Summary
The claimant, DB, was a global investment bank (incorporated in Germany with an office in London). The defendant, SHI, was a company incorporated under the laws of Turks and Caicos Islands. The parties entered into a series of equities trading agreements as well as into a number of foreign-exchange FX agreements. The parties’ equities trading agreement, EIMA, was the first agreement between the parties, providing the contractual framework for parties’ derivative transactions. This agreement contained an English jurisdiction clause. Also, there were foreign-exchange agreements between the parties. The foreign-exchange prime brokerage agreement (FXPBA), authorising Sebastian holdings to act as agent on behalf of Deutsche Bank. This agreement included a New York non-exclusive jurisdiction agreement.
There were a number of other agreements between the parties: An agent master agreement (AMA), included an English jurisdiction clause; a Pledge and Pledgeholder Agreement, which was governed by Swiss law, containing a different dispute resolution clause; and four other agreements, which were related to the first (An equities prime brokerage agreement (EPBA) included an exclusive English choice-of-court agreement. Similarly, a Listed F & O agreement (LFOA) and master netting agreement (MNA)) which both included English jurisdiction agreements. Finally, there was an Overseas Securities Lender’s Agreement between the parties - all the disputes arising under this agreement were to be resolved by arbitration in London.)
By a letter dated 4 December 2008, DB demanded the sum of approximately $120 million which was allegedly due under the FXPBA.
On 24 Nov 2008, SHI began proceedings in New York, seeking a non-liability declaration.
On 21 Jan 2009, DB commenced the proceedings in London, demanding a sum of over $120 million under MNA.
Sebastian Holdings challenged the jurisdiction of the English court.
The High Court dismissed the challenge, stating that there was no contractual bar for the claim to be brought in England. In this context, Mr Justice Walker stated that:
“79 […] DB accepts that the English exclusive jurisdiction clauses do not entitle it to bring a claim in England raising issues as to the rights or wrongs of what has occurred on the FX account. Those issues may arise by way of defence, and indeed the London particulars to an extent anticipate them. That does not mean however that there is a contractual entitlement to insist that those issues are resolved in London – whether they are resolved here will be a matter for case management by the English court in the light of relevant domestic and European legislative provisions.” [79].
In the meantime, in December 2009, Mr Justice Burton refused the SHI application for a stay of the English proceedings, and noted:
“38 [...] I too have concluded that the Owusu point does not arise as necessary for me to resolve in order to reach a conclusion on this application, because I have decided that the stay application should, in any event, fail on its own merits at common law, as explained above. […].” [2009] EWHC 3069 (Comm) [38-39]
On 20 August 2010, the Court of Appeal affirmed that, due to the existence of the jurisdiction clause, the English Court had jurisdiction.