Calyon v Wytornia Sprzetu Komunikacyjnego Pzl Swidnik SA
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore |
| Judgment Date | 25 November 2009 |
| Neutral Citation | [2009] EWCA Civ 1433 |
| Date | 25 November 2009 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2009/1819 |
[2009] EWCA Civ 1433
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COMMERCIAL COURT
QUEEN'S BENCH DIVISION
(Mr Justice Field)
Before: Lord Justice Longmore
Case No: A3/2009/1819
Mr Andrew Thomas (instructed by Ross & Co Solicitors) appeared on behalf of the Applicant.
THE RESPONDENT DID NOT ATTEND AND WAS NOT REPRESENTED
(As Approved)
Crown Copyright©
This is an application made by Mr Andrew Thomas for permission to appeal the judgment of Field J, which is now reported at [2009] 2 All ER (Comm) 603. The essence of the dispute that has arisen between Credit Agricole, as it used to be called, and one of their clients is in relation to what I will call loosely foreign exchange transactions. It is said by the Polish client that the gentleman who made the agreement or purported agreement which is sued on did not have authority to enter into any transaction, subject to what has been called a standard ISDA form (International Swaps and Derivatives Association Inc) master agreement. He only had authority to enter into agreements on the form of a Polish master agreement. That is the fundamental dispute between the parties. There are also arguments about what was or was not agreed in the particular transaction. The curiosity of the case is that the gentleman concerned, Mr Frejowski, did enter into transactions in relation to foreign exchange with the bank on the form of a Polish master agreement and the form of the ISDA agreement, the transactions being of a rather different kind. The judge described the distinction between them as being between simple transactions and structured transactions, and Mr Thomas makes something of that in his application.
The jurisdiction of the court which Mr Thomas wishes to challenge is founded on Article 23 of the Brussels Regulation. The claimants have alleged that there is a jurisdiction clause in the contract sued upon because it incorporated the ISDA agreement, which incorporated English law and English jurisdiction. Mr Thomas relies on the requirement that there not merely be a consensus as to jurisdiction but the Article also requires that the agreement conferring jurisdiction should be either in writing or evidenced in writing or in a form which accords with the practices which the parties have established between themselves. The judge found that, although the relevant confirmation was not signed...
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