Calyon v Wytwornia Sprzetu Komunikacynego Pzl Swidnik SA

This is an application by the defendant (“PZL”) for a declaration that the Court has no jurisdiction to try the claim brought against it by Calyon in Claim No. 2008 Folio 1250.

Calyon is a bank incorporated in France. It was formerly known as Credit Agricole. PZL is a company incorporated in Poland which manufactures aircraft equipment. In the course of 2008 PZL entered into a number of foreign exchange derivative transactions with Calyon in order to hedge against adverse movements in the US dollar/Polish Zloty exchange rate. One such contract was entered into over the telephone on 13 August 2008, with Mr Dariusz Frejowski acting for PZL and Mr Grzegorz Klimczyk acting for Calyon. The transaction involved was called a Strip of Ratio Forwards (“SRF). (Footnote: ¹) A confirmation of the transaction setting out its terms was sent by Calyon’s London Branch to PZL on 20^th August 2008. Those terms provided, inter alia, that: (i) there were to be bi-weekly “fixings” in the period September 2008 to May 2009; (ii) the governing law of the SRF was English law; and (iii) the transaction was subject to the provisions of 1992 Master Agreement (Multicurrency-Cross Border) as published by the International Swaps and Derivatives Association (“the ISDA Master Agreement”).

Clause 13(b) of the ISDA Master Agreement provides that if the agreement is governed by English law, each party irrevocably submits to the jurisdiction of the English courts in relation to any suit, action or proceedings relating to the agreement.

PZL did not sign the Confirmation. After permitting a number of payments out of its bank account in discharge of sums Calyon said were due under the SRF, PZL refused to make further payments alleging that it had not agreed to the terms set out in the Confirmation. In particular, PZL said that it had not agreed to bi-weekly fixings for October 2008 to May 2009. Some four months after receipt of the Confirmation, PZL first explicitly stated that the transaction was not governed by the terms of the ISDA Master Agreement.

On 1 December 2008, Calyon issued proceedings in this Court (Claim No 2008 Folio 1250) seeking: (i) a declaration that the agreement of 13 August 2008 was made on the terms contained in the Confirmation; and (ii) specific performance of those terms. On 4 December 2008, Calyon applied for permission to serve the claim out of the jurisdiction under CPR 6.33(2)(b)(iii) on the basis that PZL was a party to an agreement conferring jurisdiction on this Court within Article 23 of the Brussels I Regulation. The permission sought was granted by Master Whitaker on 11 December 2008.

On 22 December 2008, PZL started proceedings in the Commercial Division of the Regional Court in Warsaw (“the Polish proceedings”) for the recovery of the payments made to Calyon under the SRF. This claim is made on the basis that PZL never agreed to there being bi-weekly fixings. PZL also alleges that: (i) Mr Frejowski had no authority to make an agreement with Calyon that was subject to the terms of the ISDA Master; and (ii) Calyon was in breach of the standard of diligence applicable to it as a bank in not presenting by telephone the terms of the transaction in a detailed and clear manner and not obtaining PZL’s express agreement to each of the fixing dates.

Article 23(1) provides:

If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either:

(a)

in writing or evidenced in writing; or

(b)

in a form which accords with practices which the parties have established between themselves; or

(c)

in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.

Theoretically, Article 23(1) contains two requirements: (i) an agreement (“consensus”) between the parties that disputes between them are to be settled in the courts of a Member State of the EU; and (ii) the satisfaction of the formalities specified in (a), (b) or (c).

In Estasis Salotti di Colzani Aimo e Gianmario Colzani v RÜWA Polstereimaschinen GmbH [1976] ECR 1831 the question was whether the parties to a contract had agreed for the purposes of Article 17 of the 1968 Convention on Jurisdiction and Enforcement of Judgments that the Cologne courts should have jurisdiction over disputes arising out of the contract. Printed on the back of the signed contract were the seller’s general terms and conditions which included a clause stipulating that disputes should be decided in the courts of Cologne. There was no express reference to the general conditions on the face of the contract but there was a reference to previous offer letters which had referred to the seller’s general conditions.

In paragraphs 6 and 7 of the judgement, the ECJ said:

6.

The first paragraph of Article 17 of the Convention provides: “If the parties, one or more of whom is domiciled in a Contracting State, have, by agreement in writing or by an oral agreement confirmed in writing, agreed that a court or the courts of a contracting state are to have jurisdiction to settle any disputes which have arisen or which may arise in connexion with a particular legal relationship, that court or those courts shall have exclusive jurisdiction'.

7.

The way in which that provision is to be applied must be interpreted in the light of the effect of the conferment of jurisdiction by consent, which is to exclude both the jurisdiction determined by the general principle laid down in article 2 and the special jurisdictions provided for in Articles 5 and 6 of the Convention.

In view of the consequences that such an option may have on the position of the parties to the action, the requirements set out in Article 17 governing the validity of clauses conferring jurisdiction must be strictly construed .

By making such validity subject to the existence of an “agreement” between the parties, article 17 imposes on the court before which the matter is brought the duty of examining, first, whether the clause conferring jurisdiction upon it was in fact the subject of a consensus between the parties, which must be clearly and precisely demonstrated .

The purpose of the formal requirements imposed by article 17 is to ensure that the consensus between the parties is in fact established .

The ECJ went on to hold that the requirement of writing under the first paragraph of Article 17 of the Convention is fulfilled: (i) where a clause conferring jurisdiction is included among the general conditions of one of the parties printed on the back of a contract, only if the contract signed by both parties contains an express reference to those general conditions; or (ii) where the contract refers to a prior written offer which refers to general conditions including a jurisdiction clause, only if the express reference can be checked by a party exercising reasonable care and the general conditions (including the jurisdiction clause) had been communicated to the other party with the prior offer.

It is clear from Salotti that the purpose of establishing paragraphs (a), (b) and (c) of Article 23 is to ensure that the consensus between the parties is in fact established. Further, the establishment of (b) and/or (c) gives rise to a presumption of actual consensus, see Mainschiffahrts-Genossenschaft eG (MSG) v Les Gravières RhénanesSarl (Case C-106/95); [1997] QB 731 (ECJ), at p. 755 at para 19; The “Kribi” [2001] 1 Lloyd’s Law Reports 76, at para 64.

It is common ground that (i) the approach of the ECJ in Estasis Salotti applies to Article 23(1) of the Brussels I Regulation; (ii) it is for Calyon to demonstrate clearly and precisely to the applicable standard of proof that the jurisdiction clause contained in Clause 13(b) of the ISDA Master was in fact the subject of a consensus between the parties; and (iii) “consensus” for the purposes of Article 23 has an autonomous meaning.

The applicable standard of proof is a “good arguable case”, which means that Calyon must show that it has a much better argument than PZL that, on the material available, the requirements of Article 23 (1) are met and it can be established clearly and precisely that Clause 13 (b) was the subject of consensus between the parties: see Bols Distilleries BV (trading as Bols Royal Distilleries) and another v Superior Yacht Services Ltd [2007] 1 WLR 12 where at para 28 the Privy Council endorsed Waller LJ’s approach in Canada Trust Co v Stolzenberg (No 2) [1998] 1 WLR 547 at 555.

Mr Gaisman QC for Calyon submitted that where there was a conflict on the evidence putting the reliability and/or veracity of the witnesses in question, and the jurisdiction issue could only be decided by the court preferring the evidence of one or more witnesses over the evidence of other witnesses, the court should not apply the “much better argument” test but should ask itself simply whether the applicant has established a good arguable case. In support of this submission he referred to the judgement of Toulson LJ in WPP Holdings Italy Srl v Benatti [2007] 1 WLR 2316 at 2330 D-E. For reasons that appear later in this judgement, it is unnecessary for me to pronounce on the correctness of this submission.

In addition to submitting that consensus is established through the incorporation by reference of Clause 13(b) of the ISDA Master Agreement into the SRF contract, Calyon contends, inter alia, that consensus is established by the course of dealing between the parties in the period February to 16^th August 2008. It is accordingly necessary to record the parties’ dealings with each other over that period.

Following his attendance at a trade finance seminar in early February 2008 organised by Calyon, Mr Frejowski received a telephone call from Mr Klimczyk on 19 February 2008 in which Mr Klimczyk suggested that he could send details of “slightly more structured products” which might satisfy PZL’s needs to secure exchange rate risk.

The following day Mr Klimczyk sent Mr Frejowski by email proposals for “geared forwards”, “par forwards” and “knockout geared forwards”.

During telephone conversations with Mr Frejowski in April 2008, Mr Klimczyk returned to the subject of forward foreign exchange transactions including Target Redemption Forward Transactions (“TRFs”), Participating Forward Transactions and Risk Reversals.

Under a TRF the parties nominate a notional sum in a particular currency eg US$1million (the Base Currency Principal Amount), agree a benchmark exchange rate (the Forward Rate) between that currency and another currency (here the new Polish zloty, PLN, and undertake that on pre-determined dates (“fixing” or “expiration” dates) they will make payments to one another via put and call options, the payments being calculated by applying the market exchange rate on that date (the Fixing Rate) to the Base Currency Principal Amount. In practice the parties net the two sums off against each other and only the positive difference is paid by the party who is “out of the money” i.e. on the wrong side of the exchange rate. In addition, there is an element of gearing in that the customer agrees that if Calyon are “in the money”, he will pay a sum based on a multiple of the Currency Principal Amount.

TRFs also contain a “knockout” provision whereby the transaction terminates if a certain trigger point is reached, even if the transaction would otherwise run on. A trigger point may be when a certain number of fixing dates have resulted in a payment to the customer or when a certain level of profit has been earned.

A TRF is structured as a series of options. It is an example of what Calyon calls a “structured” transaction.

During 17^th April 2008 Mr Klimczyk and Mr Frejowski had a number of telephone conversations that led to a concluded deal for a TRF and Mr Klimczyk sent Mr Frejowski details of geared forwards and TRFs contained in attachments to an email in English sent to Mr Klimczyk by Ms Aviva Biglaizer which Mr Klimczyk forwarded to Mr Frejowski. Ms Biglaizer worked in Calyon’s London office.

Following the conclusion of the first TRF, Mr Klimczyk sent Mr Frejowski an email on 17^th April 2008 thanking him for the transaction and stating:

At the same time, I would like to ask you to send me corporate financial documents and sign the Master Agreement regulating our FX and derivative dealings.

The Master Agreement referred to (“the Polish Master Agreement”) was a contract in Polish which had been sent to PZL some time previously. It was signed on behalf of PZL that very day -- 17 April 2008. It was entitled “MASTER AGREEMENT FOR ENTERING INTO TRANSACTIONS WITH DEALING ROOM FOR CUSTOMERS MAINTAINING ACCOUNT WITH CALYON S.A. BRANCH IN POLAND”. The parties were expressed to be PZL, represented by Ryszard Cukierman, Member of Management Board, Commercial Director and Dariusz Frejowski, Member of Management Board, Financial Director, (referred to as the “Client”) and Calyon S.A. Oddzial w Polsce, a Polish branch operating as a joint-stock company, with its seat in Warsaw, represented by Piotr Kwiatkowski, Managing Director, Calyon SA Branch in Poland and Maciej Obroniecki, Deputy Managing Director, Calyon SA Branch in Poland, (referred to as “the Bank”).

The agreement contained 10 Sections entitled “1 Subject-Matter of Agreement”, “2 Form of Transactions”, “3 Authorised Representatives”, “4 Negotiations and Entering into Transaction”, “5 Confirmation of Transaction”, “6 Execution of Transaction Entered into”, “7 Delay in Effecting Payment”, “8 Damages”, “9 Procedure in Event of Bankruptcy of a Party to Agreement” and “10 Final Provisions”

Clause 1.1 provides:

This Agreement lays down the procedure for entering into transactions referred to in the Description of Categories of Foreign Currency Transactions, FRA and IRS attached hereto as Schedule 1 and, as regards options, in the Foreign Currency Call and Put Options Regulations attached hereto as Schedule 2 (“Transactions”).

In Section 2 it is stated that the Transaction[s] are entered into orally by authorised representatives of the parties (who are identified in Schedule 3, including Mr Frejowski).

Clause 4.4 provides:

The Agreement, terms agreed between the Parties with respect to each Transaction, each Confirmation and all changes to any of the above items constitute a mutual agreement, and the only agreement, between the Parties. The Parties confirm that all the Transactions are entered into under the terms of the Agreement.

In Section 5 it is provided that the Bank will deliver to the Client on the following Business Day after a Transaction is entered into a written Confirmation of the Transaction substantially in the form set out Schedule 5. Any discrepancy between the terms set out in the Confirmation and the agreed terms must be notified to the Bank no later than the following Business Day and whether any changes to the terms of the Confirmation are to be made depends on the recording made of the oral agreement.

Clause 10.2 provides that any amendments to the Agreement must be made in writing and by Clause 10.7 any disputes that may arise in connection with the performance of the Agreement are to be settled by the Court of Arbitration at the Association of Polish Banks under the applicable regulations.

Contained in Schedule 1 are descriptions of Spot Forward and Currency Swaps and various interest rate transactions, whilst Schedule 2 contains Regulations for Call and Put Foreign Currency Options. These Regulations include pro-forma confirmations for the regulated transactions. At the foot of the pro-forma confirmation of Buy/Sell Foreign Currency Options appear the words: “The buy/sell transaction has been concluded in compliance with the Regulations of Calyon S.A. in Poland Call andPut Foreign Currency Options”.

Paragraph 1 of Chapter 1 of Schedule 2 states that Call Foreign Currency Options and Put Foreign Currency Options transactions are offered by “Calyon S.A. Branch in Poland”.

On 23^rd April 2008, the London Branch of Calyon sent PZL a Confirmation of the TRF agreed on 17^th April. Its opening words were:

“The purpose of this letter agreement (this “Confirmation”) is to confirm the terms and conditions of a transaction entered into between us, Calyon, acting through our London Office, (“Party X”), and you, Wytwornia Sprzetu Komunikacyjengo PZL Swidnik SA (“Party Y”), on the Trade Date specified below (the “Transaction”).

At the foot of each page was a London address for Calyon and, alongside reference to the French financial regulators, mention of the fact that Calyon was authorised and regulated by the Financial Services Authority for the conduct of UK business. On the last page, above the place for authorised signatories for Calyon, appeared the words “Calyon London”. There was no mention of Warsaw or Poland or Polish financial regulators anywhere in the document.

The TRF Confirmation also stated:

The definitions and provisions contained in the 1998 FX and Currency Option Definitions as amended by the 2005 Barrier Option Supplement, as published by the International Swaps and Derivatives Associations, Inc. and The Foreign Exchange Committee (the “Definitions”) are incorporated into this Confirmation….This Confirmation evidences a complete and binding agreement between you and us as to the terms of the Transaction. In addition, you and we agree to use all reasonable efforts promptly to negotiate, execute, and deliver an agreement in the form of the 1992 Master Agreement (Multicurrency-Cross Border) as published by ISDA (the “Master Form”), with such modifications as you and we will in good faith agree. Upon the execution by you and us of such an agreement, this Confirmation will supplement, form part of, and be subject to that agreement. All provisions contained in or incorporated by reference in that agreement upon its execution will govern this Confirmation except as expressly modified below. Until we execute and deliver that agreement, this Confirmation, together with all other documents referring to the Master Form confirming transactions entered into between us, shall supplement, form part of, and be subject to an agreement in the form of the Master Form as if we had executed an agreement in such form (but without any Schedule except for the election of English law as the governing law and United States Dollars as the Termination Currency) on the Trade Date of the first such transaction between us…

There then were set out the terms of the transaction – the Forward Rate, the Base Principal Amount, the Fixing Dates etc – in which Calyon was referred to Party X and PZL as Party Y. At the end of the terms under the heading “Offices” it was stated that London was the office through which Party X acts and Poland was the office through which Party Y acts.

Above the space for the signatures of the representatives of the parties appeared the words:

Please confirm that the foregoing correctly sets forth the terms of our agreement by signing this Confirmation and returning a copy of it to us by electronic mail or fax or by sending to us a letter substantially similar to this Confirmation, setting forth the material terms of the Transaction and indicating your agreement to those terms. If we do not receive acknowledgement or correction of this Confirmation within two Business Days or receipt by you, we shall consider the above details to be correct (absent manifest error).

PZL never obtained a copy of the ISDA Master Agreement. Had they wanted to, a copy could easily have been downloaded using the internet. The opening words of the ISDA Master record that the parties:

have entered and/or anticipate entering into one or more transactions (each a “Transaction”) that are or will be governed by this Master Agreement, which includes the schedule (the “Schedule”), and the documents and other confirming evidence (each a “Confirmation”) exchanged between the parties confirming those Transactions.

Clause 1(c) provides:

(c)

Single Agreement. All Transactions are entered into in reliance on the fact that this Master Agreement and all Confirmations form a single agreement between the parties (collectively referred to as this “Agreement”), and the parties would not otherwise enter into any Transactions.

Clauses 13(a) and (b) provide:

(a)

Governing Law. This Agreement will be governed by and construed in accordance with the law specified in the Schedule.

(b)

Jurisdiction. With respect to any suit, action or proceedings relating to this Agreement (“Proceedings”), each party irrevocably:

(i)

submits to the jurisdiction of the English courts, if this Agreement is expressed to be governed by English law, or to the non-exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City, if this Agreement is expressed to be governed by the laws of the State of New York; and

(ii)

waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings, that such court does not have any jurisdiction over such party.

Nothing in this Agreement precludes either party from bringing Proceedings in any other jurisdiction (outside, if this Agreement is expressed to be governed by English law, the Contracting States, as defined in s. 1(3) of the Civil Jurisdiction and Judgments Act 1982 or any modification extension of re-enactment thereof for the time being in force) nor will the bringing of Proceedings in any one or more jurisdictions preclude the bringing Proceedings in any other jurisdiction.

On 24^th April, 4^th June and 5^th June 2008 respectively, three further TRF transactions were entered into between Calyon and PZL following telephone conversations between Mr Klimczyk and Mr Frejowski. The Confirmations in respect of these transactions were in a form (save as to the specific terms) identical to the form of the 23^rd April TRF Confirmation. They were received by PZL on 25^th April, 6^th June and 9^th June 2008 respectively.

The TRF Confirmations were sent to PZL by Calyon’s London Branch because it was that Branch of Calyon which priced, assessed and entered into structured transactions such as TRFs and SRFs. Simpler transactions, such as ungeared options with one exercise date or conventional FX spot, forward or swaps trades and deposits were entered into by the Branch local to the customer and kept on that Branch’s books, subject to a back-to-back trade with the London Branch.

Following an approval procedure begun in 2007, Calyon London granted PZL a “Radical number”, equivalent to a client or customer number, in April 2008.

On 20^th June 2008 Ms Iwona Ignaciuk [II], a colleague of Mr Frejowski in PZL’s Finance Department, telephoned Mr Klimczyk [GK] in response to a request that the four TRF Confirmations be signed and sent to Calyon London. (Footnote: ²)

At the start of this conversation, Ms Ignaciuk explained that PZL had not sent back the Confirmations because of the wording that provided that if the confirmations were not returned it is presumed that their contents are agreed. The transcript of the conversation continues:

[II:] “One more question now. Because we also concluded with you, except that it’s now with Warsaw, two transactions. Should we also send those confirmations or not?”

[GK:] “The ones with Warsaw, which in reality means under the framework agreement you have, you do not need to.”

[II:] “Exactly”.

[GK:] “If you did not raise objections within the deadline specified there, we deem the transaction concluded and you hereby confirm … the transaction terms. Hence you do not need to. But those for London, yes.”

[II:] “Uh-huh. Exactly, because I was reading that framework agreement and there was nothing about that confirmation … so we did. OK”.

[GK:] “It all depends on where the transaction is recorded. Here, in Poland, you can absolutely use your right under the framework agreement. Because the framework agreement, in reality, er … concerns transactions recorded here. As for the transactions recorded in London, on the other hand, and those are precisely all the structured transactions, then, well, we should sign with time the document called ISDA which would constitute the framework of our cooperation. And also … and also it is necessary to sign those .. those confirmations. Probably, with the ISDA signed, one does not have to sign it then, but then we don’t have it, so we will appreciate if you sign it though.”

…

[II:] “OK. So, then, we will be sending over all those confirmations signed.”

On or around 23^rd June 2008, Mr Frejowski and Mr Zbigniew Juszczyński, PZL’s Chief Accountant, signed a document expressed to be in respect of “FX Spot, FX Forward, FX Swap, FX Options, and Deposits transactions (in PLN and in other currencies), as well as other transactions consisting in combination of various financial products referred to as structured transactions, between [PZL] and Calyon London,” authorising “Calyon S.A. Oddzial w Polsce” to settle such transactions by debiting or crediting three accounts at Calyon S.A. Oddzial w Polsce and transferring amounts to three accounts of Calyon London.

On 27 June 2008, all four TRF Confirmations were faxed to the London Branch of Calyon duly signed by Mr Frejowski and another authorised signatory on behalf of PZL.

Meanwhile, on 23 May 2008, PZL, acting by Mr Frejowski, and Calyon, acting by Mr Klimczyk, entered into two “simple” foreign exchange options, one with a value of US$5,000,000, whose exercise date and rate were 26 September 2008 and PLN 2.2400 respectively, and the other with a value of US$ 7,500,000 with an exercise date of 27 March 2009 and an exercise rate PLN 2.4500. These contracts were made orally over the telephone and were confirmed by confirmations in Polish dated 23 May 2008. The confirmations were in the form of the pro-forma confirmations set out in Schedule 2 to the Polish Master Agreement. Thus, at the head and foot of the documents Calyon was identified as “Calyon S.A. Branch in Poland”, the documents were signed on behalf of “Calyon S.A. Branch in Poland” and above the signatures appeared the words: “The sell transaction has been concluded in compliance with the Regulations of Calyon S.A. Branch in Poland Call and Put Foreign Currency Options.”

On 8^th August 2008, Mr Klimczyk started discussing the possibility of PZL entering into some new foreign exchange transactions including a TRF, a SRF or a Risk Reversal. Mr Frejowski wanted a hedge running to early 2009, and possibly after that and for that reason wanted a transaction that had no knock-out provision. There followed a series of telephone calls between Mr Klimczyk and Mr Frejowski on 11^th, 12^th and 13^th August 2008 leading up to a conversation shortly after 1.16 pm that day when the SRF transaction was finally done. During this conversation, Mr Frejowski would have heard Mr Klimczyk speaking in French to Aviva Biglaizer to get a pricing up-date. Aviva Biglaizer was speaking from Calyon’s London Branch. At Mr Klimczyk’s request, Mr Frejowski agreed to wait while Mr Klimczyk obtained an updated price. When Mr Frejowski asked in one of the earlier calls for the transaction to be re-priced he was told that London would be asked to re-price the trade straight away.

Over the period 8^th – 13^th August 2008, Mr Klimczyk had sent Mr Frejowski a number of emails in Polish but with attachments in English specifying outline proposals and prices. Immediately following the conversation on 13^th August 2008 when the SRF deal was done, Mr Klimczyk sent Mr Frejowski an email in Polish confirming the transaction with an email in English from Ms Biglaizer to Mr Klimczyk attached, setting out the pricing for the various delivery dates. At no time in this period did Mr Klimczyk mention ISDA terms. This was because, to his mind, Calyon always did these types of transactions on ISDA terms; he had made it clear in late May or early June 2008 that Calyon had to trade on ISDA terms and this did not need repeating.

As recorded in paragraph 2 above, an ISDA long form Confirmation of the SRF transaction was sent by Calyon London to PZL on 20^th August 2008. This was in the same standard terms as the TRF Confirmations that had been signed by Mr Frejowski and sent to Calyon London on 27^th June 2008.

The SRF is very similar to the TRF. The structure of both types of transaction is commercially identical, but the SRF has no “knock-out” condition. In addition, the SRF has an express provision for the netting of the sums due to and from each party following each fixing date, rather than leaving this to the practice of the parties. Thus in the SRF, the “Settlement Amount” on each fixing date is expressed to be the difference between the Forward Rate (2.2800) and the then applicable exchange rate, multiplied by the Base Currency Principal Amount for that fixing date.

Mr Klimczyk says that when he was talking to Mr Frejowski in April 2008, he explained to him that: (i) if he wanted to do complex and structured trades he would need to go through Calyon London compliance and obtain a “Radical number”; and (ii) such transactions would generally be dealt with Calyon London which would price and book the transactions. Simple options, FX Spots or FX Forwards, however, could be dealt with by Calyon Warsaw.

In late May 2008 Calyon began chasing PZL for the return of the four TRF Confirmations, duly signed. At about this time Mr Frejowski asked Mr Klimczyk over the phone why the confirmations were in English and why they had to be sent to Calyon London. Mr Klimczyk explained again that this was because the TRF transactions were traded with Calyon London. Mr Frejowski said he preferred to trade on a local agreement locally signed under Polish law. Mr Klimczyk told Mr Frejowski that in that case it would only be possible for him to do simple options and FX trades with Calyon Warsaw under the Polish Master Agreement. It would not be possible for him to trade more complex FX structured products. These had to be booked with London and London traded on ISDA terms. Mr Frejowski replied that simple FX spots and simple options were not much use to him and he wanted to do structured derivative products. Mr Klimczyk told him that that meant dealing on ISDA terms with London. Following this conversation, Mr Klimczyk spoke about it to Ms Agata Jakobczyk, the Calyon relationship manager for PZL.

When he spoke to Mr Frejowski on the phone in the lead up to the four TRFs agreed before 13^th August 2008, Mr Frejowski knew that Mr Klimczyk was dealing on behalf of Calyon London. Mr Frejowski also knew that prices for TRFs came from Calyon London.

Mr Frejowski states that as far as he was concerned, he always dealt with Calyon’s Warsaw Branch. At no point did Mr Klimczyk discuss with him the difference between “Calyon London” and “Calyon Warsaw”. Nor, so far as Mr Frejowski knew, did anyone else at Calyon discuss with anyone else at PZL this difference. Mr Klimczyk never said that certain transactions would be concluded with the Warsaw branch of Calyon, while others would be concluded by the London Branch. As far as he and the other two persons authorised under the Polish Master Agreement, Ms Dudek and Ms Grudzień, understood it, PZL’s arrangements were solely with the Warsaw branch of Calyon and were governed by the terms of the Polish Master Agreement.

In paragraph 31 of his witness statement, Mr Frejowski insists that neither he, nor Ms Dudek nor Ms Grudzień, was told that the counterparty for the SRF was the London Branch of Calyon.

Mr Frejowski did not query whether the SRF concluded on 13 August 2008 was governed by rules other than those contained in the Polish Master Agreement, such as the ISDA rules. He did not do so because the Polish Master Agreement deals with put and call options and the SRF was a series of such options, one for each of the fixing dates. Moreover, Mr Klimczyk never said that any of the arranged transactions was not covered by the Polish Master Agreement. Nor did Mr Klimczyk or anyone else at Calyon make any distinction between what Mr Klimczyk refers to as “simple” and “complex” options. As far as Mr Frejowski understood it, the Polish Master Agreement was the only agreement defining the terms of the foreign exchange and derivative transactions between PZL and Calyon.

Mr Frejowski remembered a conversation when Mr Klimczyk rang about sending back the four TRF Confirmations, but his recollection was that this was in mid-June and not May 2008 and there was no discussion about using Calyon’s London Branch or using the Warsaw Branch for “very simple trades”. Mr Frejowski recalled asking why he needed to sign anything for a transaction that was already concluded and was told that the Confirmations were information about the technical aspect of the transaction which had been sent for his information. Mr Frejowski asked Mr Klimczyk for a written confirmation from him that he should sign the Confirmations, since he had had nothing to do with the Calyon branch in London and that branch was not his negotiating party.

When Mr Frejowski signed the four TRF Confirmations, he relied on Mr Klimczyk’s assertion that these were merely confirmatory documents dealing with the technical aspects of the transaction. He did not think anything more about it; he did not know anything about Calyon’s internal workings; if their HQ in London needed the confirmations then that was fine with him. He did not think that there was any importance to the English law section. These transactions did not include any English jurisdiction clause. He simply acted on Mr Klimczyk’s request to sign the documents and send them to Calyon London. He was entering into the transactions under the terms of the Polish Master Agreement which makes it quite clear that later confirmations cannot be deemed to change the terms of individual transactions. It had already been agreed the Polish Master Agreement would apply to all such transactions.

Mr Jeffries is a partner in Calyon’s London solicitors with responsibility for these proceedings. In paragraph 37 of his first witness statement dated 9 April 2009, Mr Jeffries says that he is informed by Ms Jakobczyk that following her conversation with Mr Klimczyk referred to above, she herself spoke to Mr Frejowski to discuss PZL entering into an ISDA Master Agreement and Mr Frejowski told her that he would send a draft of the ISDA Master Agreement to his legal department for them to review.

Mr Frejowski’s first witness statement was in response to the first witness statements of Mr Klimczyk and Mr Jeffries. However, neither in this statement, nor in his second statement, does Mr Frejowski dispute that Ms Jakobczyk rang to discuss PZL entering into an ISDA Master Agreement and that he told her that he would send a draft to his legal department.

Transcripts of numerous telephone conversations translated into English between Mr Klimczyk and Mr Frejowski and of the conversation between Mr Klimczyk and Ms Ignaciuk on 20^th June 2008 were put before the court. There was, however, no transcript of the conversation Mr Klimczyk says he had with Mr Frejowski in late May or early June 2008.

Mr Gaisman QC first submitted that consensus as to Clause 13 (b) of the ISDA Master Agreement was established in respect of the four pre-13 August TRFs and that by reason of the words:

this [TRF] Confirmation, together with all other documents referring to the Master Form confirming transactions entered into between us, shall supplement, form part of, and be subject to an agreement in the form of the Master Form as if we had executed an agreement in such form (but without any Schedule except for the election of English law as the governing law …

In support of this submission, Mr Gaisman relied on the judgement of the Court of Appeal in Credit Suisse Financial Products v Société Generale d’Entreprises [1997] CLC 168. There, the parties entered into an oral bond put-option contract which was confirmed by a signed written ISDA confirmation in the same general terms as the TRF Confirmations and which contained many terms not agreed orally. Relying on Clause 13(b) of the ISDA Master Agreement, the appellants contended that this court had jurisdiction to determine a claim brought on the contract. The judge at first instance held that consensus as to Clause 13 (b) had not been established because the respondent did not have a copy of the ISDA Master Agreement in his possession and readily available to him. The Court of Appeal disagreed. Delivering the lead judgement, Saville LJ noted that the ECJ had said in Salotti that express reference in a contract to general conditions fulfilled the requirements of writing under Article 17 of the Brussels Convention only if the reference can be checked by a party using reasonable care if the general conditions have been communicated to the other contracting party with the offer to which reference is made. In Saville LJ’s view, however, those observations were dealing with a reference in the contract to another document which in turn referred to the general conditions, whereas in the instant case there was an express reference in the written contract itself to the ISDA Master Agreement. In his opinion the question was simply whether the express reference in the written contract in the present case amounted to a “clear and precise” demonstration that the clause conferring jurisdiction was the subject of a consensus between the parties, and in his view it was because the terms of the reference alone made it certain that the jurisdiction clause was “part of the contract properly so-called”.

It followed, submitted Mr Gaisman, that: (1) by no later than 27 June 2008, the parties had agreed that (i) the ISDA Master Agreement would be deemed to have been executed, and (ii) it would govern not just the particular TRF Confirmation but “all other documents referring to the Master Form confirming transactions between us”; (2) the SRF Confirmation was a document referring to the ISDA Master Agreement and hence, pursuant to the parties’ previous agreement and without having to analyse the SRF in any further detail, it was governed by the ISDA Master Agreement, including Clause 13(b) thereof.

Mr Gaisman next submitted in the alternative that consensus was established by the course of dealing between Calyon and PZL, the negotiation of the SRF falling within the same course of dealing as that concerned with the TRFs. He cited Partenreederei MS. Tilly Russ and Another v Haven & Vervoebedrijf Nova NV and Another [1985] 1 QB 931, where the ECJ held that a jurisdiction clause included in the printed conditions of a bill of lading was properly regarded as an agreement in writing or an oral agreement evidenced in writing for the purposes of Article 17 of the Brussels Convention if the bill was part of a continuing business relationship between the parties which was itself governed by general conditions including the jurisdiction clause. As the ECJ put it: “In those circumstances, it would be contrary to good faith to deny the existence of a jurisdiction agreement.”

Mr Gaisman also referred to I.P. Metal Ltd v Ruote OZ SpA [1993] 2 Lloyd’s Rep 60, where Waller J held that consensus had been established under Article 17 as to a jurisdiction clause in conditions that in the course of dealing between the parties had been contained in a confirmation sent immediately after an oral contract for the purchase of metal.

The burden of Mr Gaisman’s submission was that in the period February 2008 to 13 August 2008 Calyon, through Mr Klimczyk, had made it clear (whether or not the same was appreciated by Mr Frejowski as it ought to have been) that: (i) foreign exchange transactions with several fixing dates and with an element of gearing, such as the SRF, were regarded by Calyon as “structured transactions”; (ii) such transactions, including the TRFs and the SRF (which were very similar), were not governed by the Polish Master Agreement, but were entered into by Calyon acting through its London Branch on the basis that the ISDA Master Agreement, including Clause 13(b), was incorporated. Accordingly, it ought to have been obvious to PZL that the agreement for the SRF transaction would be concluded on the same basis as the TRFs had been.

Mr Gaisman relied on the course of dealing related above and laid particular emphasis on: (i) the similarity between the SRF and the TRFs; and (ii) the following aspects of the evidence that showed that the SRF was negotiated alongside potential further TRFs, with the two very similar products often being discussed by Mr Klimczyk and Mr Frejowski in tandem:

In the further alternative, relying on Mainschiffahrts-Genossenschaft eG (MSG) v Les Gravieres Rhenanes Sarl (above), Mr Gaisman submitted that Clause 13(b) of the ISDA Master Agreement was in a form which accords with a usage in international trade or commerce of which the parties were or ought to have been aware and which in such trade or commerce is widely known to, or regularly observed by parties to contracts of the type involved in the particular trade or commerce concerned.

Mr Thomas for PZL submitted that Credit Suisse did not apply to the instant case because here, unlike in Credit Suisse, the parties had not signed that SRF Confirmation and had executed the Polish Master Agreement well before the SRF transaction. (Footnote: ³) It therefore could not be clearly and precisely established that the parties had agreed that Clause 13(b) of the ISDA Master Agreement was to be incorporated into the transaction, rather than the Polish Master Agreement.

Mr Thomas went further and positively contended that the SRF was covered by the Polish Master Agreement and was not subject to the ISDA Master Agreement. In his submission, the SRF was simply a series of straightforward options and as such was governed by the Regulations contained in Schedule 2 to the Polish Master Agreement. There was no difficulty, said Mr Thomas, in the pro-forma confirmations specified in Schedule 2 being adapted to cater for the SRF.

Mr Thomas further submitted that even if there had been no Polish Master Agreement, the long form ISDA confirmation would not in any event apply to the SRF, or would not clearly and precisely apply, because: (i) this form was expressed to apply to a transaction entered into between “Calyon, acting through our London Office … and you …”, whereas the SRF had been entered into by Calyon acting by its Polish Office, in the person of Mr Klimczyk; and (ii) the words “transactions entered into between us” either meant transactions entered into prior to the confirmation and not all transactions whether prior or subsequent, or at the very least were ambiguous.

On grounds that were similar to those adumbrated in paragraphs 73 to 75 above, Mr Thomas also argued that it was not clearly and precisely established that the parties had agreed that Clause 13(b) applied to the TRFs.

Responding to the Calyon’s case based on prior dealing, Mr Thomas submitted that there was no consistent and clear course of dealing from which it could be clearly and precisely deduced that the SRF was to be on ISDA terms rather than on the terms of the Polish Master Agreement. He submitted that on the evidence available the court could not conclude applying the requisite standard that Calyon had made it clear that there was a difference between “simple” transactions that were governed by the Polish Master Agreement and “structured” transactions that were entered into by Calyon acting through its London Office and governed by the ISDA Master Agreement. The internal workings of Calyon and the alleged internal division of the booking of various transactions was largely (if not entirely) unknown to PZL which had no interest in these matters since it had not been given any indication that Calyon viewed the terms applicable to the SRF transaction to be dependent upon any such factor.

Finally, Mr Thomas set considerable store by a letter of 10^th October 2008 signed by Calyon’s Deputy General Director in which assertions are made that seem to be predicated on the applicability of the Polish Master Agreement to the SRF.

In my judgement, by virtue of its case on course of dealing, Calyon has a much better argument than PZL on the application of Article 23(1) to the SRF. In reaching this conclusion I have kept in mind that the purpose of the requirement that consensus be clearly and precisely established is “to neutralise the effect of jurisdiction clauses that might pass unnoticed in contracts.” (Footnote: ⁴) In my view, what that means in a case where consensus stands to be presumed is that the course of dealing must be such as to have put the counterparty fairly and reasonably on notice that the contract would contain the jurisdiction clause contended for.

I also leave out of account Mr Klimczyk’s evidence that he specifically explained to Mr Frejowski over the telephone that transactions such as the TRF and the SRF were made with Calyon London and were subject to ISDA terms. I do so because, this being an interlocutory hearing, neither of these witnesses has been cross-examined and there has been no order to give disclosure.

The reasons for my conclusion are as follows. Acting, inter alios, by Mr Frejowski, PZL signed the four TRF Confirmations and sent them to Calyon’s London Office. It was clearly stated in those documents that: (i) Calyon had entered into those transactions through its London Office; (ii) the transaction was subject to the ISDA Master Agreement; and (iii) those transaction were subject to English law. Further, before the Confirmations were sent to Calyon’s London Office: (1) Mr Klimczyk had spoken to Ms Ignaciuk of PZL’s Finance Department and explained to her that in respect of structured transactions recorded in London, such as the TRFs, the ISDA document should be signed and would represent the framework of the parties’ co-operation; transactions recorded in Poland, on the other hand, such as the two transactions “with Warsaw” were governed by the local framework agreement; and (2) PZL, acting, inter alios, by Mr Frejowski, had signed the Settlement Instructions which referred to “other transactions consisting in combination of various financial products referred to as structured transactions, between [PZL] and Calyon London,” [emphasis supplied]. In addition, shortly before or shortly after the TRF Confirmations were sent to London, Ms Jakobczyk of Calyon spoke to Mr Frejowski to discuss PZL entering into an ISDA Master Agreement and was told by Mr Frejowski that he would send a draft of the ISDA Master Agreement to his legal department for them to review. It ought therefore to have been plain to PZL that the TRF transactions were: (i) not governed by the Polish Master Agreement but were entered into by Calyon’s London Office and governed by the ISDA Master Agreement; and (ii) Calyon regarded TRFs as being structured transactions. Further, the ISDA Master Agreement was freely available and its terms as to jurisdiction are clear and straightforward: if the transaction is governed by English law, the Courts of England have jurisdiction in respect of any suit, action or proceeding on the agreement.

Moving now to the discussions between Mr Frejowski and Mr Klimczyk over the period 8^th to 13^th August 2008, it is clear that an SRF, which is essentially the same as a TRF but without a knock-out condition, was considered alongside a TRF. The evidence also strongly indicates that, in contrast to the two simple option trades made under the Polish Master Agreement, Mr Frejowski must have realised that Calyon’s London office was playing a significant role in the negotiations by providing the pricing and other details of the transaction.

It follows, in my opinion, that it ought to have been clear to PZL that the SRF was not the type of transaction that was governed by the Polish Master Agreement but was of a type that would be treated by Calyon in the same way as the TRFs had been. In short, PZL had fair and reasonable notice that the SRF would be entered into on ISDA terms. In this connection, I observe that although PZL challenged the values set out in the SRF Confirmation on 20^th August 2008, there was no challenge to the applicability of the ISDA Master Agreement and English governing law until 15 December 2008, and no mention of the Polish Master Agreement until 14^th October 2008.

I should add that I regard Mr Thomas’s point based on the letter of 10^th October 2008 as a weak one. The author of that letter had not been involved in the negotiation of the SRF and since 21 October 2008, Calyon has consistently asserted in correspondence that the SRF was governed by the ISDA Master Agreement and not the Polish Master Agreement.

It is to be noted that paragraph (b) of Article 23 (1) is an alternative to paragraph (a). It is accordingly immaterial whether the jurisdiction agreement was the subject of a prior oral agreement or was an agreement in writing or is evidenced in writing.

My decision that Calyon has shown to the requisite standard that Article 23(1) (b) applies to Clause 13(b) of the ISDA Master Agreement renders it unnecessary to deal with Mr Gaisman’s submissions as to paragraphs (a) and (c) of Article 23(1) and I decline to do so. Suffice it to say that I have doubts that: (i) that the signature by PZL of the four TRF Confirmations and the wording of those documents alone would be sufficient to establish the applicability of paragraph (a); and (ii) the ISDA Master Agreement is sufficiently prevalent for paragraph (c) to be established.

Article 23(5) of the Brussels 1 Regulation provides:

Agreements ….shall have no legal force if … the courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of Article 22.

Article 22(2) provides:

The following courts shall have exclusive jurisdiction, regardless of domicile:

2.

in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or of the validity of the decisions of their organs, the courts of the Member State in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law.

Mr Thomas argued that since PZL was contending in the Polish proceedings that under its Articles of Association Mr Frejowski had no authority to agree to a transaction that was governed by the ISDA Master Agreement, the courts of Poland had exclusive jurisdiction over the dispute between the parties in respect of the SRF.

Mr Thomas cited the test formulated by Knox J in Newtherapeutics Ltd v Katz [1991] Ch 226 (at page 245G):

The problem therefore is to identify from the material before the court what it is that the proceedings are in substance or principally concerned with. If the answer to that question is the validity of the decision of the organ of the company, Article 16 (2) [the pre-cursor to Article 22 (2)] applies and this court has exclusive jurisdiction.

Mr Thomas also referred to: (1) the observation of the Court of Appeal in Grupo Torras SA v Sheikh Fahad Mohammed Al-Sabah [1996] 1 Lloyd’s Law Rep 7 at 15 that there is “much force” in the contention that “allegations of want of authority” fall within Article 16(2) [the pre-cursor to Article 22 (2)]; and (2) para 2.52 of Briggs, “Civil Jurisdiction and Judgments”, 4^th Edition, 2005, “…a claim that an act purportedly done by the directors was a nullity because it required (and did not have) the prior sanction of a board meeting, would fall within Article 22(2), because it does plainly raise a matter of corporate constitutional law.”

After the hearing, counsel for Calyon (with notice to Mr Thomas) drew my attention to the decision of Teare J in JP Morgan Chase Bank NA v BVG [2009] 1627 (Comm). I respectfully agree with Teare J’s reasoning in that case but I do not depend on it for my decision since on the principal issue Teare J was giving effect to previous authority and because I have received no submissions on Teare J’s judgement.

It is clear that Article 22(2) should be read narrowly and by reference to its central objective which is one of centralising jurisdiction in order to avoid conflicting judgements being given as regards the existence of a company or as regards the validity of the decisions of its organs; see Hassett v South Eastern Health Board (Case C-372/07) (ECJ First Chamber), para 20. This is important for otherwise the right to agree jurisdiction conferred by Article 23 would be illegitimately circumscribed.

Adopting the approach of Knox J in Newtherapeutics Ltd v Katz,the question is whether the proceedings brought in this court by Calyon are in substance or principally concerned with whether Mr Frejowski lacked actual authority under PZL’s Articles of Association to enter into an SRF that was governed by the ISDA Master Agreement. In my opinion, the subject matter as a whole of the proceedings is the enforcement of the oral SRF contract made on 13^th August 2008 which will depend on the determination of four main issues: (i) whether there was consensus as to the commercial terms recorded in the SRF Confirmation; (ii) whether PZL has a defence based on lack of diligence; (iii) whether Mr Frejowski had actual authority to enter into the transaction under PZL’s Articles of Association; and (iv) whatever the position under (iii), whether Mr Frejowski had apparent authority to enter into the transaction on behalf of PZL.

Issue (iv) stands separately from issue (iii) not only because it raises distinct conceptual issues but also because questions of apparent authority under the conflict of laws are governed by English common law conflict rules, pursuant to which the governing law is that chosen by the parties to govern the contract sued upon; see Dicey, Morris and Collins on The Conflict of Laws, 14^th ed paras 33R -428 -- 33-433.

Issue (iii) is therefore but one of four main issues and is not in my opinion the substance of the proceedings nor a matter with which the proceedings are principally concerned.

PZL’s submissions based on Article 22(2) are accordingly rejected.

For the reasons given above, PZL’s application fails. This court has jurisdiction to determine the claim brought by Calyon in Claim No 2008 Folio 1250.