Summary
The second claimant, Vasonia, was a Cypriot company. It chartered a vessel to an Italian company, MF. MF provided a Guarantee to secure its obligations under the charter. The guarantee was issued by the second defendant, Banca di Roma. The terms of the guarantee, included an English (non-exclusive) jurisdiction clause. Subsequently, as a result of various transactions, Unicredit assumed Banca di Roma’s liability under the Guarantee. In September 2009, Vasonia’s right under the Guarantee were assigned to the first claimant, Nordea.
In October 2009, Vasonia made a demand on Unicredit under the guarantee. The demand was not honoured.
On 17th November 2009, proceedings were initiated in England. The claim form, issued in the English proceedings, was served on Unicredit in Italy on 11th May 2010.
In the meantime, the Genoa court granted MF an ex parte interim injunction against Unicredit, in order to restrain the bank from paying to the claimants.
In England, Unicredit challenged the jurisdiction of the English court, making an application for a stay of the English court proceedings on the ground of Articles 27 and 28. The English court dismissed the Unicredit’s jurisdictional challenge, refusing to grant its application for a stay of the English proceedings. Mrs Justice Gloster held:
“77 In my judgment, applying the above common-sense, and non-mechanistic, approach to the question, the Italian Proceedings cannot be characterised as a “related action”, at any time up to and including 17 November 2009, when the English Claim was issued and the English court became seised. Although, in a very loose sense there was, as at 17 November 2009, a connection in that MF was seeking, on an interim basis to prevent Unicredit from paying under the Guarantee the beneficiary of which was Vasonia/Nordea, on the basis of allegations as to dolus etc. on the part of the latter, the Initial Proceedings consisted only of a claim by MF against Unicredit for interim protective relief, pending the determination of the English arbitration, with no substantive claim against Vasonia or Nordea. Vasonia/Nordea's claim, in the English Proceedings, on the other hand, was a claim based on an autonomous payment obligation, on the part of Unicredit, which was contained in a Guarantee to which MF was not a party. In my judgment, although at that date there was a loose connection between the two sets of proceedings, there was an insufficient degree of relatedness between the protective claim by the customer, MF, against the bank, Unicredit, and by the beneficiary, Vasonia/Nordea against the bank.
[…]
80 On that basis I conclude that, as at 17 November 2009, any connection between the Italian Proceedings and the English Claim was not sufficiently close and the risk of irreconcilable judgments was not sufficiently great, to make the actions related for the purposes of Article 28.” [77 and 80]