Summary
On the claimant’s side, there were two banks – Depfa (Ireland) and Dexia (Italy). The defendant was an Italian public authority. The dispute was in respect of two Swap Agreements which included an English jurisdiction clause.
There were parallel proceedings.
The English proceedings were commenced on 26th June 2009 (initially they were limited to declaratory relief, but subsequently, in September 2009, the claim forms were amended to include money claims.
The Italian proceedings were administrative in their nature. In the administrative proceedings, the claimants sought to annul a defendant’s decision which was in breach of the swap agreements.
In the English proceedings, the defendant challenged the English court’s jurisdiction, submitting that the dispute was in the scope of Article 22(2) of Brussels I. On 25 May 2010, the defendant’s application was dismissed by Mr Justice Hamblen.
The matter reached the English High Court again. In another case ([2012] EWHC 687 (Comm)), Mr Justice Teare noted that it was not only the English court that considered that it had jurisdiction, but also the Italian Administrative Court ruled that it had jurisdiction to determine whether the Swaps were valid and binding on. In the circumstances, the Banks made request to the English High Court for a preliminary reference. They wanted for the Court of Justice to opine on whether the matter was within the scope of Article 1 of Brussels I. Mr Justice Teare rejected the request, and justified his decision as follows:
“28 I accept that it is unsatisfactory that both the English and (so far) the Italian courts have decided, in circumstances where Pisa has exercised its powers of self-redress, that it is within their respective jurisdictions to determine the validity of the swaps. That situation is unsatisfactory because it gives rise to the risk of irreconcilable judgments in two Member States. If the English court gives judgment on the Banks’ claims on the swaps in favour of the Banks and if the Italian Supreme Court (following a determination by the court appointed expert in favour of Pisa) upholds the decision of the Consiglio di Stato it can be envisaged that there will or may be difficulties in enforcing the English court’s judgment in Italy. In those circumstances it is understandable that the Banks have sought to find a solution to this unsatisfactory situation before the parties incur the costs of a trial on the merits of the claims on the swaps in the English court.
29 However, I have come to the conclusion that a solution to that unsatisfactory situation cannot properly be found in a reference by the English court to the ECJ. There is no issue before the English court as to the correct classification of the proceedings which have been commenced before it by the Banks. They involve civil or commercial matters. Nobody suggests that they do not. The English court can therefore “with complete confidence” proceed to hear and determine those proceedings and give judgment in them. The fact that the Consiglio di Stato has, in proceedings before it, decided that it may determine a question as to the validity of the swaps arising out of the exercise of self-redress powers does not cast doubt on the correct classification of the proceedings before the English court.
30 [...] if it is necessary for any court to make a reference to the ECJ to enable it to give a judgment, that court is the Italian court rather than the English court. “ [28-30].