“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 Transactions 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.”
“Notwithstanding anything to the contrary contained herein, this Agreement is entered into in connection with the [FA]… and [the ICA]…For the purpose of this Agreement, the parties acknowledge the existence of the [FA] and the [ICA] and further acknowledge that (i) their respective rights under this Agreement are subject to the terms and conditions of the [FA] and the [ICA]; (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 [FA] and (iii) no derivative transactions shall be entered into hereunder other than those foreseen in annex 17.19 (Strategia di Hedging) of the [FA]… …In the case of conflict between the provisions of this Agreement and the [FA] and the [ICA], the provisions of the [FA] and the [ICA] as appropriate shall prevail.”
“1. Declarations that: a) The obligations of the Defendant under the Transaction Documents, 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, constitute its legal valid and binding obligations, enforceable in accordance with their terms. b) The Transaction Documents, as well as all other written agreements and/or written notifications and/or documents entered into and/or executed pursuant to the Transaction Documents, constitute the entire agreement and understanding of the parties thereto with respect to their subject matter and supersede all oral communications and prior writings with respect thereto. c) In entering into the Transaction, the Defendant: a) The obligations of the Defendant under the Transaction Documents, 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, constitute its legal valid and binding obligations, enforceable in accordance with their terms. b) The Transaction Documents, as well as all other written agreements and/or written notifications and/or documents entered into and/or executed pursuant to the Transaction Documents, constitute the entire agreement and understanding of the parties thereto with respect to their subject matter and supersede all oral communications and prior writings with respect thereto. c) In entering into the Transaction, the Defendant: i) Was acting for its own account and had made its own independent decisions to enter into the Transaction and as to whether the Transaction was appropriate or proper for it based upon its own judgement and upon advice from such advisers as it had deemed necessary. ii) Was not relying on any communication (written or oral) of the Claimant as investment advice or as a recommendation to enter into the Transaction; it being understood that information and explanations related to the terms and conditions of the Transaction should not be considered investment advice or a recommendation to enter into the Transaction. iii) Had not received from the Claimant any assurance or guarantee as to the expected results of the Transaction. iv) Was capable of evaluating and understanding (on its own behalf or through independent professional advice) and understood and accepted, the terms, conditions and risks of the Transaction. v) Was also capable of assuming, and assumed, the financial and other risks of the Transaction. vi) Was acting as principal and not as agent or in any other capacity, fiduciary or otherwise. vii) Had specific competence and expertise to enter into the Transaction and in connection with financial instruments. viii) Entered into the Transaction for hedging purposes and not for speculative purposes. ix) Had full capacity to undertake the obligations under the Transaction, the execution of which fell within its institutional functions. d) Further or in the alternative, in respect of each of the matters in sub-paragraph 1)c) above, the Defendant is estopped by contract from contending otherwise. e) In respect of the Transaction, the Claimant did not act as fiduciary or an adviser to the Defendant. Further or in the alternative, the Defendant is estopped by contract from contending otherwise. f) In respect of the Transaction, the Claimant neither owed nor owes any duty or obligation in deciding whether to grant the Waiver or otherwise to grant the Waiver, Further or in the alternative, a refusal by the Claimant to grant the Waiver does not constitute a breach of the terms of the Transaction Documents. g) By reason of sub-paragraphs l)a) to 1)f) above, the Claimant is not liable in respect of any claim relating to the Transaction, including for losses in respect of any claim, under any system of law or regulation, in contract, tort/delict, statute or otherwise, and including but not limited to claims for breach of duty of care (including without limitation, a duty to advise), breach of contract, breach of fiduciary or other duty including any duty of good faith, non-disclosure, omission, misrepresentation (whether innocent, negligent or fraudulent) or breach of statutory or regulatory obligation arising out of or in connection with the Transaction (including but not limited to its suitability, its pricing, its notional amount, its terms, its execution and the circumstances of the Defendant's entry into it) (a Claim). h) The Claimant is entitled to an indemnity from the Defendant and/or damages in respect of all loss or damage incurred by it arising out of or in respect of any Claim brought in breach of 1)a) to 1)f) above and in respect of all reasonable out of pocket expenses incurred in the enforcement and protection of its rights under the Transaction. i) Each and every Claim, insofar as it arises in connection with or by reason of the matters referred to in l)a) to l)e) above, but save for a claim arising in connection with or by reason of the matters referred to in 1)f) above, is statute barred pursuant to the provisions of theLimitation Act 1980 .”
“[73] It is in my view clear that, at least in part, the Supreme Court confirmed the relative test in Canada Trust. This is plain from the express endorsement of that test in Brownlie and nothing in Goldman Sachs detracts from that analysis but on the contrary operates upon the basis that Brownlie was correct. The reference to "a plausible evidential basis" in limb (i) is hence a reference to an evidential basis showing that the Claimant has the better argument. It is perhaps relevant that in the Court of Appeal in Brownlie Arden LJ expressly linked the formulation of Lord Justice Waller in Canada Trust with a concept of relative plausibility (ibid paragraph [23]). The use of “plausibility” as a guiding relative principle in Brownlie and in Goldman Sachs was not therefore a novelty plucked from a jurisprudential void…. [75] Various points surrounding the test were not in issue in Brownlie or in Goldman Sachs. The burden of proof remains upon the Claimant: see eg VTB Capital plc v Nutritek International Corpn[2013] UKSC 5 at paragraphs [90] - [91]. For the avoidance of doubt the test under limb (i) is not balance of probabilities: … The expression “balance of probabilities” is apt for use at trial when the court can weigh the evidence in its totality but is not therefore an appropriate expression for use at the interim stage. The test is context specific and “flexible”: … . [76] In expressing a view on jurisdiction, the Court must be astute not to express any view on the ultimate merits of the case, even if there is a close overlap between the issues going to jurisdiction and the ultimate substantive merits: …”
“[72] I agree that, in a case such as this, while a degree of circumspection on the part of an appeal court is called for, the court should be less restrained than it would be in other cases. The characteristics of the case to which I refer are (a) that the point at issue has only one “right” answer; (b) that the question is one of the construction of a written agreement, the making of which is not in issue; (c) that there is no significant dispute about the background facts; and (d) that, if the English court is held to have jurisdiction, that question will not be looked at again at trial. [73] As to (a), whilst a determination as to who has the better side of the argument is an evaluative exercise, it is not the exercise of a discretion. As to (b) the construction of an agreement is, in English law terms, a question of law, although factual questions as to meaning and background may have to be decided first. It is not, itself, a question of “pure” law (which an appeal court would be likely to determine at an interlocutory hearing where jurisdiction was in issue) although the principles on which agreements are to be interpreted may be regarded as such. The ToBA is subject to English law. The Framework Agreement is governed by Italian law, which, in an English Court, is a question of fact. But no evidence has been given that under Italian law the approach to interpretation is any different to that applicable under English law. [74] As to (d), the rationale for the so called Canada Trust gloss is that, in cases to which it applies, (i) the defendant is not within the jurisdiction and will not be made subject to it unless the balance of the argument is in favour of the claimant; and (ii) once the court exercises jurisdiction over him, the question of jurisdiction will not be considered again. Thus, in the present case, even if at trial the court determines that the claim falls within the purview of the Framework Agreement and is subject to Italian law, the action will not cease. It is these considerations which mandate the gloss.”
“TRM’s argument is that this meant that any claim for failure to comply with the terms of the Swap also involves a failure to comply with the FA and that the Swap was thereby somehow subsumed into the FA. However, they remain separate contracts. The amendment does not mean that BNPP is no longer entitled to bring claims under the Swap. It may also be able to bring a claim on the same grounds under the FA, if it so chooses, but that remains a different claim made under a different contract, however great the factual overlap. Moreover, the logical consequence of TRM’s argument, as was accepted, is that all claims have to be brought under the IJC so that the EJC is deprived of any effect. This is a legally incoherent and commercially unreal conclusion.”
“The declaration claimed is of a negative character and as Lord Sterndale himself had said a declaration that a person is not liable in an existing or possible action is one that will hardly ever be made. “Hardly ever” is not the same as “never” but the words warn us that we must apply some careful scrutiny. So I inquire whether to grant such a negative declaration would be useful…. …In order to appraise the utility, or otherwise, which a declaration as to the position in English law might possess in Switzerland, it is necessary to examine the claims there made…. Under none of these heads, or otherwise, is there, I repeat, any reliance on English law. English law has, at a late stage in the proceedings, been invoked by the respondents (defendants in Switzerland),…This being the position, not I hope unduly simplified, can it be said that there is any utility, from the point of view of the Swiss proceedings, in allowing the claim stated in par. 1 of the writs to proceed? In my opinion there are several reasons why there is not…. ….it is in principle undesirable that, when an issue of English law is raised, or raisable, in foreign proceedings, the English law to be applied should not be left to be proved in the normal manner by expert evidence in the foreign forum. The alternative, of having it proved by an ad hoc judgment in contested proceedings here is likely to be lengthier, more expensive (they might involve appeals to the Court of Appeal or even this House) and less clear and helpful to the foreign Court. The issues (if any) of English law which might arise for consideration in Switzerland are in themselves simple enough even though capable of some debate, and entirely suitable for expert exposition with text books and authorities.”
“I can see no valid reason for taking an adverse view of negative declaratory relief…. The use of negative declarations domestically has expanded over recent years. In the appropriate cases their use can be valuable and constructive. … [41] …The approach is pragmatic. It is not a matter of jurisdiction. It is a matter of discretion. The deployment of negative declarations should be scrutinised and their use rejected where it would serve no useful purpose. However, where a negative declaration would help to ensure that the aims of justice are achieved the courts should not be reluctant to grant such declarations. They can and do assist in achieving justice.”
“37. These two declarations do not derive from the representations and terms of the transactions. They are wideranging; in short, a declaration that the claimants have no liability to the defendants of any sort whether, contractual, tortious, fiduciary or of any other nature. 38. No evidence has been led on this topic for the very obvious reason that the defendant has not advanced any case that the claimant has acted in breach of any duty to the defendant. 39. Although the absence of evidence is understandable, the fact is that the court is being asked to make a declaration of non-liability in the absence of any evidence on the question. That seems to me to be a serious obstacle in the claimant's way … 42. … I am not persuaded that it is appropriate for the court to make declarations when there is no evidence to support them. I must therefore refuse to make declarations 12 and 13.”
“Did the Transaction Documents constitute the entire agreement and understanding of BNPP and TRM with respect to their subject matter and supersede all oral communications and prior writings with respect thereto; or was the parties’ agreement and understanding with respect to the Transaction also contained in the FA?”
“have entered and/or anticipate entering into one or more transactions (each a “Transaction”) that are or will be governed by this Master Agreement, which includes the schedule (the “Schedule”), and the documents and other confirming evidence (each a “Confirmation”) exchanged between the parties confirming those Transactions.”
“1. Interpretation ... (b) Inconsistency. In the event of any inconsistency between the provisions of the Schedule and the other provisions of this Master Agreement, the Schedule will prevail… (c) Single Agreement. All Transactions are entered into in reliance on the fact that this Master Agreement and all Confirmations form a single agreement between the parties (collectively referred to as this “Agreement”) and the parties would not otherwise enter into any Transactions.”
“9. Miscellaneous (a) Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to its subject matter and supersedes all oral communication and prior writings with respect thereto.”
“Notwithstanding anything to the contrary contained herein, this Agreement is entered into in connection with the loan agreement dated October 29th, 2008, as subsequently amended by the Atto Modificativo del Contratto di Finaziamento (sic) dated January 21st, 2010 [the FA]… and the relevant intercreditor agreement dated as of January 21st, 2010 [the ICA]. For the purpose of this Agreement, the parties acknowledge the existence of the [FA] and the [ICA] and further acknowledge that (i) their respective rights under this Agreement are subject to the terms and conditions of the [FA] and the [ICA]; (ii) that BNPP is the ‘Banca Hedging’ (i.e. 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 [FA]) and (iii) no derivative transactions shall be entered into hereunder other than those foreseen in annex 17.19 (Strategia di Hedging) of the [FA]. Capitalised terms used in this Agreement which are not defined in this Agreement or in the Definitions shall, unless the context otherwise requires, have the meanings and construction set out in the [FA] and in the [ICA], as appropriate. In the case of conflict between the provisions of this Agreement and the [FA] and the [ICA], the provisions of the [FA] and the [ICA] as appropriate shall prevail.”
“It is a well-established canon of construction that, where there is inconsistency between the printed terms of a standard form and the terms which the parties have themselves written into the document, the latter should prevail: see Robertson v French (1803) 4 East 130, 136 where Lord Ellenborough CJ distinguished between the written words as "the immediate language and terms selected by the parties themselves" and the printed words of the form as “a general formula adapted equally to their case and that of all other contracting parties upon similar occasions and subjects”
“Notwithstanding anything to the contrary contained herein”
“'Subject to' has to be read together with the Conflicts Provision… [and] in so far as the FA or the ICA contain applicable terms and conditions which conflict with the terms of the swap, then they are to prevail and the Swap is to be subject to them.”
“TRM’s argument also assumes that: (i) the fact that some disputes may be resolved under either the EJC or the IJC involves a conflict as opposed to an agreement to parallel jurisdictions, as contemplated by Longmore LJ in the Savona case at [4]; and (ii) the Conflicts Provision applies to collateral agreements such as a jurisdiction agreement and not just to the substantive provisions of the contracts.”
“Without prejudice to the foregoing, by reason of the terms of the Relevant Provisions set out in paragraphs 13 to 16 above: (1) BNPP owed no duty to advise (whether in contract, tort, equity or otherwise) and no fiduciary duty to TRM in connection with the Transaction. (2) TRM is estopped by contract from contending that BNPP owed any duty to advise or any fiduciary duty to TRM in connection with the Transaction. (3) BNPP made no actionable representations intended to be relied on by TRM in connection with the Transaction; alternatively TRM did not rely on any representation made by or on behalf of BNPP. (4) TRM is estopped by contract from contending that BNPP made any actionable representations intended to be relied on to it in connection with the Transaction; alternatively TRM is estopped by contract from contending that it relied on any representation made by or on behalf of BNPP.”
“Paragraph 31 of the POC conveniently and accurately summarises the legal effect of the terms of the Relevant Provisions. But BNPP’s entitlement to the relevant declarations sought arises not from this summary, but from the terms of the Relevant Provisions themselves.”
“to be absolutely clear, no part of the claim turns on the summary”
“TRM has not properly particularised any claims it may bring against BNPP in the English courts, whether in the course of the correspondence and meetings set out in paragraphs 21 to 28 above or in the Italian Claim (and nor has IREN). Accordingly, BNPP is unable to identify with precision all facts and matters upon which it will rely in order to refute the various allegations of duty and breach of duty which are, or maybe, made against it. BNPP reserves the right to add to or amend the following in the event that TRM properly particularised is the claims that it seems to advance.”
“These are: 1. Where there is no dispute in existence; 2. Where the dispute is divorced from the facts; 3. Where the dispute is based on hypothetical facts; and 4. Where the dispute has ceased to be of practical significance.”
“there is no legal principle that states that parties cannot agree to assume that a certain state of affairs is the case at the time the contract is concluded or has been so in the past, even if that is not the case, so that the contract is made upon the basis that the present or past facts are as stated and agreed by the parties.”
“I disagree. The correct analysis must be the same as that in Peekay. Springwell signed the terms and conditions more than once. In law it is to be taken as having read and understood them. Therefore the terms are part of the contract for the sale of the GKO LNs and Springwell is bound by them. Springwell and Chase contract for the purchase of the GKO LNs on the basis that Springwell is bound contractually to its statement, or acknowledgement, that no representation or warranty has been made by Chase.”
“It is important to distinguish the applicability of this principle to (i) representations made by Vestia in section 3(a), section 3(d) (and the Management Certificate) and the Additional Representations, and (ii) the warranties given by Vestia in the Additional Representations. Mere representations do not, as I see it, engage the principle of contractual estoppel and in any case, as I have explained, I do not consider that the representations in the Master Agreement itself are to be interpreted as applicable to the time when the ultra vires contracts or other transactions were made or purportedly made.”
“Before the Act can be held to apply and require an inquiry into reasonableness of any particular term, the party relying on the Act must establish (the onus of proof being on that party) ... (i) that the term is written; (ii) the term is a term of business (iii) the terms is part of the other party's standard terms of business; and (iv) that the other is dealing on those written standard terms of business.”
“In view of the consistent judicial recognition of the effectiveness of provisions such as cl10(3)(c) to give rise to a contractual estoppel, the suggestion by Mr White that in some way that provision should be struck down as unreasonable under ss3 and 11 of theUnfair Contract Terms Act 1977 is hopeless. In any event, as Mr Toledano pointed out, s3 only applies to exclusions or restrictions of liability for a breach of contract. The defendants cannot point to any breach of the Mandate Letter, the Fee Letter or the Facility Agreement.”
“g) By reason of sub-paragraphs l(a) to 1 (f) above, the Claimant is not liable in respect of any claim relating to the Transaction, including for losses in respect of any claim, under any system of law or regulation, in contract, tort/delict, statute or otherwise, and including but not limited to claims for breach of duty of care (including without limitation, a duty to advise), breach of contract, breach of fiduciary or other duty including any duty of good faith, non-disclosure, omission, misrepresentation (whether innocent, negligent or fraudulent) or breach of statutory or regulatory obligation arising out of or in connection with the Transaction (including but not limited to its suitability, its pricing, its notional amount, its terms, its execution and the circumstances of the Defendant's entry into it) (a Claim).”
“I do not accept the general principle advanced by the defendants’ counsel that a declaration will be refused where the relevant facts have not yet occurred. Whether facts are “hypothetical” is a question of fact and degree, depending on the level of uncertainty attached to their future occurrence. As Zamir & Woolf say (at para 4-79) [f]acts should not be treated as hypothetical as long as they are likely [to] occur within a reasonable timescale. Furthermore, even this principle is qualified by them: ‘Where, however, there are sensible practical reasons for granting a declaration the courts will do so even though the events with which the declaration deals have not happened and may not happen.’”