AWB Geneva SA & Anor v North America Steamships Ltd

The principal issue raised in these applications is whether a party to a contract governed by English law and subject to the exclusive jurisdiction of the English High Court can found on these provisions to restrain the counterparty’s foreign trustee in bankruptcy from seeking an order in foreign insolvency proceedings that certain conditions precedent to liability under the contract should cease to apply.

The first claimant (“AWB”) and the second claimant (“Pioneer”) are incorporated in Switzerland and the British Virgin Islands respectively. The defendant (“NASL”) was incorporated under the British Columbia Company Act in 1992 and had its head office and principal place of business in Vancouver, British Columbia, Canada. NASL is party to a number of Freight Forward Swap Agreements (“FFAs”) which cover the period 1 January 2007 to 31 December 2007 with monthly settlement dates. Two of these agreements are with AWB; another is with Pioneer. These three agreements are collectively referred to hereafter as “the 2007 FFAs”.

The parties to an FFA are known as “Buyer” and “Seller”. The Seller agrees to pay a “Settlement Sum” to the Buyer if the actual freight rate according to specified market indices (“the Settlement Rate”) is higher than the agreed “Contract Rate” on a specified future date (“the Settlement Date”). The Buyer on the other hand agrees to pay the Seller a Settlement Sum if the Settlement Rate is lower than the Contract Rate on the Settlement Date.

Each of the 2007 FFAs is contained in a standard form written confirmation which incorporates the 1992 ISDA Master Agreement (Multicurrency – Cross Border (without Schedule) (“the Master Agreement”). Clause 16 of the confirmation provides:

Under Section 2 (a) (iii) of the Master Agreement the obligation on each party to pay sums owing on the Settlement Date is subject to the condition precedent that no Event of Default has occurred and is continuing with respect to the other party. Amongst the defined Events of Default is Bankruptcy, which under Section 5 (vii) occurs, inter alia, where a party: (1) is dissolved; (2) becomes insolvent or is unable to pay its debts; (3) makes a general assignment, arrangement or composition with or for the benefit of its creditors; (4) institutes or has instituted against it a proceeding seeking a judgment of insolvency or any other relief under any bankruptcy or insolvency law which results in a judgment or order or the entry of an order for relief; (5) has a resolution passed for its winding-up, official management or liquidation; and (6) seeks or becomes subject to the appointment of an administrator of other similar official for all or substantially all of its assets.

NASL began entering into FFAs on its own account in 2005. In 2006 it executed numerous FFAs as Seller with various counterparties (“the 2006 FFAs”). Four of these contracts were with AWB. Unfortunately for NASL, throughout 2006 the Settlement Rate rose rather than fell and by the end of the year the 2006 FFAs were significantly out of the money. The result was that by late November 2006 NASL was insolvent. On 29 November 2006 it filed an assignment in bankruptcy pursuant to the Bankruptcy and Insolvency Act of Canada under which all of its property vested in Wolrige Mahon Limited (“the Trustee”), as trustee.

By 31 December 2006 NASL owed approximately US$ 47.34 million under the 2006 FFAs and had accounts receivable of approximately US$ 6.2 million.

At the first meeting of creditors held on 5 January 2007 the Trustee’s appointment was approved and four Inspectors were appointed to assist in the administration of the Estate. On 8 January 2007 the Inspectors authorised the Trustee to affirm the 2007 FFAs but the Trustee declined to take this step unless it was clear that it would not incur any personal liability by doing so. Accordingly, the Trustee applied to the Supreme Court of British Columbia (“the Canadian Court”) seeking declarations that it was not obliged to affirm the FFAs in order to take the benefit of them and, if it did affirm them, its liability would be limited to the realisable value of the Bankrupt’s property, less the Trustee’s proper fees and disbursements. In a reserved judgment handed down on 28 February 2007, Tysoe J held that: (i) the Trustee was required to affirm the 2007 FFAs in order to take the benefit of them and thereby assure the other party that it will not be treated as an unsecured creditor in respect of the obligations it performs after the date of the bankruptcy; and (ii) affirmation of the 2007 FFAs by the Trustee would not itself make the Trustee personally liable in respect of NASL’s obligations thereunder so long as the Trustee affirmed on behalf of the bankrupt estate and not in its personal capacity. This judgement is the subject of an appeal by AWB and Pioneer who opposed the Trustee’s application. So far no date has been set for the hearing of this appeal

On 5 March 2007 the Trustee affirmed the 2007 FFAs on behalf of the bankruptcy estate. In the meantime, on 20 February 2007, the Trustee had filed a petition under the Companies’ Creditors Arrangement Act of Canada (“the CCAA”). The purpose of this Act is to facilitate the making of a compromise or arrangement between an insolvent debtor company and its creditors to the end that the company is able to continue in business, see Hongkong Bank v Chef Ready Foods Ltd (1990) 4 CBR (3^rd) 311, at para 10.

Under the CCAA, a plan of reconstruction is binding on all creditors if the plan is approved by a majority of creditors representing two thirds in value of the claims of each class of creditors and is sanctioned by the Court. The Court will grant its sanction if: (i) there has been strict compliance with all statutory requirements and adherence to all previous orders of the court; (ii) nothing has been done or purported to be done that is not authorised by the CCAA; and (iii) the plan is fair and reasonable, see Re Algoma Steel Inc. (2001) 30 CBR (4^th) 1. Further, the exercise of the court’s discretion must be guided by the scheme and object of the CCAA and by the legal principles that govern corporate law issues, see Stelco Inc. (Re) 15 CBR (5^th) 288, at para 26.

Accordingly, in broad terms, the CCAA provides a regime that corresponds to the combined effect of the provisions of UK insolvency law relating to administrations (Schedule B1 of the Insolvency Act 1986 [“the 1986 Act”]) and compromises or schemes of arrangement (Part 1 of the 1986 Act providing for company voluntary arrangements, and section 425 of the Companies Act 1985 [“the 1985 Act”]).

Section 11(4) of the CCAA empowers the Court to make an order staying “proceedings” taken or that might be taken in respect of the company. “Proceedings” has been construed to include extra-judicial conduct that could impair the ability of the debtor company to continue in business. In Norcen Energy Resources Ltd v Oakwood Petroleums Ltd (1988) 72 CBR (NS) 1, the Court restrained a joint venture party of a debtor company from relying on the insolvency of the debtor company to replace it as the operator under a petroleum operating agreement. In Re T Eaton Co (1997) 46 CBR (3d) 293, the Court restrained tenants in shopping centres from terminating leases on the basis of co-tenancy clauses requiring the debtor company’s store to stay open. And in Re Playdium Enterprises Corp (2001) 31 CBR (4^th) 302, the Court restrained a party from relying on its contractual right to object to an assignment.

In Re Doman Industries (2003) 41 CBR (4^th) 29 Tysoe J explained the purpose of such stays in these terms:

It is clear from the evidence of the Trustee’s expert on Canadian insolvency law, the Hon James M Farley QC, a former Justice of the Superior Court of Ontario, that stays are commonly granted under section 11 (4) of the CCAA to restrain counterparties to contracts with the debtor company from relying on any pre-CCAA plan breaches of those contracts committed by the debtor company that would allow those counterparties to exercise remedies against the debtor company. Mr Farley gives examples of such orders in his report. In two of these the order provided that no person who is a party to any contract or lease to which the debtor company is a party may accelerate, terminate, rescind, refuse to perform or otherwise repudiate its obligations thereunder by reason of any defaults or events of default arising out of the insolvency of the applicant. (Footnote: ¹)

The first step in the CCAA process is an application to the Court for an Initial Order. If the reconstruction plan is approved by the necessary majorities of creditors and sanctioned by the Court, the Court may make a Final Order.

Paragraphs 21 and 22 of the draft Initial Order sought by the Trustee read:

The Trustee seeks the relief spelled out in paragraph 21 of the draft Initial Order because if AWB and Pioneer are disentitled from maintaining that they are free from any obligation to make payments to NASL under the 2007 FFAs by reason of NASL’s bankruptcy, the Trustee estimates that by the end of 2007, AWB will owe US$12,526,626 and Pioneer US$ 9,822,884.41 under these agreements, subject to any applicable set-off in favour of AWB in relation to the 2006 FFAs. This estimate is based on a change in the direction of the Settlement Rate which is now moving down so that by the end of March 2007, absent any reliance on Section 2 (a) (iii) of the Master Agreement, AWB owed NASL US$1,063,118.05 and Pioneer US$823,962.04 under the 2007 FFAs.

Paragraph 21 of the draft Initial Order is part of an overall plan by the Trustee: (i) to preserve and realise existing tax losses; (ii) to convert NASL’s debt to equity so that the company ceases to be insolvent; (iii) a Final Order having been obtained from the Court, to seek to enforce the 2007 FFAs against AWB and Pioneer in the Chancery Division of the English High Court pursuant to section 426 of the 1986 Act with the benefit of the Final Order.

Both Mr Farley and Mr Douglas I. Knowles QC, the claimants’ Canadian law expert, agree that the Canadian Court has jurisdiction to make an Initial and a Final Order containing paragraphs 21 and 22 of the proposed draft order. Mr Farley also expresses the view that the proposed provisions of the Initial and Final orders are consistent with the policies and principles of the CCAA and are not uncommonly given in CCAA proceedings. Mr Knowles, on the other hand, says that an order in the terms of paragraph 21 would be unique. He recognises that the CCAA may be legitimately used to facilitate liquidation but says that section 11 (4) of the CCAA is used as a shield to protect the debtor company whilst it is endeavouring to reorganise its affairs and this is not how the subsection is being used in the Trustee’s petition. In his view, there is a serious question whether the Canadian Court would make an order containing paragraphs 21 and 22, inter alia, for the following reasons: (i) NASL has terminated its employees, closed its facilities and ceased carrying on business and there is no indication that it intends revive its business; (ii) NASL has no remaining assets available for creditors except the potential claims under FFAs; (iii) NASL does not need access to payments under the 2007 FFAs in order to pursue any restructuring efforts; (iv) the 2007 FFAs are governed by English law and subject to the exclusive jurisdiction of the English courts; and (v) the CCAA process is being used as a sword and not a shield.

The hearing of the Trustee’s petition under the CCAA is due to take place on 15 June 2007. On 26 March 2007 NASL by the Trustee undertook to this court not to proceed with the CCAA petition before 1 June 2007.

On 19 March 2007 the claimants issued a Claim Form with the permission of Steel J seeking against NASL: (i) declarations under Part 8 CPR that Events of Default under the 2007 FFAs have occurred with respect to NASL and that by reason thereof neither AWB nor Pioneer has any obligation to make any payment to NASL under the 2007 FFAs; (ii) payment to AWB of US$ 2,507,333.03; and (iii) a permanent injunction restraining NASL from making or proceeding with any application or claim for relief relating to the enforceability of the 2007 FFAs in any court other than the English High Court and, in particular, proceeding with the application to the Canadian Court for the relief sought in paragraph 21 of the draft Initial Order. The final hearing of this claim is listed for 24 July 2007.

On 26 March 2007, AWB and Pioneer issued an application for an interim anti-suit injunction in the terms sought in the Part 8 Claim to hold the position until the Part 8 Claim has been determined. This is the first of the three applications before the court. The second is an application by the claimants for the joinder of the Trustee to the Part 8 proceedings as second defendant on the ground that it is a necessary and proper party. The third is an application by NASL that the claimants’ Part 8 Claim be stayed and/or for a declaration that this court has no jurisdiction to determine that claim.

In OT Africa Line Ltd v Magic Sportswear and Others [2005] 2 Lloyds Rep 170, Longmore LJ said:

Mr Malek QC for the claimants accepted that if there is to be an anti-suit injunction, it must be against the Trustee and not NASL because the CCAA proceedings in the Canadian Court are being prosecuted by the Trustee and not NASL. He submitted that the Trustee is bound by the choice of law and exclusive jurisdiction provisions found in clause 16 of the 2007 FFAs. In support of this submission he cited The Jay Bola [1997] 2 Lloyd’s Rep 279 where the Court of Appeal upheld the grant of an anti-suit injunction restraining insurers from suing in their own name in Brazil on voyage charters that contained a London arbitration clause. The insurers were not entitled to enforce their rights under the voyage charters without recognising the obligation to arbitrate in London. To litigate in Brazil was therefore to act unconscionably and the equitable remedy of an injunction would lie. Mr Malek also cited Youell and Others v Kara Mara Shipping Co Ltd and Others [2000] 2 Lloyd’s Rep 102 where Aikens J applied the reasoning in The Jay Bola when granting an anti-suit injunction restraining proceedings on policies of insurance in Louisiana brought under the Direct Action Statute where those proceedings were in defiance of an exclusive jurisdiction clause.

Relying on The Hari Bhum [2005] 1 Lloyd’s Rep 67 (at para 55), Mr Malek submitted that the question whether the Trustee was acting in breach of clause 16 in seeking the proposed Initial Order should be decided by English law and when characterising the CCAA proceedings the court should have regard to the substance not the form. Characterised in this way, said Mr Malek, the Trustee’s application to the Canadian Court was an application for a determination that the claimants have no defence to claims under the 2007 FFAs and as such is a clear breach of clause 16.

Mr Malek also relied on: (i) Gibbs v Societe Industrielle des Metaux (1890) 25 QBD 388 where the Court of Appeal held that the discharge of a contractual obligation in a liquidation in France would not be recognised in England where the contract was governed by English law; (ii) Mazur Media Ltd and another v Mazur Media GmbH and others [2004] 1 WLR 2966 where Lawrence Collins J declined to grant a stay of proceedings where one of the parties was in liquidation in Germany and the contract sued on conferred exclusive jurisdiction on the English court; and (iii) Felixstowe Dock & Railway Co. v United States Lines Inc [1989] 1 QB 360 where Hirst J continued a Mareva injunction in the face of a restraining order made by the US Bankruptcy Court.

In conclusion, Mr Malek submitted that the Trustee’s application to the Canadian Court was an unconscionable breach of clause of 16 and should be restrained by an interim injunction until the Part 8 Claim had been determined.

Is the Trustee’s application to the Canadian Court a breach of clause 16 as Mr Malek so vigorously contended? In my opinion it is not. The exclusive jurisdiction element of clause 16 applies, in my judgement, where one of the parties is seeking a judicial determination on the rights or obligations of one or both of them existing under the contract. In my view, in applying to the Canadian Court under the CCAA, the Trustee is not seeking such a determination. Rather, it is seeking relief in insolvency proceedings that is intended to prohibit various counterparties, including AWB and Pioneer, from relying on certain contractual rights which they might otherwise be entitled to rely on. In other words, the petition against NASL is not an attempt by the Trustee to assert NASL’s contractual rights against AWB and Pioneer under the 2007 FFAs but is an application to the Canadian Court to apply the free standing statutory regime of the CCAA.

The position would be the same if it was NASL which was applying to the Canadian Court under the CCAA. Such an application would not constitute a breach of clause 16 nor any other breach of the 2007 FFAs, for NASL did not covenant not to become insolvent or to make its own voluntary assignment in bankruptcy; nor did it promise only to be made bankrupt or go into liquidation in England, nor to take any steps in its bankruptcy that might prejudice the ability of AWB and Pioneer to enforce their rights under the 2007 FFAs.

By way of contrast, if the Trustee were to commence court proceedings against AWB and Pioneer to enforce the 2007 FFAs, it would be bound, at least as a matter of English law, by the exclusive jurisdiction clause in the sense that it could not enforce NASL’s FFA contractual rights without at the same time accepting AWB’s and Pioneer’s right to rely on the jurisdiction clause. It is for that reason that the Trustee intends to sue on the FFAs in England on an application under section 426 of the 1986 Act after the making of a Final Award.

I am also of the view that the Trustee’s application under the CCAA is not unconscionable or oppressive or vexatious. Both AWB and Pioneer knew or had the means of knowing that NASL carried on business and was incorporated in Canada. Accordingly, it was entirely predictable that if NASL were to become insolvent during the currency of the 2007 FFAs, the insolvency would fall to be dealt with under the applicable Canadian legislation and it is a common feature of insolvency regimes that contractual rights can be overridden. Thus the consequences of liquidation in the UK include: (i) the claims of a creditor under a contract (to the extent that they are capable of sounding in money) are converted into a right to prove for a dividend; (ii) a liquidator may give notice under section 178 of the 1986 Act disclaiming an unprofitable contract or property thereby unilaterally terminating the contract and converting any claim by the counterparty into a claim for damages; (iii) all mutual claims, debts and other mutual dealings are by rule 4.90 of the Insolvency Rules 1986 made the subject of mandatory and automatic set-off, notwithstanding anything in the contract to the contrary; and (vi) a company voluntary arrangement under Part 1 of the 1986 Act or a scheme of arrangement under section 425 of the 1985 Act, if approved by creditors and either sanctioned or upheld by the court (as the case may be), can modify the contractual rights of a dissenting minority of creditors.

It has also to be borne in mind as Mr Dicker QC for NASL and the Trustee pointed out that not only will the English Court recognise the existence of NASL’s bankruptcy and the restructuring proceedings under the CCAA since these are occurring in NASL’s place of incorporation, but also it will regard itself as under a duty to give such aid and assistance to the foreign court as it is able to give. This duty is a matter of common law (see eg Banque Indosuez SA v Ferromet Resources Inc [1993] BCLC 112 at 117) and statute (see eg the Cross Border Insolvency Regulations 2006). Indeed, under section 426 (4) of the 1986 Act the courts having jurisdiction in relation to insolvency law in any part of the United Kingdom are obliged to assist the courts having the corresponding jurisdiction not only in any other part of the United Kingdom but also in any relevant country or territory, and Canada has been designated a relevant country.

Nor do I think that the decisions in Gibbs or Mazur Media Ltd or Felixstowe Dock & Railway Co stand in the way of refusing the claimants’ application. As to Gibbs, I agree with Mr Dicker that it does not follow from the mere fact that an English court will not recognise the discharge of a contractual obligation in foreign liquidation proceedings that the court will grant an anti-suit injunction to restrain a party to the contract from bringing such foreign proceedings. There is also force in Mr Dicker’s submission that, in any event, the common law rule in Gibbs will not apply to prevent the English court from recognising and giving effect to the Canadian plan of reconstruction and Final Order on the Trustee’s proposed application under s. 426 of the 1986 Act. This is because under that provision the court can apply foreign insolvency law in an appropriate case and if it does so on the Trustee’s application the effect of the foreign law on the 2007 FFAs would operate in accordance with and pursuant to English law. In other words, by virtue of the governing English law, including, as part of that law, s. 426, the foreign order will affect the 2007 FFAs.

As to Mazur Media Ltd the question was whether the action for breach of contract by Mazur Ltd against Mazur GmbH could be more suitably dealt with within German insolvency proceedings of a very different nature than the CCAA proceedings in this case. The decision is therefore of little if any assistance to the claimants. And Felixstowe Dock & Railway Co involved a situation far removed from that now before the court and is a decision that has been authoritatively criticised (Footnote: ²) and is unlikely to be followed today.

Accordingly, notwithstanding clause 16 and the features of the Trustee’s CCAA application that cause Mr Knowles to question whether the Canadian Court would make an Initial Order and a Final Order containing the proposed paragraph 21, I am of the opinion that this court should not grant the injunction sought. Instead, the Trustee should be left free to apply to the Canadian Court in proceedings in which the claimants have a right to be heard on whether the proposed plan is fair and reasonable having regard to all relevant considerations, including clause 16 and the scheme and object of the CCAA.

My decision to refuse the claimants’ application for an interim anti-suit injunction means that there is no basis for the claim for a permanent injunction. This leaves the claim for declaratory relief and the money claim. As to the former, given the refusal to grant an anti-suit injunction, there is no point in the court hearing this claim unless and until the Canadian Court declines to make the proposed Initial Order or declines to make the proposed Final Order. The declaratory relief claim should therefore be stayed. As to the money claim, I think it plain that this should be permanently stayed, leaving AWB to prove for this admitted sum in NASL’s bankruptcy.

The court has already exercised jurisdiction over NASL and on good grounds so far as the declaratory relief claims are concerned; and in my judgement, the Trustee is plainly a necessary and proper party in respect of these claims. Against the possibility that the Canadian Court will decline to make the proposed Initial Order or Final Order, I propose to grant the claimants’ application to join the Trustee as a second defendant and to refuse NASL’s jurisdictional challenge. However, as I have said, the claims for declaratory relief will be stayed until further order.