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1. The Plaintiffs (hereinafter referred to as "Intermetal" and "Trans-World" respectively) are seeking interlocutory injunctions restraining the Defendant (hereinafter referred to as "Worslade") from interfering with contracts between Intermetal and a large Russian steel mill known as Novolipetzk Iron and Steel Corporation (hereinafter referred to as "NLMK"); a similar order in relation to a contract between Intermetal and Trans-World and a further order restraining Worslade from inducing or procuring breaches of contract between Trans-World and its customers together with a number of orders ancillary to the foregoing. In addition orders are sought directing Worslade to disclose classified information including the names and addresses of persons contacted by Worslade and a further Mareva type order is sought restraining Worslade on a world-wide basis from diminishing its assets below £50 million pounds sterling.

Worslade in its turn has brought a motion seeking a stay on these proceedings on the basis of forum non conveniens.

It is of course appropriate that I deal with the Worslade motion first but before doing so I intend to summarise the evidence in the following way.

THE FACTS

The principal affidavit of the Plaintiffs is sworn by Mel Wilde, Executive Director of Trans-World. This may be summarised as follows. Intermetal and Trans-World are part of the Trans-World metals group of companies, Intermetal being a British Virgin Island company and a wholly owned subsidiary of one of the companies in that group. Its purpose is to procure raw metal and finance for NLMK and to purchase steel from NLMK and sell it on to Trans-World. Trans-World in turn would sell the steel to its own buyers situated around the world. Intermetal provided finance for NLMK through another company in the group, United Global Bank (hereinafter referred to as "UGB") which gave a revolving credit facility of US$500 million to NLMK. This facility was guaranteed by the group which also purchased equipment for NLMK worth approximately $20 million. Approximately US$60 million of this revolving credit facility was provided to NLMK to enable it to acquire in the open market some 8.34% of its shares (this being permissible under Russian law) on behalf of certain investors which shares were registered in the name of a company nominated by the group, the loan being secured by these shares and the group having an option to purchase same.

NLMK is the second largest steel mill in Russia employing some 48,000 people, located at Lipetsk in the Varonezh region of Russia. Prior to the collapse of the Soviet Union, NLMK produced steel for the home market and particularly for military use. After the collapse it found itself competing on the international market for which it was totally unprepared. When the group first became involved with the mill in the years following 1992 after Perestroika and Glasnost, the NLMK Steelworks (hereinafter referred to as "the Mill") was operating well below its capacity and had amounts of stock on hand which it had not managed to sell. The group was well placed to offer advice to NLMK and in the years following 1994 the group set up a specialist division for developing exports of steel from the Mill. Due to the local logistical problems of doing business in the former Soviet Union, the group introduced local Russian business partners. One of these was Mr Lev Chernoi, currently a senior officer of the group, who in turn introduced Mr Vladimir Lisin. He had a reputation for having important political connections and contacts within the steel industry and in particular with NLMK. Mr Chernoi appointed Mr Lisin as its representative to negotiate and procure business on behalf of the group specifically through Intermetal. Mr Lisin in turn had control of some twenty people to assist him, two of whom were Mr Karen Sarkisov and Mr Alex Koslov. Mr Lisin acted on behalf of the group in its dealings with NLMK. He was also, of course, personally close to the management of NLMK. In this capacity he received full details of Trans-World sales to third parties, as did his assistants. The UGB facility of US$500 million was largely drawn down and proved a life-line to NLMK and was vital in assisting it to increase production from 100 million metric tonnes per month to 500 million. As a result of Trans-World's efforts, steel products of the Mill acquired a high reputation on the international market. The relationship between the Mill and Intermetal was governed by ten "frame agreements" which covered the period initially up to the end of 1997 but some of which were extended up to the year 2000. These agreements are governed by Russian law and all provide for arbitration in the case of dispute. Under these, intermetal purchased approximately 450,000 metric tonnes of steel every month, which amounted to approximately 95% of the Mill's export capacity. Under these agreements title to the metal passes to Intermetal as soon as it is placed on the train for dispatch, although lawyers for Worslade disagree with this. The effect of these arrangements according to Mr Lisin was that the Mill was undertaking to sell all of its export products through Intermetal.

The relationship between Intermetal and Trans-World is governed by an agreement whereby Trans-World agrees to purchase the NLMK steel from Intermetal. This agreement is governed by English law and again provides for arbitration in case of dispute. Trans-World, on foot of this arrangement, entered into a number of specific contracts to sell steel products to its own third party buyers.

These arrangements worked well for four years until June of this year. At this time the loans due from NLMK to UGB were increasing and not reducing as envisaged and had reached more than US$350 million. By the end of August of this year the group began to become concerned, not only about this but about the role of Mr Lisin in the following circumstances. On the 28 August, 1997 he unilaterally arranged, without the knowledge or consent of the group, for 8.34% of the shares in NLMK to be transferred out of the group's nominee company to another company controlled by himself and he refused to renew the option agreement whereby the group had an option to purchase same. There were no arrangements made for the repayment of the US$60 million. A number of meetings took place in London, Moscow, New York and Tel Aviv during the period from the 4 to the 15 September, 1997 between senior officers of the group and Mr Lisin. Mr Lisin refused to return the shares or renew the option agreement. Mr Wilde's affidavit goes on to say:-

"However, Mr Lisin refused and, furthermore, declared that he would get the Mill to terminate the contract with Intermetal and that Intermetal could not expect any further shipments as he was controlling both the Mill and the ports. Mr Lisin was clearly using this shareholding as a bargaining tactic to improve his personal position within the Trans-World group".

It is to be noted that Mr Lisin has not sworn an affidavit in these proceedings.

On the 15 September, 1997 Intermetal decided to suspend further payments to NLMK "until clarification from Mr Lisin had been obtained in respect of the overall debt of the Mill to the group".

Around this time Mr Sarkisov instructed freight forwarders to suspend all shipments to Intermetal even though title to the goods had passed when the steel was placed on the train. Under this pressure the group agreed to release some payments to NLMK to ensure deliveries to its customers. There was considerable confusion and difficulty in obtaining clarification as to the whereabouts of the steel allocated to Intermetal. Furthermore, the freight forwarders would only take instructions from Messrs Lisin, Sarkisov and Koslov which conflicted with direct instructions from Intermetal with resulting chaos. Accordingly, by notice dated the 26 September, 1997, Intermetal withdrew the authority of these three individuals.

Enter Worslade. This is a private limited company incorporated in August 1997 of which the two registered directors are professional company formation agents located in the Isle of Man. A subsequent affidavit by Alexandre Goldine, a company director from Andora, sworn on the 28 November states that he was appointed a director of Worslade on the 25 September, 1997 "when the present owners then acquired its shares". The issued share capital of the company is two £1 shares. In his affidavit Mr Mel Wilde avers that he believes that Worslade is under the control of or substantially controlled by Mr Lisin and he makes reference to SteelWEEK, a major trade journal for the steel industry, the 17 November issue of which states:-

"Following the end of his relationship with Trans-World, Lisin has set up a new trading company called Worslade, which now is Novolipetsk's main trader, he says. However, 'we also work with all well-known world traders and make direct supplies', he adds".

Mel Wilde also refers to his belief that Messrs Sarkisov and Koslov work on behalf of Worslade. Again, I note that Mr Lisin has not sworn an affidavit.

Mel Wilde states that on the 6 October, 1997 Mr Lisin instructed the Mill to deliver all material into the name of Worslade and instructed the ports that title to the steel at the ports was to be transferred to Worslade. On the same day Karen Sarkisov wrote to Trans-World and Intermetal notifying them that their shipping instructions would not be considered as being in force.

In late October it came to the attention of the Plaintiffs that Worslade had approached some of Trans-World's customers, orally and in writing, and informed them that Trans-World would not be able to fulfil its obligations with them and offered to supply them with the NLMK steel in place of Trans-World. Precise knowledge of Trans-World's contracts with its customers was displayed in these communications. Several instances of such communications are deposed to by Mel Wilde, supported by documentation and indeed two affidavits on behalf of independent trading partners of Trans-World are sworn giving in each case details of such an approach. Correspondence in October shows that the Mill claimed not to be aware that Trans-World was a buyer of their steel in response to a protest from Trans-World at the intervention of Worslade.

Approximately 85% of the business of the Plaintiffs relates to steel obtained from NLMK and the Plaintiffs will not be able to acquire steel from another source in anything like the quantities requisite to continue its business. The current and future business of Trans-World is threatened as is shown by a number of letters from customers and also by the fact that two of Trans-World's customers, Prime Trade, and a Turkish State customer Eregli have already agreed, in breach of their contracts with Trans-World, to take stock from Worslade. Intermetal is in the process of issuing a request for arbitration against NLMK. The damage to the Plaintiffs is unquantifiable and, in any event, Worslade appears to have no substantial assets in the jurisdiction. Any damage arising from the interference with Trans-World's customers is likely to amount to millions of US dollars. Preliminary correspondence with Worslade's solicitors produced no useful result from the Plaintiffs' point of view. They now seek orders as referred to above. It is suggested that in view of Mr Lisin's behaviour, the Plaintiffs are apprehensive that they will cause Worslade to dissipate its assets with a view to evading any judgments which the Plaintiffs may obtain. An undertaking as to damages is given and Counsel clarified that the undertaking could be provided by the group or, alternatively, a bond could be furnished.

An affidavit of Zoe Lomax, who is company solicitor for Trans-World, indicates that as of the date of swearing her affidavit, on the 24 November, Trans-World had sustained losses of approximately US$20 million and that ongoing losses would amount to in excess of US$10 million dollars per month.

The first response of Worslade to the Plaintiffs' application was by way of an affidavit sworn by their solicitor on the 27 November. In this he makes the point that the root of the dispute is the relationship between Intermetal and NLMK. The latter gave notice of termination of its contractual arrangements with Intermetal in September. The validity of this termination, which is not accepted by Intermetal, is to be arbitrated in proceedings in Russia or in some cases, in Stockholm, in accordance with the provisions of Russian law. The point is further made that the then asserted urgency should be put in the context that the proceedings had been threatened some three weeks previously. Reference is further made to the logistical difficulties in taking instructions from Russian clients and an application is made for an adjournment which succeeded. In fact these proceedings came on for hearing before me on the 4 December, 1997.

The main response to the Plaintiffs' case is contained in the affidavit of Karen Sarkisov. He says he is the authorised agent of Worslade and avers that NLMK has "lawfully and properly terminated any contract between it and the first-named Plaintiff whereby that Plaintiff might have been entitled to supply any steel belonging to NLMK. That termination occurred consequent upon the refusal of the first-named Plaintiff to pay NLMK for steel delivered to it". He comments that neither the fact of that determination nor the documentation pursuant to which it was effected had been referred to by Mel Wilde in his grounding affidavit. In this context there is no question of Worslade interfering in any contractual arrangement between the two parties or between the Plaintiffs or either of them and any third parties, as all such contracts were terminated at the relevant time.

He points to the fact that the agreements relied upon are relatively new and that it is untrue that they were extended to the year 2000 because NLMK under its statute would not have the power without the sanction of its shareholders to enter into an agreement of that value. He states that the ten "frame" agreements did not become activated until specific transactions known as "specifications" are detailed in terms and conditions for sale referable to particular product for particular clients. He asserts that within a period of four weeks (that is by the end of December 1997) these agreements would have come to an end in any event. He raises some technical difficulties in relation to the agreements relied on, including a query in relation to the authority of Intermetal's signatory, Mr Liam Keane, and points out that under Russian law in the absence of specification in the contract of the consequences of non-payment by the purchaser, the supplier is entitled to terminate the agreement in the event of non-payment.

Serious criticism is made in relation to the financial information set out in Mel Wilde's affidavit. In the first place, the information is vague, secondly it seems to assert an entitlement to punish NLMK for the defalcation of Mr Lisin. Thirdly, it seems to link the refusal of Intermetal to pay NLMK with a failure of NLMK itself and, most importantly, fails to disclose that as of the 1 August, 1997, Intermetal was indebted to NLMK in an amount of some US$300 million. This was the cause of great consternation to the Board of Directors of NLMK and by letter of the 15 September, 1997, Mr Fratsenyuk, on behalf of NLMK, wrote to Intermetal indicating their deep concern, the threat to the business of NLMK and the fact that in accordance with Russian law efforts would be made to find other traders dealing with their products. This was followed by a letter of the 23 September, 1997 from Mr Fratsenyuk terminating their contract as of the 6 October, 1997. A claim was made that NLMK retained the right to own the metal shipped after that date under six specified contracts. Mr Sarkisov said that on the following day, namely, the 24 September, 1997, (that is apparently during his vacation) he instructed his assistant to send a telex to Mel Wilde on behalf of Intermetal pointing out that steel products could not be further dispatched consequent upon a failure of financing. He points out that there was constant correspondence during these months. He goes on to point out that any difficulty encountered by the Plaintiffs in Russia may have arisen from the termination of his authorisation on the 25 September. Intermetal "could not get any information because it had no one in Russia to acquire such information on its behalf and no one to conduct business on its behalf. This was not of the Defendant's doing".

Karen Sarkisov then goes on to point out that the directors of NLMK were urgently seeking a new trader to act on its behalf and "this took the form of Worslade, the Defendant herein". He was invited to work for this company and at that stage his authority had been unilaterally and formally determined by Intermetal. He began to work in October on urgent contracts for NLMK. He notes that between the 14 and 28 September he was on vacation and that NLMK could begin "declaring the goods under the contracts with the Defendant as of the 6 October, 1997, the date of the termination". He denies that the transfer to Worslade involved any goods of the Plaintiffs and he denies that the claim that title in the steel transferred to Intermetal when the steel was placed on the train is correct. He goes on to point out that Trans-World did do some business with Worslade towards the end of October through a company called Kobrin Limited.

In regard to the approaches on behalf of Worslade to customers of Trans-World on foot of the latter's agreements, he states that "almost all of them appear to have been entered into after the Plaintiffs had been advised not to enter into any further commitments in relation to the month of October and when they were aware that the contracts had been or were about to be terminated". In relation to any products purchased by Intermetal, he says that when approached by buyers enquiring about their orders, he and his employees described to persons so calling the changes that had occurred and assured them that efforts would be made to facilitate Trans-World in honouring its obligations. Furthermore, Trans-World could have acquired product from Worslade, as indeed it did at the end of November by means of the Kobrin agreement. Nothing untrue was said, the contractual arrangements between NLMK and Intermetal having terminated. He specifically denies that either himself or Mr Koslov attempted to conclude business arrangements with customers of Trans-World before the termination of the agreements by NLMK. He denies that the Eregli supply was redirected to Worslade and states that from the moment he was sacked Intermetal shipped 300,000 tonnes of steel and keeps approximately 190,000 tonnes in port. None of this has been converted. Trans-World has entered into contracts with third parties at a time when they knew that their supply contracts from NLMK had been terminated: so they knew that they could not provide these goods. Worslade has not poached or secured the goods of any client of the Plaintiffs. He believes that no wrong has been done by Worslade under the laws of Russia. He also refers to the early November warnings by the Plaintiffs that these proceedings would issue and he denies the Plaintiffs' claim of great urgency. He refers to the fact that all of the persons involved in the dispute are based in Russia, that the agreements are all governed by Russian law and that none of the torts alleged appear to have any connection with the Irish jurisdiction. Ireland is not in any sense a convenient forum for the resolution of these disputes. This is particularly so since the Plaintiffs are in the process of referring to arbitration in Moscow aspects of the central dispute with NLMK.

The effect of the orders sought would be to further financially compromise, if not cripple, the Mill. Of the 500,000 inhabitants of Lipetsk, 200,000 directly depend on NLMK for their livelihood. The export contracts are a source of 70% of the Mill's funds. Any damages which the Plaintiffs sustain can be quantified and indeed have been quantified by Zoe Lomax. Furthermore, NLMK will be able to discharge any award of damages. It is remarkable that the Plaintiffs have not brought a claim in Russia to enforce the contract with NLMK, whether by arbitration or otherwise. Any order will prevent Worslade from trading with NLMK and deprive it of business opportunities which are impossible to assess. This will have the effect of cutting off Worslade's business from its very inception. He questions the ability of the Plaintiffs to satisfy any undertaking as to damages given by them in the absence of any evidence of their financial affairs.

I do not think it is either possible or appropriate to attempt to summarise at this stage the several conflicts and inconsistencies that have arisen between the parties in these and several further affidavits. I note a number of them, however, as follows:-

(a) It is denied that the Plaintiffs were ever informed of the termination notices. It appears that they arrived in the Moscow office of Mr Sarkisov sometime before he returned from his holidays and a day or two before he was sacked. In a supplemental affidavit Zoe Lomax makes this averment and points to correspondence in October from NLMK indicating that the latter were treating the agreements as ongoing. Furthermore, the exhibited notices display an extraordinary lack of formality.

(b) The entitlement of NLMK in all the circumstances to terminate the agreements is the subject of a dispute, reference being made on behalf of the Plaintiffs to the fact that once they became concerned about the ability or willingness of NLMK to repay the UGB loan, they were entitled on their part to suspend payment for the NLMK steel without incurring a liability to have the entire contract validly terminated. In a further affidavit Karen Sarkisov accepts the point about the informality of the termination notice exhibited to his first affidavit and refers to further notices of termination and to the fact that under the pressure of the developing crisis, different departments within NLMK had issued different notices involving slightly different calculations of the termination date producing two different effective dates on the 6 and 8 October.

(c) There is conflict in relation to whether the agreements or some of them were extended beyond the end of 1997, reference being made on behalf of Worslade to the fact that NLMK would not have had authority without a shareholders' meeting to extend the frame agreements as claimed by the Plaintiffs.

(d) There is a dispute as to the amount of the Kobrin agreement, Zoe Lomax for the Plaintiffs claiming that it was limited to 25,000 tonnes, Karen Sarkisov pointing out that the documents indicate a total of 209,000 tonnes.

(e) I should refer, finally, to two affidavits sworn by Evgueny Matyush, who is Director of Economics of joint stock company, NLMK. In these he emphasises Intermetal's debt to NLMK as of the 1 December in the sum of approximately US$100 million; that NLMK believed itself entitled to terminate its contract with Intermetal when Intermetal stopped payments in September; that arbitration proceedings had not commenced as of the 3 December, 1997; and the enormous loss to NLMK if Worslade failed to ship steel products and receive payment. Taking into account Intermetal's debt of US$100 million, a combined financial deficit would exceed US$250 million threatening the entire continuous production cycle, with damages running as high as US$1 billion and above. He also asserts that the addenda to the specified agreements could not remain in force until 2000 because the agency of the contracting company on behalf of NLMK expires at the end of 1997. In a second affidavit he refers to the conflict between the notices of termination, to the fact that there were several channels for signing letters at NLMK which had a total management staff of more than 1,000 persons, that because there was a "true emergency situation" they were forced not to waste time on the administrative details of agreeing upon a single version of a letter for all departments but several letters were signed and sent simultaneously. This explains the divergencies.

Before concluding my summary of the facts, I should point out that the respective averments and documents advanced by each side were subjected to critical analysis by opposing Counsel. Apart from internal inconsistencies mutually alleged, there were also allegations against each side of substantial shortcomings, the most noteworthy being the allegation that the Plaintiffs failed to disclose from the beginning their own significant indebtedness to NLMK and the fact that they did not disclose from the outset that they traded with the Defendant through Kobrin in November 1997. Against the Defendant it is alleged that non-transmission of the termination notices points to something quite extraordinary, and that the failure of Mr Lisin to swear an affidavit despite allegations of a serious nature against him is most surprising. Moreover, although not pleaded, it is suggested that much of the Defendant's actions are fraudulent. It is fair to say that the factual situation is highly complex, hotly disputed as regards significant and relatively insignificant details together with the appropriate inferences to be drawn and that it is impossible at this stage to do any more than attempt the foregoing summary subject to the comment and qualification which I am now making.

I turn now to deal first of all with the Defendant's application that the proceedings should be stayed in limine on the basis of forum non conveniens.

JURISDICTION

The first point to be dealt with is whether the Court has discretion to entertain such an application in the circumstance that the Defendant is domiciled within the jurisdiction in light of Article 2 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, Brussels, 1968 (hereinafter "the Convention") which provides:-

"Subject to the provisions of this Convention, persons domiciled in a contracting State shall whatever their nationality, be sued in the Courts of that State".

Part III of the Fifth Schedule (dealing with domicile) to the Protocol annexed to the Convention provides at Article 1(a) that:-

"A corporation or association has its seat in the State if, but only if --

(a) it was incorporated or formed under the law of the State . . ."

The Convention was incorporated into Irish national law by the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988 which by Section 13(2) provided that the seat of a corporation or association shall be treated as its domicile.

From the foregoing the Defendant, being incorporated under the law of Ireland, has its seat in the State which by Section 13(2) of the 1988 Act shall be treated as its domicile and accordingly, under Article 2 of Title II of the Convention, the Defendant so domiciled in Ireland, being a contracting State, shall be sued in the Courts of this State.

That being the case, has this Court any jurisdiction at all to entertain an application to stay on the basis of forum non conveniens?

This question has been the subject of debate and it is fair to say that in the absence of a definitive ruling from the European Court, it will remain debatable.

It was dealt with by the Court of Appeal in England in Re Harrods (Buenos Aires) Limited [1991] 4 All ER 334. The Court of Appeal decided that a residual discretion did survive the Convention. Amongst the arguments that persuaded the Court were the following:-

(1) The Convention was concerned principally to govern relations between contracting States inter se, and should not readily be construed as operating so as to inhibit non-contracting States in cases where the jurisdiction of such States would otherwise plainly be the most appropriate forum. No violence is done to the Convention by the Courts of a contracting State retaining jurisdiction to stay proceedings in favour of the Courts of a non-contracting State;

(2) The Convention itself acknowledges there are exceptions to the domicile rule;

(3) The Court should be slow to construe the Convention so as to inhibit where appropriate the valuable jurisdiction to stay on grounds of forum non conveniens which is designed to promote comity, encourage efficiency, prevent duplication of time and cost and avoid inconsistent judgments;

(4) It would be anomalous if the Convention were construed so as to determine the appropriate forum for competing jurisdictions of contracting States but to require entertainment of suit in the domicile of the Defendant (without the application of any test of appropriateness) where a non-contracting State is concerned;

(5) The purpose of consistency and simplification of judgments in contracting States will not be disturbed by a jurisdiction to stay in favour of non-contracting States.

(6) If this Court has no residual discretion, then it would have no discretion to refuse to entertain an action on the grounds of lis alibi pendens if the lis is pending in the Courts of a non-contracting State nor any discretion to refuse where the parties have agreed that the Courts of a non-contracting State shall have exclusive jurisdiction.

Against this, the following arguments should be noted:-

(a) The effect of ordering a stay is that the plaintiff was being sent away from the Courts of all contracting States;

(b) The plaintiff was deprived of the legal certainty which Article 2 seemed to offer and also of the opportunity to get a judgment which could be enforced under the Convention.

(c) Apart from this, the language of Article 2 is simple and mandatory.

It has to be acknowledged that there are powerful arguments on both sides of this controversy. In dealing with an interlocutory application which is of extreme urgency I can do no more than record my initial view that I am attracted on balance more by the arguments supporting the retention of a residual discretion. In his final submission at the conclusion of a three and a half day hearing, Counsel for the Plaintiffs introduced a further point to the effect that there was a potential competing jurisdiction in another contracting State, namely, the United Kingdom. There is evidence from an English barrister that the Defendant's actions constitute torts in the United Kingdom. This point was not dealt with at all by the Defendant and it would not be fair to it to rest my judgment on it. However, I do note that in my view the point is not well-founded. So long as an action remains alive in any of the contracting States, then the same action will not be maintained in another contracting State and for this purpose I think it is proper to treat all contracting States as comprising one jurisdiction.

Furthermore, in its motion the Defendant is asserting that a stay should be granted on the basis that Russia, a non-contracting State, is a more appropriate forum. At present no other contracting State is in competition with the jurisdiction of this State and indeed so long as the Irish jurisdiction is seised of this action, all other contracting States are bound by the Convention to put a stay on any attempt to litigate this dispute in their jurisdictions. Accordingly, on this interlocutory application I am not in a position to accede to the Plaintiffs' submission that I have no jurisdiction to entertain the Defendant's application for a stay on the grounds of forum non conveniens.

FORUM NON CONVENIENS

I must accordingly proceed to consider the Defendant's application. The first step is to determine the test by reference to which the application has to be decided. There are two recent Supreme Court decisions, the most recent of which is Doe and Another v Armour Pharmaceutical Company Inc and Others [1994] 3 IR 78 at 99). The application for a stay was unusual in that it was made by the Plaintiffs who had instituted the proceedings in this country. In dealing with the test to be applied, Blayney J, who delivered the judgment of the Supreme Court, said the following at page 105:-

"In order to decide this appeal, it seems to me that the first step must be to determine what test the Court should apply in considering whether a stay should or should not be granted. If the application was the normal one, that is to say, if it was an application by a defendant to stay proceedings on the ground of forum non conveniens, there would be no difficulty in ascertaining what that test was. It was discussed and defined in a number of English authorities of which the most recent are The Atlantic Star [1974] AC 136); MacShannon v Rockware Glass Limited [1978] AC 795); Trendtex Trading Corporation v Credit Suisse [1982] AC 679 and The Abidin Daver [1984] AC 398. It was also considered by Griffin J in Joseph Murphy Structural Steel Engineers Limited v Manitowoc (UK) Limited (unreported Supreme Court 30 July, 1985). For the most part, however, the test was formulated in those authorities in such a way that it could only be applied to cases in which the application for the stay was the defendant. However, in MacShannon v Rockware Glass Limited, Lord Salmon in his speech, with which Lord Frazer and Lord Keith agreed, formulated the test in broader terms at page 818 of the report:-

'In an action brought in England when its natural forum is Scotland, I consider the question as to whether it should be stayed depends on whether the defendants can establish that to refuse a stay would produce injustice. Clearly if the trial of the action in England would afford the Scottish plaintiff no real advantage and would be substantially more expensive and inconvenient than if it were tried in Scotland, it would be unjust to refuse a stay. If on the other hand, a trial in England would offer the plaintiff some real personal advantage, eg if he had come to live in England, a balance would have to be struck and the Court might in its discretion consider that justice demanded that the trial should be allowed to proceed in England (see Devine v Cementation Company Limited [1963] NI 65).

To my mind, the real test of stay depends on what the Court in its discretion considers that justice demands' (emphasis added).

A test in very similar terms was adopted by the Court of Appeal in England in Attorney General v Arthur Andersen and Co [1989] ECC 224 . . ."

Blayney J went on (at page 107) to state that he would:-

". . . adopt the test applied by the Court of Appeal in (the Arthur Andersen case) '. . . being in effect the same test as enunciated by Lord Salmon in MacShannon v Rockware Glass Limited' . . . My decision will accordingly turn on the answer to the question: does justice require that the plaintiff's actions should be stayed?".

Having regard to the citation from MacShannon referred to already, I consider that the reference to justice includes considerations of expense and inconvenience because Lord Salmon said that if a trial in England would afford the Scottish plaintiff no real advantage and would be substantially more expensive and inconvenient than if it were tried in Scotland, it would be unjust to refuse a stay.

In Joseph Murphy Structural Engineers Limited v Manitowoc (UK) Limited and Others (unreported: Supreme Court: 30 July, 1985: Judgment delivered by Griffin J), the learned Judge having reviewed the decisions observed (pages 11 and 12):-

"The effect of these decisions is that

(1) a mere balance of convenience is not a sufficient ground for depriving a plaintiff of the advantages of prosecuting his action in an English Court if it is otherwise properly brought, but

(2) that a stay will be granted if

(a) continuance of the proceedings will cause injustice to the defendant and

(b) a stay will not cause injustice to the plaintiff.

That fundamental question can generally be answered by an application of Lord Diplock's restatement of the rules stated by Scott LJ in the St Pierre case. I would accept that these are the principles which should properly be applied in this case".

The restatement by Lord Diplock referred to is as follows:-

"(2) In order to justify a stay two conditions must be satisfied, one positive and the other negative:

(a) the defendant must satisfy the Court that there is another forum to whose jurisdiction he is amenable in which justice can be done between the parties at substantially less inconvenience or expense, and

(b) the stay must not deprive the plaintiff of a legitimate personal or juridical advantage which would be available to him if he invoked the jurisdiction of the English Court".

Again, I note that considerations of inconvenience or expense are, at least generally, relevant. Equally relevant, however, is the principle that the Plaintiff must not be deprived of a legitimate personal or juridical advantage available to him if he invoked the jurisdiction of the (Irish) Court.

In the English Courts the jurisprudence on this topic has developed a little more since the Supreme Court decision in Doe v Armour, to the point where, in Re: Harrods (Buenos Aires) Limited (No 2) [1991] 4 All ER 348 the test would appear to be that the Court should look first at the connecting factors (such as convenience, expense, availability of witnesses, governing law, place of residence and place of business) and if these indicate that the case had its closest and most real connection with the foreign Court, the English Court would then consider whether or not substantial justice could be obtained in that forum. As this appears to me to be a slightly different formulation of the test than that explicitly approved by Blayney J in Doe v Armour Pharmaceutical and by Griffin J in the Murphy case, I wish to make it clear that I am following the test as indicated in the Irish Supreme Court decisions to which I have referred.

Having considered the evidence and the submissions on both sides, I am of the view that a wrong similar to the Irish tort of inducing breach of contract is known to Russian law. I am aware of the refinements in the submissions made in relation to the several legal opinions furnished. I consider that an equivalent wrong is known to Russian law.

I am less sure, contrary to my first impression, that justice can be done between the parties in the Russian Courts at substantially less inconvenience or expense. Many of the witnesses are likely to come from Russia certainly. But not all. Contracts made with the trading partners of Trans-World would be evidenced by witnesses outside of Russia. To the extent that interpretation will be necessary either into or out of Russian, this will apply whether the case is dealt with in Russia or in this country. Again, the same considerations apply to translations of documents. If it is reasonable to suppose that a Russian Court would be in a better position to assess the trustworthiness of Russian-speaking witnesses, then I think the same can be said of an Irish Court in relation to English-speaking witnesses and the position must be neutral in relation to witnesses speaking in third country languages. In relation to inconvenience, it is of the essence of this kind of jurisdiction that the travelling party will have greater inconvenience. That is why, I think, the test referred to by Griffin J refers to substantially less inconvenience or expense. In my view, given that teams of witnesses will come from countries inside and outside of Russia, it cannot be said that at this stage it is clear that substantially less inconvenience or expense will be achieved if the proceedings were conducted in Russia rather than this country.

The second part of the test provides that the stay must not deprive the Plaintiff of a legitimate personal or juridical advantage which would be available to him if he invoked the jurisdiction of the (Irish) Court.

If the stay is granted, the application for an injunction cannot be entertained. The matter is extremely pressing and the cost of any delay will be counted in millions of US dollars. If the Defendant's application for a stay succeeds, this is an advantage of which the Plaintiff will be deprived if he succeeds in the application for an injunction, at least for the time being and quite possibly for the non-disputed balance of the term of the frame agreements which, it is common case, continue to the end of the present calendar year. In all the circumstances, I do not think it could be said that a continuance of the proceedings will cause injustice to the Defendant and it might well be said that the granting of a stay would cause injustice to the Plaintiff.

In my opinion a stay should not be granted and accordingly I must now turn to the Plaintiffs' application for interlocutory orders.

THE RESTRAINING INJUNCTIONS

I must first consider whether the Plaintiffs have raised a serious issue to be tried at the hearing of the action.

The Plaintiffs say that there is a serious issue in relation to the termination of the agreements between NLMK and Intermetal. Did NLMK have the right to terminate at all?

Quite apart from this, there are substantial controversies in relation to the facts. On the basis of the facts as presented by the Plaintiffs, in my view a serious question arises as to whether the Defendant is liable in damages to the Plaintiffs and each of them. This question arises regardless of whether Irish law or Russian law applies. I consider that a serious issue on this aspect has been raised. I note the formulation of Mr Justice Keane in An Bord Trachtala and Waterford Food Plc, 25 November, 1992 (Reported in 1994 FSR 316) where he says at page 12:-

"Accordingly, the plaintiffs can succeed in the present application if, and only if they have established that there is a serious issue to be tried as to whether the activities of the defendants in the United Kingdom would, if carried on in this country, amount to the tort of passing off".

A further serious question arises in relation to the extension of some of the frame agreements beyond the end of the year 1997.

In my view, the Plaintiffs have raised serious issues which have to be tried at the hearing of this action.

In relation to damages, the Defendant says that the real issue is between Intermetal and NLMK, that this falls to be determined in arbitration proceedings and that NLMK is well able to meet any award of damages. No attempt is made to assert assets within the jurisdiction belonging to the Defendant and I have no information in relation to its assets abroad. In the absence of any evidence that NLMK is willing to pay any award of damages that may be made in favour of Intermetal, I do not think that I should take their claimed capacity to pay into account. Furthermore, even if this submission is made also in relation to Trans-World, the same consideration applies.

Apart from this, I am not at all sure that damages would be an adequate remedy even if I accept that a Court should be prepared to measure them no matter how difficult such an exercise proved to be. On the aspect of damages, my view is that damages would not be an adequate remedy in the present circumstances and that even if they were, the Defendant has not demonstrated anything like a capacity to meet an award.

I must therefore consider the issue of issue of balance of convenience.

The Plaintiffs say that the business of each of them is heavily dependant upon NLMK steel. Not only will their business be enormously damaged but their reputation will suffer. The order will not, of itself, impact on NLMK which has done business with the Plaintiffs and in letters in November of this year has indicated a willingness so to do, albeit on terms. Indeed, the Defendant has also argued that it is prepared to do business with the Plaintiffs, albeit that this was in the context where the Defendant would be the suppliers.

The Defendant submits that if an order is made, they will suffer the unquantifiable loss of its future business and that the Plaintiffs' undertaking as to damages is not a sufficient assurance even if the appropriate sum could be calculated.

I am satisfied that the balance of convenience issue should be resolved in favour of the Plaintiffs. In reaching this conclusion I am taking into account the Plaintiffs' submission that the undertaking as to damages will be given by the group as a whole.

THE MAREVA INJUNCTION

I am not satisfied that it is appropriate at this stage to grant the very widely-termed relief sought at paragraph 13 of the Notice of Motion. Even if the scope of a Mareva type injunction were limited, I do not think I have sufficient detail in relation to the Defendant's assets to enable me to frame an order.

Accordingly, I am prepared to grant an Order in appropriate terms restraining the Defendant from attempting to procure the breach of any subsisting agreement between Intermetal and NLMK, any agreement between the Plaintiffs and any agreement between Trans-World and its customers.

As indicated at the hearing, I will discuss with Counsel the formulation of these Orders.