(1) Nordea Bank Norge Asa (2) Vasonia Shipping Company Ltd v (1) Unicredit Corporate Banking Spa (2) Banca Di Roma Spa
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE GLOSTER, DBE,Mrs Justice Gloster, DBE |
| Judgment Date | 19 January 2011 |
| Neutral Citation | [2011] EWHC 30 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 19 January 2011 |
| Docket Number | Case No: 2009 Folio 1503 |
[2011] EWHC 30 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Before: Mrs Justice Gloster, DBE
Case No: 2009 Folio 1503
John Lockey Esq, QC (instructed by Watson, Farley & Williams LLP) for the Claimants
Hugh Mercer Esq, QC (instructed by Dewey & LeBoeuf LLP) for the Defendants
Hearing dates: 22 nd October 2010; 5 th November 2010
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mrs Justice Gloster, DBE:
Introduction
This is a jurisdiction dispute. By application dated 30 June 2010, the defendants sought to stay the claimants' action proceeding in this court (2009-Folio 1503) ("the English Claim") until certain Italian proceedings ("the Italian Proceedings") have been finally determined by the Tribunale di Genova ("the Genoa Court"), and for an order that this court will not exercise in the meantime any jurisdiction over the English Claim. The original basis of the application was that the claim or claims allegedly pending before the Genoa Court ("the Italian Claim") is or are a "related action" with the meaning of Article 28 of Council Regulation 44/2001 ("the Jurisdiction Regulation"), and that it is expedient that the English Claim should be stayed pending resolution of the Italian Claim before the Genoa Court.
At a hearing before me on 22 October 2010, Mr. Hugh Mercer QC, counsel on behalf of the defendants, applied to add Article 27 of the Jurisdiction Regulation as an additional ground for staying the English Claim, on the basis that the Genoa Court was first seised. The hearing would not in any event have concluded on that day, and, accordingly, I granted that application on condition that the claimants were given an opportunity to adduce evidence in relation to the Article 27 issue, and also in relation to the ancillary Article 30 issue, namely as to when the Genoa Court was first seised.
The application is supported by the statements of Yasseen Gailani of Dewey & LeBoeuf, the defendants' London solicitors and, in relation to issues of Italian law, of Professor Saletti, an Italian advocate who represents the defendants in the Italian Proceedings.
The application is opposed by the claimants. The claimants likewise rely, in relation to issues of Italian law, on statements by their Italian lawyer, Avvocato Cristoffanini.
It is unnecessary for this Court to resolve many of the points of Italian procedural law raised in the evidence of the parties' respective Italian lawyers, neither of whom were cross-examined.
Background Facts
Commercial background
The relevant background facts are as follows 1. The second claimant, Vasonia Shipping Company Limited ("Vasonia"), is a company incorporated under the laws of Cyprus. It chartered its chemical tanker, the vessel "Monte Carmelo", which sailed under the Italian flag, to Marittima Fluviale SpA ("MF"), a company incorporated under the laws of, and having its seat in, Italy. The charterparty, dated 16 March 2006, was on amended Barecon 2001 terms, and was for a minimum period of 60 months, and a maximum period of 63 months. It was governed by English law and provided for arbitration in London under LMAA terms.
Under the terms of the charterparty, MF was required to provide a demand Guarantee to secure its obligations thereunder. Such a guarantee ("the Guarantee") was issued on 30 May 2006 in favour of Vasonia by the second defendant, Banca di Roma SpA ("Banca di Roma"), MF's bankers at the time. The Guarantee is governed by English law. It required Banca di Roma to pay on Vasonia's first written demand which stated that MF was in breach of its obligations. Banca di Roma was required to pay on demand "without set off or counterclaim of any kind" and irrespective of any amendment or variation to the charterparty. By paragraph 6 Banca di Roma agreed:
"Any claims or disputes arising out of this Guarantee shall be referred to the English High Court and we hereby irrevocably submit to the non-exclusive jurisdiction of the English High Court."
There was no dispute that it was an agreement to which Article 23 of the Jurisdiction Regulation applies
Subsequently, as a result of various mergers and corporate reconstructions, Banca di Roma's corporate banking obligations were transferred to the first defendant, Unicredit Corporate Banking SpA ("Unicredit"), in late October/early November 200Unicredit has therefore assumed Banca di Roma's liabilities under the Guarantee. It is common ground that the claimants' claim in this action lies against Unicredit. Accordingly, save where necessary to draw the distinction between the two entities, I shall refer to Banca di Roma and Unicredit collectively as "Unicredit".
In return for Unicredit issuing the Guarantee to Vasonia, MF provided countersecurity to Unicredit in the form of a deposit of €1m.
On 23 September 2009, Vasonia served a notice of assignment on Unicredit that Vasonia's rights under the Guarantee had been assigned to the first claimant, Nordea Bank Norge ASA ("Nordea"), a Scandinavian financial institution which acted as Vasonia's bankers at the relevant time, but that Unicredit was irrevocably authorised and instructed to continue to receive instructions from Vasonia, subject to payment of any sums due under the Guarantee being made to a specified bank account held at Nordea. Where appropriate, I shall refer to Vasonia and Nordea collectively as "the claimants".
The English Claim
In due course, as a result of MF's non-payment of hire payments, Vasonia made a demand on Unicredit under the Guarantee, by a letter of demand dated 21 October 2009, but not received by Unicredit until 23 October 2010. Unicredit did not honour the demand. Vasonia and Nordea therefore issued proceedings against Unicredit in the Commercial Court in England ("the English Court"). The English Claim (seeking enforcement of the Guarantee) was issued at 21.36 on 17 November 2009, but the claim form was not served on Unicredit in Italy until 11 May 2010. There is no dispute that, for the purposes of the Jurisdiction Regulation, the English Court was seised of Vasonia's claim against Unicredit under the Guarantee, on the date when the claim form was issued, i.e. on 17 November 2009.
On 23 October 2010, Unicredit gave informal notice to MF of Vasonia's demand under the Guarantee and of Unicredit's intention to make immediate payment to Vasonia and to draw down on the collateral which MF had provided to Unicredit.
The Italian Proceedings: (i) The Initial Proceedings
On 26 October 2009, MF, prompted, it is to be inferred, by notice of Vasonia's demand under the Guarantee, commenced arbitration proceedings under the charterparty with Vasonia, by referring the dispute to LMAA arbitration in London. The thrust of MF's alleged claim was (in essence) that the hire had not in fact fallen due, because the parties had negotiated a variation in the charter terms. Vasonia appointed its arbitrator, and on 16 April 2010 applied for an interim final aware for sumes due to it from MF. MF's position in the arbitration is that it has been stayed by the appointment of liquidators.
On 29 October 2009, Unicredit formally notified MF that the demand had been received from Vasonia, and that, unless MF provided proof of payment of the amount in question within 24 hours, Unicredit would make a payment to Vasonia under the Guarantee. On 30 October 2009, MF's lawyers wrote a letter to Unicredit in which they effectively stated that if any payment was made under the Guarantee pending the arbitration proceedings, MF would challenge any attempt by Unicredit to look to the counter-security provided by MF.
Unicredit's threat to draw down on the collateral also led to MF to apply, on 2 November 2009, to the Genoa Court, where the relevant branch of Unicredit was located, for an order against Unicredit pursuant to Article 700 of the Italian Civil Procedure Code. The application was for protective relief in the nature of an ex parte interim injunction preventing Unicredit from paying out under the Guarantee, pending the outcome of the LMAA arbitration against Vasonia. I shall refer to this application as "the Initial Proceedings". Neither Nordea nor Vasonia were named as respondents to the Initial Proceedings at this stage. The Initial Proceedings were assigned the action, or docket, number 14507/09.
There is no dispute that the Initial Proceedings were brought by MF in order to protect its position pending the resolution of the issues which it had referred to arbitration; see the witness statement of Unicredit's solicitor, Yasseen Gailani at paragraph 31. Article 700 is the provision of the Italian Civil Procedure Code which permits an Italian court to grant provisional relief even if there is no substantive jurisdiction. MF's application 2 also made it clear that, although the Genoa Court did not have jurisdiction "in this dispute" (i.e. the substantive dispute between Vasonia and MF, the subject matter of the LMAA arbitration), the Genoa Court nonetheless had jurisdiction "to grant the emergency provision as per Article 700 of the Civil Code", effectively because of the Genoa Court's local jurisdiction to enforce the emergency injunction against Unicredit, as being the place where MF opened its account with Unicredit.
On 2 November 2009, the Genoa Court (Judge Dr. Gazia Casanova) granted MF an ex parte interim injunction against Unicredit. She ordered the latter: "… temporarily and as...
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