In a recent decision, the High 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: BNP Paribas SA v Trattamento Rifiuti Metropolitani SPA  EWHC 1670 (Comm).
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. It also confirms that an express agreement to the jurisdiction of the English court within standard form ISDA documentation will not easily be displaced or restricted, and is another example of judicial recognition of the need for certainty and consistency associated with the use and interpretation of the ISDA standard documentation.
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. For more information see our Banking litigation e-bulletin on the decision.