Nomura International Plc v Banca Monte Dei Paschi Di Siena SpA

This is (or at least was originally) an application by the Defendant (“BMPS”) for an order that the Court decline jurisdiction in these proceedings brought by the Claimant (“Nomura”) pursuant to Article 28(2) of Council Regulation (EC) 44/2001 (the “Judgments Regulation”); alternatively that these proceedings be stayed generally pursuant to Article 28(1) of the Judgments Regulation.

Article 28 provides:

“1.

Where related actions are pending in the courts of different Member States, any court other than the court first seised may stay its proceedings.

2.

Where these actions are pending at first instance, any court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof.

3.

For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.”

In the event, in the course of his reply, Mr Nash QC on behalf of BMPS abandoned the application under Article 28(2) and limited BMPS’s application to an order for a stay under Article 28(1).

As set out in the Claim Form issued on 1 March 2013, Nomura seeks declaratory relief in relation to certain agreements (the “Agreements”) into which it entered with BMPS as part of what is referred to as a “Restructuring”, each of which is governed by English law and contains either an exclusive or non-exclusive English jurisdiction clause viz (i) a Mandate Agreement dated 31 July 2009 (the “Mandate Agreement”); (ii) a Global Master Repurchase Agreement (“GMRA”) and four annexes to it dated 23 September 2009 (together the “Long Term Repo”) amended and restated on 1 December 2010 and in particular the five confirmations dated respectively 14, 19, 19, 28 November 2012 and 12 December 2012; and (iii) an ISDA Master Agreement dated 21 October 1994 (the “ISDA Master Agreement”) and various asset swap transactions governed by such agreement entered into between 3 August 2009 and 19 September 2009 on terms set out in a letter agreement (the “Confirmation”) dated 9 October 2009 (together the “Asset Swap Transactions”). In particular, as set out in the Claim Form, the declaratory relief sought is (or at least was) in substance as follows:

In essence, BMPS’s application is advanced on the basis that these present English proceedings are “related” to certain other proceedings initiated by BMPS (on the same day i.e. 1 March 2013, but shortly before the issuance of the Claim Form in these English proceedings) and currently pending in Italy (the “Italian proceedings”); that the Italian Court was “first seised”; and that this Court should exercise its discretion to stay these English proceedings pursuant to Article 28(1). In summary, it is Nomura’s case that (i) these proceedings and the Italian proceedings are not “related actions” within the meaning of Article 28; and that (ii) in any event i.e. even if the two sets of proceedings constitute “related actions”, this Court should refuse to grant a stay.

I should mention that in the course of the hearing there was some debate as to what the position might be if this application were to be determined under the revised Judgments Regulation regime (Regulation (EU) No 1215/2012 of 12 December 2012) which will come into force on 10 January 2015. There was also some debate as to the reasons which lie behind such revision and what, if any, assistance might be gained in the present context by reference to such revision or supposed reasons for it. In the event, it seems to me that little, if any, assistance is to be gained by such exercise and that I should determine this application on the basis of the wording of the existing Judgments Regulation.

The following is a summary of the relevant background based on the evidence and skeleton arguments submitted by the parties for the purposes of this hearing. Certain aspects are or may be in dispute. This summary is therefore not intended to be determinative and simply provides the backdrop against which the present application has to be considered.

BMPS is a bank domiciled in the Republic of Italy. In late 2005, BMPS entered into a transaction arranged by Dresdner Bank under which BMPS subscribed for €400 million Series 2005-8 Floating Rate Secured Liquidity Linked Notes due 2012 (the “Alexandria Notes”) issued by a special purpose vehicle called Alexandria Capital Plc. The yield and repayment of the Alexandria Notes were linked to the performance of underlying securities, specifically loan notes issued by Skylark Ltd (the “Skylark Notes”), which were held by another special purpose vehicle, Alchemy Capital Plc (“Alchemy”). The Skylark Notes were linked in turn to a portfolio of mortgage loans and Collateralized Debt Obligations. In 2008/2009 the assets underlying the Alexandria Notes deteriorated which, according to BMPS, exposed BMPS to heavy capital losses.

In essence, it is BMPS’s case in the Italian proceedings that BMPS’s former senior management, in particular the former Chairman, Mr Giuseppe Mussari, and the former General Manager, Mr Antonio Vigni, acting in conflict of interest and in breach of their duties to BMPS, sought to conceal the losses on the Alexandria Notes from the Board of BMPS and from its shareholders; and with the assistance of Nomura devised a sophisticated scheme in order to do so which involved the parties entering into the Agreements referred to above and thereby putting into effect the Restructuring. In particular, BMPS alleges that, although ostensibly a purchase of Italian government bonds carried out through an asset swap, in fact the Restructuring subjected BMPS to enormous costs and risks, whilst lacking any economic rationale; and that Nomura secured significant commissions for assisting BMPS’s former senior management in this enterprise. According to BMPS, the true nature of the Restructuring emerges from the Mandate Agreement which, says BMPS, was concealed from BMPS’s Board and from the public supervisory authorities and was discovered only in October 2012 when a copy of the agreement was found by BMPS’s new management in a safe used by Mr Vigni. It is BMPS’s case that the Mandate Agreement is a key document that underpins BMPS’s action in Italy, because it is the link between the various transactions which were devised to fraudulently conceal BMPS’s losses. As yet, Nomura has not responded in the Italian proceedings and it is inappropriate for me to say anything about the merits. For present purposes, it is sufficient to note that Nomura disputes important parts of the allegations advanced by BMPS and denies any wrongdoing.

In the Mandate Agreement, BMPS agreed (amongst other things) to mandate and engage Nomura to arrange an exchange of the assets underlying the Alexandria Notes, the Skylark Notes, for a credit-linked note issued by Aphex Capital Plc (“Aphex”) for the same nominal value (the “Aphex Notes”). The Mandate Agreement also provided for the parties to enter into a series of further transactions described in more detail below viz (i) the Asset Swap Transactions; (ii) a Long Term Repo; and (iii) A Repurchase Facility.

In the course of the hearing, there was some dispute as to the nature of the Mandate Agreement. As submitted by Mr Handyside, it seems to me properly described as a framework agreement which imposed obligations on the parties to attempt to reach agreement on various commercial matters, which (if agreed) would then lead to the entering into of further agreements. This is apparent, in particular, from Recitals A and B and clauses 2.2-2.4. The Mandate Agreement does not contain the precise commercial terms of the agreements subsequently entered into. Those transactions are governed by the ISDA Master Agreement, the GMRA and their related Confirmations although it was Mr Nash’s submission that the Mandate agreement was the “centre of gravity”.

The Mandate Agreement also contains a number of representations and warranties given by BMPS to Nomura including, in particular, the representation at Clause 6.6b(iii):

“BMPS understands that the Term Repurchase Transaction, the Repurchase Facility and each Asset Swap Transaction and/or each Substituted Asset Swap Transaction (as applicable) are together entered in consideration for the Proposed Restructuring and that Nomura would not be able to enter into the Proposed Restructuring without entering into the Term Repurchase Transaction, the Repurchase Facility, each Asset Swap Transaction and/or each Substituted Asset Swap Transaction (as applicable) together.”

In passing, it should be noted that Mr Handyside submitted that this representation clearly confirms that the Agreements formed part of a single overall transaction; that it was never the parties’ intention that one of them would be entered into without the other; and that this has important implications for BMPS’s attempts to play down the importance of the exclusive jurisdiction clause in the ISDA Master Agreement (see below), and for BMPS’s application generally.

The Mandate Agreement is stated to be governed by English law (Clause 11) and also contains a jurisdiction clause (Clause 12) which provides for the non-exclusive jurisdiction of the English courts:

“12.1

Jurisdiction

(a)

The English courts have non-exclusive jurisdiction to settle any dispute including a dispute relating to any non-contractual obligation arising out of or in connection with this Agreement.

(b)

The English courts are the most appropriate and convenient courts to settle any such dispute in connection with this Agreement. Each Party agrees not to argue to the contrary and waives objection to those courts on the grounds of inconvenient forum or otherwise in relation to proceedings in connection with this Agreement.”

In accordance with the Mandate Agreement, the exchange of the Skylark Notes with the Aphex Notes was carried out pursuant to two agreements dated 24 September 2009: an Asset Exchange Deed between Nomura, Alchemy and Aphex, and a Skylark Transfer Deed between Nomura and Alchemy. By these agreements, Alchemy sold the Skylark Notes to Nomura in return for the delivery by Nomura of €400 million of notes issued by Aphex (the Aphex Notes). The ultimate effect of the exchange was that the loss on the Alexandria Notes was transferred from BMPS to Nomura; although, as required under the Mandate Agreement, BMPS and Nomura entered into further transactions described below.

The effective date of the Asset Swap Transactions, as set out in the Confirmation, was 28 September 2009. Under the Asset Swap Transactions, BMPS purchased from Nomura approximately €3.05 billion in nominal amount of Italian Government Bonds maturing in 2034 issued by the Republic of Italy (“BTPs 2034”) at a purchase price of about €3.09 billion; BMPS was to pay interest at a rate of 5% per annum (equal to the fixed coupon of the BTPs 2034) on the coupon dates (1 February and 1 August each year); and Nomura was to pay interest at a floating rate equal to 3-month Euribor, plus a weighted average spread of approximately 0.98%, on a quarterly basis. In practice, because of netting provisions there is only a single net payment between the parties on each periodic payment date.

Under Part 4, paragraph (h) of the Schedule, the ISDA Master Agreement is subject to English law. Clause 13 of the ISDA Master Agreement contains a jurisdiction clause in the following terms:

“(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 law 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 Section 1(3) of the Civil Jurisdiction and Judgments Act 1982 or any modification, extension or re-enactment thereof for the time being in force) nor will the bringing of Proceedings in any one or more jurisdictions preclude the bringing of Proceedings in any other jurisdiction.”

It is common ground that this constitutes an exclusive jurisdiction clause in favour of the English courts within the Convention territories (which include Italy) for the purposes of the Judgments Regulation.

Under the Long Term Repo, Nomura purchased about €3.05 billion in nominal amount of BTPs 2034 from BMPS for a total purchase price of about €3.1 billion. This matched the nominal amount of BTPs 2034 that Nomura agreed to sell to BMPS under the Asset Swap Transactions. During the life of the transaction (a) Nomura was to pay BMPS the coupon cash flows received from the BTPs 2034; and (b) BMPS was to pay interest equal to the 3-month Euribor rate, plus a spread of about 0.59%, which amount was applied to the approximate €3.1 billion purchase price paid by Nomura to purchase the BTPs 2034. In practice, due to netting provisions, there is only one payment on each periodic payment date. On the maturity date (1 August 2034) Nomura will be obliged to redeliver the BTPs 2034 and BMPS will be required to repay the purchase price of about €3.1 billion. Since that date is also the scheduled maturity date for the BTPs, if the BTPs 2034 are redeemed, then Nomura will simply pay to BMPS the redemption proceeds. These payments will then net off, so the only principal payment at maturity will be a payment by BMPS representing the difference between the redemption proceeds of the BTPs 2034 and the original purchase price.

The Long Term Repo also provided that Nomura could declare an Early Termination Event upon the occurrence of a Credit Event (as defined) with respect to the Republic of Italy, which would entitle Nomura to accelerate the Repo Term transaction. Further, instead of redelivering the BTPs 2034 to Nomura, Nomura would be entitled to deliver other obligations of the Republic of Italy (i.e. a “cheapest to deliver (CTD)” option).

The GMRA contained a governing law and jurisdiction clause (Clause 17) in the following terms:

“This Agreement shall be governed by and construed in accordance with the laws of England. Buyer and Seller irrevocably submit for all purposes of or in connection with this Agreement and each Transaction to the jurisdiction of the Courts of England […]

Nothing in this paragraph shall limit the right of any party to take proceedings in the courts of any other country of competent jurisdiction.”

Clause 5.1 of the Deed of Amendment and Restatement of 1 December 2010 (amending the GMRA) provides:

“This Deed (and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this Deed or its formation) shall be governed by and construed in accordance with English law. The parties hereto irrevocably submit to the non-exclusive jurisdiction of the courts of England.”

It is common ground that these provisions in effect constitute non-exclusive jurisdiction clauses.

Under the Repurchase Facility, which is also governed by the GMRA, BMPS agreed to make available to Nomura a facility (with a Maximum Transaction Amount of about €3.05 billion) pursuant to which Nomura could require BMPS to enter into one or more “Repo Facility Transactions”, in consideration for which Nomura was to pay a periodic commitment fee to BMPS. The Repo Facility Transactions were transactions entered into from time to time whereby BMPS would purchase from Nomura certain securities issued by Italy, France, Germany, Canada, Japan, the UK or the USA. The term of the Repurchase Facility expires on 1 September 2040, subject to Nomura’s option to extend the maturity date to no later than 1 September 2045. The Repurchase Facility has been drawn various times by Nomura up to an overall use of €2 billion.

The Italian proceedings were initiated by BMPS against Nomura and two former directors of BMPS, the former Chairman, Giuseppe Mussari and the former General Manager, Antonio Vigni. The Italian proceedings were commenced by the delivery of a Summons & Complaint to the Ufficio Notifiche Esecuzioni e Protesti (“UNEP”) of the Court of Florence at 8.51am CET on 1 March 2013 i.e. prior to the issuance of these present English proceedings later that same day. It is common ground that the Italian Court was therefore “first seised”.

In its Summons and Complaint, BMPS allege that the Alexandria Notes had suffered capital losses by 22 September 2009, and that these losses were quantified by the parties on that date (when they agreed the Settlement Value) at €220 million. BMPS alleges that Nomura “absorbed” this loss by entering into the Alexandria Restructuring, and that in return, BMPS assumed a new liability to Nomura under the Agreements whose initial fair value (to BMPS) was negative €308 million. BMPS further asserts that the Restructuring was clearly contrary to BMPS’s interests and was economically irrational from its perspective, and that its sole purpose was to conceal the losses suffered by BMPS on the Alexandria Notes in BMPS’s 2009 financial statements. The Agreements are said to have been “illicit” or “illegal” as a matter of Italian law because they: “… creat[ed] by means of the Long Term Repo (and the other Transactions that took place simultaneously) a transaction that only apparently could have been recorded in the accounting records without having to recognize the initial loss.”

In those proceedings, BMPS advances three different causes of action against Mr Mussari, and Mr Vigni viz:

In addition, in the Italian proceedings, BMPS advances claims against Nomura in tort (Article 2043 and 2055 of the Civil Code) on the basis that Nomura played a key role in the Restructuring and contributed to the breach of duties or (as the case may be) participated in tortious acts with Messrs Mussari and Vigni. In particular, according to BMPS, Nomura’s liability derives from having “colluded” in having entered into the Agreements (as resulting from the execution of the Mandate Agreement). BMPS also relies on the joint and several liability of Nomura (under Articles 185(2) and 187 of the Criminal Code) to pay compensation for damage caused in the event that the conduct of Nomura (and/or its officers) amounted to a criminal offence. It is important to note that although the claims against Messrs Mussari and Vigni are advanced in both contract and tort, the claims against Nomura are in tort only. As explained below, the criminal investigations by the Public Prosecutor in Siena into individuals at Nomura (Messrs Sayeed and Ricci) have recently been extended.

Mr Mussari, Mr Vigni and Nomura are all alleged to be jointly and severally liable. BMPS claims damages from them for all of the losses suffered “now and in the future” by BMPS in entering into the Agreements. This loss is put at not less than €700,000,000.

As submitted by Mr Handyside, the following points may be noted about BMPS’s claims in the Italian proceedings.

First, BMPS does not advance any contractual claim against Nomura and does not challenge the validity or binding effect of any of the Agreements in those proceedings. In particular, there is no claim in the Italian proceedings that the Agreements are void or voidable on grounds of illegality. Mr Handyside submitted that this is somewhat surprising having regard in particular to the fact that the crux of BMPS’s present application is the likelihood of a finding of the Italian Court as to the illegality under Italian law of the Agreements (which in turn is said to be closely related to the issues of validity and enforceability of the Agreements in these proceedings thereby giving rise to a risk of irreconcilable judgments).

Second, BMPS’s claim in the Italian proceedings is premised on its payment obligations under the Agreements being valid and binding. Mr Nash submitted that this was not correct. For present purposes, I am prepared to assume in BMPS’s favour that the pursuit of such damages claims does not necessarily constitute an “affirmation” of the Agreements. However, it seems to me that Mr Handyside is right at least to this extent viz. that as those claims are advanced, they proceed on the basis that the relevant transactions are, in effect, in effect.

Third, there is no claim in “restitution” against Nomura or any of the defendants in the Italian proceedings at least in the sense of a claim based on any unravelling of the relevant transactions.

Fourth, in the Italian proceedings BMPS purports to reserve the right to challenge the validity of the Agreements. There was some debate before me as to the relevance and possible effect of such reservation. Mr Nash submitted that such reservation speaks for itself. Mr Handyside submitted that it is of no relevance or effect for jurisdictional purposes since it is not capable of being a claim filed for the purposes of Article 30 of the Judgments Regulation and accordingly does not engage Articles 27 and 28 of the Judgments Regulation. I did not understand Mr Nash to suggest otherwise. In any event, for reasons explained below, Mr Handyside submitted that the Italian Court would not have jurisdiction over a claim to invalidate all of the Agreements. So far as necessary, I consider this point further below.

Fifth, BMPS apparently seeks to advance certain contingent claims, relying on Articles 185 and 186 of the Italian Criminal Code: in the event that criminal investigations being carried out in Italy reveal that by means of their behaviour Nomura and the former BMPS directors committed crimes, the Court of Florence is requested to make a declaration as to their non-contractual liability on the basis of these offences. As submitted by Mr Handyside, Articles 185 and 186 therefore could only have relevance in the event that there is a determination in any criminal proceedings. Furthermore, it would seem that any such claim under Articles 185 and 186 could not be brought in the Italian proceedings but would need to be brought in separate criminal proceedings.

Although not of direct relevance to the present application, I should mention that there is an ongoing criminal investigation by the Public Prosecutor of Siena (“PPS”) into the circumstances surrounding the Restructuring and Agreements. In the context of such investigation, on 15 April 2013, the PPS issued an order for the interim seizure of assets seeking to seize the Agreements and approximately EUR 1.9 billion of assets said to be held or receivable in various accounts in, or managed through, Italy (the “Seizure Order”). The Seizure Order stated that crimes, in particular usury and fraud, are being investigated in connection with the Agreements. The Seizure Order was required to be ratified by a Judge within 10 days of a request for ratification filed by the PPS. On 26 April 2013, the Judge for the Preliminary Investigations of the Court of Siena refused to ratify the Seizure Order (the “Rejection Order”). The Seizure Order was accordingly no longer in effect from that date. The Rejection Order was made on the basis that the PPS had failed to establish the fumus commissi delecti, that is the prima facie grounds for the alleged crimes on which the Seizure Order was based (being multi-aggravated fraud and multi-aggravated usury). The PPS lodged an appeal against the Rejection Order with the Tribunal of Siena on 6 May 2013. The appeal was heard by a panel of three judges on 8 July 2013. The appeal was dismissed by a decision of the Tribunal on 13 July 2013 which upheld the Rejection Order on the basis that the PPS had failed to establish sufficient grounds for the claims alleged.

As I have stated, it is common ground that the Italian Court is the court first seised for the purposes of Article 28 of the Judgments Regulation in respect of claims made in the Italian proceedings. It is also common ground that Article 30(2) of the Judgments Regulation applies to proceedings brought in Italy and that such proceedings are “pending”.

In considering BMPS’s application, the first question is whether these present English proceedings and the Italian proceedings are “related actions”. Mr Handyside submitted that Article 28(3) contained what is to be regarded as, in effect, an exhaustive definition of the term “related actions”. Simply looking at the wording of Article 28, I am not sure whether that submission is correct. However, Mr Handyside’s submission would appear to accord with the view expressed in Private International Law, Cheshire, North & Fawcett, 14^th Edition (“Cheshire”) p313; and it would also seem consistent with the language in the other leading textbook, European Civil Practice, Layton & Mercer, 2^nd Edition (“Layton & Mercer”) para 22-040 which states that Article 28(3) provides a “uniform test” for deciding whether actions are related. In the event, Mr Nash did not suggest otherwise and, without deciding the point, I am prepared to proceed on the assumption that Mr Handyside is right.

As to the scope and effect of Article 28(3), it is common ground that the applicable principles are those summarised in Dicey, Morris and Collins, The Conflict of Laws, 15^th Edition (“Dicey”) para 12-073 et seq. In particular, it is common ground that the reference to the “risk of irreconcilable judgments” is a more flexible concept than that described by similar words in Article 34(3); that it covers cases where the judgments may contain conflicting decisions without necessarily giving rise to mutually exclusive consequences; and that, in light of the decision of the House of Lords in Sarrio SA v Kuwait Investment Authority [1999] A.C. 32, this condition is satisfied if common issues of fact may arise and be decided in the two sets of proceedings, rejecting the narrower interpretation that the test of potential irreconcilability had to be assessed by reference to those issues which the courts would be required to determine in order to give judgment.

At first blush, it might be thought that there is no risk of irreconcilable judgments in the present case even in the wider sense adopted in Sarrio for the simple reason that the claims brought by Nomura in the present proceedings are, as I have set out above, of a contractual nature seeking, in particular, declaratory relief that the Agreements are valid and binding whereas there are no similar claims – indeed no claims in contract at all – advanced by BMPS against Nomura in the Italian proceedings. On the contrary, as I have already noted, BMPS’s claims in the Italian proceedings are claims for damages in tort: BMPS do not advance any claim in contract. In particular, BMPS do not advance any claim that any of the Agreements are invalid or not binding although they seek to reserve their position.

However, it is common ground that the question whether actions are “related” is answered not just by looking at the claim but by looking at the claims and defences: see Dicey, para 12-074 and the cases there cited. The difficulty here is that at this stage, BMPS has not served any defence. That is, of course, not a criticism but simply a statement of fact. This gave rise to some uncertainty at the beginning of the hearing. However, in the course of his submissions, Mr Nash confirmed that on the hypothesis that the present proceedings were to continue in England, it is “likely” that BMPS would oppose the declarations sought; that BMPS would, in particular, say that the Agreements are not valid and binding; and that, in support of such case, BMPS would seek to rely upon all the matters which BMPS has raised in the Italian proceedings. I should mention that Mr Nash made plain that no final decision had yet been taken by BMPS on these matters but that I could and should proceed on the basis that what I have described is at the very least “likely”. Further, Mr Nash also emphasised that BMPS were not intending to repudiate any of the Agreements and that, on the contrary, BMPS would continue to honour and comply with the Agreements pending final determination of their rights.

In the context of Article 28(3), Mr Handyside raised two main points. First he submitted that actions can only be “related actions” within the meaning of Article 28 if the two actions are capable of being heard and determined together and that it is, in effect, “impossible” for Nomura’s claims in the English proceedings to be heard and determined in the Italian proceedings in light of the jurisdiction clauses in the various Agreements (the “threshold point”). Second, that even if that is wrong, the two sets of proceedings are, in any event, not “related actions” because they are not, or not sufficiently, “so closely connected” (the “so closely connected point”).

As to the first point, Mr Handyside submitted, in summary, as follows:

In further support of this part of Nomura’s case and, in particular, the basic proposition that actions cannot be related unless they are capable of being heard and determined together, Mr Handyside relied upon a number of further texts and authorities viz.:

In my view, there are a number of difficulties with this part of Mr Handyside’s argument.

First, it does not seem to me that it is consistent with the language of Article 28(3) – particularly when a comparison is made with the language of Article 28(2). Rather, Article 28(3) would appear to be focussing on the question of principle i.e. whether the actions are so closely connected that it would be expedient to hear and determine them together to avoid the risk of irreconcilable judgments from separate proceedings. In particular, it does not seem to me necessarily to follow from the fact that it may not be capable of hearing the actions together in the court first seised because, as Mr Handyside would submit, of the existence of the jurisdiction clauses (in particular the exclusive jurisdiction clause in the ISDA Master Agreement governing the Asset Swap Transactions) that it would not, in principle, be expedient to do so. In my view, the focus of the definition (if that is what it is) in Article 28(3) is what in principle is “expedient” in the sense of genuinely desirable not what is “capable” or “possible”. Of course, the fact that it may not be capable or possible to hear the actions together in the court first seised may provide an unanswerable or at least compelling argument in favour of the court second seised exercising the discretion under Article 28(1) to refuse a stay. But that is a different question.

It is fair to say that this difficulty would seem to be recognised by the passage referred to from Cheshire at p314 quoted above. However, I am not persuaded that the proposition advanced by Cheshire is seemingly “implicit” in the wording of Article 28(3). On the contrary, to my mind, the comparison with the wording in Article 28(2) points in the opposite direction.

As to the cases cited in Cheshire in support of the quoted text, I can deal with these quite shortly.

As to Haji-Ioannou v Frangos, it would certainly appear from the passage at [1999] 2 Lloyd’s Rep p352 lhc of the report that the Judge at first instance (Neuberger J) refused the application for a stay in that case under the then equivalent of Article 28 on the four grounds there stated including (i.e. the fourth ground) that he did not consider that the Greek Criminal Court, if it were properly treated as the court first seised, had jurisdiction to determine the plaintiff’s claim in those present English proceedings so that the second sentence of the article (equivalent to the present Article 28(2)) could not be applied in Mr Frangos’ favour. However, it should be noted that that sentence is again concerned with the court declining jurisdiction rather than the grant of a stay; and, as Mr Handyside fairly accepted, although it would appear from the passage from the judgment of Lord Bingham CJ at p352 rhc that he was agreeing with the Judge refusing the stay on that fourth ground, the reason given by Lord Bingham would appear to be somewhat different.

As to L A Gear v Gerald Whelan, Mr Handyside relied, in particular, on the passage from the judgment of Mummery J at pp675-676 as follows:

“It is true that the two sets of proceedings are related in the broad sense that they are between the same parties and concern the activities of the defendant in two different countries in dealing in footwear which it is alleged wrongly bears the plaintiff’s mark without the plaintiff’s consent. However, in my view, it would not be possible, let alone expedient, for the two sets of proceedings to be heard and determined together in one country. If I stayed the English proceedings in whole under Article 22 the plaintiff would be prevented from pursuing in the English courts its action for infringement of the United Kingdom trade mark which, for the reasons I have mentioned above, can only properly be pursued in the English courts. Mr McClure argued that I could simply stay the passing off proceedings in England. But, in my judgment, the passing off claim is so closely related to the trade mark claim – indeed, as I have mentioned, the same acts of infringement are relied on – that there would be little advantage to the defendant in staying the passing off proceedings in England. I cannot see that there would be any substantial saving of costs and time so far as the defendant is concerned.”

I agree that, on its face, this passage would appear to support Mr Handyside’s argument. In particular, the reasoning would seem to be that if, as Mummery J considered, the effect of granting a stay would be to prevent the plaintiff from pursuing in the English courts its action for infringement which could only properly be pursued in the English courts, then it would not be “possible” let alone “expedient” (i.e. the test for “related actions” in Article 28(3)) for the two sets of proceedings to be heard together. However, unlike the present case, it appears to have been common ground that the infringement claim in that case could only properly be pursued in the English courts; and the Judge does not appear to have had the benefit of the detailed argument which I have had in the present case. In any event, it seems to me that the decision in that case provides, at most, a very slender basis for the broad proposition advanced by Mr Handyside.

As to De Pina v MS Birka, I agree that it supports the proposition for which it is cited in Cheshire. In particular, I note the conclusion reached by the Deputy Judge at paragraph [18] that “… if, as here, it is clear that the foreign court simply could not hear the England and Wales action, that action does not fall within the definition of related actions…”. However, it is to be noted that a somewhat different view is expressed by Layton & Mercer at para 22.031 where it is stated that by contrast with a dismissal under Article 28(2), a stay may be granted by the second court whether or not the first court has jurisdiction over both actions and that, as appears from footnote 67, the view expressed is that De Pina v MS Birka is in error in so far as it decides to the contrary.

In summary, I am not persuaded that the text in Cheshire relied upon by Mr Handyside is supported by the authorities or is necessarily correct.

Nor am I persuaded that Mr Handyside’s argument is necessarily supported by the passages referred to from the other textbooks quoted above. So far as the passage from Dicey is concerned, it seems to me that the quoted text is contemplating the possibility of the court second seised dismissing the proceedings. Such dismissal would only arise when the court second seised declines jurisdiction i.e. under Article 28(2). In my view, the quoted text is not, on its face, concerned with the case where the court second seised does not dismiss the action but simply stays the action under Article 28(1); nor does it seem to be concerned with the proper scope and effect of the wording of Article 28(3) which is the main focus of this part of Mr Handyside’s argument.

So far as Layton & Mercer is concerned, it would seem that the text quoted does indeed support Mr Handyside at least in the limited context where there is a valid jurisdiction clause i.e. a valid jurisdiction clause in favour of the court second seised. However, it should be noted that no authority is cited for the proposition stated in the text.

As to the other authorities relied upon by Mr Handyside, the first was JP Morgan Europe Ltd v Primacom AG [2005] 2 Lloyd’s Rep 665. It is right that Cooke J decided that the English proceedings and the German proceedings in that case were not “related actions” because, having regard to the nature of the proceedings, they were not capable of being heard and determined together and also on grounds of inexpediency: see, in particular paragraphs 59-64 of the Judgment. However, as submitted by Mr Nash, although there was in that case an exclusive jurisdiction clause in favour of the courts of England (see paragraph 3 of the Judgment) and notwithstanding the robust comments of the Judge at paragraph 34 of the Judgment in the context of the application in that case under Article 27, it appears that there was no argument and the Judge did not decide that the sets of proceedings were not “related actions” for that reason.

As to the decision of Arnold J in Television Autonomic Valenciana v Imagina Contenidos Audiovisuales, Mr Handyside relied in particular on the conclusion of Arnold J at paragraph 60 viz that the two sets of proceedings in that case were not “related” within the meaning of Article 28(3) because of the stance taken there by Imagina which, as appears from paragraph 43 of the Judgment, was that Imagina declined in effect to waive its rights under the exclusive jurisdiction clause as quoted in paragraph 10 of the Judgment. Mr Handyside submitted that Arnold J’s conclusion is a clear statement in support of his proposition. At first blush, that seemed to me correct but, as submitted by Mr Nash, the case was very different from the present case viz Imagina was the defendant in that case seeking a stay and the observation made by Arnold J at paragraph 60 of his Judgment must be read in that context. For that reason alone, I do not consider that the case affords much, if any, assistance to Mr Handyside.

Against this somewhat chequered and uncertain background and in the absence of clear authority to the contrary, it seems to me that the answer to Mr Handyside’s threshold point ultimately lies in the wording of Article 28(3). As I have already said, the focus of that wording is in my view what in principle is expedient which I read in the sense of genuinely desirable, not what is “capable” or “possible”. For that simple reason, I am unable to accept Mr Handyside’s threshold point. Thus it is my conclusion that the existence of an exclusive jurisdiction clause in favour of the court second seised does not of itself mean that proceedings commenced in that court may not be “related” to proceedings in another court for the purposes of Article 28(3).

Even if that conclusion is wrong, there are further difficulties in the way of Mr Handyside’s threshold point. In particular, even if it might be said that where there is an exclusive jurisdiction clause in favour of the second seised court, proceedings in that court which fall within the ambit of such clause are not “capable” of being heard and determined in the court first seised and that, for that reason, the actions are not “related actions” within the meaning of Article 28(3), the difficulty here is that it is only the ISDA Master Agreement and the Asset Swap Transactions which are governed by an exclusive jurisdiction clause in favour of the courts of England. What about the other agreements? As is common ground, the other agreements are subject only to a non-exclusive jurisdiction clause. On that basis, it does not seem possible to say that Nomura’s claims in relation to those agreements are not “capable” of being heard and determined in Italy.

In an attempt to overcome this hurdle, Mr Handyside submitted that as a matter of English law i.e. the law chosen by the parties to govern all of their agreements, BMPS would not be able successfully to claim rescission of the GMRA without also obtaining rescission of the ISDA Master Agreement. In support of that submission, Mr Handyside relied upon the reasoning of Colman J in De Molestina and others v Ponton and others [2002] 1 Lloyd’s Rep 271. That case concerned a claim for the rescission of three share distribution agreements which had been entered into by various members of a family in the context of other agreements. In an application to strike out the claim, the defendants contended that rescission was not an available remedy since the three share distribution agreements formed part of a large transaction which involved two other agreements, neither of which (as the claimant accepted) could be rescinded. At p288 col 2, Colman J stated:

“The crucial issue in the present applications is, however, one of mixed fact and law and it is how one identifies the criteria for determining whether a number of separate contracts are part of a single overall transaction for the purposes of the rule against rescission of part of a transaction. On this point there is little or no help in the authorities, but application of general principles strongly suggests the necessary criteria. If a representee is induced to enter into separate contracts A&B by the same misrepresentation, it may be that performance of contract B depends on the prior performance of contract A. In that case one cannot rescind contract A without also rescinding contract B. To permit the survival of contract B would be inconsistent with the principles of restitutio in integrum. But there may be cases where, although both contracts were induced by the same misrepresentation either can be performed without performance of the other. In that case the representee may rescind unless the contract not sought to be rescinded would never have been entered into by the parties without also entering into the other. Thus, for example, in a case where the transaction is divided into different contracts simultaneously negotiated, it may be that the consideration for the whole bargain is written into one contract, leaving only nominal consideration in the other contract. In that event it would not be open to the representee to leave open the contract that gave him the main consideration while rescinding the other contract under which his primary performance obligation lay. Again, to do otherwise would not effect restitutio in integrum. Or there may be cases where it is clear from the terms of the contracts and the matrix evidence that the subject matter of the contracts is so interrelated that, although it would be theoretically possible to perform each separately, one would never have been entered into without that contract sought to be rescinded. However, in the absence of structural interdependence between separate contracts, the most usual determinant of inseparability is likely to be the distribution of consideration for the whole bargain between the separate contracts.”

On the facts of the case before him, Colman J held that the agreements were not sufficiently interrelated so as to preclude rescission of the share distribution agreements. This was because:

“The relevant test is whether it was the mutual intention of the parties, expressed or to be imputed to them, that they would only enter into either of the other two earlier agreements if they also entered into the share distribution agreements”. (at p289, col 2)

Mr Handyside submitted that the test (which was not met in De Molestina on the facts of that case) is met in the present case: it was clearly the mutual intention of the parties that they would only enter into the Long Term Repo if they also entered into the Asset Swap Transactions. I am prepared to assume in Nomura’s favour that that submission is correct. However, as submitted by Mr Nash, it seems to me that De Molestina says nothing about the present issue which arises under Article 28(3) with regard to the definition of “related actions”.

In any event, Mr Nash submitted that the exclusive jurisdiction clause in the ISDA Master Agreement is not decisive. In support of that submission, Mr Nash relied upon the observations of Thomas LJ in Sebastian Holdings Inc v Deutsche Bank AG [2010] EWCA Civ 998; [2010] 2 CLC 300 at [39]-[49] in particular: “It is generally to be assumed […] that just as parties to a single agreement do not intend as rational businessmen that disputes under the same agreement be determined by different tribunals, parties to an arrangement between them set out in multiple related agreements do not generally intend a dispute to be litigated in two different tribunals”. Thus, Mr Nash submitted that the Court’s task in deciding whether a dispute falls within the jurisdiction clause of one or more related agreements, depends upon the intention of the parties as revealed by the agreements. In this context, Mr Nash relied in particular upon UBS AG v HSH Nordbank AG [2009] EWCA Civ 585; [2010] 1 All ER (Comm) 727 per Collins LJ at [95]:

“Whether a jurisdiction clause applies to a dispute is a question of construction. Where there are numerous jurisdiction agreements which may overlap, the parties must be presumed to be acting commercially, and not to intend that similar claims should be the subject of inconsistent jurisdiction clauses. The jurisdiction clause in the Dealer’s Confirmation is a ‘boiler plate’ bond issue jurisdiction clause, and is primarily intended to deal with technical banking disputes. Where the parties have entered into a complex transaction it is the jurisdiction clauses in the agreements which are at the commercial centre of the transaction which the parties must have intended to apply to such claims as are made in the New York complaint and reflected in the draft particulars of claim in England.”

The actual decision in UBS v HSH Nordbank is to be contrasted with that reached in Sebastian Holdings where it was held that the parties had contemplated the possibility of fragmented proceedings. However, it was confirmed by the Court of Appeal that where there are conflicting jurisdiction clauses it is a matter of finding a commercially rational construction. In that case, “Rational businessmen entering into agreements relating to different aspects of trading in the financial markets would understand that the Bank would wish to be entitled to bring proceedings to enforce payment of debts under each agreement which gave rise to the specific debt”: see per Thomas LJ at [58].

On the basis of these authorities, Mr Nash submitted that on a commercially rational construction of the relevant jurisdiction agreements, in the present case the parties cannot have intended that the English Court was the only court with jurisdiction to hear a claim concerning the validity and enforceability of the Agreements as a whole. In particular, Mr Nash submitted as follows:

Mr Handyside submitted that this attempt by Mr Nash to marginalise the exclusive jurisdiction clause in the ISDA Master Agreement and Asset Swap Transactions by asserting in effect that the non-exclusive jurisdiction clause in the Mandate Agreement took precedence was unsustainable in particular because the Asset Swap Transactions entered into pursuant to the ISDA Master Agreement were what Mr Handyside described as “an integral part of a single overall transaction”.

These are interesting arguments but it seems to me they are far away from the central issue I have to consider; and it is unnecessary for me to reach a conclusion in relation to them having regard to my conclusion in paragraph 57 above.

Having rejected Mr Handyside’s threshold point, it remains to consider Mr Handyside’s second main point viz that these English proceedings and the Italian proceedings are not “related actions” within the meaning of Article 28(3) because they are not or not sufficiently “so closely connected” and there is therefore no or no sufficient risk of irreconcilable judgments.

Under this head, Mr Handyside submitted in summary as follows.

I did not understand Mr Nash to disagree with any of the above. Rather the focus of this part of the dispute concerned the application of these principles to the circumstances of the present case and the appropriate conclusion.

Applying such principles to the present circumstances, Mr Handyside submitted that the two sets of proceedings were not so closely connected that it was expedient to hear and determine them together to avoid the risk of irreconcilable judgments. In particular, he submitted as follows:

These submissions were advanced by Mr Handyside most eloquently but I am unable to accept them. As I have stated in paragraph 40 above, the question whether actions are “related” is answered not just by looking at the claims alone but by looking at the claims and defences. On that basis, it seems to me that in the context of Article 28(3), I must proceed on the basis of the indication given by Mr Nash as referred to in paragraph 40 above viz that if the present proceedings were to continue in England, BMPS is likely to oppose the declarations sought and that it would seek to rely upon all matters which have already been raised in the Italian proceedings. The highpoint of Mr Handyside’s case is, of course, that even so there is no sufficient connection between the two sets of proceedings because the Italian proceedings will not be concerned with any contractual issue and, in particular, with the ultimate core question in the English proceedings, i.e. the validity of the Agreements. However, it seems to me that adopting the “broad commonsense approach” endorsed in Sarrio, the underlying factual issues would give rise to a very substantial degree of connection such that it would be expedient (indeed very expedient) to hear the two actions together to avoid the risk of inconsistent judgments. For these reasons, it is my conclusion that the overlap plainly satisfies the test in Article 28(3).

For the reasons stated above, the conclusion I have reached is that the opening words of Article 28(1) are satisfied in the present case i.e. related actions are pending in the courts of different Member States. The question then arises as to whether this court (being the court second seised) should stay the present proceedings pursuant to Article 28(1).

Whilst it has previously been thought that there is a strong presumption in favour of the applicant for a stay under Article 28, this has now been doubted and as submitted by Mr Handyside, it seems to me that the normal rule should apply, namely that the burden of proof or persuasion is on the applicant: see Rix J in Centro Internationale Handelsbank AG v Morgan Grenfell Trade Finance Ltd [1997] CLC 870 at 891, accepted and adopted by Gloster J in Nordea Bank Norge ASA v Unicredit Corporate Banking Spa [2011] EWHC 30 (Comm). As to the applicable principles, in Owens Bank ltd v Bracco (Case C-129/92) [1994] QB 509 (concerning Article 22 of the Brussels Convention) Advocate General Lenz suggested (at 541D) that a national court, in determining whether discretion should be exercised in favour of a stay, should consider three factors: (1) the extent of the relatedness of the proceedings and the risk of mutually irreconcilable decisions; (2) the stage reached in each set of proceedings; and (3) the proximity of the courts to the subject matter of the case. This approach is well-established: see for example Cooper Tire & Rubber Company v Dow Deutschland [2010] EWCA Civ 864. However, these factors are of course not exhaustive.

I fully recognise the very strong undesirability of two overlapping sets of proceedings being pursued in two different jurisdictions, the prospect of this giving rise to a rush to judgment in one jurisdiction or another (or both) as well as the risk of irreconcilable judgments – all of which perhaps point in favour of a stay if only because Italy is the court first seised. However, although the evidence before me on this topic was somewhat incomplete and inconclusive, it seems to me that that last risk at least may disappear if the court in either England or Italy were to reach a conclusion which gave rise to what an English lawyer would characterise as an “issue estoppel” and which could then be relied upon in the other jurisdiction.

As to the stage reached in the proceedings, there is little, if any, difference. Looking ahead, I accept that the time that would be taken for the two sets of proceedings to come to a conclusion is a relevant factor in the exercise of the court’s discretion: see Cooper Tire & Rubber Company v Dow Deutschland [2010] EWCA Civ 864 per Longmore LJ at [55]; The Trademark Licensing Company Ltd and Lonsdale Sports Ltd v Leofelis SA [2009] EWHC 3285 (Ch) at [46]. Further, I accept that the need for a swift determination is an additional relevant factor: see AWB (Geneva) SA v North America Steamship Ltd [2007] EWCA Civ 739; [2007] 2 Lloyd’s Rep 315; JP Morgan Europe Ltd v Primacom [2005] 2 Lloyd’s Rep 665; Lehman Bros v CMA [2013] EWHC (Comm) 171; and also that the nature of the dispute and the very significant sums involved in the present case make it highly desirable that the issue of the validity and enforceability of the Agreements is determined as swiftly as possible.

On the basis of the evidence before me, Mr Handyside submitted that in Italy the “first instance phase” could be expected to last approximately 4 years and the appeal process could last a further 2 – 7 years, which was (he submitted) considerably longer than would be expected in England. Mr Nash disputed these figures. Doing the best I can, it seems to me that proceedings in Italy are indeed likely to take longer than in England (although the disparity is probably not as great as Mr Handyside would suggest). On this basis, I accept that this is a factor in Mr Handyside’s favour. Moreover, it seems to me relevant to bear in mind that if the English proceedings were to be stayed and as things otherwise stand, when the Italian proceedings are concluded (whenever that might be) the question of the validity of the Agreements will still need to be determined because there is no issue as to such validity in such proceedings (at least as constituted at present). So the determination of that issue would in effect be left hanging until after the conclusion of the Italian proceedings – leading to yet further delay. Mr Nash submitted in effect that this was not really a point against a stay because Nomura could, if it wanted, agree that that issue be determined in the Italian proceedings. However, it seems to me that Mr Handyside is right in his submission that Nomura cannot be criticised for taking the position that it does having regard (at the very least) to the exclusive jurisdiction clause in the ISDA Master Agreement and Asset Swap Transactions.

In my view, these considerations are finely balanced. On the one hand, it seems likely that the main witnesses are likely to be in Italy (with Italian perhaps as their first language) and that most of the documents will be in Italian. Although the governing law is obviously a relevant factor (see for example Centro Internationale Handelsbach AG v Morgan Grenfell Trade Finance Ltd [1997] CLC 870, 893) and the governing law of the Agreements is English law, the issues raised by BMPS involve matters of Italian law.

The discretionary factors which I have considered so far seem to me, on balance, to point against the grant of a stay. However, in my view, the case against the grant of a stay is strongly fortified because of the existence of the exclusive jurisdiction clause in the ISDA Master Agreement. In my view, this is a very significant factor against the grant of a stay under Article 28. In JP Morgan Europe Ltd v Primacom AG [2005] 2 Lloyd’s Rep 665 Cooke J held at [65]:

“Even if I had found that these two sets of proceedings and the German proceedings were related within the meaning of article 28, “the strong presumption” which “lies in favour of the applicant” on an application for a stay would be overridden here by virtue of the terms of the SSFA. Although the ECJ decision in Gasser means that a stay is mandatory where article 27 applies, there is no reason why weight should be given to that decision in the context of article 28, where a discretion is given to the court, the jurisdiction of which has been agreed by the parties as exclusive. It is nothing to the point that an English court could not have issued an anti-suit injunction to prevent the German proceedings (as per C-159/02 Turner v Grovit [2004] 2 Lloyd’s Rep 169). The injustice of giving precedence to proceedings brought in breach of an exclusive jurisdiction clause where the parties have agreed that England is the appropriate forum is self-evident. To breach the clause and to gain priority for the German courts by such breach offends justice, where the court has a discretionary decision to make.”

Gloster J applied the same reasoning in Nordea Bank, holding that to grant a stay of the English proceedings would wrongly reward the claimant in the Italian proceedings and would offend justice (at [88(vi)(e)]). Despite Mr Nash’s attempts to distinguish these cases, I respectfully agree with this reasoning. In particular, it seems to me that such approach is compelling when considering the exercise of the court’s discretion because it serves to give effect to the parties’ bargain.

It is fair to say that the reasoning of Cooke J would seem to proceed on the basis that the foreign proceedings were brought in breach of the exclusive jurisdiction clause. In the course of argument, I asked Mr Handyside whether it was Nomura’s case that there was such a breach in the present case, i.e. that the Italian proceedings were a breach of the exclusive jurisdiction clause. (That was, of course, the subject matter of paragraph (iv) of the declarations sought which was abandoned by Nomura as noted in paragraph 4 above.) His response was, in effect, that Nomura reserved its position in that regard and that he did not seek to rely on such breach in the context of the present application. In any event, it seems to me that whether or not the Italian proceedings constitute a breach of the exclusive jurisdiction clause, the crucial point for present purposes is that the effect of the exclusive jurisdiction clause is that Nomura is contractually entitled to bring these present proceedings in England (at least so far as ISDA Master Agreement and Asset Swap Transactions are concerned). As I say, that is in my view a very significant factor against the grant of a stay. In particular, it seems to me that the court should, so far as possible, give effect to the parties’ bargain and be very slow indeed to exercise a discretion in a manner the effect of which would be to destroy such bargain.

Further, it is to be noted that the jurisdiction clause in the ISDA Master Agreement also provides that BMPS waives (i) any objection it might have to the laying of venue of proceedings brought in the English court, (ii) any claim that such proceedings have been brought in an inconvenient forum; and (iii) any right to object that the English court does not have jurisdiction over it. As submitted by Mr Handyside, even if this provision does not preclude BMPS from pursuing the current application it is at the very least a significant additional factor against granting a stay.

For these reasons, I have concluded that in exercise of my discretion I should certainly refuse to grant a stay at least so far as these present proceedings concern the ISDA Master Agreement and the Asset Swap Transactions. It is true that the other agreements do not contain an exclusive jurisdiction clause. However, having reached the conclusion that there should be no stay in respect of the ISDA Master Agreement and the Asset Swap Transactions, the fact that these English proceedings will continue at least in such regard is, in my view, itself a very significant factor against a stay of the proceedings in relation to the other agreements. In particular, I bear in mind that BMPS’s likely case on illegality would apply equally and without distinction to all the Agreements. Thus, it seems to me that it is expedient that the English Court should hear and determine all issues concerning the validity of all the Agreements and that it would be inexpedient to adopt any other course.

In this context it is also relevant to note that, as stated above, the Mandate Agreement provides that the English Courts are the most appropriate and convenient courts to settle any dispute, and that each party agrees not to argue to the contrary and waives objection to the English Courts (on the grounds of inconvenient forum or otherwise) in relation to proceedings in connection with the agreement. Again, as submitted by Mr Handyside, the provision by BMPS of such a waiver of objection to the jurisdiction of the English courts is (at the very least) an important factor against the granting of a stay.

For all these reasons, I reject the application by BMPS and refuse to order a stay of these English proceedings. Counsel are requested to draw up an order for my approval reflecting the terms of this Judgment and other consequential matters (including costs). Failing agreement, I will deal with any outstanding issues.