Enasarco v Lehman Brothers Finance SA & Anor [2014] EWHC 34 (Ch) (16 January 2014)

Enasarco v Lehman Brothers Finance SA & Anor [2014] EWHC 34 (Ch) (16 January 2014)

The Swiss proceedings are insolvency proceedings within the exclusion in article 1(2)(b) of the Lugano Convention, so articles 27 and 28 do not apply. The English proceedings should not be stayed, given the exclusive jurisdiction clause, the governing law, and the practical and legal advantages of resolving the issues in England. ARIC is granted permission to bring a Part 20 claim against LBF.

Citation
[2014] EWHC 34 (Ch)
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/insolvency Claim (part 7 and Part 20 Applications) / Interlocutory Applications for Stay and Permission to Bring Related Claims
Outcome
LBF's application for a stay is refused; ARIC's application for permission to bring a Part 20 claim is granted.
Legal Topics
Lugano Convention, Jurisdiction, Insolvency Proceedings Exclusion, Exclusive Jurisdiction Clauses, Case Management Stay, Cross Border Insolvency Regulations, ISDA Master Agreement
Insolvency Conflict of Laws Commercial Law Lugano Convention Jurisdiction Insolvency Proceedings Exclusion Exclusive Jurisdiction Clauses Case Management Stay +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 18 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Fondazione Enasarco

Claimant

Lehman Brothers Finance S. A.

First Defendant

Anthracite Rated Investments (Cayman) Limited

Second Defendant

Procedural Posture

Commercial/insolvency Claim (part 7 and Part 20 Applications) / Interlocutory Applications for Stay and Permission to Bring Related Claims

Legal Issues

  1. 1 Whether Swiss insolvency proceedings fall within the exclusion in article 1(2)(b) of the Lugano Convention
  2. 2 Whether the English proceedings should be stayed under article 27 or 28 of the Lugano Convention or under section 49(3) of the Senior Courts Act 1981
  3. 3 Whether ARIC should be granted permission to bring a Part 20 claim against LBF

Ratio Decidendi

The Swiss proceedings are insolvency proceedings within the exclusion in article 1(2)(b) of the Lugano Convention, so articles 27 and 28 do not apply. The English proceedings should not be stayed, given the exclusive jurisdiction clause, the governing law, and the practical and legal advantages of resolving the issues in England. ARIC is granted permission to bring a Part 20 claim against LBF.

Court Disposition

LBF's application for a stay is refused; ARIC's application for permission to bring a Part 20 claim is granted.

Orders

  • Refusal of stay of English proceedings sought by LBF
  • Permission granted to ARIC to commence a Part 20 claim against LBF