BNP Paribas SA v Trattamento Rifiuti Metropolitani SPA

In these proceedings the claimant (“BNPP”) seeks a number of declarations from the Commercial Court in London. On the present application the court is asked by the defendant (“TRM”) to decide whether the English Court has jurisdiction.

TRM’s argument on jurisdiction has, if correct, some wider significance. This is because the argument explores whether an express agreement to the jurisdiction of the English Court within standard form ISDA documentation should be displaced or restricted.

In broadest outline, TRM relies on an express agreement to Italian jurisdiction reached between the parties in another written contract, on an implied contract, and on a number of alleged matters of context. It also says there is no true dispute here.

In 2005 the Province of Torino in Italy was concerned to develop capacity to convert waste into energy. It engaged TRM to design, build and operate a plant at Gerbido for this purpose.

The project required financing. TRM retained a number of companies to advise on financing, to include an interest rate hedging strategy.

An invitation to tender for the financing of the project followed. BNPP, a global bank headquartered in France, was one of ten banks to respond. It said that “with regard to TRM, BNPP … will be able to act as a single reference point for all the activities described …, which will be carried out entirely by its Italian branch”.

BNPP was ultimately successful in the tender, in 2007. In July 2008 it made proposals for interest rate hedging. A Financing Agreement for loan financing of Euro 413 million was entered into between TRM and a syndicate of banks led by BNPP in October 2008 and amended in 2010 (twice) and 2013.

The Financing Agreement provided for a “Hedging Strategy” “intended to cover the risk of fluctuation of interest on the Loan” and described as follows (by Appendix 17.19 to the Financing Agreement):

“1.

[TRM] must conclude and maintain derivatives contracts covering the risk arising from interest rate fluctuations on 100% of the total amount disbursed from time to time and not reimbursed under the Base Lines (“Hedging Contracts”) from the first Date of Use indicated in the Financing Contract until the Final Expiry date of the Base Lines.

2.[TRM] must conclude Hedging Contracts exclusively with [BNPP] in its capacity as a Hedging Bank.

3.Hedging Contracts shall be concluded by [signing] the relative standard documentation as published from time to time by the International Swaps and Derivatives Association, Inc. (“ISDA”) and shall refer to the 1992 ISDA definitions.

4.Except in the case of Hedging Contracts, [TRM] may not enter into any sort of agreement which constitutes a derivative contract.”

It is TRM’s case, as described to me by its Leading Counsel, Mr Charles Samek QC, that its “agreement, if it won the tender, to act as ‘single reference point’ entailed an assumption of roles and responsibilities which gave rise to significant legal duties on BNPP under Italian law”. Further, TRM contends that, by reason of provisions in the documents in the tender process and in the Financing Agreement “there was as a matter of Italian law an obligation on BNPP to implement the Hedging Strategy” under the Financing Agreement.

On 1 March 2010 TRM and BNPP entered into an ISDA Master Agreement in Multi Currency – Cross Border form, 1992 edition, with a Schedule. On 23 March 2010 the parties agreed an interest rate swap transaction with BNPP under the Master Agreement, entering into a Confirmation.

These transactions were preceded by a letter from BNPP which referred to “the Hedging Contracts to be signed between [TRM] and [BNPP] in its capacity as “Hedging bank” pursuant to and under the terms of paragraph 1 (Interpretation) and appendix 17.19 (Hedging Strategy) appended to” the Financing Agreement. TRM further draws attention to the following provision in the Schedule to the Master Agreement:

“Notwithstanding anything to the contrary contained herein, this Agreement is entered into in connection with [the Financing Agreement] and the relevant intercreditor agreement …

For the purpose of [the Master Agreement], the parties acknowledge the existence of the [Financing Agreement] and the [intercreditor agreement] and further acknowledge that (i) their respective rights under this Agreement are subject to the terms and conditions of the [Financing Agreement] and the [intercreditor agreement] (ii) that [BNPP] is the ‘Banca Hedging’ (ie the bank that will provide the ‘Contratti di Hedging’ pursuant to the ‘Strategia di Hedging’ as these terms are defined in paragraph 1 (Interpretazione) and annex 17.19 (Strategia di Hedging) of the [Financing Agreement]) and (iii) no derivative transactions shall be entered into hereunder other than those foreseen in annex 17.19 (Strategia di Hedging) of the [Financing Agreement] …

In the case of conflict between the provisions of this Agreement and the [Financing Agreement] and the [intercreditor agreement], the provisions of the [Financing Agreement] and the [intercreditor agreement] as appropriate shall prevail.”

It appears that in amendments introduced in 2013 to the Financing Agreement Article 17.19 of the Financing Agreement was modified to include the wording “[TRM] is committed to … comply with its commitments under the Hedging Contracts …”.

The Financing Agreement, expressed to be governed by Italian law, contains a jurisdiction clause in these terms:

“28.2

Competent Court

Any dispute relating to the interpretation, conclusion, performance or termination of this contract or otherwise relating to it shall be within the exclusive competence of the Court of Turin.”

The Master Agreement contains a jurisdiction clause in these terms:

“13 Governing Law and Jurisdiction

…

(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 …”

The Master Agreement was expressed to be governed by English law.

On 23 September 2016 BNPP commenced the present proceedings against TRM in the Commercial Court in London. On 14 April 2017 TRM commenced proceedings against BNPP in the Tribunale of Torino in Italy.

In the English proceedings, BNPP attached Brief Details of Claim to its Claim Form, taking the procedural option that would see Particulars of Claim follow if an acknowledgement of service was filed by TRM indicating an intention to defend the claim.

In paragraph 1 of the Brief Details of Claim, BNPP states that its claims “are for declarations in connection with a financial transaction pursuant to which [TRM] entered into interest rate hedging arrangements with the Claimant (the “Transaction”)”. Mr Samek QC argued that this language was “apt to include” the Financing Agreement, and referred to correspondence in support of this argument.

In my view, when read in context, it is sufficiently clear that the language refers only to the Master Agreement and the swap transaction entered into under that. Paragraph 3 of the Brief Details of Claim states that “the terms governing the Transaction” are contained in the ISDA Master Agreement, the Schedule and the Confirmation, defining these (alone) as “the Transaction Documents”. Paragraph 5 refers to an irrevocable submission by the parties to the jurisdiction of the English courts, and that is to be found in the Master Agreement and not in the Financing Agreement. The Financing Agreement is separately defined under paragraph 6 of the Brief Details of Claim, as an agreement “in connection with which the Transaction was concluded”.

The principal remedies sought in the English proceedings are declarations. These are sought in the terms set out in Appendix A.

As for the Italian proceedings, TRM states that these “are concerned not with the … (Swap) per se, but inter alia with whether the Hedging Strategy was properly implemented”. It says that:

“[i]n summary, the claims of TRM against BNPP relate to:

a.

breach of [the Financing Agreement] and of [an] implied advisorship contract … which TRM alleges was entered into by the parties upon the award of the public tender called by TRM; and,

b.

breach of the advisory obligations undertaken by BNPP under the [Financing Agreement], the Tender Documents (as defined …) and the offer for financial services made by BNPP on 25 July 2008 and accepted by TRM on 18 March 2009;

c.

violation by BNPP of Article 21 of the Italian Legislative Decree 58 of 24 February 1998 (Consolidated law on financial markets and investment services) and to the declaration of the pre-contractual and non-contractual [i.e. tort/ delict] liability deriving from such violation;

d.

violation by BNPP of [a] general duty to act in good faith and to the declaration of the non-contractual liability deriving from such violation; and,

e.

indemnification of the damages suffered by TRM due to the breaches of contracts and pre- and non-contractual violations mentioned under (a) to (d) above.”

It bears emphasis that I am not concerned with the Italian proceedings. I am concerned only with TRM’s argument that BNPP should not be permitted to pursue the English proceedings because (it is said) there is no serious issue and there is no jurisdiction.

TRM emphasised throughout its argument in this court that it does not challenge the validity of the Master Agreement and the swap transaction.

In written submissions TRM argued that there is no relevant dispute regarding the Master Agreement and the swap transaction and that was a reason to conclude there was “in truth no serious issue to be tried”. In his oral argument for TRM Mr Samek QC put things in this way: “to the extent that the declarations are concerned solely with matters relating to the validity of the swaps and validity of the ISDA Master”, there was no dispute in relation to those matters “so that the court would not grant the declarations”.

I intend no criticism when I say that Mr Samek QC was not however able to say that TRM would concede the accuracy of the declarations sought. That is telling of his client’s position. In my view there is no question there is an issue between the parties, and no question that BNPP’s case is serious.

Indeed, as to the strength of BNPP’s case, BNPP has the powerful advantage of being able to point to agreed written provisions in the Master Agreement. What is BNPP then supposed to do? In face of allegations from TRM, BNPP wants to know that it has the rights contracted for in the Swap. TRM is not prepared to accept BNPP has those rights. That would suggest there is a dispute. TRM cannot avoid that consequence by saying that it does not challenge the validity of the Master Agreement and the swap transaction.

Article 25(1) of the Brussels Regulation (Recast) (1215/21012) provides:

“If the parties, regardless of their domicile, 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 …”

Where, as here, there is more than one contract and the contracts contain jurisdiction clauses in favour of the courts of different countries, the court is faced with a question of construction or interpretation: see in particular Trust Risk Group SPA v Amtrust Europe Ltd [2015] EWCA Civ 437; [2015] 2 Lloyd’s Rep 154 at [44]-[49] per Beatson LJ, Credit Suisse First Boston (Europe) Ltd v MLC (Bermuda) Ltd [1999] 1 Lloyd’s Rep 767 at 777 per Rix J (as he then was) and Sebastian Holdings Inc v Deutsche Bank [2011] 1 Lloyd’s Rep 106 per Thomas LJ (as he then was) at [42].

The approach to construction of a jurisdiction clause should be broad and purposive: Sebastian Holdings v Deutsche Bank (above) at [39] per Thomas LJ. When interpreting any provision of a commercial contract the court will look at the language and investigate the commercial consequences: see Wood v Capita Insurance Services Ltd [2017] UKSC 24; [2017] AC 1173 at [8]-[15] per Lord Hodge JSC.

This being an interlocutory hearing to challenge jurisdiction it is sufficient, in the present case, for me to look to see whether BNPP has much the better of the argument. There was some debate whether and when the burden of showing this strength of case or quality of argument might shift to TRM but that question is ultimately immaterial in this case.

It is relevant to draw attention to the following points in respect of the declarations sought in the English proceedings.

BNPP correctly argues that with the exception of the declaration sought under paragraph 7(1)(f), all of the declarations sought either derive directly from the contractually agreed language of the Swap, and in particular the ISDA Master Agreement (7(1)(a) to 7(1)(c) and 7(1)(e)) or are consequent on those declarations (7(1)(d), (g), (h) and (i)). It may be that the language of (7(1)(i) needs to be a little more closely drafted to indicate that (as BNPP has made clear in its written submissions is its intention) the limitation referred to in that subparagraph is concerned only with the position consequent on the other declarations, but that can be addressed.

A number of the declarations sought add the wording “as well as [under] all other written agreements and/or written notifications and/or documents entered into and/or executed pursuant to the Transaction Documents [ie. pursuant to the Master Agreement, Schedule and Confirmation]”, but for present purposes the important words here are “pursuant to” because those would not readily include the Financing Agreement.

As to the declaration sought under paragraph 7(1)(f), this concerns a request by TRM for a waiver by BNPP of BNPP’s right under the Master Agreement to designate an Early Termination Date in the event BNPP made a prepayment of its borrowing under the Financing Agreement. In face of an alleged contention by TRM that BNPP had no proper basis to refuse to grant a waiver, the declaration addresses the questions whether BNPP owed or owes a duty or obligation in deciding whether to grant the waiver or otherwise to grant the waiver, and whether a refusal by BNPP constitutes a breach of the terms of the Master Agreement.

The declaration sought under paragraph 7(1)(g) drew particular attention from Mr Samek QC for TRM. It is widely drawn. However its width is in the consequences that it says flow from the declarations sought at paragraph 7(1)(a) to 7(1)(e). It may be that TRM will argue, at the stage of argument on the merits, that consequences of that width do not flow from those paragraphs. But for now, if there is jurisdiction in the English Court to deal with the claims for declarations sought at 7(1)(a) to 7(1)(e) then there is jurisdiction to deal with this claim for a declaration said to arise “by reason of” declarations made (if any) under those paragraphs. I note however that paragraph 7(1)(g) includes the words “in any event”, and (subject to any further argument on this particular point when consequential matters are addressed after this judgment is handed down), I am minded not to allow those words to continue to be included. Particularly in the context of this case and the argument on jurisdiction, if BNPP wishes to press a case for a declaration it must be clear how that case is founded: “by reason of 7(1)(a) to 7(1)(e)” is clear; I am not convinced “in any event” is clear.

The answer to any question whether, as TRM alleges, the Hedging Strategy “was [not] properly implemented” may be affected by the answer to one or more of the declarations. The declarations sought may be prompted by that allegation. However no declaration is framed in the terms of the allegation, or so as to extend outside the terms of the Master Agreement, the Schedule and the Confirmation and what was agreed by those documents.

The written argument for TRM contained a section on the importance of ensuring that declarations were sought for a proper purpose and not for inappropriate forum shopping. In the present case I consider the declarations as designed to hold the parties to the elements of bargain they struck in the Master Agreement, and to do so in the context of wider allegations by TRM. Ultimately, at the hearing TRM did not specifically allege improper purpose, but given the section on this point in its written argument it is right that I indicate that I find no element of improper purpose.

In my judgment BNPP has much the better of the argument.

The two jurisdiction clauses as a matter of language readily bear the interpretation that one is concerned with the Master Agreement and the other is concerned with the Financing Agreement. This fits perfectly well in the context of the parties’ dealings. It recognises that the parties had more than one relationship.

The wider language of the written contracts (“performance … of this contract” “or otherwise relating to it” in the Financing Agreement; “relating to this Agreement” in the Master Agreement) does not prevent an interpretation that allows those contracts to fit together. That is certainly more commercial than an interpretation that would have general words in the Financing Agreement prevail over the fact that the parties specifically agreed jurisdiction in favour of the English Court for their obligations under the Master Agreement when they agreed that and the swap transaction. There is no basis for rewriting the contracts: Sebastian Holdings (above) at [65] per Thomas LJ and Dexia Crediop SPA v Provincia di Brescia [2016] EWHC 3261 (Comm) at [100]-[111] per Ali Malek QC sitting as a Deputy High Court Judge.

TRM argued that “even if [the jurisdiction clause in favour of the English Court] did capture any of BNP[P]’s claims in the English Action, the effect of the Schedule to the ISDA Master Agreement, which provides that the [Financing Agreement] prevails over the ISDA Master Agreement, in cases of conflict, is that primacy is given to the [Financing Agreement] and the Italian Jurisdiction Clause”. In my judgment, the argument is not engaged simply because there is no conflict.

TRM argues that the Master Agreement and swap transaction are “concerned with BNP[P] simply as counterparty to the structured product constituted by the Swap”. Mr Adrian Beltrami QC, for BNPP, is in my judgment correct to point out that the compass of the arrangements between the parties that are made by the Master Agreement is “richer” than Mr Samek QC was prepared to accept. However the key point is that the Master Agreement is concerned with the range of matters to which the declarations sought in the English proceedings are directed and which they seek to have confirmed. To seek that confirmation in the form of declarations is a legitimate way of realising a contractual estoppel where a defendant may deny the truth of representations made in a contract: see Merrill Lynch v Commune di Verona [2012] EWHC 1407 (Comm) per Teare J; Regione Piemonte v Dexia Credit Spa [2014] EWCA Civ 1298 at [109] per Christopher Clarke LJ.

TRM urged the importance of context. However its argument about the context within which to interpret the jurisdiction clauses at times strayed to argument about what the proceedings in Italy and in England are “essentially concerned with” and the contention that “it is the case that the declarations sought by BNP[P] are in truth focussed on that dispute and the substance of the Italian Proceedings”. However even leaving aside other answers to the argument and contention, the allegations made were not part of the context when the jurisdiction clauses were agreed, and therefore cannot contribute context in the task of interpretation of the Master Agreement.

I accept that in Deutsche Bank AG v Comune di Savona [2017] EWHC 1013 (Comm) at [84], [98]-[102] HHJ Waksman QC (sitting as a Judge of the High Court) considered it appropriate to go further, and to consider how declarations in proceedings in this jurisdiction would act as defences in a claim in another jurisdiction (also Italy as it happens). I fear that risks taking the focus away from the relevant dispute for the purpose of the question whether the English Court has jurisdiction, which is the dispute over the grant of the declarations. I respectfully prefer the approach taken by Mr Ali Malek QC in Dexia v Brescia (above) at [106]-[107]. The alleged implied advisorship contract in the present case does not take things further.

The most powerful point of context in my view is the use of ISDA documentation and the ISDA jurisdiction clause within it. Even generally, “[d]ispute resolution provisions require certainty. The parties need to know from the outset what to do and where to go if a dispute arises.”: Costain Ltd v Tarmac Holdings Ltd [2017] EWHC 319 (TCC); [2017] 1 Lloyd’s Rep 331 at [42] per Coulson J (as he then was). The worldwide use of ISDA documentation further signals the interest of parties to achieve consistency and certainty in this area of financial transacting. In the case of an ISDA master agreement “[i]t is axiomatic that [it] should, so far as possible, be interpreted in a way that serves the objectives of clarity, certainty and predictability so that the very large number of parties using it should know where they stand”: Lomas and others v JFB Firth Rixson Inc and others (ISDA intervening) [2010] EWHC 3372 (Ch); [2011] 2 BCLC 120 at [53] per Briggs J (as he then was) referring to Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana, The Scaptrade [1983] QB 529 at 540 per Robert Goff LJ (as he then was).

Where commercial parties use ISDA documentation they are even less likely to intend that provisions in that documentation may have one meaning in one context and another meaning in another context. “Although the relevant background, so far as common to transactions of such a varied nature and reasonably expected to be common knowledge among those using the ISDA Master Agreements, is to be taken into account, a standard form is not context-specific and evidence of the particular factual background or matrix has a much more limited, if any, part to play”: In Re Lehman Brothers International (Europe) (in administration) (No 8) [2016] EWHC 2417 (Ch); [2017] 2 All ER 275 at [48(2)] per Hildyard J, referring to AIB Group (UK) Ltd v Martin [2001] UKHL 63; [2002] 1 WLR 94.

The parties’ choice of a jurisdiction clause in the ISDA Master Agreement also confirms me in the view that the fact that the Financing Agreement was first in time does not mean that it is necessary to start (as TRM urged me to do) by interpreting the jurisdiction clause in the (Italian law governed) Financing Agreement.

Indeed, more generally, if one does interpret one jurisdiction clause first, the result will tend to be a wide interpretation on ordinary principles whereas the essential point in the present case is that there are in fact two clauses not one, and one of those two clauses is a jurisdiction clause agreed in an ISDA Master Agreement.

TRM included expert evidence of Italian law in support of its application. Understandably, BNPP answered this with further expert evidence. In the result the court has reports from Professors Alibrandi, Radicati and Conti. The parties did not apply to the court before the hearing for directions in relation to expert evidence.

I intend no lack of respect to the experts, each of whom is distinguished, when I say that I have not found it necessary to use their evidence to decide this application. I have however considered that evidence and have listened to what the parties, through their advocates, have had to say about it. So far as material, I have found enough to confirm to me that the language used by the parties is central to interpretation in Italian law as it is in English law.

But fundamentally I am not unhappy to find in a case such as the present that the questions that need to be determined, to the thresholds relevant to an interlocutory hearing on jurisdiction, can be determined without expert assistance. The alternative is that too often undue cost and time would be invested in deciding this type of question in a case such as the present. In the present case the cost and some of the time has been incurred, but parties should avoid that by seeking directions first if they consider that expert evidence may be required.

TRM sought to use the expert opinions on Italian law in a range of ways. It sought to make out the proposition that the Italian proceedings came within the jurisdiction clause in favour of the Italian Court. It was also argued by TRM that an Italian court would consider that claims concerning the interpretation, conclusion, performance and termination of the Financing Agreement, including any breach of obligations (if any) relating to the Hedging Strategy, would fall within the jurisdiction clause in favour of the Italian Court. Further it was argued by TRM that the Italian courts would have jurisdiction “on claims in the general law of delict, as long as such harmful event occurred or may occur in Italy”. However none of these are matters that are for decision on this application.

TRM’s argument about the jurisdiction clause in favour of the English Court was supplemented by reference to the expert opinions on Italian law with TRM saying that these supported a conclusion that the Italian courts would interpret that clause narrowly. Again that evidence does not, with respect, help as this court is able to interpret that clause.

Referring to the amendments introduced in 2013 to the Financing Agreement that modified Article 17.19 of the Financing Agreement to include the wording “[TRM] is committed to … comply with its commitments under the Hedging Contracts …” Professor Alibrandi expressed the opinion as an expert on Italian law that:

“The main points flowing from the wording added … are a) that it supports the conclusion that the only purpose of the [Swap] was to implement the Hedging Strategy b) that it makes TRM’s compliance with its obligations under the [Master Agreement and swap transaction] a term of the [Financing Agreement]. As such the most likely interpretation is that the parties chose to bring TRM’s performance of its obligations under the concluded [Master Agreement and swap transaction] within the framework of the [Financing Agreement]”.

TRM builds on this to argue that “[a]ny dispute, therefore, as to whether TRM has complied or will comply or threatens not to comply with its commitments under the swap plainly comes with the scope of the Italian Jurisdiction Clause.” With respect, I consider this has no merit. The parties agreed jurisdiction in favour of the English Court under the Master Agreement. The fact that TRM further committed itself in the Financing Agreement to comply with its commitments under the Master Agreement does not mean that commitments under the Master Agreement and swap transaction are any the less subject to the jurisdiction agreed under the Master Agreement, or any the less able to be adjudicated upon and enforced by proceedings in England.

Subject to the points at paragraph 31 (last sentence) and 34 above, and any like point of drafting, I must dismiss the application by TRM.