EUPillar Dredging International NV v. BNP Paribas Fortis NV + Dredging International NV v. Swedbank AS and LSEZ - C/12/00117

Summary

Before the President of the Commercial Court of Brussels, the plaintiff seeks to obtain an injunction to prevent LSEZ from demanding payment under a bank guarantee, and Fortis and Swedbank to execute the guarantees, at least until the end of the proceedings in Kurzeme and the ICSID arbitration proceedings. The defendants contest the jurisdiction of the court. The forum selection clauses do not apply Swedbank invokes a clause included in the counter-guarantees issued by Fortis conferring jurisdiction on the courts of Riga. However, this only concerns its relationship with Fortis and is not binding on the plaintiff in this case. LSEZ invokes a forum selection clause in the agreement with the plaintiff. However, the plaintiff rightly states that this clause is applicable only to disputes arising from the performance to the contract, and is unrelated to the present proceedings concerning the bank guarantees and counter-guarantees. The defendant Fortis is a bank domiciled in Brussels, Belgium. At the moment the proceedings against Fortis were initiated, by writ of summons on 20 June 2012, the case did not have a foreign element. The case became international with the order for joinder of third parties LSEZ and Swedbank. The international jurisdiction of the court must be determined in accordance with Arts. 31 and 6(2) Brussels I. The injunction requested by the plaintiff is a provisional or protective measure. Therefore, Art. 31 applies. There should be a real connecting link between the subject-matter of the measures sought and the territorial jurisdiction of the Contracting State of the court before which those measures are sought. To assess the existence of such a real connecting link, the president of the Commercial Court takes into account the place of payment of the bank guarantee. The guarantees mention an account number of Swedbank in Latvia. Therefore, the place of payment is in Latvia. There is no real connecting link between the subject-matter of the measures sought and the territorial jurisdiction of the Brussels Commercial Court. The president of the Commercial Court follows the argument of the defendants according to which the plaintiff is guilty of forum shopping, by initiating the proceedings against Fortis before involving Swedbank and LSEZ. Indeed, at the time of service of the writ of summons, LSEZ had already called on the bank guarantee. The plaintiff already knew it would have to involve LSEZ and Swedbank. In the writ of summons, the plaintiff referred to LSEZ’s actions to establish the urgency of the proceedings, and reserved the right to join LSEZ and Swedbank. If the plaintiff had sued the three defendants at the same time, it could not have done so before the courts of Brussels. In conclusion, the president of the Commercial Court dismisses the case for lack of jurisdiction.