Royal Bank of Canada v Cooperative Centrale Raiffeisen-Boorenleenbank Binding Authority [2003] EWHC 2913 (Comm)

Case No 2002/608[2003] EWHC 2913 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
COMMERCIAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 2 December 2003
Before
THE HONOURABLE MR JUSTICE ANDREW SMITH
Between
Royal Bank of CanadaClaimantCooperative Centrale Raiffeisen-Boorenleenbank BINDING AUTHORITYDefendant
Guy Philipps Q.C. and Richard Handyside(instructed by White & Case, Sols.) for ClaimantDavid Quest (instructed by Herbert Smith, Sols.) for DefendantHearing Hearing dates : 20, 21 November 2003
Judgment
[1]This is an application by the claimant, the Royal Bank of Canada (“RBC”), for an injunction that the defendant, Cooperatieve Centrale Raiffeisen-Boerenleenbank BA (“Rabobank”), be restrained from taking any step to obtain a determination of any issue raised in proceedings instituted by Rabobank against RBC in the Commercial Division of Supreme Court of the State of New York (“the New York proceedings”) save for the purpose of completing party and third party factual discovery. The grounds of the application are that England is the natural forum for the determination of the dispute between the parties and it is vexatious and oppressive for Rabobank to prosecute the New York proceedings save for the purpose of factual discovery.[2]The trial in this action is listed to begin on 8 March 2004. The New York proceedings raise the same issues between the same parties as these proceedings. As matters stand, there is the prospect that the trial of the New York proceedings will begin on or about 12 January 2004, and that an application by Rabobank for the summary determination of one of its claims will be heard before then. RBC complains that it would be vexatious and oppressive for it to be required “to prepare for and conduct a trial in New York at the same time as it is preparing and conducting a trial on the same issues in England”; and that the circumstances are such that this Court should protect it by making the order that it seeks.[3]It is not necessary to explain the background to the parties’ litigation in great detail. RBC is a Canadian bank, its principal place of business being in Toronto. Rabobank is a co-operative institution organised under the laws of the Netherlands, its principal place of business being in Utrecht. They both do business in London and New York. RBC’s claim is based upon a swap agreement with Rabobank recorded in a Total Return Swap Confirmation (the “Total Return Swap”) dated 31 January 2001. Under it Rabobank was liable to pay RBC US$517 million, plus US$6 million interest, on 28 June 2002. The Total Return Swap formed part of a structured finance transaction involving a block of shares in a publicly traded company called EOG Resources Inc, the shares being owned by the Enron Corporation. The transaction involved two closings. At the first closing on 29 November 2000 RBC advanced part of the sum equivalent to the purchase price of the EOG shares to an entity called Heracles Trust. By the second closing, which was on 31 January 2001, RBC had effectively advanced the full sum of US$517 million. Rabobank’s involvement in the transaction was at the stage of the second closing when it entered into the Total Return Swap with RBC and an equity swap with Enron North America, which was guaranteed by Enron Corporation. As part of the arrangement of the second closing, Rabobank assumed some Enron credit risk.[4]The Total Return Swap formed part of, and was subject to, an International Swap Dealers Association Master Agreement (the “Master Agreement”) dated 9 January 1995. The Master Agreement, which was expressly governed by and to be construed in accordance with English law, included the following provision: “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…; 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 a party. Nothing in this Agreement precludes either party from bringing Proceedings in any other jurisdiction… nor will the bringing of Proceedings in any one or more jurisdictions preclude the bringing of Proceedings in any other jurisdiction.” (i) submits to the jurisdiction of the English courts if this Agreement is expressed to be governed by English law…; 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 a party.[5]On Friday 21 June 2002 Rabobank brought the New York proceedings against RBC. On 24 June 2002, the next working day, RBC brought these proceedings.[6]In the English proceedings RBC claims damages from Rabobank on the basis that Rabobank gave notice dated 21 June 2002 that it did not intend to pay RBC the sum due under the Total Return Swap on 28 June 2002 and thereby committed an anticipatory repudiatory breach of it, which RBC accepted so as to terminate the agreement. Rabobank served a defence and counterclaim on 4 October 2002 in which it refutes RBC’s claim and itself claims a declaration that the Total Return Swap has been rescinded and also damages, which it deploys by way of a set-off against RBC’s claim. Its principal allegation, in summary, is that Rabobank’s participation in the transaction was procured by the fraud of three former senior employees of RBC’s global structured finance group. It is said that these employees had previously engaged in a conspiracy with senior officers of Enron to defraud their respective employers, and therefore were aware of serious management dishonesty at a high level in Enron; and that representations made by the employees on behalf of RBC about the published credit rating of Enron were fraudulent. Alternatively, Rabobank contends that the employees owed a duty to disclose their knowledge to Rabobank when negotiating the Total Return Swap on behalf of RBC. It is also said(i) that RBC aided and abetted fraud on the part of Enron;(ii) that Enron committed fraud in the course of a joint venture with RBC; and(iii) that a condition precedent to payment by Rabobank stipulated in the Master Agreement was not satisfied, and therefore Rabobank has no liability to RBC.[7]The claims made by Rabobank in the New York proceedings closely mirror its defence and counterclaim in these proceedings. RBC responded to the claims with an answer and counterclaim dated 25 February 2003 in which RBC claims damages on the same basis as in these proceedings. Rabobank contends both in this action and in the New York proceedings that (in so far as English law differs from New York law) its claims and the issues between the parties are governed by the law of New York. RBC contends that they are governed by English law.[8]On 31 July 2002, RBC applied in the New York proceedings for orders that the complaint be dismissed or stayed on the grounds of forum non conveniens, and also that it be dismissed for failure to state a cause of action, because Rabobank’s pleading does not, as a matter of law, disclose a claim. Judgment was given on 31 January 2003. As for forum non conveniens, Judge Ramos cited the rule that where, “ the Court finds that in the interest of substantial justice the action should be heard in another forum, the Court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just”, and said that the plaintiff’s choice of law would not be disturbed unless the defendant demonstrated that private and public interest militate against the continuation of the suit in New York. Denying the motion, he observed: “Considering the role of New York as a financial capital and the need to provide access to a forum to redress grievances in cases where parties utilise New York’s financial resources to further their acts, such as the use of New York banks to facilitate the transfer of money according to the agreements, dismissal of the action is not readily warranted”.[9]Justice Ramos also dismissed the application asserting that Rabobank’s pleading failed to disclose a cause of action.[10]In the meantime on 27 September 2002 Rabobank had applied in these proceedings for a stay of them on the ground that “these proceedings entail a substantial overlap of issues with the New York Proceedings and it would not be desirable for the same issues to be litigated concurrently in both the New York and English Courts, with a view to costs, effective case management and the risk of irreconcilable judgments”. The application came before Moore-Bick J on 23 January 2003. He dismissed the application. In the course of presenting it, Rabobank’s counsel, Mr. Ali Malek Q.C., said that a lot of the evidence about the issues in the proceedings was “going to be US based” and that it was best gathered in New York: specifically that the most effective way of gathering the requisite evidence was for there to be proceedings in New York, where appropriate orders could be made for depositions and the production of documents by way of third party discovery. He pointed to no other consideration that made New York more appropriate than London as a forum to determine the dispute.[11]In his judgment Moore-Bick J, having set out the jurisdiction clause, observed that it followed from it that the parties agreed to submit to the jurisdiction of the English courts, but, he said, “not in such a way as to preclude the bringing of proceedings in any other jurisdiction, or indeed in more than one jurisdiction concurrently”. Having referred to the case of National Westminster Bank v Utrecht-America Finance Company, [2001] EWCA Civ 658, [2001] 3 AER 733, he continued as follows (at paras 16 and 17): “In the present case [the jurisdiction clause] specifically contemplates concurrent proceedings in different jurisdictions and it is interesting to note that the clause under consideration in National Westminster Bank v. Utrecht-America Finance Company also permitted proceedings in other jurisdictions and contemplated proceedings in more than one jurisdiction concurrently. In my judgment, however, a clause of that kind does not really add very much of substance to the argument in a case where the parties have not agreed to give the English courts exclusive jurisdiction. In particular, it does not detract in any way from the parties’ agreement that England is an appropriate forum although it does suggest that the parties did not regarded concurrent proceedings in different jurisdictions as necessarily oppressive. The critical factor, it seems to me, is that the parties in this case have agreed that England is an appropriate forum for the resolution of their dispute and have agreed not to contest the jurisdiction of the English courts on the grounds that it is not. Given that England is the only forum expressly identified by the parties as appropriate in this context, I think it is fair to describe it as the “primary” forum. To stay the proceedings here would not only be inconsistent with the parties’ agreement not to object to the jurisdiction of the English courts, but would, in practical terms, deprive RBC of the benefit of their agreement in circumstances where the only grounds for doing so are the existence of concurrent proceedings in New York. The existence of proceedings in another jurisdiction was not regarded as a sufficient reason for granting a stay in any of the earlier cases to which I have referred and I do not regard it as a sufficient reason in this case either.[12]Moore-Bick J observed that, “In the present case, the action in this country and the action in New York are both in their infancy. As things stand, I can see no sufficient grounds in the present case for staying the present proceedings”. He concluded by saying that he had “proceeded on the assumption that the Justice Ramos will decide that matters before him without regard to the decision of this Court and that the proceedings in New York will, or may, continue in parallel with this action unless and until the parties are able to agree upon some other solution or there is a change of circumstances that requires the stay of one or other of the actions. For the reasons I have given I have reached the clear conclusion that it is not appropriate to grant a stay in this case at this stage”.[13]The observation that both actions were in their infancy had been foreshadowed by an intervention of Moore-Bick J during argument. He had said that he could “envisage one situation in which the court might well choose to act. For example, had the proceedings in New York been running now for some time and [Rabobank was] in a position to say there will be judgment in the course of 2003, or maybe even in the first half of 2003, I can see a strong case for the court saying, ‘There is no point in spending money on this case if that judgment is going to dispose of the issues, or to dispose of them to a substantial extent’… But here what we have is a situation in which both actions are in their very early stages”. (As I shall explain, Rabobank’s advisers have suggested that there is a transcribing error in this passage in that the second reference to ‘2003’ should read ‘2004’. I am not persuaded of that. I suspect that, having referred to the possibility of a trial at some point during the year 2003, the Judge went on to posit the stronger case of a trial within the next few months.)[14]Rabobank did not apply for permission to appeal against the order of Moore-Bick J.[15]In the New York proceedings RBC sought to renew the application based upon forum non conveniens relying upon the judgment of Moore-Bick J. On 13 March 2003

Justice Ramos denied the motion to renew it, saying this:

“Although the relief sought before Mr Justice Moore-Bick was in the nature of a stay as a matter of prudent case management, rather than forum non conveniens, many common issues were presented in these applications. Also predictably, both my colleague and I have reached similar conclusions. Neither of us deem a stay or dismissal to be warranted, each finding that valid reasons exist to find our respective jurisdictions have a sufficient relationship to the matters to be tried. The fact that these actions may each proceed to a final resolution does not require a finding that in the interest of substantial justice this action should be heard in another forum. Of significance is the connection this case has to the Enron Bankruptcy, particularly with regard to documents and witnesses. This Court adopts Mr Justice Moore-Bick’s conclusion that as a practical matter, these actions will continue in parallel ‘unless and until the parties are able to agree upon some other solution or there is a change of circumstances that requires a stay of one or other of the actions.’ Counsel are invited to discuss possible resolution of our common dilemma at the next court conference.”
[16]On 26 June 2003 the Appellate Division upheld Justice Ramos’ decision to refuse RBC’s applications, saying that Justice Ramos’ decision on forum non conveniens “did not constitute an abuse of the motion court’s discretion”, and that “none of the defendant’s substantive arguments for dismissal of the pleadings can be resolved at the pre-answer stage…”.[17]It is to be observed that, when RBC first moved that the New York proceedings should be dismissed, it did not suggest that, in any event, they should not proceed to trial once discovery procedures were completed. That suggestion was first made at a status conference conducted by Justice Ramos on 4 April 2003 when RBC said that the action “should remain on foot for the purposes of discovery only”.[18]A further status conference was conducted by Justice Ramos on 18 September 2003. On 17 September 2003 Rabobank served a motion seeking summary judgment in respect of one of its causes of action, that the Total Return Swap should be rescinded on the grounds of fraud. Rabobank’s attorneys had written to Judge Ramos on 16 September 2003 in preparation for the conference, and expressed the belief that the motion for summary judgment would resolve or substantially narrow the issues for trial, and that to the extent that the Court’s ruling on the motion did not dispose of the case, any remaining issues would be ready for trial on or before 2 February 2004. Rabobank requested that at the conference the Court should set 2 February 2004 as the trial date.[19]On 18 September 2003, Justice Ramos rejected a request of RBC that the motion for summary judgment be stayed pending completion of discovery, and laid down a timetable for the service of evidence for the hearing of the motion. As for the date of trial of the New York proceedings, according to the evidence before me, Rabobank told the Court that it needed an order or indication from the New York Court as to the trial date in order to obtain a stay of these proceedings. Justice Ramos did not, however, set or indicate a trial date on 18 September 2003. Instead he invited the parties to set out in writing their position as to whether the New York Court should set a trial date at a further conference to be held on 15 October 2003.[20]Both parties wrote to the Court in response to this invitation. In a letter dated 14 October 2003 RBC submitted “that(i) the parties’ dispute should be resolved in London,(ii) scheduling a trial date at this stage of the New York action would be premature, and(iii) this action should remain available to the parties for discovery purposes only”.[21]Rabobank submitted, in a letter also dated 14 October 2003, that the Court should set a trial date of 2 February 2004. In support of that submission Rabobank’s lawyers argued that it would assist this Court in its case management if a trial date of 2 February 2004 were set, writing, “Justice Moore-Bick ruled that the English Court would stay the action pending in London if another court respected by English Courts (such as the New York Supreme Court) were to set a trial date which would result in a determination of the merits of the case before a trial in London could be concluded”. They then cited this sentence from the judgment of Moore-Bick J:
“[I]f an application were made to stay proceedings in the country at an early stage on the grounds that a judgment was about to be given in another jurisdiction that would, or might, have a profound effect on the action here, the Court might consider that it was appropriate to stay the proceedings until the position had been clarified rather than require the parties to incur further, possibly fruitless, expense.”
Their letter continued, “At the January 23, 2003, hearing, Justice Moore-Bick concluded that principle was not applicable to the case at that time. It should be made applicable now”. The lawyers then referred in a foot-note to the comment made by Moore-Bick J in argument as to how he might have viewed matters had Rabobank been able to say that there would be a trial in New York in 2003, amending the second reference to “2003” to “[2004]” and thus significantly affecting its meaning in the context of an application to set a trial date in February 2004.[22]In a witness statement prepared in opposition to this application, Mr Bruce Bennett, one of Rabobank’s attorneys, explained this alteration of the date as the correction of an obvious typographical error in the transcript. As I have explained, I am not persuaded that the transcript was inaccurate, and I am inclined to think that the change distorted what Moore-Bick J was saying. Further, it is accepted by Mr David Quest, who appears for Rabobank on this application, that it was inaccurate to write in the letter that Moore-Bick J had said that the English Court would stay the English proceedings in the circumstances there described.[23]These errors are unfortunate, but they are no more than errors and there is no suggestion that Rabobank’s representatives were intending to mislead in any way. It is right to point out, firstly, that the change to the transcript was marked by square brackets and that the judgment of Moore-Bick J and excerpts from the transcript of the hearing of 23 January 2003 were exhibited to the letter to Justice Ramos. Moreover, on 15 October 2003, RBC’s representatives had the opportunity to comment upon the letter.[24]There is not a complete transcript of the hearing of 15 October 2003 because Justice Ramos directed that it be held in part off the record, but there is not, as I see it, any significant dispute about what was said. The following evidence about Rabobank’s submissions is given by Mr John Willems, one of RBC’s counsel, and is not refuted:
“Counsel for Rabobank, Mr. Bennett, put his request for the setting of a trial date specifically on the basis that the request was being made for the purpose of the English proceedings. He said that Moore-Bick J had said that a trial date in New York was the ‘ticket’ Rabobank needed in order to be able to re-open its application in England for a stay of the English proceedings, and that Rabobank needed to be in a position to tell Mr. Justice Moore-Bick that the New York Court had spoken and was going to go forward to trial”
. For his part, Mr Willems said that Rabobank’s submissions did not fairly represent what Moore-Bick J had said on 23 January 2003, and that, but for the trial date that had been ordered in these English proceedings, Rabobank would not be seeking a trial date in New York. I agree that Mr Bennett’s submissions, as formulated by Mr Willems, appear not to have accurately reflected what Mr Justice Moore-Bick had said, but again I emphasise that there is no suggestion of an intention to mislead.[25]Mr Willems also observed that no note of issue or certificate of readiness had been filed and that there were outstanding discovery issues. I should explain the relevance of this observation. According to Mr Willems’ evidence, the note of issue is a form providing the Court with factual information about the parties, their legal counsel and the nature of the action, the filing of which, under the procedural rules of the New York Court, permits the parties to enter a trial in the Court’s schedule. It can only be filed if accompanied by a certificate of readiness for trial, and the certificate requires the attorney for the party filing it to state that discovery procedures known to be necessary have been completed, that there are no outstanding requests for discovery and that the case is ready for trial.[26]Justice Ramos was not impressed by the objections to having a trial in early 2004. He said this:
“The rules of this Court are simple. We get cases ready for trial expeditiously. This is a July, 2002 case. Most of my July, 2002 cases are history. This is not. I understand it is a complicated case and I know there has been a lot of appellate practice and motion practice and I appreciate there is a lot of discovery going on. Many things can happen between now and January, but I expect this case to be ready for trial by the end of December, when a Note of Issue is filed, and we will set down January 12 at 11 a.m. as the trial date. If for some reason we cannot go forward and the English Court goes forward first, fine, I don’t care. But I can't delay this case in light of what the Appellate Division has done for any reason other than the fact that the parties aren’t able to go forward. And the schedule that we have set apparently is a reasonable one. There is certainly plenty of time that has elapsed since this case was started.”
Judge Ramos added that, “…if for some reason the English courts want to move faster and take the case from us, they are welcome to it. But my obligation is under our rules is to move this case on for trial”. When after this decision Mr Willems sought to comment upon his ruling, Justice Ramos suggested that RBC should write to the English Court.[27]Therefore, Rabobank has issued a motion for summary judgment upon its claim for rescission of the Total Return Swap. The motion seeks judgment on the whole cause of action or “partial summary judgment”, that is to say the determination of individual facts and issues. In response RBC has issued a cross-motion seeking the stay of the summary judgment application. The evidence before me during the hearing did not indicate when these motions would be heard. (At one time the parties believed that they would be heard on 3 December 2003, but that resulted from a misunderstanding.) After I had sent the parties’ representatives my judgment in draft, indicating my decision on the application, I have been told that the motions are due to be heard on 8 December 2003, but that information has not influenced my decision or my reasons for it.[28]The timetable in the New York proceedings contemplates that depositions be completed by 28 November 2003, and disclosure by 31 December 2003. Assuming that a Note of Issue and the requisite Certificate is then filed, the start of the trial is scheduled for 12 January 2003.[29]It is against this background that RBC applies for an injunction. The English Court may, in accordance with section 37 of the Supreme Court Act 1981, grant an injunction “in all cases in which it appears to the court to be just and convenient to do so”. The following considerations, as it seems to me, are applicable in a case such as the present, where the same issues are being litigated between the same parties both in this country and in foreign proceedings. i) “Under English law, a person has no right to be sued in a particular forum, domestic or foreign, unless there is some specific factor that gives him that right”, but a person may show such a right if he can invoke a contractual provision conferring it on him or if he can point to clearly unconscionable conduct (or the threat of unconscionable conduct) on the part of the party sought to be restrained: Turner v Grovit, [2001] UKHL 65, [2002] 1 WLR 107, 118C at para 25 per Lord Hobhouse. ii) There will be such unconscionable conduct if the pursuit of foreign proceedings is vexatious or oppressive or interferes with the due process of this Court: South Carolina Insurance Co v Assurantie Maatschappij ‘de zeven Provincien’ NV, [1987] AC 24 at p.41D; Glencore International AG v Exter Shipping Ltd, [2002] EWCA Civ 528, [2002] 2 All ER (Comm.) 1, 14a at para 42. iii) The fact that there are such concurrent proceedings does not in itself mean that the conduct of either action is vexatious or oppressive or an abuse of court, nor does that in itself justify the grant of an injunction: Societe Nationale Industrielle Aerospatiale v Lee Kui Jak, [1987] AC 871 at p.894C, Credit Suisse First Boston (Europe) Ltd v MLC (Bermuda) Ltd, [1999] 1 Lloyd’s Rep 767 at p.781, Airbus Industrie GIE v Patel, [1999] 1 AC 119 at p.133G/H. iv) However, the Court recognises the undesirable consequences that may result if concurrent actions in respect of the same subject matter proceed in two different countries: that “there may be conflicting judgments of the two courts concerned” or that there “may be an ugly rush to get one action decided ahead of the other on order to create a situation of res judicata or issue estoppel in the latter”: see The Abidin Daver, [1984] AC 398 at p.423H-424A per Lord Brandon. v) The court may conclude that a party is acting vexatiously or oppressively in pursuing foreign proceedings and that he should be ordered not to pursue them if(a) the English court is the natural forum for the trial of the dispute; and(b) justice does not require that the action should be allowed to proceed in the foreign court, and more specifically that there is no advantage to the party sought to be restrained in pursuing the foreign proceedings of which he would be deprived and of which it would be unjust to deprive him: Societe Aerospatiale v Lee Kui Jak, loc cit at p.895D and p.896F/G. vi) In exercising its jurisdiction to grant an injunction, “regard must be had to comity and so the jurisdiction is one which must be exercised with caution”: Airbus Industrie GLE v Patel, loc cit at p.133F. Generally speaking, in deciding whether or not to order that a party be restrained in the pursuit of foreign proceedings, the court will be reluctant to take upon itself the decision whether a foreign forum is an inappropriate one: Turner v Grovit, loc cit at para 25.[30]I do not understand that RBC would dispute these principles. It submits, however, that Rabobank’s conduct is vexatious and oppressive both(i) because it is inherently unconscionable for Rabobank to seek the determination of the New York proceedings, and(ii) because of the manner in which it has conducted them.[31]It is convenient first to deal with RBC’s latter complaint. It has two limbs: Rabobank’s motion for summary judgment, and its attempts to secure a trial date.[32]In a witness statement dated 29 October 2003 served in support of this application, Mr Willems expressed the belief not only that Rabobank had no realistic prospect of succeeding in obtaining summary judgment, but also that this must be apparent to Rabobank and its advisers. He opined that the application had been made as part of Rabobank’s attempt to have the merits of the action tried in New York rather than in England. This was denied in a witness statement made in response by Mr Bennett, and Mr Willems now accepts that Rabobank and its advisers do and did believe that the application has a realistic prospect of succeeding. RBC’s complaint about the application is to be considered on that basis. I cannot form even a preliminary view as to what chance the motion in fact has of succeeding in whole or in part.[33]As a matter of English procedure, although the rules of procedure allow an application for summary judgment to be made at any time after an acknowledgment of service or a defence has been filed, such applications are typically made at a relatively early stage of the proceedings and before disclosure has taken place. On the evidence before me, the practice in New York is that, while it is permissible for a summary judgment application to be filed at any time during the proceedings, it is more usual for a motion to be based on the evidence obtained during the discovery process, and therefore it is not unusual for a summary judgment application to be made at a relatively late stage in the proceedings. In this case, Rabobank has deployed evidence that it obtained in discovery in support of its motion. There is nothing in the timing of the application that supports RBC’s case that Rabobank is acting oppressively.[34]The complaint about the summary judgment application that Mr Philipps makes on behalf of RBC is two-fold. First, while it is RBC’s view that the application for summary judgment is most unlikely to succeed in its entirety, there is the possibility of findings made summarily in New York upon particular facts or issues being deployed in these proceedings by way of an argument of issue estoppel. Mr Quest confirmed that Rabobank might indeed seek so to deploy any findings in its favour. If the dispute comes to trial in England, the arguments of issue estoppel would have to be examined. The prospect that the English court might have to consider such arguments is not in any real sense attributable to the fact that Rabobank has moved for summary judgment. It is inherent in the fact that the same dispute is being litigated by the same parties in two jurisdictions. I shall have to consider in due course whether it is oppressive for RBC that the two actions are both scheduled to be determined shortly. It does not seem to me to add significantly to the argument that Rabobank has issued its motion for summary judgment.[35]The second part of RBC’s complaint about the summary judgment application is that Rabobank is preparing the ground for making an application that these proceedings should be stayed: that it is creating for itself an argument that, because the New York Court has embarked upon determining the facts of the dispute, it is appropriate that this Court should step aside to allow the New York Court to complete the task. If and when Rabobank applies to stay these proceedings, and if and when it advances such an argument, this will have to be considered. The Court would, no doubt, take account not only of what (if any) findings have been made by the New York Court, but also of whether RBC is able to sustain the suggestion that Rabobank has manipulated the New York proceedings so as to manufacture an argument in support of a stay. I do not anticipate what, if any, weight the court would give to such considerations. However, it does not seem to me that the possibility that Rabobank might seek to advance such arguments should lead me to conclude that it is oppressive for Rabobank to apply for summary judgment in New York. On the face of it, Rabobank is pursuing the litigation in New York in accordance with New York procedure. It is for the New York Court to decide whether Rabobank is properly doing so.[36]In the end, Mr Philipps really put the complaint about the summary judgment application on the basis that, if the motion were heard, it would deprive RBC of its “legitimate entitlement and expectation to have all the issues determined by an English court”. Again, it becomes apparent, it seems to me, that the complaint is really no more than an aspect of RBC’s general complaint that it is oppressive for Rabobank to pursue the New York proceedings with a view to the determination of issues.[37]I take a similar view of the steps that have been taken by Rabobank to arrange a trial date for the New York proceedings. As I have explained, I consider that the arguments presented by Rabobank to the New York Court when it requested that a trial date be scheduled did not accurately represent what Moore-Bick J had said. However, these were innocent errors and their significance should not be exaggerated. There is no reason to suppose that in the event they affected the scheduling of the trial, and there is every indication (not least that Justice Ramos chose an earlier trial date than Rabobank was suggesting) that he was not influenced by them.[38]RBC has a second point. The undisputed evidence is that Rabobank presented an argument to Justice Ramos that he should set a date for the trial because this would enable it to renew its application to this Court for a stay of these proceedings. However, a date for trial in New York having been indicated, no such application has been made. Mr Quest told me that an application to stay these proceedings was “a possibility” and “something that is under review”, but Rabobank, it seems clear, has no settled intention about this. The apparent change in Rabobank’s thinking has not been explained. However, if this could found a complaint that Rabobank has significantly misled Justice Ramos about what it would do (and I am not in a position to judge that), it seems to me something to be drawn to his attention and considered by him. I do not see it as a significant indication that Rabobank’s conduct has been vexatious or oppressive in the context of these proceedings.[39]The evidence before me shows that the New York proceedings will not have been pursued with unusual or unexpected speed if they are tried in January 2004. My attention was drawn by Mr Quest to a witness statement made by Mr Bennett on 8 January 2003 in support of the stay application made to Moore-Bick J, in which he said that the New York Court had advised the parties that the Court’s guidelines for complex commercial cases (which were applicable to, but not binding as to, the timetable for the New York proceedings) provided that the trial should be heard within 18 months after the assignment of the proceedings to Justice Ramos’ department, which assignment was made on 25 July 2002. That would indicate that a trial might begin by the end of January 2004, although Mr Bennett observed that in practice the trial date would be set after the parties had made submissions about what time they needed to prepare for trial.[40]I cannot accept that the setting of the trial date, or the steps taken by Rabobank and their advisers to have it set, are themselves indicative of oppressive or vexatious conduct on the part of Rabobank.[41]I therefore turn to RBC’s more general complaint, that it is inherently unconscionable for Rabobank to seek the determination of the New York proceedings. RBC does not say that it was vexatious or oppressive for Rabobank to have brought the New York proceedings in the first place. Its complaint is that the only proper purpose for conducting the New York proceedings was in order to use New York procedures for disclosure and depositions in order to gather evidence, which can be deployed in this action. Now that that process is almost done, and given that RBC does not seek to enjoin the completion of the process, RBC argues that there is no further proper purpose for Rabobank to pursue them. It complains that the New York proceedings are now being used for a “collateral” purpose: that is to say, for no legitimate purpose.[42]In response, Mr Quest submitted that it was not incumbent upon Rabobank to explain or excuse its preference to litigate in New York, but identified three reasons that he said justify Rabobank’s wish to continue the proceedings there. The first is that, once it is conceded that the New York proceedings were not improperly brought, it cannot be said that they should not come to trial: that effectively the order sought by RBC would itself bring it about that the New York proceedings had not been conducted for their proper end of determining the dispute between the parties, but only to achieve the incidental or collateral advantage of having discovery.[43]Secondly, Rabobank says that it has a legitimate interest in the opportunity to argue before the New York Court that its claims should be determined in accordance with the law of New York, and wishes to do so.[44]Thirdly, Rabobank says that it has already spent a great deal of time and money prosecuting its claims in New York with a view to them being determined there.[45]RBC’s primary argument that this Court should nevertheless issue an injunction in this case is based principally on the jurisdiction clause. Before I consider that argument, it is convenient that I next refer to four points that Mr Quest described as “insurmountable” objections to RBC’s application.[46]First, Mr Quest argued that, given that (as Mr Philipps did not dispute) the jurisdiction clause did not prohibit parallel proceedings in two jurisdictions and indeed contemplated them, it cannot be unconscionable for Rabobank to bring legitimate proceedings elsewhere to trial simply because there are parallel proceedings in this jurisdiction. This does not seem to me a conclusive point. The fact that a party has a prima facie right to conduct proceedings does not necessarily mean that he cannot be acting oppressively in exercising that right. After all, Rabobank’s right to sue RBC in New York was not conferred contractually, but by the jurisdictional rules of the New York Court. Had there been no contractual provision, it would certainly have been open to RBC to argue that Rabobank was exercising its right to sue in the New York Court oppressively or vexatiously. Of course, the terms of the jurisdiction clause are relevant as to whether RBC has made out its case for oppressive or vexatious conduct, but the clause does not mean that Rabobank cannot exercise its right vexatiously or oppressively.[47]Secondly, Mr Quest submits that the New York Court has determined that it is an appropriate forum, and in the absence of any relevant change of circumstances, it is not open to RBC to dispute that determination. Of course, the English Court will pay great respect to the determination of the New York Court. In Airbus India v Patel loc cit, at p.139H, Lord Goff cited with approval what was said by the Supreme Court of Canada in Amchem Products Inc v British Columbia (Workers Compensation Board), (1993) 102 DLR (4th) 96 at pp.118-119, [1993] 1 SCR 897 at pp.931-932:
“If, applying the principles relating to forum non conveniens…the foreign court could reasonably have concluded that there was no alternative forum that was more clearly appropriate, the domestic court should respect that decision…”
. See too National Westminster Bank v Utrecht-America Finance Company, loc cit at para 29. However, I am not persuaded that RBC is seeking to challenge any determination of the New York Court. Certainly it is implicit in the determination of Justice Ramos that New York is an appropriate forum for the determination of the dispute between the parties. However, RBC’s argument before me is not that New York is an inappropriate forum, but that England is the natural forum or more appropriate forum. While the judgment of Justice Ramos is relevant to consideration of that question, he did not determine it. His starting point was that the “[p]laintiff’s choice of forum will not be disturbed unless defendant demonstrates that private and public interests militate against continuation of the suit in this State”.[48]The third consideration that Mr Quest submits to be an insurmountable problem for RBC is that the application is too late. Rabobank has, it is said, assumed and was entitled to assume that the New York proceedings would progress to trial, and has expended time and money on that basis. Rabobank submits that, if RBC wanted to restrain it from pursuing the proceedings, the application should have been made when proceedings were first brought in New York, or at the latest when RBC’s application to stay the New York proceedings was refused by Justice Ramos. In fact it was brought only by notice dated 30 October 2003, after Justice Ramos had indicated that the trial would, or might, begin in January 2004.[49]I do not consider this argument of Rabobank to be a strong one. Of course, Rabobank, and indeed RBC, have spent time and money in preparing for a determination in New York. Equally, both parties have spent money conducting the English litigation. That in itself is not a conclusive argument, as it seems to me, that the parties should spend more time and more money on the New York proceedings if RBC is correct in its fundamental contention that it is oppressive and vexatious to pursue them to a determination.[50]I do not consider that RBC is properly to be criticised for the timing of its application, still less that any delay on its part presents an insurmountable obstacle to the application. After all, RBC made its application promptly when it became clear that there might well be determinations in the New York proceedings before the trial of this action. Had RBC applied earlier, bearing in mind that it acknowledges that the New York proceedings can properly be pursued for the purposes of discovery, it might well have been said that it had applied prematurely, before it was apparent that there was a threat that it might be prejudiced by the conduct of the New York action.[51]Fourthly, Mr Quest relies upon the fact that RBC applied for Rabobank’s claim to be dismissed on the ground that its pleading does not disclose a cause of action. Had the application been successful, he argues, RBC could and no doubt would have deployed the decision of the New York Court at the trial of these proceedings. It is submitted that in these circumstances RBC cannot complain that Rabobank might be able to deploy in this action findings of fact or of New York law that are made (either summarily or at trial) in the course of the New York action. I see some force in this point, but again Mr Quest overstates it. It is a relevant consideration in determining RBC’s application, but is not, in my judgment, necessarily fatal to it.[52]I therefore reject Mr Quest’s suggestion that there is any single consideration insurmountable problem facing the application.[53]I come to what seems to me the central question: whether, in view of the jurisdiction clause and the fact that a trial in these proceedings is due to start in March 2004, Rabobank’s conduct in seeking to have the New York proceedings determined earlier (at trial or by way of summary judgment) is to be characterised as oppressive or vexatious, or as an abuse of this Court’s process. The starting point is consideration of the jurisdiction clause and its significance.[54]There is no dispute that both the New York litigation and the English litigation are “Proceedings” to which the jurisdiction clause applies. Further, Mr Philipps does not dispute that Moore-Bick J was right that the last sentence of the clause contemplates that the same dispute might be the subject of litigation between the same parties contemporaneously in more than one jurisdiction. Although I observe that the clause does not explicitly refer to contemporaneous proceedings, I accept Mr Philipps’ invitation to consider RBC’s application on this basis.[55]Mr Phillip’s submission is that, whilst the jurisdiction clause undoubtedly has the effect that it is not in itself either a breach of contract or vexatious and oppressive to bring proceedings in a jurisdiction other than England, it does not justify the conduct of such proceedings for a collateral purpose, or where the party bringing or continuing them cannot point to any legitimate juridical advantage or interest in doing so; and specifically it does not justify a party in conducting foreign proceedings for the purpose of thwarting the parties’ contractual choice of England as the “primary” forum.[56]It is convenient for me next to refer to three cases in which the English Court, in granting injunctions against parties who were pursuing foreign proceedings, has considered the impact of a contractual provision for non-exclusive English jurisdiction. The first is Pathe Screen Entertainment Ltd v Homemade Films (Distributors) Ltd, an unreported decision of Hobhouse J dated 11 July 1989, in which the defendants were pursuing Californian proceedings. Having decided that the relevant contract was properly to be interpreted to provide for non-exclusive English jurisdiction (and not exclusive English jurisdiction), he nevertheless considered the jurisdiction clause “to be of primary importance in evaluating the justice and propriety of granting an injunction to stay the Californian proceedings…”. He then went on to consider the Aerospatiale case (loc cit), observing that the Privy Council was sounding a note of caution that the Court will not grant an injunction restraining the pursuit of foreign proceedings solely on the ground that England is the natural forum, and that it would only do so if justice requires that the action should not proceed in the foreign court. Hobhouse J continued, “I therefore conclude that the law is that I should grant the injunction if I am satisfied that in the interests of doing justice between the parties it should be granted in all the circumstances. What is the relevant natural forum is a factor to be taken into account, as are the elements of vexation and oppression that are or may be involved. The discretion has to be exercised having regard to the principles of comity. It has to be exercised with caution and, as has been pointed out by Parker LJ in Metall und Rohstoff AG v ACLI Metals (London) Ltd, [1984] 1 Lloyd’s Rep. 598 at p.613, may call for a higher standard of proof than in the case of an application for a stay”.[57]When he came to consider the facts of the particular case before him, Hobhouse J said this:
“Those parties have agreed to submit to English jurisdiction; they cannot object to its accepting that jurisdiction. This creates a radical difference to the situation referred to by Lord Goff [in the Aerospatiale case] and does not raise the same objection. Similarly it provides an additional reason for rejecting, as between those parties, the submission that the present application is premature. It is not and should be decided now. ”
[58]Next, Amoco v TGTL, an unreported decision dated 26 June 1996. In his judgment, Waller J, referring to the Pathe Screen Entertainment case, said:
“I respectfully agree with the approach of Hobhouse J and just add a word or two of my own. First, to agree non-exclusive jurisdiction in my view means as Hobhouse J held in that case, and, as I followed him in holding in British Aerospace v Dee Howard & Co [1993] 1 Lloyd’s Rep 368, that the parties agreed to submit to that jurisdiction and cannot object to that court accepting jurisdiction, and that the parties are implicitly agreeing the jurisdiction as appropriate. They are not so agreeing in relation to any other jurisdiction by the term non-exclusive. All the term non-exclusive means is that there is no contractual bargain not to start proceedings elsewhere; any other relevant point for contesting jurisdiction (other than in the place expressly chosen non-exclusively) will be open to the parties. Second, in addition to there being no question of the English court arrogating to itself a decision as to the natural forum when there is a non–exclusive jurisdiction clause, it seems to me much less likely that a foreign court will be offended if the court to whose jurisdiction the parties have agreed to submit, grants an injunction, particularly where that court’s resources are being used and where proceedings in the foreign court might affect English proceedings, e.g. by the risk of witnesses having to be in two places or by the English process being lengthened by the examination of witnesses who have already given depositions under a foreign procedure. Third, I am doubtful whether a party can rely on a procedural advantage in some country other than the one to whose jurisdiction he has on any view submitted, as a juridical advantage. Putting this point another way, can it seriously have been contemplated that when these parties agreed a non-exclusive jurisdiction clause in favour of England that they were agreeing that if the English courts and its procedures were adopted for the purpose of any action, that, in addition, the same issues could be litigated elsewhere if there was some procedural advantage in the sense of discovery to be gained by so doing.”
[59]I take it that, in making his third point, Waller J is observing that where a non-exclusive English jurisdiction clause is agreed, the implication will often be that the same issues should not be simultaneously litigated between the same parties in another jurisdiction. I would respectfully agree with this. However, the point does not arise in this case because Mr Philipps does not challenge Moore-Bick J’s view that the jurisdiction clause does contemplate such parallel litigation, and accepts that Rabobank was entitled under the terms of the agreement to conduct the New York proceedings in order to enjoy the advantage (as it perceives it to be) of the New York discovery procedure. I do not believe that Waller J intended to suggest that in this situation a party is precluded, on an application such as this, from relying upon legitimate juridical advantages that it sees in continuing the foreign proceedings to a determination.[60]In Sabah Shipyard (Pakistan) Ltd v Islamic Republic of Pakistan, [2002] EWCA Civ 1643, [2003] 2 Lloyd’s Rep 571, the parties to a guarantee payable on demand had entered into a non-exclusive jurisdiction agreement, but the guarantor, the State of Pakistan, brought proceedings in Pakistan permanently to restrain any demand under the guarantee and so, effectively, to prevent any claim under it in England or elsewhere. At first instance, David Steel J granted an injunction against the State of Pakistan on the basis that the proceedings in Pakistan were oppressive and vexatious, describing them as “a transparent device to seek to avoid liability under the guarantee…”.[61]When the case came to the Court of Appeal, Waller LJ, having cited the speech of Lord Hobhouse in Turner v Grovit (loc cit at paras 25 and 26), said: In the above passage Lord Hobhouse, in analysing the way in which someone may establish a right not to be sued in foreign proceedings, draws a distinction between the situation where there is an exclusive jurisdiction clause (which without more provides the right) and the situation in which the person has to rely on unconscionable conduct. He does not, because it was not relevant, explore the situation in which although a clause is not exclusive it provides the background against which the conduct of a party may be examined. The terms of such clauses will vary. In this instance the clause expressly deals with the forum conveniens aspect and provides for the methods of service so as to enable England to be the most likely forum for resolution of disputes. England is the agreed jurisdiction to which neither party can object, and furthermore it cannot be said ‘that as regards the matters to which that clause relates it is an arrogation of jurisdiction by the English Courts to decide where those matters should be tried.’ [Counsel for the Government of Pakistan] stressed various factors. First he stressed that the existence of a non-exclusive jurisdiction clause was not sufficient as a ground for granting an injunction. It was necessary for there to be oppression or vexation. I would accept that point but the terms of the non-exclusive clause will be relevant, and may, as the Judge put it, lighten the burden in establishing oppressive conduct. Second he stressed the fact that although injunctions are in personam foreign Courts do consider such injunctions as an interference with proceedings in that country. Again he is right, and it is for that reason that an English Court is cautious before granting such an injunction...” (at loc cit at p.581, paras 39 and 40).[62]Sir Martin Nourse (at para 47) agreed with Waller LJ.[63]Pill LJ (at para 52) expressed his agreement with the reasoning and conclusions of Waller LJ with regard to the grant of an injunction, and added this:
“Whatever label is attached to it, the intention and effect of [the jurisdiction clause] is that, if proceedings were commenced in England, parallel proceedings could not, in the absence of exceptional circumstances, be pursued elsewhere. Moreover, that intention is not defeated by the Government of Pakistan having commenced proceedings in Pakistan first. Once the English proceedings were commenced [the jurisdiction clause] operated to confer a jurisdiction on the English Courts which requires the Court, in the present circumstances, to act by way of injunction to give effect to the agreement of the parties.”
[64]In Evialis SA v SIAT and ors, [2003] EWHC 863, [2003] 2 Lloyd’s Rep 377 at para 103, I expressed the view that the basis for the decision in the Sabah Shipyard case was that the Government of Pakistan was in breach of the jurisdiction agreement. Mr Quest submits that I was right to do so. Undoubtedly, however, in the Sabah Shipyard case, as here, the question whether the foreign proceedings were brought in breach of contract was barely distinguishable from the question whether it was vexatious and oppressive to bring them, and I can see that I might have been taking too narrow a view of the reasoning of Waller LJ. Whatever the jurisprudential basis for the decision of the Court of Appeal, it suffices for present purposes to say that the case is authority for the proposition that the terms of a non-exclusive jurisdiction clause may “lighten the burden” of establishing that a party is acting oppressively in pursuing litigation against him elsewhere.[65]In each of these three cases, as Mr Quest demonstrated, there was ample material upon which the Court could conclude that the party restrained was on any view acting vexatiously in pursuing the foreign proceedings, and the precise wording of the jurisdiction clauses was probably not crucial. But of course the impact of any jurisdiction agreement upon an application of this kind does depend upon the proper interpretation of the particular provision in its contractual and commercial context. It seems to me that RBC can properly rely upon the jurisdiction clause in the Master Agreement in three ways.[66]First, because of the terms of the clause, it is not open to Rabobank to argue that England is an inconvenient forum for the proceedings brought by RBC. Had any such argument otherwise been available to Rabobank (and it is difficult to see what basis there would have been for such an argument on the facts of this case), Rabobank has waived it.[67]Secondly, because of the clause, the English Court will more readily assume the task of deciding where the dispute between the parties should be determined. The reason is explained by Hobhouse J in the Pathe Screen Entertainments Ltd case: the parties have consensually decided that the English Court should have the jurisdiction to decide disputes between them, including the incidental question as to where the substantive, or underlying, dispute should be decided. The English Court is therefore the less inhibited from making the decision by considerations of comity, not because it is paying less respect to the foreign court and its decisions in these circumstances but because, as Waller J observed, the foreign court is much less likely to be offended because of the parties’ agreement to submit to English jurisdiction.[68]Thirdly, as it was put in the Sabah Shipyard case, a non-exclusive English jurisdiction clause may lighten the burden of establishing oppressive conduct. At least in cases where a claimant asserts vexatious or oppressive conduct on the basis that England is the natural forum for the trial of the dispute and that justice does not require that the action should proceed in a foreign court, I understand this in effect to mean that the court will scrutinise the more carefully any argument advanced by the defendant that England is not the natural forum or that he legitimately seeks some juridical advantage in litigating elsewhere and therefore justice requires that the foreign action should proceed. The court will be curious to examine why, when the parties have stipulated a forum in their contract, one of the parties should maintain that the stipulated forum is not in the event the natural one to determine the dispute that has arisen, or, as the case may be, one of the parties should have agreed to proceed in a forum which he now says deprives him of a juridical advantage which he now be allowed to enjoy.[69]Mr Philipps would go further and give the jurisdiction clause further significance. He describes the English court as the “primary forum”, a term which featured in his submissions to Moore-Bick J and which was adopted by the Judge in his Judgment, and submits that because the parties have chosen England as the “primary forum”, it is not open to Rabobank to dispute that England is the natural forum, that is to say the more appropriate forum, for the litigation of the dispute. He says that if either party wishes to litigate elsewhere, it is incumbent upon it to identify some legitimate juridical advantage in doing so.[70]I am unable to accept this: the submission does not reflect what the jurisdiction clause says, and I do not accept that this is what Moore-Bick J had in mind when he adopted the term “primary forum”. It is a gloss on the agreement to interpret it as requiring a party who conducts proceedings elsewhere than England so to excuse or explain his decision, and, it seems to me, an unwarranted gloss, especially given that the jurisdiction clause expressly contemplates litigation elsewhere than England and indeed, ex consessu, parallel proceedings in England and elsewhere.[71]I therefore consider that, in so far as RBC’s application is based upon an argument that it would be vexatious or oppressive for Rabobank to bring the New York proceedings to a determination, RBC still needs to demonstrate by evidence both that England is the more natural or appropriate forum and that it would be just to restrain Rabobank from pursuing the New York proceedings bearing in mind any legitimate interest of Rabobank in having them determined. The jurisdiction clause may lighten the burden of establishing these matters, but does not, in my judgment relieve RBC of the burden.[72]RBC submits that apart from the jurisdiction agreement England is the more natural forum for a trial of this dispute. It identifies three considerations in support of this submission. i) First, the parties expressly agreed that the Master Agreement, and the Total Return Swap which forms part of it and is subject to it, are governed and to be construed in accordance with, the law of England. However, it is contentious whether this is a consideration of real significance in view of the issues between the parties. It is Rabobank’s case that nevertheless all its claims in the New York proceedings, and counterclaims and positive defences in the English proceedings, are governed by the law of New York. RBC disputes this. It is not suggested that I should form any view as to which party is correct or dismiss the contentions of either party as fanciful or having no realistic prospect of success. It follows that, in weighing whether England or New York is the more natural forum, I should not give great weight to the fact that English law was chosen by the parties as the governing law of the contract and the law in accordance with which the Master Agreement is to be construed. (I mention specifically Rabobank’s contention that a condition precedent to payment stipulated in the Master Agreement has not been satisfied. New York law is not pleaded in this action in relation to this issue, and it is not contended that there is any relevant difference between English and New York law. It suffices to say that this argument requires, I was told, consideration of both the Master Agreement (including the Total Return Swap) and also another agreement called the Assignment, Waiver and Amendment Agreement (“AWAA”), which was entered into as part of the second closing by RBC, Rabobank and other parties including Enron and Heracles Trust, and the relevant part of which is governed by the law of New York – other sections being governed by the laws of Texas and Delaware.) ii) Secondly, RBC says that all the witnesses whom it intends to call are in London, as are all those whom Rabobank intends to call apart from one who is in Utrecht. I recognise this, but, as I see it, it is not a weighty consideration in international litigation on this scale where the alternative forum is as accessible as New York. iii) The Total Return Swap was negotiated in London, and according to Rabobank it was here that the misrepresentations were made. In itself, this does not seem to me of much importance. I observe that in the Total Return Swap RBC was said to be a party “acting through its New York branch”.[73]In my judgment, none of these considerations indicates that London is a significantly more natural or appropriate forum than New York for determination of the dispute.[74]I have already referred to the three advantages to Rabobank in proceeding in New York that Mr Quest identified. His point about New York discovery procedures is answered, it seems to me, by the terms of the order sought by RBC, given that the evidence and information obtained through those procedures would be available at a trial in England. The fact that time and money has been expended upon the New York proceedings does not, in the context of this dispute and this application, impress me as a powerful consideration.[75]I do, however, see force in Mr Quest’s third point. Rabobank wishes to have determined by a New York Court issues that it says are governed by the law of New York. Certainly Rabobank contends in these proceedings that English rules of private international law would also lead to its claims being decided under New York law. Certainly an English court could and would receive evidence of New York law (just as Justice Ramos acknowledged in his judgment of 31 January 2003 that “it would not be irregular or represent undue burden for a New York court to interpret foreign law where it applies to the dispute”). Nevertheless it does not seem to me that Rabobank’s wish can be characterised as unreasonable, trivial or contrived. Moreover, as I understand Mr Quest’s submission, Rabobank wishes the New York Court to determine according to New York private international law the question which law governs its claims. I cannot say that it does not reflect a real juridical advantage to Rabobank.[76]Mr Philipps observes that this third point was not mentioned by Rabobank as an advantage of proceeding in New York when Rabobank was presenting its application for a stay of these proceedings to Moore-Bick J. This is so, and perhaps not surprising: the point could readily have been turned against Rabobank upon the application for a stay. That does not either excuse me from examining the argument or justify me in rejecting it.[77]I am not satisfied either that London is a significantly more natural forum than New York or that it would be right to deprive Rabobank of the advantage that it perceives itself to have in pursuing the New York proceedings.[78]I revert to RBC’s fundamental complaint that, because Rabobank is pursuing the New York proceedings, its right to pursue its claim in England is improperly trammelled or the subject of unwarranted interference. It is likely, RBC complains, that it will have to prepare for the trial in New York (and the application for summary judgment) at the same time as it is intent upon preparing for the March trial of these proceedings.[79]I do not belittle the burden of conducting both sets of proceedings at the same time, a burden which no doubt becomes the much greater as the trials approach. It is by no means a complete answer that both parties have considerable resources, that expensive litigation is not disproportionate to the enormous sum in dispute and that both parties can call upon the most experienced legal advisers in both jurisdictions. However, it is in the power of either party to bring an end to two actions being litigated in parallel by acceding to the other’s wish as to forum. RBC’s complaint is that this would be at too high a price in that it would be prevented from exercising its contractual right to pursue its claim in England. If it is too high a price to abandon its contractual right altogether, it could apply for the March 2004 trial to be adjourned until the New York proceedings are finally resolved or at least tried. Again RBC would, no doubt, object that the implication of the jurisdiction agreement is that the parties should not have proceedings in England so delayed, but it would not be oppressed by having to prepare for two trials at the same time.[80]When the matter is looked at in that way, it seems to me that RBC’s real objection to Rabobank pursuing the New York proceedings is less that it has to prepare for two trials, but rather the prospect that, if before the English trial takes place the New York Court has made determinations, Rabobank might be able to rely upon them in these proceedings by way of estoppel per rem judicatam or otherwise.[81]It is not for me to examine in what circumstances such an argument would be available to Rabobank, or indeed to RBC, at the trial of this action. It is sufficient to say that, given the similarity of both parties’ contentions in the two actions, the prospect is a real one, which gives rise to serious concerns about sensible case management. It is hardly necessary to explain this: as the timetables stand, it is not farfetched to contemplate that the English trial will overlap with the New York trial, and certainly that the judgment in the New York trial will not be delivered until the English Court has heard evidence and submissions. The second court to deliver judgment might well find the case before it radically reshaped when the first judgment is delivered. The problems are none the less because (at least under English law) arguments of estoppel could still be advanced in the second court although there might be an appeal from the first judgment: Colt Industries Inc v Sarlie (No 2), [1966] 1 WLR 1287.[82]All this is unattractive: it presents an extreme example of the “ugly rush” that concerned Lord Brandon. However, this cannot, in my judgment, justify the court in interfering with Rabobank’s prima facie right to choose where it litigates, given that the chosen court has internal jurisdiction over the defendant and the dispute, and to pursue the litigation to a determination. The matter, as I see it, must be tested by considering whether Rabobank is guilty of conduct, or threatens conduct, that can properly be said to be in breach of any right enjoyed by RBC or otherwise unconscionable, vexatious or oppressive, or an abuse of the process of the English Court. Otherwise, it is for the English Court to manage the proceedings before it so as best to minimise these problems and to leave the New York Court to handle the impact of these problems on the New York proceedings.[83]In order to test RBC’s submissions, I invited Mr Philipps to formulate a duty which RBC might be said to have contravened or threatened to contravene. His response, consistent with the burthen of his submissions, was that the jurisdiction clause imposes a duty upon a party of bringing parallel foreign proceedings to conduct them only in furtherance of a legitimate juridical advantage. For reasons that I have explained, I do not accept that this is the meaning or effect of the jurisdiction clause agreed between the parties, and I do not accept that Rabobank has no legitimate juridical advantage to seeking to bring the New York proceedings to a determination.[84]I have considered this application primarily in terms of whether Rabobank’s conduct is, or would if continued be, vexatious or oppressive. This is indeed how it is put it its Application Notice. It will be obvious from the way that Mr Philipps formulated his argument that it makes no difference in substance if the case considered in terms of whether Rabobank’s conduct is, or would be, in breach of contract. That is, as Mr Philipps rightly characterised it, merely a matter of “labelling”.[85]Undoubtedly, as Bingham LJ put it in Du Pont v Agnew, [1987] 2 Lloyd’s Rep 585 at p.289, “The policy of the law must … be to favour the litigation of issues only once, in the most appropriate forum”. However, as Bingham LJ also recognised, this is never the only consideration to be brought into the balance:
“The general undesirability of such concurrent proceedings is … but one consideration to be weighed as part of the overall assessment. It cannot necessarily lead to a stay or setting aside of English proceedings. It may, on the facts, be correct to restrain the pursuit of the foreign proceedings … or to make no order.”
Despite Mr Philipps’ careful argument, my overall assessment is that it would not be right in the circumstances of this case to restrain Rabobank from pursuing the New York proceedings to a determination.[86]I conclude, applying the test stipulated in section 37 of the Supreme Court Act, 1981, that, while it might well be convenient to grant the injunction sought by RBC, it would not be just to do so, and so the application is dismissed.