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Why it’s important?
If a UK seller is intending to sue Amazon, the seller needs to know two things at the outset. One, which English court has jurisdiction? Two, can the Luxembourg side of the Amazon structure be brought into the same proceedings? Get it wrong and the case is laid bare before it has really begun – to a strike-out application, to a stay of the English proceedings, or to the cohort being pushed into parallel litigation in two countries at double the cost.
Properly done, the case is on the correct footing in the right forum, with disclosure powers and a fees system that considerably advantages the claimant above what was available before the Ombudsman.
It’s easy to sue APUK in England
The easy portion is the English-law side of the construction. Amazon Payments UK Limited is a company registered in England and Wales. It’s registered in London. The Selling on Amazon Payments User Agreement is governed by English law and includes an English jurisdiction clause. There is no jurisdictional issue with commencing proceedings against APUK in the Business and Property Courts of England and Wales, and we would expect any claim of the sort we are considering to be issued in the Commercial Court or, if the quantities and complexity justify it, the King’s Bench Division.
The live question is suing the entity in Luxembourg
The more difficult question is whether Amazon Services Europe Sàrl, the Luxembourg company that manages the marketplace and took the operational decision to close the seller’s account, may be joined in the identical English proceedings.
The seller’s starting point is not encouraging. ASE is incorporated in Luxembourg. Its contract with the vendor, the Business Solutions Agreement, is governed by Luxembourg law and incorporates a Luxembourg jurisdiction clause. It appears that ASE is not subject to English jurisdiction in relation to a claim under the BSA.
But it is not the end of the analysis. English law has created a way in which a foreign defendant may be joined to English proceedings if the claim against the foreign defendant is sufficiently intertwined with a claim properly lodged against an English defendant. The route is the necessary or proper party gateway under the Civil Procedure Rules. The court has to give permission to serve the claim form on the foreign defendant out of the jurisdiction, and in deciding whether to do so it applies the Spiliada framework: which country is in the interests of all the parties and the ends of justice the appropriate forum for the dispute to be tried in?
That is a serious argument for a cohort of UK Amazon sellers whose funds are held by an FCA-regulated English entity at the direction of a Luxembourg affiliate, with the documentary trail split between the two, with disclosure and witness evidence required from both, and with the real risk of inconsistent judgements if the litigation is fragmented across two jurisdictions. There is no assurance. The Luxembourg jurisdictional clause in the BSA is an important factor in the Spiliada balance. However, the Supreme Court has demonstrated a propensity to allow joinder of foreign group corporations if there is a genuine and not contrived tie with the anchor defendant.
If your account has been disabled,
If you are a UK-based Amazon seller whose selling account has been terminated and you have monies that APUK continues to retain that have not been released to you, we would want to hear from you. Time is of the essence – the limitation under the Limitation Act 1980 extinguishes the oldest claims, and the sooner we get the material, the better situated we are to determine where your case sits on that timeframe and whether it fits within the cohort we are compiling.
michael.coyle@lawdit.co.uk
