Dexia Crédit Local S.A. v Patrimonio del Trentino S.p.A.
| Court | Chancery Division |
| Judge | Mr Justice Bryan |
| Neutral Citation | [2024] EWHC 2717 (KB) |
| Date | 25 October 2024 |
| Year | 2024 |
| Counsel | Craig Ulyatt |
Neutral Citation Number: [2024] EWHC 2717 (KB)
Case No: FL-2023-000025
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
FINANCIAL LIST (COMMERCIAL COURT - KBD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 25/10/2024
Before :
The Hon. Mr Justice Bryan
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Between :
Dexia Crédit Local S.A. Claimant/
Respondent
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Patrimonio del Trentino S.p.A. Defendant/
Applicant
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Craig Ulyatt (instructed by Dentons UK & Middle East LLP) for the Applicant
Andrew Lodder (instructed by Cleary Gottlieb Steen & Hamilton LLP) for the Respondent
Hearing date: 16 October 2024
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Approved Judgment
This judgment was handed down remotely at 2:00pm on Friday 25 October 2024 by
circulation to the parties or their representatives by e-mail and by release to the National
Archives.
.............................
THE HON. MR JUSTICE BRYAN
Approved Judgment
Dexia v Trentino
MR JUSTICE BRYAN:
A. INTRODUCTION
1. The subject of the application before me is the challenge to this Court’s jurisdiction
(“the Jurisdiction Application”) by Patrimonio del Trentino S.p.A. (“Trentino”/the
“Defendant”), the defendant to the claim in this action which was issued on 27
November 2023 by Dexia Crédit Local S.A. (“Dexia”/the “Claimant”), (the “English
Proceedings”).
2. Trentino and Dexia are also parties to a claim that had already been brought by
Trentino against Dexia before the Civil Court of Rome (the “Italian Proceedings”). In
the Italian Proceedings, Trentino argues that the Transaction entered into between
Dexia and Trentino, as defined below, was inappropriate, and that it has caused losses
to Trentino of over EUR 10 million in net payments to Dexia. Trentino asserts that the
Transaction is void, thus seeking the recovery of its losses.
3. For its part, Dexia submits that the Italian Proceedings were brought in breach of the
English jurisdiction clause in the ISDA Master Agreement between Dexia and
Trentino (itself governed by English law), and which Dexia also submits is, on its true
construction, an exclusive English jurisdiction clause. There is an extant challenge by
Dexia to the jurisdiction of the Italian court in the Italian Proceedings which is due to
be heard in January 2025.
4. By its claim in the English Proceedings, Dexia is seeking declaratory relief in respect
of an interest rate swap transaction (the “Transaction”) pursuant to an ISDA Master
Agreement dated 7 October 2010 between Dexia and Trentino (the “Master
Agreement”/the “Agreement”), and a confirmation dated 7 March 2011 (the
“Confirmation”, and with the Master Agreement, the “Transaction Documents”). It
will be noted that the Master Agreement was entered into some 5 months before the
Confirmation i.e., before the subject matter of the specific swaps was agreed, and the
Confirmation expressly states that: “This Confirmation supplements, forms part of,
and is subject to the Agreement. All provisions contained in the Agreement govern
the Confirmation”.
5. The Master Agreement/Agreement is governed by English law (by the “Governing
Law Clause”) and contains a bespoke jurisdiction clause (the “Jurisdiction Clause”)
(at Schedule Part 4 replacing the standard ISDA Master Agreement clause at section
13(a) and (b) thereof) in the following terms, which Dexia submits (and Trentino
denies) is, on its true construction, an exclusive English jurisdiction clause:
“(h) Governing Law and Jurisdiction
Section 13(a) and (b) of the Agreement [the ISDA Master
Agreement] shall be deleted and replaced with the following:
(a) Governing Law. This Agreement and any non-contractual
obligations arising out of or in connection to it will be governed
by and construed in accordance with the laws of England and
Wales.
THE HON. MR JUSTICE BRYAN
Approved Judgment
Dexia v Trentino
(b) Jurisdiction. With respect to any suit, action or
proceedings relating to any dispute, whether contractual or non-
contractual, arising out of or in connection with this Agreement
(“Proceedings”), each party irrevocably:
(1) submits to the exclusive jurisdiction of the English
courts;
(2) 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 [the
“Waiver Clause”]; and
(3) agrees, notwithstanding the above and to the extent
permitted by applicable law, that the bringing of Proceedings
before the English courts will not preclude the bringing of
Proceedings before the Italian courts.”
6. Dexia served Trentino out of the jurisdiction, as of right, in reliance on CPR 6.33(2B)
which provides:
“(2B) The claimant may serve the claim form on the defendant
outside of the United Kingdom where, for each claim made
against the defendant to be served and in the claim form-
...
(b) a contract contains a term to the effect that the court shall
have jurisdiction to determine that claim; or
(c) the claim is in respect of a contract falling within sub-
paragraph (b).”
7. By its Application Notice dated 1 March 2024 (the “Application”) Trentino seeks two
Orders:-
(1) That there is no valid jurisdiction clause in favour of the English Court, and
accordingly Dexia was not entitled to serve Trentino out of the jurisdiction in
Italy as of right pursuant to CPR 6.33(2B) (the “Jurisdiction Challenge”),
alternatively
(2) That the English Proceedings should be stayed on the basis that Italy is the
appropriate forum and/or the Italian proceedings constitute a lis alibi pendens
(the “Stay Application”).
8. It will be seen, at the outset, that the issue as to whether the English jurisdiction clause
is an exclusive jurisdiction clause is not of relevance to (1) (i.e., the challenge to
jurisdiction) given that all that is required is a contract containing a term to the effect
that the English court shall have jurisdiction to determine the claim, and it matters not
whether that is an exclusive jurisdiction clause for the purpose of CPR 6.33(2B).
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