ‘agreed to jointly engage in international grain trading
and transshipment business in Ukraine’. They contended that while the Loan
Agreement did not contain either a jurisdiction clause or a choice of law
clause, ‘[i]t may have been intended that the Loan Agreement be governed by
the laws of the Ukraine’.
 The appellant also asserted that the likely key witnesses are
Ukrainian, Russian and Hungarian and are primarily located in those
jurisdictions, as well as in Monaco with respect to Mr. Fedoricsev; and
that they speak either Russian, Ukrainian and or French. The appellant also
argued that the bulk of the documents in this matter would have to be
translated either to or from English if the matter was heard in the BVI.
However, it is to be noted that the version of the Loan Agreement executed
by the respondent was in the English language. The appellant further
submitted that the only connection which this Claim has with the BVI is as
the place of incorporation of the appellant and, by contrast, there are
very substantial connections with Ukraine ‘including applicable law, the
location of witnesses, the location of the [respondent] and [appellant’s]
business, the location of witnesses’ business and transshipment facilities,
and the location of the documentary evidence’. The appellant therefore
concluded that Ukraine is clearly and distinctly the more appropriate forum
to hear and determine the dispute, and the Ukrainian courts have competent
jurisdiction. Furthermore, the appellant stated categorically that it will
submit to the jurisdiction of the Ukrainian courts for the purposes of
determining the dispute between the parties.
 The stay application was supported by the affidavit of Sophie
Christodoulou (“Christodoulou 1”), a lawyer in the firm in the BVI
representing the appellant. This affidavit, to a great extent, regurgitates
the grounds set out in the notice of application, and exhibited a copy of
the Loan Agreement written in English, as well as the Ukrainian original
and English language translation of the Agreement of Intent. In addition,
it is averred at paragraph 5, that the respondent’s prior attempt to
recover the sums under the Loan Agreement by way of a statutory demand
issued on 12th June 2018 was unsuccessful, as the statutory
demand had been set aside by a judge of the Commercial Court on application
by the appellant, ‘on the basis that there was a substantial dispute that
the alleged debt was not owing or due’. As to the debt being disputed, Ms.
Christodoulou averred at paragraphs 7, 8 and 9 as follows:
“7. In summary, the Defendant’s position is that the Loan Agreement cannot
be considered in isolation and is in fact part of a much wider set of
transactions between the parties, arising out of an international grain
trading and transshipment project entered into between the ultimate owners
and controllers of the Claimant, Mr. Robert Brovdi and Mr. Oleg Shchurin,
and the ultimate owner and controller of the Defendant, Mr Alekszej
Fedoricsev (the “Joint Project”). The business was also run through a Swiss
company jointly owned by Mr. Brovdi, Mr. Shchurin and Mr. Fedoricsev,
- Mr. Brovdi, Mr Shchurin on the one hand and Mr. Fedoricsev on the other
hand entered into a number of agreements, which include the Loan Agreement,
relating to the Joint Project. These include an agreement dated 16th October 2014 [3-8] and an agreement of intent dated 24 th April 2015 (the “Agreement of Intent”) [9-13].
The sums advanced by the Claimant pursuant to the Loan Agreement have in
fact been settled as Mr. Brovdi and Mr Shchurin’s profit share of the
profits arising out of the Joint Project was increased (and Mr.
Fedoricsev’s profit share accordingly reduced) in a sum equal to the amount
in dispute, that being USD 1,873,400.00.”
 In response to the application for a stay and to Christodoulou 1, the
respondent filed the Affidavit of Jamie James, a lawyer in the firm in the
BVI representing the respondent. He asserts, inter alia, that
Ukraine is not a better forum than the BVI for the trial of the Claim.
Exhibited to his affidavit is an affidavit of Mr. Oleg Shchurin sworn on 19 th September 2018 which had been filed in opposition to the
prior application by the appellant to set aside the statutory demand. At
paragraphs 24 to 31 of this affidavit, Mr. Shchurin sets out the
circumstances under which the Loan Agreement was entered into between the
appellant and the respondent, and the short-term loan of USD $1,873,4000.00
made to the appellant. He averred that the loan was not made as an
investment in the Project. It was not made to the joint venture vehicle,
but to a company owned solely by Mr. Fedoricsev. He contended that the
suggestion that such a short-term loan (repayable within 7 days) would be
used to invest as capital in a joint project does not make commercial
sense. Furthermore, the loan was accounted for and reported by the
respondent’s auditor to the tax authorities of Hong Kong, where the
respondent-company is domiciled. Accordingly, the loan was a ‘stand-alone
agreement which had nothing to do with the project’, and there is no
reference in the Loan Agreement to it being part of a larger transaction.
It was made by the respondent, a company owned solely by Mr. Fedoricsev and
not with Mr. Brovdi, who is his partner in the joint venture with Mr.
Fedoricsev, and for the sole purpose of providing short-term assistance to
 The respondent also filed an affidavit sworn on 26th June
2019 by Igor Derus, a Ukrainian lawyer acting as Ukrainian counsel to the
respondent, in response to the issue raised in Christodoulou 1 regarding
the Ukrainian court having jurisdiction to hear the dispute (“the Derus
 This was followed by a second and third affidavit of Ms.
Christadoulou, both filed on 12th July 2019. The appellant also
filed expert evidence of Ukrainian law by the report of Dr. Anna Gnizdovska
dated 12th July 2019 (“the Gnizdovska Report”). I return below
to the expert evidence of Ukrainian law from Mr. Derus, on behalf of the
respondent, and Dr. Gnizdovska, on behalf of the appellant, which were
before the learned judge on the hearing of the stay application.
The Loan Agreement
 The Claim in this matter is for payment of a purported debt of USD
$1,873,400.00 plus interest (“the Debt”). The Debt is said to arise under
the terms of a loan agreement dated 6th July 2015 between the
respondent, as lender, and the appellant, as borrower. The Loan Agreement
relates to a short-term facility of EUR 1,700,000.00 (the equivalent of USD
$1,873,400.00) repayable on 13th July 2015 (within 7 days) at 1
percent interest per annum. It is common ground that the principal sum and
interest was not repaid by the appellant within the said period. However,
the appellant contends that the loan was, in essence, a capital investment
in the Project established or to be established under the terms of the
Agreement of Intent.
 The Loan Agreement does not contain a jurisdiction or choice of law
clause. However, it recites that it is ‘entered into under the provisions
of articles 497 and following of the Commercial Code’. It is common ground
that this could not have been a reference to the Commercial Code of
Ukraine, as the numbering of the articles or sections of that Code do not
go as high as number 497. Furthermore, the Loan Agreement makes no
reference whatsoever to the Agreement of Intent or to the Project or joint
venture between Mr. Brovdi and Mr. Shchurin on the one hand and Mr.
Fedoricsev on the other. It does not in any way purport to treat the loan
sum of USD $1,873,400.00 as an investment by Mr. Shchurin in the Project or
joint venture or in any other investment. It is a straightforward loan
agreement on a very short-term repayment basis, akin to a ‘bridge loan’. It
provides for the payment of interest and default interest for every day of
delay in repayment beyond the due date of 13th July 2015. There
is no provision for deferment of payment of the principal sum in certain
circumstances or for the said sum to be converted to an investment. There
is absolutely no reference to the laws of Ukraine or to any matter
concerning Ukraine or the Project or Mr. Shchurin’s investment or interest
in the Project. Importantly, the parties to the Loan Agreement are not the
parties to the Agreement of Intent, albeit the beneficial owner of each of
the two companies under the Loan Agreement are two of the three parties to
the Agreement of Intent.
The Agreement of Intent
 The Agreement of Intent is dated 24th April 2015, prior to
the execution of the Loan Agreement. It is between Messrs. Brovdi and
Shchurin as ‘Ukrainian Investors’, on the one hand, and Mr. Fedoricsev as
‘Foreign Investor’ on the other. It states that each such expression
includes not just the individual party but ‘all affiliated companies’ owned
by each of them and, in the case of Messrs. Brovdi and Shchurin only, the
expression ‘Ukrainian Investors’ also includes ‘foreign companies’. I pause
to observe that there is no evidence that Mr. Brovdi is an owner or
beneficially owner with Mr. Shchurin of the respondent company.
 The express purpose of the Agreement of Intent is ‘to establish a
Holding-Type and Logistic Business’ referred to therein as “the Project”
which is to be:
“…implemented through structuring and integration of a group of
companies (assets) owned by the Parties into a non-formalized holding-type
scheme (TIS GRAIN HOLDING) led by the company TIS CAPITAL MANAGEMENT,
performing coordination functions.”
By clause 11, the said agreement is to be ‘regulated and interpreted with
Ukrainian legislation’. Clause 4 of the Agreement of Intent provides:
“To implement the Project, the Parties take up to agree the text of
Memorandum within one month after signing of this Agreement; the Memorandum
shall describe all the legal and financial parameters of the Project and
time of their final realization.”
 Essentially, the Agreement of Intent is an agreement to agree on a
memorandum which would provide for the legal and financial parameters for
the Project and its implementation. No such signed memorandum was provided
in evidence before the court below by either party. Accordingly, the full
terms, implementation and legal efficacy of the intended joint venture
project between the parties to the Agreement of Intent was not known to the
judge below and cannot be a matter of speculation or conjecture.
Decision on Stay Application
 The decision of the learned judge, the subject of this appeal, was
rendered viva voce at the conclusion of the hearing on 24 th July 2019. He dismissed the appellant/defendant’s application
for a stay the Claim. The learned judge concludes his decision in these
“I don’t think there is any basis after you review the Statement of Claim,
and the general principles is (sic) set out in Eurochem. I just had
a case on it and Jitendra, number 83 of 2017. There isn’t any basis,
in my view, that Ukraine could be considered to be the appropriate forum,
so I am going to dismiss the application.”
 The judge’s decision and reasons therefor are to be assessed from the
totality of the proceedings as memorialized in the transcript.
Issues on Appeal
 The appellant relies on two grounds in its notice of appeal (filed 13 th November 2019) as fleshed out in their written submissions.
These are: (i) the learned judge applied the wrong test in determining the
stay application, in that his focus was on where the performance of the
Loan Agreement took place and, in doing so, he failed to examine the
several matters that connect the Claim to Ukraine and erred in finding that
the BVI was the more appropriate forum; and (ii) to the extent that the
judge applied the correct test he erred in applying the test in Spiliada Maritime Corporation v Cansulex Ltd
in that he failed to consider or to give sufficient weight to factors
which, if properly considered, ought to have resulted in him granting the
stay in favour of Ukraine, as the country where the Claim has is closest
The Applicable Law
 There is no discernible difference or disagreement between counsel for
the parties on the applicable principles of law. It is accepted that the
applicable test is the test formulated by Lord Goff in Spiliada. This test has been endorsed and further
elucidated in the decisions of this Court in SFC Swiss Forfaiting Company Ltd. v Swiss Fotfaiting Ltd
Livingston Properties Equities Inc et al v JSC MCC Eurochem
(“Eurochem“). In Eurochem, Webster JA
[Ag.] distilled the test and applicable principles in the following way:
“When a defendant seeks a stay of an action on ground of forum non
conveniens the court should determine whether there is another available
forum (stage 1) and whether that forum is more appropriate for the trial of
the case (stage 2). If there is another [forum] that is more appropriate, a
stay should be granted unless there is a risk that the claimant will not
receive justice in the more appropriate forum (stage 3). The burden of
proof in the first two stages is on the defendant seeking the stay, and on
the claimant at the third stage.”
 In this matter, it is common ground that stages 1 and 2 of the Spiliada test were relevant and are to be considered
sequentially. Accordingly, should the appellant fail to satisfy stage 1,
the court cannot proceed to a consideration of stage 2 of the test. As to
stage 3, it is accepted that were Ukraine to be found to be both an
available and the more appropriate forum, there is no evidential or other
basis in this matter, upon which to ground a contention that the respondent
would be unable to obtain substantial justice there in the trial of the
dispute between the parties.
 As to stage 2 of the test, a court is required to determine, between
the other available forum and the forum which is being asked to decline
jurisdiction (the BVI), which of them is distinctly the more appropriate
for the trial of the claim. This assessment involves an examination of the
connecting factors as borne out by the evidence, including expert evidence,
to determine the place where the claim has its most real and substantial
connection. This exercise is at times characterized as determining which
forum comprises ‘the centre of gravity’ of the dispute.
In doing so, the place of incorporation of the defendant/appellant, as a
connecting factor, is not be accorded too much weight. It is but one of the
relevant connecting factors and very little weight should be attached to it
in the balancing exercise between two competing forums.
Principles applicable to Review of Judge’s Discretion
 In a matter such as this, where the Claim is brought as of right in
the BVI as the country where the appellant/defendant company was
incorporated and is domiciled, an application by a defendant pursuant to
CPR 9.7 for the court to decline jurisdiction in favour of some other
country on grounds of forum non conveniens, invokes the court’s
discretionary powers. This undoubted discretion must be exercised
judicially in accordance with established principles.
 The parameters within which an appellate court is to review the
exercise of discretion by a lower court have been authoritatively stated
and restated in a number of decisions of this Court. The most oft cited
case for these principles is Dufour v Helenair Corporation and Others.
The two-stage test which must be followed and adopted by an appellate court
upon a review of the exercise of judicial discretion by a lower court, was
reformulated by Floissac CJ in these terms:
“Such an appeal will not be allowed unless the appellate court is satisfied
(1) that in exercising his or her judicial discretion, the judge erred in
principle either by failing to take into account or giving too little or
too much weight to relevant factors and considerations, or by taking into
account or being influenced by irrelevant factors and considerations; and
(2) that, as a result of the error or the degree of the error, in principle
the trial judge’s decision
exceeded the generous ambit within which reasonable disagreement is
and may therefore be said to be clearly or blatantly wrong.” (Emphasis
 Fundamentally, it is not permissible for the appellate court to
substitute its decision for that of the lower court simply because on the
same evidence and facts it would have come to a different conclusion. It is
only in circumstances where the decision of the lower court can be said to
have exceeded ‘the generous ambit within which reasonable disagreement is
possible and is, in fact, plainly wrong, that the appellate [court] is
entitled to interfere’.
 Accordingly, with these principles at the fore, I now embark upon a
review of the decision of the learned judge the subject of this appeal by
which he dismissed the appellant’s stay application.
Stage 1 – Is Ukraine an available forum?
 The appellant submits that the learned judge failed to embark upon a
proper consideration of stage 1 of the Spiliada test, that
is, whether Ukraine was an available forum and, instead, his focus was on
the nature of the Claim and the underlying cause of action. It is the case
for the appellant in relation to this stage of the test, that Ukraine was
an available forum for the trial of the Claim and the judge ought to have
found, based upon the Gnizdovska Report as to Ukrianian law, that the
Ukrainian courts would accept jurisdiction over proceedings brought by the
respondent to recover the loan proceeds pursuant to the Loan Agreement.
This they contend was especially so since Dr. Gnizdovska’s report was the
only evidence of Ukrainian law before the judge, the respondent having
expressly decided, at the hearing, not to rely on the aspect of the Derus
Affidavit addressing Ukrainian law. Specifically, the appellant submits,
that the learned judge erred in not embarking upon a consideration of the
expert report of Dr. Gnizdovska as to the applicable principles of
Ukrainian private international law relating to the categories of cases
where the Ukrainian court would accept jurisdiction over a dispute
involving a foreign element. Furthermore, had he done so, he ought to have
accepted the conclusions and opinions reached by Dr. Gnizdovska that the
Ukrainian courts would accept jurisdiction over this dispute.
 The respondent submits that the learned judge applied the correct test
and principles set out in Spiliada and in Eurochem and concluded, correctly, that Ukraine was not an
available or appropriate forum for the determination of this dispute. The
effect of the judge’s decision was that the appellant, as the applicant for
a stay, had failed at stage 1 of the test. In this regard, they rely on the
passage from the decision of the learned judge at page 41 of the transcript
cited at paragraph 19 of this judgment.
 Mr. Nader, learned counsel for the appellant, in his consideration of
stage 1 of the Spiliada test, took the learned judge to
several passages from the Dr. Gnizdovska Report, including her conclusion
that the Ukrainian courts would accept jurisdiction over this dispute.
Mr. Gilliland, learned counsel for the respondent, in his submissions
before the judge disputed the conclusions of law reached by Dr. Gnizdovska
in her report. He did so on the basis that they were not underpinned or
supported by any of the objective facts in this case, and that several of
her opinions were expressed in qualified terms, not leading to any
conclusions which were definitive, making them wholly unreliable for the
purpose of factual evidence of Ukrainian law.
At page 34 of the transcript, Mr. Gilliland submitted that the appellant
‘had failed stage one of the test. And it’s my submission having failed
stage one of the test, we should go no further’.
 In my considered view, while it may be a fair criticism that the
learned judge did not deal extensively with the expert evidence as to
Ukrainian law in the Gnizdovska Report, and did not state in precise
language that the appellant had failed to satisfy stage 1 of the Spiliada test, it is clear from a full reading of the
transcript that the learned judge had certain reservations about the
Gnizdovska Report, and the tenure and reliability of the conclusions she
reached, similar to those pointed to by counsel for the respondent in his
submissions to the judge. This much is clear, for example, from pages 32 to
33 of the transcript in this exchange with Mr. Gilliland:
“MR. GILLILAND: Now, in the report, ‘Dr G’ does refer to warehouses and so
forth, but there is no evidence to show this. She just assume (sic), she
was giving us a set of her facts that they have this. There is no actual
evidence to demonstrate this. So she used what she was told to say…
THE COURT: There is no evidence to support the fact upon which she rely
(sic) in her expert —
MR. GILLILAND: Yes, yes.”
 It is clear from a full reading of the transcript, in particular at
pages 40 and 41, that the learned judge considered that the starting point
was the Claim itself, which he characterised as a simple claim in contract
under a Loan Agreement for money lent on a short-term basis. The judge was
also of the view that the Loan Agreement, on its face, had no connection or
no discernable connection with Ukraine; neither of the parties to the Loan
Agreement were incorporated in or conducted business from Ukraine; and that
the appellant, the borrower, is a BVI company, while the respondent, the
lender, is a Hong Kong, and not a Ukrainian, company. These matters and
considerations to which the learned judge averted, in my opinion, go to the
question of whether the appellant had satisfied stage 1 of the test
(whether Ukraine was an available forum). They are borne out in the
following passages and exchanges in the transcript:
“THE COURT: It doesn’t appear to be – – and I am not certain whether – – it
doesn’t appear on the face of it that any country where the party is, is
going to play much into it the operations in Ukraine, doesn’t seem to me
it’s going to feature very much in the Loan Agreement. And then, you know,
the parties to the Loan Agreement are Ample Speed Limited, which is the
Claimant, and the defendant is Grain-Trans Limited.
THE COURT: And I don’t see where the party – – it’s either going to be
where the Grain-Trans Limited is registered or Ample Speed is registered.
Grain-Trans Limited is obviously not registered in the Ukraine, at least
according to the evidence that is before the Court. So really the only
party that has any relation with the Agreement is in the BVI. All this
stuff about where they are operating and where the joint venture is, that’s
irrelevant, isn’t it?
THE COURT: But you can’t just go on a test, you have to look at the
statement of claim. The first thing you have to do, and I think that came
out very clearly in, I can’t remember which judgment I did, and the Court
of Appeal agreed. The first thing you have to do is look to see what is
being claimed to determine which countries are of importance. I don’t see
anything in the Statement of Claim, it’s a very short Statement of Claim,
that’s tied into any – – certainly not Ukraine. I could see if you are
arguing – – I could see that you would have a point if Grain-Trans Limited
was registered in the Ukraine. That would be a strong point because then it
would be between the two. The only party to this particular Loan Agreement
is registered in the BVI.”
 It is therefore necessary to examine the expert evidence as to
Ukrainian law which was before the learned judge in order to determine
whether the conclusions reached in the Gnizdovska Report, as evidence of
fact of Ukrainian law, are compelling or reliable or ought to have been
accepted by the learned judge.
Expert Evidence of Ukrainian Law
 As mentioned, the respondent filed an affidavit of Mr. Igor Derus in
which he addressed, inter alia, various principles of Ukrainian
private international law applicable to the circumstances in which the
courts of Ukraine would accept jurisdiction in relation to a dispute
involving a foreign element, as is the case in the instant matter. Mr.
Derus is the Ukrainian counsel to the respondent, and accordingly, he is
not an independent expert. It is indisputable that his affidavit was filed
without the permission of the court as an expert on Ukrainian law, and was
not in compliance or conformity with the applicable rules of CPR. At the
hearing before the learned judge, learned counsel for the respondent, when
pressed about these deficiencies, informed the court that the respondent
will not be relying on those parts of the Derus Affidavit dealing with or
expressing an opinion on Ukrainian law.
 I merely observe that Mr. Derus’ citation and reliance in his
affidavit upon article 76 of the Law of Ukraine ‘On Private International
Law’ in determining whether the Ukrainian courts would accept jurisdiction
over a case involving a foreign element, is uncontroversial as this is the
same provision cited and relied upon, in the main, by the appellant’s
expert witness, Dr. Gnizdovska, in her report. The important points of
departure between them are two-fold. Firstly, Dr. Gnizdovska relies not
only on the provisions or categories of claims under article 76, but on
certain other statutory provisions, as relevant to answering the main
jurisdictional question under Ukrainian law. Secondly, she reaches the
opposite conclusion to Mr. Derus on the main question of whether the
Ukrainian courts would accept jurisdiction in relation to this claim
arising under the Loan Agreement. That said, it is accepted that the only
expert evidence as to Ukrainian law before the learned judge was that of
 The appellant’s expert, Dr. Gnizdovska, is a qualified lawyer admitted
to practice in Ukraine. She holds a PhD in law and has been in the practice
of law for over 10 years, seven of which have been in Ukraine in the fields
of dispute resolution, corporate law, financial law, and foreign economic
activity. She is also the head of the JURIS FERRUM attorney’s association,
and the author of several scientific publications.
She opines that article 76 of the law of Ukraine ‘On Private International
Law’ sets out the categories of cases with a foreign element over which the
Ukrainian court can accept jurisdiction, albeit she does not regard such
cases as limited only to cases fitting strictly within one of those
 Specifically, with regard to this Claim, Dr. Gnizdovska focused on two
of the twelve listed categories in article 76. As to category no.2 – if in
the territory of Ukraine the defendant in the case has a place of residence
or location, or moveable or real property, which can be levied, or there is
a branch or representative office of a foreign legal entity-the defendant –
she defines ‘representative office of a foreign business entity’ as ‘an
institution or a person that represents the interests of a foreign business
entity in Ukraine and has duly executed relevant powers’.
In relation to this category, Dr. Gnizdovska opines in her report as
“If the services of grain transshipment facilitation
provided by the defendant in the port of Pivdenny (former name – Yuzhny) in
Ukraine are provided with the use of facilities and warehouses in the port
of Pivdenny, via certain personnel or persons that represent the
defendant’s interests in Ukraine and such activities of a non-resident (the
Defendant in this case) lead to the emergence of his civil rights and
obligations, the place of this activity can be considered as a permanent
representative office of the Defendant. Thus given the presence of the
Defendant’s company’s representation office in Ukraine, as it is defined in
the above-mentioned normative legal acts, the court can accept to its
proceedings the claim against such foreign company.”
 With respect, on the indisputable facts of this case, this opinion is
incorrect and cannot be accepted. The defendant/appellant in these
proceedings, Grain-Trans Limited, is a company incorporated and domiciled
in the BVI. There is no suggestion and no evidence to support a finding
that the defendant/appellant has a ‘representative office in Ukraine’, or
any facilities or warehouses at the port of Pivdenny in Ukraine, or has
done business or has any business operations in Ukraine, or has any person
or persons or agents who represent its interest in Ukraine. Accordingly,
there does not exist any factual basis, whatsoever, upon which to ground
this opinion or legal conclusion on this second limb of article 76. This is
a claim for breach of an agreement whereby the respondent/claimant, a Hong
Kong company, lent money on short-term repayment terms to the appellant, a
BVI company, where the loan proceeds were to be transferred from the
respondent’s bank account in Latvia to the appellant’s bank account in
Latvia. The grain transshipment business at the port of Pivdenny in Ukraine
referred to by Dr. Gnizdovska in the passage above, is in fact not owned or
operated by the appellant, but by its beneficial owner Mr. Fedoricsev, by
and through a different company or companies. And while the respondent does
have business interests in Ukraine, it operates similar businesses in other
parts of the world.
 As to the seventh limb of article 76 – if the action or event that
became the basis for filing a claim took place on the territory of Ukraine
– Dr. Gnizdovska opines at page 14 of her report in these terms:
“If the conclusion, performance, non-performance or
improper performance of the agreement takes place on the territory of
Ukraine, it can be concluded that the dispute regarding the non-performance
or improper performance of the agreement can be accepted for proceedings by
the Ukrainian court.” (Emphasis added)
 Likewise, there is no reliable or conclusive evidence that the Loan
Agreement, the subject of the Claim, was executed or concluded in Ukraine.
There is a mere suggestion by the appellant in submissions that Mr.
Schevchenko, who signed the Loan Agreement on behalf of the respondent, is
Ukrainian and therefore may have done so in Ukraine. This is not accepted
by the respondent, who countered, in their submissions, that Mr. Annikov
who signed the Loan Agreement on behalf of the appellant is Russian and
that it is more likely that the said agreement was signed by him in Russia.
Needless to say, it is passing strange that the appellant, which sought a
stay of the Claim on the basis that the Loan Agreement, or the dispute over
repayment of the loan proceeds, has its closest connection with Ukraine and
is likely to be governed by the laws of Ukraine, has not been able to
conclusively demonstrate where the Loan Agreement was drafted and where it
was executed by the parties.
 What is uncontroversial however, is that the performance of the Loan
Agreement did not take place in Ukraine. The loan proceeds were, by the
express terms of the Loan Agreement itself, to be transferred from the
respondent’s bank account in Latvia to the appellant’s bank account in
Latvia, and the repayment of this short-term loan was to be effected by
transfer to the respondent’s said Latvian bank account. It follows,
therefore, that the alleged breach of the Loan Agreement by non-payment may
reasonably be inferred to have occurred in Latvia and not Ukraine.
Accordingly, there is no basis upon which Dr. Gnizdovska’s opinion on this
seventh category can be substantiated or accepted as authoritative or
persuasive. In this regard, I observe that her opinion on these critical
issues at both pages 12 and 14 of her report (as cited above) are qualified
by the conjunctive ‘if’.
 Also, Dr. Gnizdovska’s opinion at page 15 of her report is similarly
qualified. There, addressing the contention by the appellant that the Loan
Agreement was part of the Project, she states:
“Based upon the analysis of the documents provided to me along with the
instructions, particularly pages 3-13 of the Exhibit SC-1 it can be argued that the owners of the companies – the parties to
the loan agreement had a relationship on the implementation of joint
projects in Ukraine, in particular on grain trade and transshipment of
grain in Ukraine. Accordingly, if the loan provided was a
part of the relationship of the parties to conduct business in Ukraine and
was provided for the purposes of this business, the fact of alleged
non-repayment of the loan under the agreement is also directly related to
Thus, if the conclusion and performance or non-performance
of the agreement was carried out in Ukraine, a claim in a dispute arising
from such an agreement may be brought at the place of performance of this
agreement as an event that became the basis for filing of a claim.”
 The difficulty with this opinion, apart from it being presented as
merely ‘arguable’ and it being stated in conjunctive or qualified terms, is
that the Loan Agreement was not entered into by the individuals who were
parties to the Agreement of Intent, and that the Project or joint venture
in Ukraine was entered into, not just by two individuals, Mr. Shchurin and
Mr. Fedoricsev (and their respective companies), but also by Mr. Brovdi as
well, who was not a shareholder of the respondent company. Moreover, there
is, at this point in the proceedings, absolutely no evidence that the Loan
Agreement was concluded or performed in Ukraine. These issues raised by the
appellant will be matters for the defence to be filed by the appellant
against the Claim. They were relied on by the appellant in its successful
application to set aside the statutory.
 The evidence led thus far suggests that this was a loan made by a Hong
Kong company to a BVI company, whereby the principal sum was to be
transferred from the bank account of the respondent in Latvia to the bank
account of the appellant in Latvia.
Likewise, its repayment was to be effected by the due amount being credited
to the bank account of the respondent in Latvia.
The short answer is that there was no performance of the terms of the Loan
Agreement to take place in Ukraine, as can be seen from the terms of the
agreement itself. Accordingly, there is no factual or evidential basis for
Dr. Gnizdovska’s opinion at page 15 of her report, which, with respect,
must be rejected.
 Dr. Gnizdovska also referred in her report to article 44 of the Law of
Ukraine ‘On Private International Law’, which provides that, in the absence
of consent of the parties on the choice of law applicable to an agreement,
the law according to Part 2 and Part 3 of article 32 shall apply. As
mentioned above, the Loan Agreement does not contain a choice of law or
jurisdiction clause. Part 2 of article 32 provides that, in such
circumstances, ‘the law that has the closest relationship with the
transaction’ would apply. By Part 3, this means ‘the law of the state in
which the party, whose performance is crucial to the content of the
transaction, has its place of residence or location’. Dr. Gnizdovska opines
that, in this matter, that party would be the lender, the respondent.
The gravamen and effect of this opinion is that, under Ukrainian private
international law rules, the law of Hong Kong, where the respondent is
domiciled, and not the law of Ukraine, would apply. This clearly does not
assist the appellant who contends for the law of Ukraine. It is therefore
passing strange that, nevertheless, Dr. Gnizdovska goes on to opine at page
16 of her report: ‘[t]hus, the law of Ukraine can be applied to the loan
agreement if the court finds that in all the circumstances the legal
relations under the loan agreement have a closer relationship with the law
of the Ukraine’. This opinion is wholly unsupported by the accepted facts
and, indeed, by the very statutory provisions under Ukrainian law relied on
by Dr. Gnizdovska in her report. Accordingly, I do not accept this
conclusion reached by her as cogent evidence of Ukrainian law in this
matter involving, as it does, a Loan Agreement entered into by two
non-Ukrainian companies, the performance and the alleged breach of which,
did not take place in Ukraine.
 For the reasons set out above, I also do not accept as cogent and
reject, with respect, the summary of conclusions at pages 16 to 17 of the
Gnizdovska Report to the effect that there are two grounds upon which the
Ukrainian courts would accept the Claim for consideration. These are: (i)
given that the defendant (appellant) has a branch or representative office
in the territory of Ukraine; and (ii) given that the actions or events that
formed the basis for the claim took place on the territory of Ukraine. As
already stated, these grounds and opinions are unsupported by the evidence
surrounding the entering into of the Loan Agreement, the express terms of
the agreement itself, and the fact that it makes absolutely no reference to
the Project, nor does it provide for the loan sum to be converted into a
capital investment in the Project by the respondent or its beneficial owner
 Finally, Dr. Gnizdovska opines, at page 19 of her report:
“it can be argued that the Ukrainian court will have
grounds for the opening of proceedings and for hearing the case
…regarding the alleged non-performance of the loan agreement, taking
into account the defendant’s voluntary submission to Ukrainian
jurisdiction.” (Emphasis added)
This opinion was reached notwithstanding her citation of article 29 of the
Commercial Proceedings Code (“CPC”) of Ukraine, which expressly stipulates
that ‘the right to choose between the commercial courts that have
jurisdiction over the case belongs to the claimant, except for the
exclusive jurisdiction established by article 30 of this Code’. She opines
that the question of whether the Ukrainian courts will accept jurisdiction
over claims where a foreign element is involved if the defendant to the
claim agrees to the jurisdiction, ‘will depend on the existence of grounds
for filing such a claim to the Ukrainian court’.
 This brings the matter back squarely to the main question: whether
this Claim falls within any of the listed categories of claims or cases
under Article 76 of the Law of Ukraine ‘On Private International Law’, as a
basis for concluding that the Ukrainian courts would accept jurisdiction in
these proceedings involving, as they do, a foreign element. If not, then
the question of whether the defendant/appellant in this matter agrees to
submit to the jurisdiction of the Ukrainian court is clearly irrelevant. In
my judgment, the answer to this question, notwithstanding the opinion of
Dr. Gnizdovska, is clearly no.
 The effect of these findings is that the appellant has failed to
establish that Ukraine is an available forum for the trial and
determination of this dispute concerning the recovery of a loan made
between two non-Ukrainian companies, in circumstances where there is no
evidence that the Loan Agreement was executed in Ukraine, or was performed
in Ukraine, or that any breach of the Loan Agreement occurred in Ukraine,
or that the appellant has a presence, office, business or representative in
Ukraine or is registered to do business there. It follows that the learned
judge was correct in his finding that Ukraine does not have anything to do
with the Loan Agreement, and the party which does, the lender, is in the
 In my view, the learned judge was correct in approaching his
assessment of this matter in the way he did by first considering the nature
of the claim, bearing in mind, as he did, stage 1 of the Spiliada test. The starting point in a matter such as this
must be the nature of the dispute between the parties and the type of claim
upon which the court will have to adjudicate. This must be looked at in the
context of stage 1 of the test in determining whether there is any
alternative available forum. On the statement of claim, this is a claim for
money lent under a straightforward and simple Loan Agreement, by a Hong
Kong company to a BVI company, on short-repayment terms, without any
reference to or connection with Ukraine, its laws, or the Project or joint
venture provided for under the Agreement of Intent.
 Accordingly, the appellant has not satisfied stage 1 of the Spiliada test and the learned judge was correct in
reaching this conclusion. At page 41 of the transcript, the learned judge
put it this way:
“THE COURT: But you can’t just go on a test, you have to look at the
statement of claim…
The first thing you have to do is look to see what is being claimed to
determine which countries are of importance. I do not see anything in the
Statement of Claim… that’s tied into any – – certainly not Ukraine.”
This was, in essence, a finding by the learned judge, albeit not expressed
in the most forensic language, that the appellant/applicant had failed to
satisfy stage 1 of the Spiliada test. This conclusion was
reached notwithstanding the opinions and conclusions by the appellant’s
expert in her report. That finding would be the end of the matter and the
appeal dismissed. However, for completeness, and because it was fully
argued before this Court by learned counsel for the parties, I will go on
to consider stage 2 of the Spiliada test: whether Ukraine
is a more appropriate forum than BVI for the trial of the dispute.
Stage 2 – Is Ukraine the more appropriate forum?
 The appellant relies on some six connecting factors to establish that
the Claim has its closest connection with Ukraine and, accordingly, that
the learned judge erred when he found that the matter had its closest (or
only) connection with the BVI. These factors (listed at paragraph 23 of the
appellant’s written submissions) are:
(a) As concluded by the appellant’s foreign law expert and unchallenged by
the respondent, the likely governing law of the agreement, in respect of
the loan is Ukrainian law;
(b) The fact of the parties both having their center of business in
Ukraine, as confirmed in the Affidavit of S. Christodoulou and as pleaded
by the respondent in its Statement of Claim;
(c) The agreed fact of the Loan Agreement having been executed by the
respondent’s Ukrainian director having executed the agreement presumably in
(d) The fact that documentary evidence is likely to be in Russian or
Ukrainian in the original;
(e) The fact that the purpose of the Loan was on either case to provide
funding to a Ukrainian business; and
(f) The fact of the location of witnesses being either in or near to
(a) The Governing Law
 The learned judge did not, in a direct way, formulate a conclusion as
to the governing law of the Claim. However, it would be going too far to
assume or to conclude that the judge did not address this matter at all. In
finding, as he did, that the Loan Agreement, the subject of the Claim, had
no connection whatsoever with Ukraine, the learned judge found, implicitly,
that Ukrainian law did not apply. This must be viewed in the context of the
totality of the judge’s reasoning and conclusions during the hearing, and
the fact that the appellant, who was contending for Ukraine, was unable to
demonstrate clearly that Ukrainian law would apply. The highest the
appellant was able to put this, was to say or to assume that ‘the likely
governing law of the [Loan] Agreement is Ukrainian law’.
 There is no evidence as to the governing law of the Loan Agreement,
either in the agreement itself or otherwise. It is completely silent on
this issue as it contains no choice of law or jurisdiction clause. The
statement in the document just under the heading ‘Loan Agreement’, that it
was ‘entered into under provisions of articles 497 and following of the
Commercial Code’, is of no assistance to the appellant, as it is accepted
that there is no such ‘article 497’ in the Commercial Code of Ukraine, and
there are no references whatsoever in the agreement to Ukraine or its laws.
 In addressing this aspect, Dr. Gnizdovska, at pages 15 and 16 of her
report, opined that, pursuant to article 44 of the private international
law of Ukraine, where the parties did not chose the applicable law of an
agreement, the question of which law applies falls to be determined in
accordance with parts 2 and 3 of Article 32. Part 2 provides for ‘the law
that has the closest relationship with the transaction’. By Part 3, that
would be the location of ‘the party whose performance is crucial to the
content of the transaction’, which in this matter is the respondent, as the
lender and party providing the loan funds and who is entitled, under the
Loan Agreement, to its repayment with interest. It is where it is
impossible to define that law, that one looks to the place in which the
agreement is most closely connected, which is where the activities provided
for under the agreement ‘are carried out or the results provided for in the
agreement are created’.
 It is not correct to say that the respondent accepted or did not
contest the appellant’s assertion that the ‘likely governing law’ of the
Loan Agreement is Ukraine. The record shows that this supposition was
challenged by the respondent, both before the learned judge and in
submissions to this Court. Moreover, the opinion of the appellant’s expert
is, in my view, definitive of the position under Ukrainian law. Where, as
here, there is no choice of law by the parties under the Loan Agreement,
the courts of Ukraine would conclude that the law of the place of
incorporation and domicile of the respondent, as the party whose
performance is most crucial under the Loan Agreement, would apply, that is,
the law of Hong Kong and not of Ukraine. Accordingly, the appellant’s
reliance upon this as a connecting factor to Ukraine is unfounded and
(b) The Center of Business of the Parties
 Likewise, the centre of business of the parties cannot be properly
relied on by the appellant as a connecting factor to Ukraine. While it is
correct that the respondent did plead in the statement of claim that the
focus of its business is Ukraine, it also conducts business in other parts
of the world. However, it is indisputable that the appellant has no
business or presence and has never conducted any business or had a
presence, in Ukraine. It is a BVI company which was used by Mr. Fedoricsev
to borrow money from the respondent under a Loan Agreement, the performance
of which was to take place and be concluded entirely in Latvia.
(c) The Loan Agreement was signed by the Respondent’s Ukrainian
 It is difficult for this, even if true, to be viewed as a connecting
factor with Ukraine. Firstly, there is no cogent or conclusive evidence as
to the nationality of Mr. Schevchenko. Assuming that he is a Ukrainian
national, there is absolutely no evidence establishing that he signed the
Loan Agreement on behalf of the respondent in Ukraine or that it was
drafted by lawyers in Ukraine. Exactly where he signed the Loan Agreement,
as is the case with Mr. Annikov who signed it on behalf of the appellant,
is unknown. What is clear from the evidence is that the Loan Agreement was
drafted in English, the parties thereto are non-Ukrainian companies, it
makes no reference to Ukraine, and it was to be performed in Latvia.
Accordingly, the appellant’s reliance on this as a connecting factor with
Ukraine is devoid of merit and does not advance the appellant’s contention
that the loan and Loan Agreement has its closest connection with Ukraine.
(d) Documents likely to be in the Russian and Ukrainian Language
 It is apparent that most of the documents relating to this matter are
in the Russian language and not Ukrainian. The most crucial document in
this matter is the Loan Agreement which was executed in English. In any
event, English versions of both the Loan Agreement and the Agreement of
Intent have been produced as exhibits in this matter, as have been the
other documents relied upon by the appellant in foreshowing its defence to
the Claim. Furthermore, the appellant has not pointed to any other
documents as being relevant for consideration by the trial court.
Therefore, this factor would, at best, be a neutral one, if a real
connecting factor at all.
(e) The Purpose of the Loan was to fund a Ukrainian Business
 The stated reason by the respondent for the loan was to assist Mr.
Fedoricsev in providing bridging finance for his transshipment business in
Ukraine. Mr. Fedoricsev in his affidavit (filed 4th September
2018) paints a different picture. He says the Loan Agreement ‘was executed
as part of the investment planning in order to form a ground for transfer
of USD 1,873,400 from [the respondent] to [the appellant]’; and the loan
was part of a ‘greater scheme of investments, and did not constitute a pure
loan transaction’. This characterization of the loan was also given in
Christodoulou 1. The real problem with this is that there was little, if
any, evidence to support it before the judge. This was conceded before us
by Mr. Nader, who stated that the appellant did not have any document
before the court to make it clear that the Loan Agreement was part of the
joint venture transaction and an investment in the joint venture Project.
While it is not for this Court (or the judge below) to prejudge factual
issues which are yet to be fully ventilated at a trial, it was necessary
for the appellant to be able to point to some evidential basis supportive
of its version of the purpose of the loan, casting it as an integral part
of a greater transaction or joint business investment in Ukraine, involving
the appellant and the respondent, and or their respective beneficial
owners. This the appellant has failed satisfactorily, at this stage, to do.
(f) Location of Witnesses
 Again, this does not advance much the appellant’s contention for
Ukraine as the place where this dispute has its closest connection. In
fact, Mr. Nader, quite correctly, did not place much emphasis on this as a
connecting factor during the hearing of this appeal. From the submissions
of learned counsel on both sides, it is apparent that only some of the
potential witnesses may be residing in Ukraine. However, the main
witnesses, Mr. Fedoricsev for the appellant, is apparently living in Russia
(and may be the subject of a warrant issued by the authorities in Ukraine),
and Mr. Shchurin, for the respondent, resides in Monaco.
 Based upon the above analysis, in my view, the learned judge was
correct in finding that this disputer has no real connection with Ukraine
and Ukraine could not be ‘considered… the appropriate forum’;
and that it had to be BVI, since the appellant/applicant was not contending
for Hong Kong, the place of domicile of the respondent.
The reliance by the appellant before the learned judge on the above-stated
factors to connect the Claim with Ukraine, was misplaced and unsupported by
the evidence before the court. Accordingly, even if the appellant were to
have established that Ukraine was an available forum for the trial of this
dispute under the Loan Agreement, which in my judgment they have not, it is
my opinion that there are no real connecting factors with Ukraine relating
to the Loan Agreement, its parties, and its performance, as the judge held.
In those circumstances, the BVI, as the country or forum with jurisdiction
as of right over the appellant, is the jurisdiction with which the said
dispute therefore has its closest connection.
 In my judgment, there is no basis for setting aside the decision and
order of the learned judge. He committed no error of law or of principle.
He applied the correct test in finding that Ukraine was not an available
forum for the trial of this Claim as the Loan Agreement had no connection
with Ukraine and was not governed by the laws of Ukraine. Further, even if
Ukraine was available, the appellant has failed to show that Ukraine is
distinctly the more appropriate forum for the trial of the dispute between
the parties and for the ends of justice.
 Accordingly, I would dismiss this appeal, and confirm the orders made
by the learned judge. I would also order that the respondent have its costs
of this appeal to be assessed by a judge of the Commercial Court at not
more than two-thirds of the costs below, if not agreed within 21 days.
Dame Janice M. Pereira, DBE
Justice of Appeal
By the Court
See paragraph 2 of the statement of claim.
See paragraph 7 of the Affidavit of Oleg Shchurin sworn on 19 th September 2018.
See paragraph 7 of the Affidavit of Oleg Shchurin.
See paragraphs 6 and 7 of the Affidavit of Oleg Shchurin.
See lines 2 to 8 at page 42 of the Transcript of Proceedings, at
page 48 of the Record of Appeal.
See SFC Swiss Forfaiting Company Ltd. v Swiss Fotfaiting Ltd 
ECSCJ No. 123, BVIHCMAP2015/0012 (delivered 4th July
 AC 460.
See notice of appeal and paragraph 11b of the appellant’s written
submissions in support of the appeal.
 ECSCJ No. 245, BVIHCMAP2016/0042-0046 (delivered 18 th September 2019) at paragraph 26.
See SFC Swiss Forfaiting Company Ltd v Swiss Forfaiting Ltd per
Blenman JA at paragraph 79.
See Nilon Limited and others v Royal Westminster Investments SA
 UKPC 2, per Lord Collins; and, Eurochem per Webster JA [Ag.]
at paragraph 68.
See for example SFC Swiss Forfaiting Company Ltd v Swiss Forfaiting
(1996) 52 WIR 188. See also Charles Osenton & Co. v Johnson
(1941) 2 All ER 245; and Bellenden (formerly Satterthwaite) v
Satterthwaite  1 All ER 345).
Per Asquith LJ in Bellenden (formerly Satterthwaite) v
Satterthwaite supra at n.14.
See paragraphs 14 to 18 of the appellant’s written submissions.
See lines 23 onward at page 9 to page 20 of the Transcript of
Proceedings, at page 15 of the Record of Appeal.
See line 22 of page 32 to lines 1 to 5 of page 34 of the Transcript
of Proceedings, at pages 38 to 40 of the Record of Appeal.
See lines 22 to 25 of page 32, and lines 1 to 6 of page 33 of the
Transcript of Proceedings, at pages 38 and 39 of the Record of
See pages 41 and 42 of the Transcript of Proceedings, at pages 46
and 47 of the Record of Appeal.
See paragraph 12 of the report.
See paragraph 12 on page 12 of the report.
See page 12 to 13 of the report.
See paragraph 2 of the statement of claim.
See Part IV of the Loan Agreement.
See Part III at paragraph 2 of the Loan Agreement.
See page 16.
See page 40 of the Transcript of Proceedings at page 46 of the
Record of Appeal.
See lines 3 to 12, at page 40 of the Transcript of Proceedings.
See paragraph 23(a) of the appellant’s written submissions.
See page 42 of the Transcript of Proceedings at page 48 of the
Record of Appeal.
See page 41 of the Transcript of Proceedings at page 47 of the
Record of Appeal.