Nomura International Plc v Banca Monte Dei Paschi Di Siena SpA

Nomura International Plc v Banca Monte Dei Paschi Di Siena SpA

The existence of an exclusive jurisdiction clause in favour of the English courts in the ISDA Master Agreement does not preclude the English proceedings from being 'related actions' to the Italian proceedings under Article 28(3), but is a significant factor against granting a stay. The risk of irreconcilable judgments is sufficiently great to satisfy Article 28(3), but discretionary factors, including the parties' contractual bargain and the exclusive jurisdiction clause, weigh strongly against granting a stay. The application for a stay is refused.

Parties
Claimant/respondent: Nomura International PLC; Defendant/applicant: Banca Monte Dei Paschi Di Siena SpA
Jurisdiction
England and Wales
Judgment Date
24 October 2013
Procedural Posture
Commercial Court Application / Ruling on Application for Stay Under Article 28(1) of Council Regulation (ec) 44/2001
Outcome
Application for stay refused
Legal Topics
Jurisdiction Clauses, Stay of Proceedings, Related Actions, Council Regulation (ec) 44/2001, Declaratory Relief
Private International Law Contract Law Civil Procedure Jurisdiction Clauses Stay of Proceedings Related Actions Council Regulation (ec) 44/2001 Declaratory Relief

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Parties

Nomura International PLC

Claimant/respondent

Banca Monte Dei Paschi Di Siena SpA

Defendant/applicant

Procedural Posture

Commercial Court Application / Ruling on Application for Stay Under Article 28(1) of Council Regulation (ec) 44/2001

Legal Issues

  1. 1 Whether English and Italian proceedings are 'related actions' under Article 28(3) of Council Regulation (EC) 44/2001
  2. 2 Whether the English proceedings should be stayed under Article 28(1)
  3. 3 Effect of exclusive and non-exclusive jurisdiction clauses in related agreements

Ratio Decidendi

The existence of an exclusive jurisdiction clause in favour of the English courts in the ISDA Master Agreement does not preclude the English proceedings from being 'related actions' to the Italian proceedings under Article 28(3), but is a significant factor against granting a stay. The risk of irreconcilable judgments is sufficiently great to satisfy Article 28(3), but discretionary factors, including the parties' contractual bargain and the exclusive jurisdiction clause, weigh strongly against granting a stay. The application for a stay is refused.

Court Disposition

Application for stay refused

Orders

  • BMPS's application for a stay of the English proceedings is rejected.
  • Counsel to draw up an order reflecting the judgment and consequential matters, including costs.