EUPillar BNP Paribas S.A. v Anchorage Capital Europe LLP, Anchorage Capital Group LLC, ACMO S.A.R.L., AIO III S.A.R.L. [2013] EWHC 3073 (Comm)

Summary

The claimant, BNPP, was a French bank. The defendants formed part of an investment management group, Anchorage, having its principle centre of operations in New York. The first defendant, Anchorage London, was domiciled in England; the second defendant, Anchorage New York, was domiciled in New York; the third defendant, ACMO, and the fourth defendant, AIO, were domiciled in Luxembourg. There was an exchange of electronic communications between the parties, which posed the question whether, through such electronic communications, the parties had entered into a binding contract. And if they had done so, then there was a separate question about who was bound by the contract. BNPP commenced proceedings in England. The English proceedings were issued on 19th February 2013. The claimant invoked an English jurisdiction clause. The defendants challenged the jurisdiction. Anchorage New York commence proceedings in New York. The claimants sought an anti-suit injunction with a view to restraining the defendant from suing in the U.S. The English High Court held that it had jurisdiction over the defendants. Mr Justice Males dismissed the defendants’ challenge of jurisdiction, noting that BNPP made a “good arguable case” that there was a valid jurisdiction clause. He stated: “76 As ACMO and AIO are domiciled in Luxembourg, jurisdiction over them can only be established by reference to the provisions of the Brussels Regulation. I have already concluded that jurisdiction can be founded under Article 23, but jurisdiction can also be founded under other Articles in addition, again applying the test of good arguable case. 77 For the same reasons as already given in relation to the place of breach as against Anchorage New York, jurisdiction can be founded under Article 5(1) on the basis that the place of performance of the obligation in question is England. […] 78 In relation to the Monday contract, there is a good arguable case that both ACMO and AIO were represented by their agent, Anchorage London, who negotiated the contract. For the purposes of Article 5(5) of the Brussels Regulation, a contractual dispute is closely connected to the operation of a branch or agency if the contract was negotiated by that branch: Anton Durbeck GmbH v Den Norske Bank ASA [2003] EWCA Civ 147, [2003] QB 1160 at [40]. Accordingly jurisdiction is also available under Article 5(5) because Anchorage London is established in England. 79 Finally, under Article 6(1) of the Brussels Regulation, a defendant may be sued in the Member State where a co-defendant is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. In this case, the claims against ACMO and AIO are closely connected with the claims against Anchorage London. Anchorage contends that Article 6(1) is not available because there is no serious issue to be tried on the merits against Anchorage London as the “anchor” defendant (see The Xing Su Hai [1995] 2 Lloyd's Rep 15 at 22), but for the reasons already given I do not agree.” [76-79]. Regarding the issue of the applicable law, it was held “62 My conclusions so far have been reached as a result of applying English law. In my judgment [English law] is the applicable law governing these issues, either because of the parties' express choice of English law in BNPP's London terms, or because English law applies pursuant to Article 4(1)(a) of the Rome I Regulation whereby, in the absence of a choice of law made by the parties, a contract for the sale of goods is governed by the law of the country of the seller's habitual residence. The effect of Article 19(2) is that, as the contracts were concluded by BNPP's London branch, London is treated as the place of its habitual residence.” [62]