High Court confirms no abuse of process or exceptional grounds for partially striking out/staying parallel English proceedings brought by a Bank in relation to a swap claim

The High Court has dismissed an Italian municipal authority’s application to strike out certain parts of the claimant banks’ particulars of claims and/or for a stay (in relation to a declaratory relief claim in connection with two interest rate swap transactions): Banca Intesa Sanpaolo SPA and Dexia Credip SPA v Commune Di Venezia [2020] EWHC 3150 (Comm).

This decision is a noteworthy and reassuring one for financial institutions which may be considering whether to pursue English proceedings, especially where there are existing parallel foreign proceedings in relation to a particular subject matter, or which may be at risk of an application for a stay if parallel foreign proceedings are filed after English proceedings have commenced. The decision highlights the grounds on which the court will decline to strike out part of a claim (insofar as they refer to foreign proceedings or finance documentation which is not directly related to the transaction at the centre of the dispute) or stay proceedings where there are related proceedings in another jurisdiction.

The court found that the definition of a new claim (which would be liable to be struck out) is a new cause of action which changes the essential features of the factual basis of the claim. Interestingly, the court found that references to documentation not directly related to the interest rate swaps at the centre of the dispute in the English proceedings (and which were central to the dispute in Italian proceedings) did not constitute a new claim for the purpose of the English proceedings. Further, the court did not consider that the existence of the Italian proceedings changed the essential features of the factual basis of the English claim. The fact that the relief sought in the English claim form and particulars of claim was the same was significant.

The court also found that exceptionally strong grounds are needed for a stay on case management grounds where the English courts have been granted exclusive jurisdiction. The court confirmed that the risk of parallel proceedings and inconsistent judgments is not sufficient to warrant a stay.

Background

In mid-2007, the defendant Italian municipality authority of Venice engaged the claimant banks (Banks) to restructure €156 million worth of bonds and associated interest rate swaps it had entered into five years earlier with another bank. The parties entered into a Mandate Agreement and Investment Services Agreement (ISA), which were both governed by Italian law and conferred exclusive jurisdiction on the Italian courts. In December 2007, the defendant entered into interest rate swaps (Swaps) with the Banks and signed a suite of associated Swap documentation, including ISDA Master Agreements and schedules which contained an English choice of law and conferred exclusive jurisdiction on the English courts.

In June 2019, the defendant commenced proceedings against the Banks in Italy. The defendant claimed the Banks had failed to comply with the advisory obligations it owed to the defendant under the Mandate, the ISA and certain Italian legislation. Alternatively, the defendant claimed that the Banks’ breaches of duty caused it to enter into the Swap documentation. Two months later, the Banks commenced proceedings in England seeking various declarations in relation to the Swaps. The declarations sought included that the Banks had complied with and/or discharged their obligations arising out of or in connection with the Swaps and were not liable for any claims arising in relation to them (and that such claims were time-barred under the Limitation Act 1980). The Banks also filed applications in Italy challenging the jurisdiction of the Italian courts.

The defendant then applied, in the English proceedings, to strike out parts of the particulars of claim as an abuse of process and/or for a stay until the Italian proceedings had determined the jurisdiction challenge. The disputed paragraphs pleaded details of the Italian proceedings, including the defendant’s allegations that the Banks had failed to comply with their obligations under the Mandate Agreement by advising the defendant to enter into the Swaps.

Decision

The court rejected the defendant’s application to strike out parts of the particulars of claim and for a stay.

Application to strike out

The defendant argued that the disputed paragraphs of the particulars of claim were an abuse of process as they introduced a claim which had not been included in the claim form. The defendant also argued that the claim form was framed solely by reference to the Swap documentation, not the Mandate Agreement or ISA, which were already subject to separate Italian proceedings. In the defendant’s view, the particulars of claim expanded the claim to include matters which were already the subject of the Italian proceedings.

The court accepted that pleadings may be struck out if they raise a new cause of action which is not within the ambit of the claim form. However, in the present case, the court held that the disputed paragraphs did not plead a cause of action distinct from the causes of action in the claim form. In reaching this finding, the court noted it was significant that the relief sought in the particulars of claim was the same as in the claim form. The court also said the disputed paragraphs did not introduce a change to the “essential features of the factual basis of the claim made” (as per the definition of a new cause of action set out in Jalla v Royal Dutch Shell PLC [2020] EWHC 459 (TCC)). The claim in the claim form was based on the terms and effect of the Swap documentation, and those documents referred to the consulting services provided by the Banks prior to entry into the Swaps. Therefore, reference to the Mandate Agreement and ISA in the particulars of claim did not change the essential features or factual basis of the claim, which was based on the terms of the Swaps. The court also considered that reference to the Italian proceedings did not change the essential features of the factual basis of the claim. The existence of the Italian proceedings may have indicated why the declarations were being sought, but did not amount to a factual situation giving rise to an entitlement to a different relief to that being sought in the claim form.

Application for a stay

In seeking a stay on case management grounds until the jurisdictional challenge in the Italian proceedings had been determined, the defendant argued that if the strike out application was not granted, there was a real risk of parallel proceedings and of inconsistent decisions if the Italian proceedings went ahead. If, on the other hand, the Banks’ jurisdictional challenge succeeded in Italy, then England would be the only forum for the defendant to pursue its claims under the Mandate Agreement and ISA. In the view of the defendant, it was in the interests of justice to stay the English proceedings.

The court held in line with previous authority that exceptionally strong grounds are required to grant a stay on case management grounds, especially where the English courts have exclusive jurisdiction, and that there were no such grounds in this case. It noted that in a case where the English court has jurisdiction, especially exclusive jurisdiction, the danger of inconsistent judgments is not a legitimate consideration amounting to exceptional circumstances (as per MAD Atelier International BV v Manes [2020] EWHC 1014 (Comm)).

In this case, the presence of the exclusive jurisdiction clause in the Swap documentation weighed against a stay. Further, a stay would not be consistent with Articles 29 and 30 of the Recast Brussels Regulation (1215/2012), as the English and Italian claims were separate and distinct, and the Banks’ claim could not be heard in Italy due to the exclusive jurisdiction clauses in the Swap documentation. Lastly, the jurisdiction of the English courts was established, whilst the jurisdiction of the Italian courts was being challenged. A stay in such circumstances would rarely be justified on case management grounds. A stay would only delay the English proceedings and would not be conducive to dealing with them expeditiously.

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Latest guidance from the Court of Appeal on asymmetric jurisdiction clauses

The Court of Appeal has held that an asymmetric or unilateral jurisdiction clause is an exclusive jurisdiction clause for the purposes of the recast Brussels Regulation. The English court was therefore entitled to continue with its proceedings where it was the chosen court but proceedings had been commenced earlier in Germany: Etihad Airways PJSC v Lucas Flother [2020] EWCA Civ 1707.

Asymmetric jurisdiction clauses are common in the financial sector, and typically require one party to bring proceedings in one jurisdiction only, while the other (usually the financial institution) may choose to bring proceedings in other jurisdictions. The effect of this decision is (for proceedings commenced in England & Wales before 1 January 2021 at least – see further below) that an asymmetric jurisdiction clause will have the benefit Article 31(2) of the recast Regulation, a provision designed to defuse the so-called Italian Torpedo (whereby a counterparty could delay a resolution in the chosen court by racing to commence proceedings first in some other EU state, and the chosen court would then have to stay any proceedings under the “first seised” rule). Accordingly, the Court of Appeal’s decision will be welcomed by banks for providing certainty in respect of how asymmetric jurisdiction clauses will be treated under the recast Regulation.

However, the recast Regulation ceased to apply in the UK when the Brexit transition period came to an end on 31 December 2020. This means that the Court of Appeal’s decision will only be of direct relevance in respect of proceedings commenced in England & Wales before 1 January 2021. This is the case even if the UK accedes to the Lugano Convention 2007, as there are no similar provisions within Lugano giving priority to an exclusive jurisdiction clause where the proceedings in the chosen court are second in time. In this context, it is worth noting that judicial cooperation in civil and commercial matters was outside the mandate of the negotiations leading to the Trade and Cooperation Agreement (TCA) agreed between the UK and the EU, which therefore contains no relevant provisions (for our initial commentary on the TCA, see our Beyond Brexit blog post).

Of more interest and ongoing relevance are the Court of Appeal’s comments concerning whether an asymmetric clause is an exclusive jurisdiction clause for the purposes of the 2005 Hague Convention on Choice of Court Agreements, as this Convention will apply post-Brexit to proceedings between the UK and the EU (assuming no Lugano). The Court of Appeal’s view, was that there were strong indications that the intention was to exclude asymmetric clauses from Hague.

While this aspect of the decision is less helpful from the perspective of financial institutions, it is important to note that Court of Appeal did not reach a final decision on the point and there have been two previous Commercial Court decisions observing that there are good arguments for asymmetric clauses being within the Hague Convention (see our posts here and here).

It is also worth noting that whatever view the English court takes concerning such clauses, the most important question from a UK perspective will be what stance an EU court takes on this question, i.e. whether it will stay proceedings and enforce judgments under the Hague Convention where there is an asymmetric clause which restricts one of the parties to bringing proceedings in England. While under Article 23 of Hague, courts must have regard to the Convention’s international nature and the need to promote uniformity in its application, English judgments will not be binding on foreign courts.

For a more detailed analysis of the decision, see our Litigation Notes blog post.

New Webinar Available: Dispute Resolution Choices for Banks and Financial Institutions – Maximising the Chances of Successful Enforcement

Choice of dispute resolution forum can have a fundamental impact on the ability of banks and financial institutions to enforce contractual obligations.

In our client webinar on 23 September, Dispute Resolution Choices for Banks and Financial Institutions: Maximising the Chances of Successful Enforcement, Julian Copeman, Nick Peacock and Hannah Ambrose discussed recent trends in dispute resolution choices in the banking and finance sector in the context of Brexit, before addressing:

  • the use of the English courts, providing guidance as to enforcement of English court judgments in the EU in the context of Brexit;
  • the risks and rewards associated with unilateral clauses which enable a choice of forum to be made once a dispute has arisen; and
  • the key points which banks and financial institutions need to be aware of if choosing arbitration, such as the powers of arbitral tribunal with respect to remedies and the award of interest, and the increasing use of summary judgment procedures to resolve unmeritorious claims.

The speakers also touched on practical points to bear in mind for successful enforcement in Russia, Africa, India and China, and addressed questions from clients on the restatement of English court jurisdiction clauses after the end of the Brexit transition period to minimise enforcement risk, and the availability of interim relief from the court to support arbitral proceedings.

The webinar recording is now available for clients and contacts. To access the recording, please contact Hannah Ambrose or your usual Herbert Smith Freehills contact.

Julian Copeman

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Nicholas Peacock

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Commercial Court gives guidance on definition of ‘consumer’ under Recast Brussels Regulation in cryptocurrency futures trading case

An individual investor, with substantial means and more knowledge and experience than the average person, may still be considered a ‘consumer’ for the purposes of Article 17 of Regulation (EU) No 1215/2012 on jurisdiction and enforcement of judgments in civil and commercial matters (“Recast Brussels Regulation“), even when contracting to trade a specialised product such as cryptocurrency futures.

The recent Commercial Court decision in Ramona Ang v Reliantco Investments Limited [2019] EWHC 879 (Comm) has confirmed the purposive test to be applied when considering whether an individual investor is a consumer under the Recast Brussels Regulation. While this decision arguably gives a generous interpretation as to who is a consumer under Article 17, it does provide some helpful clarification for financial institutions contracting with retail clients. In particular:

  1. The court held that the key question when assessing if an individual investor is a consumer is the purpose for which the investment was entered into. Specifically, whether the individual entered into the contract for a purpose which can be regarded as being outside his or her trade or profession. While the circumstances of the individual and the nature of the investment activity (including the use of intermediaries/advisers) will be considered, the court emphasised that these factors will not be determinative of the issue.
  2. This decision is a good example of how each case will be fact-specific and will turn on whether the individual is considered to be contracting for a non-business purpose. In this instance, the court held that despite the specialised nature of the products themselves, a wealthy individual committing substantial capital to speculative transactions in the hope of making investment gains was a consumer for the purposes of Article 17 of the Recast Brussels Regulation. It disagreed with the suggestion from other EU Member State courts that such activity must necessarily be a business activity, i.e. cannot ever be a consumer activity.
  3. In cases where a person does meet the ‘consumer’ test, if they have nonetheless given the other party the impression that they are contracting for business purposes, they will not be able to rely upon Article 17. (However, that was not the case here).
  4. This case is a reminder that if an individual investor meets the criteria under Article 17 of the Recast Brussels Regulation and brings a claim in the courts of their choice as a consumer under Article 18, this may trump an exclusive jurisdiction clause under Article 25 (unless certain exceptions apply, such as agreeing the exclusive jurisdiction clause after the dispute has arisen).

It is worth noting that the Court of Justice of the European Union (“CJEU“) has recently published an Advocate General (“AG“) opinion in a similar case, concerning a preliminary ruling on whether a natural person who engages in trade on the currency exchange market is to be regarded as a consumer within the meaning of Article 17: Jana Petruchová v FIBO Group Holdings Limited Case C 208/18. The AG opinion is largely consistent with the decision of the High Court in this case, save that it goes further by stating that no account should be taken of the circumstances of the individual and the nature/pattern of their investment (whereas in the instant case, the High Court said such factors would be considered, but would not be determinative – see the first point above).

Background

The claimant (an individual of substantial means) invested in Bitcoin futures, on a leveraged basis, through an online trading platform (UFX), owned by the defendant. The claimant had no education or training in cryptocurrency investment or trading and was not employed at the time, but she played a part in looking after the family’s wealth and assisting her husband, a computer scientist with cybersecurity and blockchain expertise, who has identified himself publicly as being “Satoshi Nakamoto”, the online pseudonym associated with the investor of Bitcoin.

During the account opening process on the UFX platform, the claimant provided certain information about herself, including that she was self-employed, familiar with investment products including currencies and was a frequent trader (75+ trades). She was provided with and accepted the defendant’s terms and conditions.

The defendant terminated the claimant’s UFX account, the claimant alleged that the defendant did so wrongfully and brought a claim in the English High Court for compensation for the loss of her open Bitcoin positions. In response, the defendant challenged the jurisdiction of the English High Court, by reference to an exclusive jurisdiction clause in favour of the courts of Cyprus in the terms and conditions (and relying upon Article 25 of the Recast Brussels Regulation).

Decision

The claimant argued that the exclusive jurisdiction clause in the defendant’s terms and conditions was ineffective, either because she was a consumer within Section 4 of the Recast Brussels Regulation or because the clause was not incorporated into her UFX customer agreement in such a way to satisfy the requirements of Article 25 of the Recast Brussels Regulation.

The High Court held that the claimant was a consumer within Article 17 of the Recast Brussels Regulation, on the basis that she was contracting with the defendant for a purpose outside her trade or profession. As a result, she was permitted under Article 18 of the same regulation to continue her claim in the High Court and the defendant’s challenge to the jurisdiction was dismissed. The court’s decision in relation to Article 17 is discussed further below.

Test to be applied to an individual under Article 17 of the Recast Brussels Regulation

Article 17 of the Recast Brussels Regulation applies to contracts “concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession“. The court noted that the concept of ‘consumer’ had been considered a number of times by the ECJ/CJEU and had an autonomous meaning under EU law, which was independent of national law.

The defendant contended that the ECJ/CJEU had ‘glossed’ the definition of consumer, relying in particular upon the ECJ’s statement in Benincasa [1997] ETMR 447 that “only contracts concluded for the purpose of satisfying an individual’s own needs in terms of private consumption” were protected by the consumer rule under Article 17. The High Court rejected this contention, however, following the approach taken by Longmore J in Standard Bank London Ltd v Apostolakis [2002] CLC 933 and holding that this reference to “private consumption” was not a new or different test to the one under the Recast Brussels Regulation. The court reaffirmed that there were “end user” and “private individual” elements inherent in the notion of a consumer, but that an individual acting for gain could nonetheless meet the test.

In doing so, the court made the following key observations:

  • The court confirmed that the issue as to whether an individual investor is a consumer will be fact-specific in any given case. It emphasised that the question of purpose is the question to be asked, and must be considered upon all of the evidence available to the court and not to any one part of that evidence in isolation.
  • It agreed with the decision in AMT Futures Limited v Marzillier [2015] 2 WLR 187that any assessment of whether an individual investor is a consumer is “likely to be heavily dependent on the circumstances of each individual and the nature and pattern of investment“. However, it emphasised that these factors cannot determine the issue, as to do so would be to effectively replace the non-business purpose test set by the Recast Brussels Regulation.
  • It disagreed with the conclusion reached by the Greek courts in both Standard Bank of London v Apostolakis [2003] I L Pr 29 and R Ghandour v Arab Bank (Switzerland) [2008] I L Pr 35 that “the purchase of moveable property for the purpose of resale for profit and its subsequent actual resale…” was intrinsically commercial, so that engaging in such trading was necessarily a business activity and not a consumer activity.

Application of the test

Applying the purposive test as set out in the Recast Brussels Regulation, the court’s view was that the claimant had contracted with the defendant for a non-business purpose. It is worth noting that the court reached this conclusion despite finding that the claimant had over-stated the extent of her prior trading experience. Given that such over-statement did not go as far as creating the impression that the claimant was opening an account for a business purpose, it did not affect the court’s overall conclusion.

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Court of Appeal finds ISDA jurisdiction clause trumps competing clause in related contract

The Court of Appeal’s judgment in BNP Paribas SA v Trattamento Rifiuti Metropolitani SPA provides further assurance that jurisdiction clauses within standard form ISDA documentation will not readily be displaced by contrary jurisdiction clauses in related contracts. The Court of Appeal gave effect to an English jurisdiction clause in an ISDA Master Agreement over an apparently competing Italian jurisdiction clause in a related financing agreement, despite a provision in the Schedule to the ISDA Master Agreement stating that, in the event of conflict, the financing agreement would prevail. The first instance decision of the Commercial Court was upheld (see our banking litigation e-bulletin).

Key to the Court of Appeal’s decision was its conclusion that there was no conflict between the jurisdiction clauses, which were found to govern different legal relationships and were therefore complementary, rather than conflicting. The Court emphasised that factual overlap, between potential claims under the ISDA Master Agreement and a related financing agreement, did not alter the legal reality that claims under the two agreements related to separate legal relationships.

The Court of Appeal’s decision is not unexpected, as it is in line with the recent Court of Appeal decision in Deutsche Bank AG v Comune Di Savona [2018] EWCA Civ 1740 (see our banking litigation e-bulletin) – which expressly approved the first instance decision in the present case. However, it will be welcomed as further evidence of the English court’s emphasis on construing commercial contracts, and in particular standard form ISDA documentation, in order to achieve market certainty and predictability.

Following the recent publication of French and Irish ISDA Master Agreements in light of Brexit, the court’s emphasis on predictability may serve as a timely reminder of the advantages of selecting English jurisdiction for ISDA Master Agreements.

Background

In 2008, a syndicate of banks led by the claimant, BNP Paribas S.A. (the “Bank“), entered into a loan agreement (the “Financing Agreement“) with the defendant, Trattamento Rifiuti Metropolitani S.p.A (“TRM“), an Italian public-private partnership, to fund the building of an energy plant. The Financing Agreement included an obligation for TRM to enter into an interest rate swap with the Bank to hedge the interest rate risks associated with the loan (the “Hedging Requirement“).

In 2010, pursuant to the obligation in the Financing Agreement, the parties executed a 1992 form ISDA Master Agreement (the “ISDA Agreement“) and an interest rate swap.

The Financing Agreement included an exclusive jurisdiction clause in favour of the Italian court. The ISDA Agreement contained an exclusive jurisdiction clause in favour of the English court. A clause in the Schedule to the ISDA Agreement stated that, in case of conflict between the terms of the ISDA Agreement and those of the Financing Agreement, the latter should “prevail as appropriate” (the “Conflicts Clause“).

In 2016, the Bank issued proceedings in the English Commercial Court against TRM seeking declarations of non-liability “in connection with a financial transaction pursuant to which [TRM] entered into interest rate hedging arrangements with the [Bank]“. In 2017, TRM sued the Bank before the Italian court and then issued an application in the Commercial Court to challenge its jurisdiction.

Commercial Court decision

The Commercial Court dismissed TRM’s application challenging jurisdiction. Applying Article 25(1) of the Recast Brussels Regulation, under which parties may agree to refer disputes to the court of a Member State, the Commercial Court found that the Bank had much the better of the argument that the dispute fell within the English jurisdiction clause of the ISDA Agreement. Of particular relevance are the Commercial Court’s findings that:

  1. There was no conflict between the two jurisdiction clauses. They could readily bear the interpretation that one concerned disputes relating to the Financing Agreement and the other concerned disputes relating to the ISDA Agreement. As there was no conflict, the Conflicts Clause in the Financing Agreement was not engaged.
  2. The parties’ decision to use ISDA documents was a “powerful point of context” which signalled that the parties wanted to achieve “consistency and certainty” in the interpretation of the contract. The use of ISDA documentation by commercial parties shows that they are “even less likely to intend that provisions in that documentation may have one meaning in one context and another meaning in another context“.

Grounds of appeal

The claimant appealed on the following principal grounds:

  1. The judge was wrong to conclude that there was no conflict between the jurisdiction clauses in the Financing Agreement and the ISDA Agreement. The Conflicts Clause therefore should have been engaged.
  2. In any event, the dispute arose in connection with the parties’ legal relationship set out in the Financing Agreement.

Court of Appeal decision

The Court of Appeal dismissed the appeal on all grounds. The key aspects of the judgment which are likely to be of broader interest (particularly in relation to whether apparently competing jurisdiction clauses are, in fact, in conflict with one another) are considered further below.

Guidance on competing jurisdiction clauses

The Court of Appeal set out useful guidance on how to interpret apparently competing jurisdiction clauses in related contracts:

  1. The starting point is that a jurisdiction clause in one contract was probably not intended to capture disputes more naturally seen as arising under a related contract. There is therefore a presumption that each clause deals exclusively with its own subject matter and that they do not overlap, provided the language and surrounding circumstances allow. The most obvious subject matter of a generally worded jurisdiction clause will be the legal relationship created by the contract.
  2. It is unlikely that sensible business people would intend that similar claims should be subject to inconsistent jurisdiction clauses. However, if the language or surrounding circumstances make clear that a dispute falls within both clauses, the presumption that the clauses deal with separate legal relationships can be displaced.
  3. A broad, purposive and commercially minded approach to construction should be taken which interprets jurisdiction clauses in the context of the overall scheme of the agreements.

Do the jurisdiction clauses conflict?

Applying this approach to the present case, the Court of Appeal held that the natural interpretation of the two jurisdiction clauses was that the clause in the Financing Agreement governed claims relating to the background lending relationship set out in that agreement, and the clause in the ISDA Agreement governed claims relating to the specific interest rate swap relationship set out in that agreement. The Court of Appeal noted that this conclusion was strongly supported by the decision in Savona.

TRM sought to distinguish Savona on a number of bases, including by relying on the Conflicts Clause. With respect to the Conflicts Clause, the Court of Appeal held that the two juridisction clauses governed different legal relationships and were therefore complementary, rather than conflicting. Accordingly, the first instance judge was correct to find that the Conflicts Clause was not engaged.

Overlapping legal relationships

TRM also sought to distinguish Savona on the basis that the inclusion of the Hedging Requirement in the Financing Agreement meant that there was overlap between the legal relationships under the Financing Agreement and ISDA Agreement. It claimed that, as a result, the dispute fell within the legal relationship under the Financing Agreement. However, the Court of Appeal firmly rejected this argument:

  • The Court of Appeal distinguished between factual and legal overlap. TRM alleged that there was overlap between the two agreements, as certain claims regarding the sale of the swap could be brought under both the Financing Agreement (for breach of the Hedging Requirement) and the ISDA Agreement. However, the Court of Appeal held that factual overlap between potential claims under the Financing Agreement and the ISDA Agreement did not alter the legal reality that claims under the two agreements related to separate legal relationships.
  • TRM’s approach would lead to fragmentation of jurisdiction, whereby different terms within the ISDA Agreement would be subject to different jurisdiction clauses in separate contracts. The Court of Appeal considered this to be undesirable and that it was generally unlikely to be the intention of sensible commercial parties.

Declarations sought

Having rejected TRM’s attempts to distinguish Savona, the Court of Appeal proceeded to consider the specific declarations of non-liability sought by the Bank. Subject to the amendment of one of the declarations, the Court found that all of the declarations sought fell within the jurisdiction clause of the ISDA Agreement.

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High Court refuses declarations sought by trustee of unsecured notes as to amounts due and payable by issuer

In Part 8 proceedings brought by the trustee of certain unsecured notes, the High Court has refused to exercise its discretion to grant declarations as to the amounts due and payable by the issuer of the notes: The Bank of New York Mellon, London Branch v Essar Steel India Ltd [2018] EWHC 3177 (Ch). The court reached this conclusion notwithstanding the fact that the issuer was clearly in default under the notes, did not take any steps in the proceedings and was not represented before the court.

The decision offers some cautionary guidance as to the steps that those exercising corporate trustee functions might consider taking when applying for declaratory relief in relation to non-payment by the issuer of notes or other debt instruments. In particular, the court in this case found that:

  • In the absence of any evidence to confirm that other proceedings involving the issuer (an insolvency process in India) would not be affected by declarations made by the English court, the potential for those foreign proceedings to be affected was a factor that pointed clearly against the making of the declarations.
  • In circumstances where a third party who might be affected by the declarations (the insolvency professional in India) was not before the court and had been unable to make submissions, granting the declarations would amount to an “improper interference” in a foreign process being conducted by another party if the declarations were to affect the foreign process.

To the extent that the court appears to have taken a strict approach to the exercise of its discretion in this case, this may be explained by the court’s decision to adopt a “conservative mindset” against granting the declaration, because of the issuer’s non-participation in the proceedings. It is noteworthy that the court adopted this approach even though the issuer’s non-participation was not the fault of the claimant, and the claim was made under Part 8 and therefore did not turn on a factual dispute.

Background

The defendant (the “Issuer”) issued certain US Dollar 0.25% unsecured notes (the “Notes”), which were constituted under the terms of a trust deed dated 5 December 2003 (the “Trust Deed”). The claimant was the trustee (the “Trustee”) of the Notes.

The Trustee issued a Part 8 Claim in July 2018 seeking declarations against the Issuer as to the amounts due and payable in respect of the Notes. The Issuer took no step in the proceedings and was not represented at the hearing.

To determine whether the declarations sought should be made, the court said there were three questions to resolve:

  1. Did the Trustee have standing to bring the claim?
  2. Was the Defendant properly before the court, so that it could properly determine the substance of the Part 8 Claim?
  3. Was it appropriate to make the declarations sought by the Trustee?

Decision

Having found that the Trustee had standing to bring the claim and the Issuer was properly before the court (by service of the claim form on a service agent appointed under the Trust Deed), the court held that it would be inappropriate to make the declarations sought by the Trustee.

The court noted that the power to grant declaratory relief is discretionary (Rolls Royce plc v Unite the Union [2009] EWCA Civ 387). In exercising that discretion, the court said it was required to take into account justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose and whether there were other special reasons why or why not the court should grant the declaration (Finance Services Authority v Rourke  [2002] CP Rep 14).

The key reasons given by the court for finding that the declarations sought by the Trustee should not be made were as follows:

Both sides of the argument will not be put

The court said it was required to ensure that all those affected were either before the court or would have their arguments put before the court (Rolls Royce at [120](6)).

The court accepted that it would be “invidious and wrong” to allow a defendant’s non-participation in proceedings to prevent the making of declarations (particularly where this was not the fault of the claimant, and where the claim was made under Part 8 and did not turn on substantial disputes of fact – as here). However, where the defendant was absent, the court considered that it was required to approach the exercise of its discretion with “something of a conservative mindset against the granting of a declaration“.

Potential effect on a third party not before the court

The court noted that the Issuer was the subject of an insolvency process in India, but the effect of the instant proceedings on that insolvency process (and on the insolvency professional appointed in India) was unclear. There was no Indian law before the court to confirm the position.

The court found that the possibility of the insolvency professional being affected by declarations made in English court proceedings to which he/she was not a party was a factor that pointed clearly against the making of declarations.

The existence of a real and present dispute and the potential for interference in a foreign process

The court emphasised the need for a real and present dispute between the parties, which would be resolved by the making of the declaration.

The court found that it was “difficult to identify such a dispute as between the Trustee and the [d]efendant“, because although the Issuer was in default under the Notes, there was not a discernible dispute as to terms of the Notes or the Issuer’s obligations and it was not a case where the Issuer would pay if the declarations sought were made. It appeared to be a case where the Issuer simply could not pay and the granting of a declaration would not resolve the position in respect of the Issuer.

Further, the court understood that there were some points of dispute between the insolvency professional in India and the Trustee. As noted above, the court did not have evidence as to whether the declarations sought would affect the Indian insolvency process. However, if they did, then in the court’s view such declarations would amount to an “improper interference” in a foreign process being conducted by a party (the insolvency professional in India) who was not before the court and had been unable to make submissions. The court said this was not cured by the fact that the Indian insolvency process did not preclude claims for declaratory relief; and/or that the insolvency proceedings had not been recognised in this jurisdiction.

In light of the above, the court considered that it would be inappropriate to make the declarations sought by the Trustee and declined to do so.

 

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High Court finds SFO can compel production of documents held by foreign company outside the jurisdiction

In a recent decision in the context of a judicial review, the High Court held that the SFO was able to compel a foreign company to produce documents located outside the jurisdiction, pursuant to s.2(3) of the Criminal Justice Act 1987 (CJA), where there was “a sufficient connection between the company and the jurisdiction”: R (On The Application Of KBR Inc) v The Director of the Serious Fraud Office [2018] EWHC 2368 (Admin).

This is the first time that an English court has reasoned that compulsory disclosure powers exercisable by a UK criminal enforcement agency have extraterritorial application. The judgment is notable for its finding of the extraterritorial operation of a statute where no explicit wording in favour of extraterritoriality applied. In the civil context, the courts have also seemed increasingly willing, in recent years, to find that provisions enabling the enforcement of judgments and orders have extraterritorial effect, such as the court’s powers of committal (see here).

From a civil litigation perspective, the increased reach of the SFO to obtain documents outside of this jurisdiction, in light of the KBR decision, may increase the scope of documents that are ultimately disclosable in civil proceedings. This may be because the SFO is itself a party to the proceedings – the CJA does not act as a bar against the SFO giving disclosure of documents obtained under its compulsory powers (see Tchenguiz v Rawlinson and Hunter Trustees SA [2013] EWHC 2128 (QB), considered here) – although the circumstances in which this is likely to be the case will be rare. Or, if it was known that the SFO had obtained the documents, a litigant could make an application against the SFO for third party disclosure under CPR 31.17 – such an application was granted against the police in Frankson v Home Office [2003] EWCA Civ 655, for example, the court having balanced the competing public interests. It is relevant to note that, where there is an ongoing criminal investigation or prosecution, those public interest factors would include not only the general public interest considerations pertaining to the investigation of crime but also considerations pertaining to possible prejudice to that investigation, and, if ordered, disclosure might be made subject to strict conditions, as it was in Frankson. Further, unless the material became public via a trial process in due course, or a party confirmed that they had disclosed documents to the SFO, a litigant would not be expected to have visibility of this fact.

Nonetheless, those who provide documents to the SFO in response to s.2 notices should be aware that such documents may be disclosable by the SFO in civil proceedings, if the SFO becomes a party or is required to provide third party disclosure.

For more information on the KBR decision, see our Global Corporate Crime and Investigations e-bulletin.

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Court of Appeal finds ISDA jurisdiction clause trumps ‘theoretically competing’ clause in separate agreement governing wider relationship

Consistent with recent authority, the Court of Appeal has given primacy to an English jurisdiction clause in an ISDA Master Agreement (overturning the first instance decision that had declined to do so), in circumstances where there was a “theoretically competing” jurisdiction clause in a separate agreement governing the wider relationship: Deutsche Bank AG v Comune di Savona [2018] EWCA Civ 1740.

The appellate decision contributes to market certainty in respect of contracting parties’ choice of jurisdiction and therefore represents good news for derivative market participants. The Court of Appeal commented that it would have been “startling” if the bank’s claims for declaratory relief falling squarely under the relevant swap contracts could not be brought in the forum selected by the parties in the ISDA Master Agreement.

The approach taken by the Court of Appeal focused on determining the “particular legal relationship” to which the dispute related for the purpose of Article 25 of the Recast Brussels Regulation, which deals with jurisdiction agreements. In circumstances where there were two contracts (with theoretically competing jurisdiction clauses), it held that there was a distinction to be drawn between a generic wider relationship on the one hand, and a specific interest rate swap relationship governed by the ISDA Master Agreement on the other. It concluded in general terms that disputes relating to the swap transactions were therefore governed by the jurisdiction clause in the ISDA Master Agreement.

While it may be expected that disputes relating to a specific transaction should be governed by the contract for that transaction, the position had been undermined by the High Court decision in the instant case (which considered a number of points of Italian law and the effect of the declarations sought by the bank on any potential claims in Italy). The Court of Appeal noted that while each case should be considered on its own terms, it agreed in principle with the approach in the recent case of BNP Paribas SA v Trattamento Rifiuti Metropolitani SPA [2018] EWHC 1670 (Comm): which focused on the question of whether the English Court had jurisdiction under the relevant agreements, rather than to trying to predict whether the declarations sought, if made, would act as defences in another jurisdiction (read our banking litigation e-bulletin). Given that there had been conflicting first instance decisions on this issue, it is helpful to have this clarification from the Court of Appeal.

Background

In this case, the court considered “two theoretically competing jurisdiction clauses“. The clauses, in favour of the Italian and English courts respectively, were included in: (i) a written agreement dated 22 March 2007 between Deutsche Bank AG (the “Bank“) and Comune di Savona (“Savona“) (referred to as the “Convention“); and (ii) a 1992 multicurrency ISDA Master Agreement dated 6 June 2007 agreed between the same parties. In June 2007 the Bank and Savona executed swap confirmations, subject to the terms of the Master Agreement, by which the Bank and Savona entered into two interest rate swap transactions.

Years after the conclusion of the swaps, the validity of the transactions came under some scrutiny in Italy. In June 2016 this prompted the Bank to apply to the English Commercial Court seeking twelve declarations (in most cases) carefully tracking the wording of the Master Agreement. Savona challenged the jurisdiction of the English court in relation to five of the declarations sought, arguing that they fell to be determined in the Court of Milan and under Italian law, in accordance with the Convention.

High Court Decision

At first instance, the High Court allowed Savona’s challenge to the jurisdiction of the English court in respect of the five declarations and dismissed the Bank’s claims.

The High Court referred to Article 25 of the Recast Brussels Regulation, which provides that parties may agree to refer disputes in connection with a “particular legal relationship” to the court of a Member State. The High Court proceeded to consider the proper interpretation of the jurisdiction clauses, distinguishing the Bank’s role as an adviser under the Convention, from the Bank’s position “simply as a counterparty” under the swaps. The High Court concluded that the dispute was essentially concerned with the Bank’s role as an adviser, and more naturally fell within the Italian jurisdiction clause than the English jurisdiction clause.

Court of Appeal Decision

The Court of Appeal overturned this decision, finding that all twelve declarations sought fell within the English jurisdiction clause in the ISDA Master Agreement.

In reaching its conclusion, the Court of Appeal drew a distinction between the generic relationship between the Bank and Savona, which was governed by the Convention, and the specific derivative transactions entered into between the Bank and Savona, which were governed by the ISDA Master Agreement. It commented that this was a more natural and reasonable demarcation than the High Court’s distinction between “advice” on the one hand and being a “counterparty” on the other.

The Court of Appeal noted that:

  • While the Convention required the Bank to provide Savona with its expertise as to how to manage its debt, any transaction or agreement proposed by the Bank for this purpose and accepted by Savona would be the subject matter of a separate contract.
  • If a separate contract was proposed and approved, the relationship agreed in that contract would be the “particular legal relationship” envisaged by Article 25. Any proceedings “relating” to that contract would then be a dispute in connection with the particular relationship for the purposes of Article 25.
  • Consistent with this, the interest rate swap relationship was set out in the swap contracts incorporating the ISDA Master Agreement.
  • The existence of the entire agreement clause in the ISDA Master Agreement was a strong confirmation that the swap contracts were indeed separate contracts and any dispute relating to them was to come within the jurisdiction clause of those contracts.

In the Court of Appeal’s view, it would have been “startling” if the Bank’s claims falling squarely under the swap contracts could not be brought in the forum selected by the parties through the jurisdiction clause under those agreements, namely that contained in the ISDA Master Agreement. It said that a conclusion to that effect would have been highly damaging to market certainty.

Having found that disputes relating to the swaps were therefore to be determined by the English courts, the only question for the Court of Appeal was whether the particular declarations sought arose from disputes relating to the swaps. The Court of Appeal found, on reviewing the text of the declarations sought, that they did.

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High Court holds ISDA jurisdiction clause trumps competing jurisdiction clause in separate but related agreement

The decision of the High Court in BNP Paribas SA v Trattamento Rifiuti Metropolitani SPA [2018] EWHC 1670 (Comm) confirms that an express agreement to the jurisdiction of the English court within standard form ISDA documentation will not easily be displaced or restricted. The court found that the jurisdiction clause in a 1992 ISDA Master Agreement was effective over a ‘competing’ jurisdiction clause in a separate but related agreement between the same parties. This was despite a provision in the Schedule to the Master Agreement that in the event of conflict, the related agreement would prevail.

The decision is likely to be of interest to financial institutions trading in derivatives based on ISDA documentation, and of particular interest to those involved in cross-border funding transactions which require the implementation of associated hedging through separate but related agreements. Significantly, the court found no conflict between ‘competing’ jurisdiction clauses in an ISDA Master Agreement and a separate financing agreement. The court noted that in complex financial transactions it was possible for the same parties to have multiple relationships, each governed by a separate agreement, and there was no inconsistency in each agreement having a different jurisdiction provision.

The court gave two further points of guidance in response to arguments raised by the bank’s counterparty relating to the background context within which to interpret the jurisdiction clause:

  1. In considering the declarations sought in these English proceedings, the court did not engage with the question of whether those declarations may act as defences to a claim in another jurisdiction (preferring the approach taken in Dexia Crediop SPA v Provincia di Brescia [2016] EWHC 3261 (Comm), over that in the more recent case of Deutsche Bank AG v Comune di Savona [2017] EWHC 1013 (Comm)).
  2. More generally, the court suggested that the use of ISDA standard documentation was evidence of the parties’ intention to limit the use of the specific factual background to their transaction in interpreting the agreement between them. It emphasised that the purpose of using such standard documentation is to achieve greater consistency and certainty in the parties’ dealings with each other. This reflects the approach of the court more generally in limiting the extraneous factors which will be considered where standard documentation, including ISDA documentation, is used by sophisticated commercial parties.

Background

In 2008, a syndicate of banks led by the claimant, BNP Paribas SA (the “Bank“), entered into a loan agreement (the “Financing Agreement“) with the defendant, Trattamento Rifiuti Metropolitani SpA (“TRM“), an Italian public-private partnership, to fund the building of an energy plant. The Financing Agreement included an obligation for TRM to hedge with the Bank against the interest rate fluctuation risks associated with the loan.

In 2010, pursuant to the obligation in the Financing Agreement, the parties executed a 1992 ISDA Master Agreement (the “Master Agreement“), and an interest rate swap.

The Financing Agreement included an exclusive jurisdiction clause in favour of the Italian court. The Master Agreement contained an exclusive jurisdiction clause in favour of the English court. A clause in the Schedule to the Master Agreement stated that in case of conflict between the terms of the Master Agreement and those of the Financing Agreement, the latter should “prevail as appropriate“.

In 2016 the Bank issued proceedings in the English Commercial Court against TRM seeking declarations of non-liability “in connection with a financial transaction pursuant to which [TRM] entered into interest rate hedging arrangements with the [Bank]“. In 2017, TRM sued the Bank before the Italian court and challenged the jurisdiction of the English High Court.

Decision

The court considered TRM’s arguments that the Bank should not be permitted to pursue the English proceedings because: (1) there was no serious issue to be tried; and (2) the English court had no jurisdiction.

(1) Serious issue to be tried

TRM argued that there was no relevant dispute regarding the Master Agreement (containing the English jurisdiction clause) and the swap transaction. However, the court held that while there was no argument as to the validity of the swap transaction or Master Agreement, there was a dispute as to the Bank’s rights under them, and therefore a serious issue to be tried.

(2) Jurisdiction

The court started its analysis by reference to Article 25(1) of the Recast Brussels Regulation, which provides that parties may agree to refer disputes to the court of a Member State. The court went on to consider the ‘competing’ jurisdiction clauses in the Finance Agreement and Master Agreement. The court said that this was a question of construction or interpretation, and that its approach should be broad and purposive (Sebastian Holdings Inc v Deutsche Bank AG [2010] EWCA Civ 998).

It was held that the Bank had much the better of the argument that the dispute fell within the English jurisdiction clause of the Master Agreement. The following points made by the court in reaching its conclusion are likely to be of wider interest and application:

  • The two jurisdiction clauses could “readily bear” the interpretation that one was concerned with the Master Agreement and the other was concerned with the Financing Agreement. That fitted well in the context of the parties’ dealings and recognised that the parties had more than one relationship.
  • Similarly, the wide contractual language of the jurisdiction clauses in the two agreements did not prevent “an interpretation that allows those contracts to fit together“.
  • The provision in the Schedule to the Master Agreement providing that the Financing Agreement would prevail in cases of conflict was not engaged, simply because there was no conflict.
  • Addressing TRM’s argument that the interpretation of the jurisdiction clauses should have taken into account the specific factual context:

Comment

This decision is in line with recent judgments in relation to jurisdiction clauses in associated agreements and reinforces the view that non-identical clauses can co-exist in related agreements. The decision is also another example of judicial recognition of the need for certainty and consistency associated with the use and interpretation of the ISDA standard documentation.

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Supreme Court confirms that the situs of a debt due under a letter of credit is the location of the issuer

The Supreme Court has confirmed the position in English law regarding the location of debts created by letters of credit in Taurus Petroleum Limited v State Oil Marketing Company of the Ministry of Oil, Republic of Iraq [2017] UKSC 64.

In deciding that the situs of a debt created by a letter of credit is the place of residence of the issuing bank, the Supreme Court unanimously held that the previous authority on this issue: Power Curber International Ltd v National Bank of Kuwait SAK [1981] 1 WLR 1233, was wrong in principle and should not be followed.

In Power Curber, by majority decision, the Court of Appeal held that the situs of a debt created by a letter of credit was the place of payment. This contradicted the long standing principle in English law that the situs of a debt is the place of the residence of the debtor. The principle from Power Curber stood for over 35 years and created some uncertainty as to why debts which arose under a letter of credit were treated differently to other debts under English law.

The instant decision by the Supreme Court will be welcomed by financial institutions as providing helpful clarity for parties creating and enforcing obligations under letters of credit. As highlighted in our Middle East e-bulletin, the decision will assist foreign parties to enforce arbitral awards (or judgments) in the English courts by using a third party debt order against a letter of credit issued from London. Indeed, the impact of the decision is not only limited to third party debt orders, but will also be of assistance in any disputes involving letters of credit, which are very often international in nature and can result in complex conflict of law issues.

It is anticipated that the Supreme Court decision in this case will be followed in other jurisdictions, further reinforcing certainty as to the location of the debt obligation. The judgment refers to at least one other jurisdiction which has applied Power Curber in its courts, and to a number of other jurisdictions where it has been cited in legal texts (in all cases without analysis of the reasoning, which was why they did not assist the submission that Power Curber should be followed). The reversal of the proposition under English law is therefore likely to have a ripple effect.

Background

The claim in this case arose out of a series of contracts between Taurus Petroleum Limited (“Taurus”), a Swiss domiciled oil trading company, and the State Oil Marketing Company of the Ministry of Oil, Republic of Iraq (“SOMO”). Disputes between Taurus and SOMO were referred to arbitration in accordance with the terms of the contracts. A final award was made whereby SOMO was ordered to pay Taurus approximately US$9 million, but the debt was not paid.

Subsequently, Taurus learned that a third party company had purchased two parcels of crude oil from SOMO, the price for which was to be paid under letters of credit issued by the London branch of Crédit Agricole SA (“Crédit Agricole”). The letters of credit featured two unusual conditions. The first was that the proceeds of the sales of oil were to be paid into an account held by the Central Bank of Iraq (the “CBI”) at the Federal Reserve Bank of New York. The second condition was a promise to both SOMO (described as ‘the beneficiary’) and CBI to pay the money on presentation of certain documents.

Taurus sought to enforce the arbitral award in England as a judgment, applying for a third party debt order to recover the funds receivable by SOMO pursuant to the letters of credit. A third party debt order would operate to discharge Crédit Argicole’s debt by paying the sums due under the letters of credit directly to Taurus.

SOMO contended that the debts created by the letters of credit were situated in New York and so the courts of England and Wales did not have jurisdiction.

High Court decision

The High Court held that the situs of the debt was London (the location of the issuing bank, the London branch of Crédit Agricole) rather than New York (the place of payment). However, it found that the letters of credit formed a single joint promise in favour of both SOMO and CBI. As a joint debt, the court could not make a third party debt order, because SOMO was the sole judgment debtor of the arbitral award.

Court of Appeal decision

Both parties appealed to the Court of Appeal.

On the question of the location of the debt, the Court of Appeal held that it was bound to follow the decision of the Court of Appeal in Power CurberPower Curber was a split decision, in which the majority held that the situs of a debt due under a letter of credit was the place of payment, not the place at which the letter of credit was issued. Accordingly – overturning the first instance decision – the Court of Appeal in the instant case held that the situs of the debt was New York (the place for payment to be made under the letters of credit).

The Court of Appeal also held by a majority that SOMO was not the sole beneficiary of the letters of credit, and so it could not order a third party debtor order.

Supreme Court decision

Taurus appealed to the Supreme Court which had to decide, amongst other things, whether:

  1. the situs of the debt was London or New York;
  2. Crédit Agricole’s debt under the letters of credit was owed solely to SOMO, or to both CBI and SOMO; and
  3. the contractual commitments to CBI in the letters of credit prevented the making of a third party debt order.

(1) Situs of debt

The Supreme Court unanimously agreed that the decision in Power Curber was wrong in principle and should not be followed. Accordingly, the situs of the debt was London, the location of the issuing bank.

Lord Clarke, giving the majority leading judgment, agreed with Taurus: there was a long standing rule which went back at least to the beginning of the last century, providing that the situs of a debt is the debtor’s residence, the place where the debt is recoverable. He held that Power Curber was therefore wrongly decided and none of the references put forward by SOMO persuaded him otherwise. No other English cases were identified which had considered the principle in Power Curber. The only English text that addressed Power Curberprovided “a distinct lack of enthusiasm for the majority view”. The only international jurisdiction which had directly applied the principle in Power Curber was Canada – and in that case, the Canadian court merely cited Power Curber as authority without applying any analysis of its own.

Lord Neuberger agreed, adding that there was no reason for holding that a debt due under a letter of credit should be treated differently from other debts for the purpose of deciding its situs. He commented that the majority in Power Curber “provided very brief and unconvincing reasons to support their decision” and said that “such unreasoned distinctions do the common law, and in particular, commercial law, no favours”.

(2) Identification of beneficiary

The Supreme Court was divided on whether the letters of credit created a debt in favour of SOMO alone, or SOMO and CBI jointly. In the majority, Lords Clarke, Sumption and Hodge determined that SOMO was the sole beneficiary of the letters of credit, with Lords Neuberger and Mance dissenting.

In reaching their decision, the majority used the provisions of Uniform Customs and Practice for Documentary Credits (“UCP”) 600 as a guide to their interpretation of the letters of credit, noting that UCP 600 defined ‘beneficiary’ as “the party in whose favour a credit is issued”. It followed from UCP 600 that SOMO was the sole beneficiary. Accordingly, they held that the letters of credit created two separate obligations: (1) an obligation to pay the debt which was owed to SOMO; and (2) an obligation as to the manner in which the debt would be paid, which was owed to both SOMO and CBI.

(3) Third party debt order

In the circumstances, the majority (Lords Neuberger and Mance again dissenting) concluded that it was permissible to grant a third party debt order. Crédit Agricole’s obligation under the letters of credit to SOMO was a debt, and the obligation owed to both SOMO and CBI was an obligation as to the manner in which that debt would be discharged. Upon discharge of the debt, neither obligation would have any further content. Compliance with the third party debt order would therefore discharge Crédit Agricole as against both SOMO and CBI.

Accordingly, the appeal was allowed.

Comment

As explained in the introduction, the key message for financial institutions to take from the Supreme Court judgment in the instant case is the certainty as to the location of the debt obligation under a letter of credit, being the place of residence of the issuer.

A further noteworthy aspect of the judgment is that the Supreme Court was divided on the approach to be taken to the construction of the letters of credit. Such division in the highest appellate court in the jurisdiction will always invite scrutiny, particularly in circumstances where the then president of the court was dissenting. The majority placed particular importance on the provisions of UCP 600 to assist construction of the letters of credit. UCP 600 seeks to facilitate the flow of international trade by creating a set of international rules which establish uniformity in the practice of letter of credit. Arguably the majority took the more practical and commercial approach, taking a narrow view of the effect of the added conditions and refusing to infer from the terms of the letters of credit some form of transfer of beneficial interest.

Rupert Lewis

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Myles Brown

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