Enasarco v Lehman Brothers Finance SA & Anor

Enasarco v Lehman Brothers Finance SA & Anor

The Swiss proceedings are insolvency proceedings excluded from the Lugano Convention under article 1(2)(b); therefore, article 27 does not apply and the English proceedings should not be stayed. The exclusive jurisdiction clause and governing law favour resolution in England. There are no substantial grounds for a discretionary stay under article 28 or section 49(3) SCA 1981. ARIC is granted permission to bring a Part 20 claim against LBF.

Parties
Claimant: Fondazione Enasarco; First Defendant: Lehman Brothers Finance S. A.; Second Defendant: Anthracite Rated Investments (Cayman) Limited
Jurisdiction
England and Wales
Judgment Date
16 January 2014
Procedural Posture
Commercial / Ruling on Applications for Stay and Permission to Bring Part 20 Claim
Outcome
Application for stay by LBF refused; permission granted to ARIC to bring Part 20 claim.
Legal Topics
Jurisdiction, Stay of Proceedings, Exclusive Jurisdiction Clauses, Cross Border Insolvency, Lugano Convention, Proof of Debt
Insolvency Commercial Law Conflict of Laws Jurisdiction Stay of Proceedings Exclusive Jurisdiction Clauses Cross Border Insolvency Lugano Convention +1 more

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Parties

Fondazione Enasarco

Claimant

Lehman Brothers Finance S. A.

First Defendant

Anthracite Rated Investments (Cayman) Limited

Second Defendant

Procedural Posture

Commercial / Ruling on Applications for Stay and Permission to Bring Part 20 Claim

Legal Issues

  1. 1 Whether Swiss proceedings fall within the exclusion of insolvency proceedings under article 1(2)(b) of the Lugano Convention
  2. 2 Whether the English court is required to stay proceedings under article 27 of the Lugano Convention
  3. 3 Whether article 28 of the Lugano Convention applies to related actions

Ratio Decidendi

The Swiss proceedings are insolvency proceedings excluded from the Lugano Convention under article 1(2)(b); therefore, article 27 does not apply and the English proceedings should not be stayed. The exclusive jurisdiction clause and governing law favour resolution in England. There are no substantial grounds for a discretionary stay under article 28 or section 49(3) SCA 1981. ARIC is granted permission to bring a Part 20 claim against LBF.

Court Disposition

Application for stay by LBF refused; permission granted to ARIC to bring Part 20 claim.

Orders

  • Refusal of stay of English proceedings under Lugano Convention and SCA 1981.
  • Permission granted to ARIC to commence Part 20 claim against LBF.