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 December 2009, Mr Justice Burton refused the SHI application for a stay of the English proceedings.
On 20 August 2010, the Court of Appeal affirmed that, due to the existence of the jurisdiction clause, the English Court had jurisdiction. Lord Justice Thomas held that:
“ […] Although in one sense the clauses in the agreements might be said to conflict, as disputes which are related or overlap might arise under different agreements in the series, the clauses do not in fact conflict, as they envisage claims being brought under the different agreements for monies owed under each agreement, even if the defences may overlap. The language of the agreements plainly envisages this and for the reasons I have given it is entirely rational for businessmen to agree to this. The construction advanced by Sebastian faces the difficulty that it not only requires the court to rewrite the agreements, but on analysis, would impose a regime that would not have been commercially rational.” [65]