EUPillar Nomura International plc v Banca Monte Dei Paschi Di Siena SpA [2013] EWHC 3187 (Comm)

Summary

The dispute was between two banks. The dispute was with regard to a debt restructuring arrangements which involved a set of agreements between parties. All agreements included exclusive or non-exclusive English jurisdiction clauses. There were two sets of proceedings. At 8:51 am on the 1st March 2013, the defendant in the English proceedings commenced proceedings in Italy. It was submitted that the agreements were illicit and illegal, and the loss caused by them was not less than €700 million. The claim was against the claimant in the English proceedings as well as against two former directors of the defendant in the English proceedings. The causes of action in the Italian proceedings are: (a) breach of directors’ and general managers’ duties; (b) Tortious liability; (c) Damages. On 1st March 2013, the claimant in the English proceedings sought a non-liability declaration. The defendants challenged the jurisdiction of the English court, applying for a stay of the English proceedings. It was established that the Italian court was “first seised”. Nonetheless, the English court refused to order a stay of the English proceedings. Mr Justice Eder held that: 36 […] it is common ground that the Italian Court is the court first seised for the purposes of Article 28 of the Judgments Regulation in respect of claims made in the Italian proceedings. It is also common ground that Article 30(2) of the Judgments Regulation applies to proceedings brought in Italy and that such proceedings are “pending”. […] 71 […] he question whether actions are “related” is answered not just by looking at the claims alone but by looking at the claims and defences . On that basis, it seems to me that in the context of Article 28(3) , I must proceed on the basis of the indication given by Mr Nash as referred to in paragraph 40 above viz that if the present proceedings were to continue in England, BMPS is likely to oppose the declarations sought and that it would seek to rely upon all matters which have already been raised in the Italian proceedings. […] it seems to me that adopting the “broad commonsense approach” endorsed in Sarrio , the underlying factual issues would give rise to a very substantial degree of connection such that it would be expedient (indeed very expedient) to hear the two actions together to avoid the risk of inconsistent judgments. For these reasons, it is my conclusion that the overlap plainly satisfies the test in Article 28(3). […] 76 On the basis of the evidence before me, Mr Handyside submitted that in Italy the “first instance phase” could be expected to last approximately 4 years and the appeal process could last a further 2 – 7 years, which was (he submitted) considerably longer than would be expected in England. Mr Nash disputed these figures. Doing the best I can, it seems to me that proceedings in Italy are indeed likely to take longer than in England […]. On this basis, I accept that this is a factor in Mr Handyside's favour. Moreover, it seems to me relevant to bear in mind that if the English proceedings were to be stayed and as things otherwise stand, when the Italian proceedings are concluded (whenever that might be) the question of the validity of the Agreements will still need to be determined because there is no issue as to such validity in such proceedings (at least as constituted at present). So the determination of that issue would in effect be left hanging until after the conclusion of the Italian proceedings – leading to yet further delay. Mr Nash submitted in effect that this was not really a point against a stay because Nomura could, if it wanted, agree that that issue be determined in the Italian proceedings. However, it seems to me that Mr Handyside is right in his submission that Nomura cannot be criticised for taking the position that it does having regard (at the very least) to the exclusive jurisdiction clause in the ISDA Master Agreement and Asset Swap Transactions.“ [36, 71 and 76]