“(h) Governing Law and Jurisdiction Section 13(a) and (b) of the Agreement [the ISDA Master Agreement] shall be deleted and replaced with the following: (a) Governing Law. This Agreement and any non-contractual obligations arising out of or in connection to it will be governed by and construed in accordance with the laws of England and Wales. (b) Jurisdiction. With respect to any suit, action or proceedings relating to any dispute, whether contractual or non-contractual, arising out of or in connection with this Agreement (“Proceedings”), each party irrevocably: (1) submits to the exclusive jurisdiction of the English courts; (2) waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings, that such court does not have any jurisdiction over such party [the “Waiver Clause”]; and (3) agrees, notwithstanding the above and to the extent permitted by applicable law, that the bringing of Proceedings before the English courts will not preclude the bringing of Proceedings before the Italian courts.” (2) waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings, that such court does not have any jurisdiction over such party [the “Waiver Clause”]; and (3) agrees, notwithstanding the above and to the extent permitted by applicable law, that the bringing of Proceedings before the English courts will not preclude the bringing of Proceedings before the Italian courts.”
“(2B) The claimant may serve the claim form on the defendant outside of the United Kingdom where, for each claim made against the defendant to be served and in the claim form- ...
“We hereby inform you that Patrimonio del Trentino S.p.A. ("Patrimonio") intends to select one or more banks/banks from among leading domestic and foreign banks in order to proceed with the signing with the selected bank/banks of the ISDA contract which will enable it to conclude any derivative transactions. In relation to the needs of the Company's assets, the Board of Directors deemed it appropriate to provide the Company with a standard Schedule ("Schedule of Specific Clauses"), as a contractual text which, together with the ISDA Master Agreement - 2002 version approved by the International Swaps and Derivatives Association ("ISDA Master Agreement"), will be used by the Company to document any derivative transactions with selected counterparty banks. Furthermore, the Board of Directors of Patrimonio resolved to approve the selection criteria that led to the identification of the potential counterparties, among which Dexia is included, with which the ISDA Framework Agreement and the related Schedule of Specific Clauses, both attached hereto (the "ISDA Contracts"), may be signed. Should you be interested in initiating the process of sharing and possible subsequent signing of the ISDA Contractual Agreement, please contact […]. It is understood, however, that it will be the exclusive right of Patrimonio to proceed, according to its own needs and once it has received your acceptance of the ISDA Framework Agreement, to conclude derivative transactions. In fact, the approval and subsequent signing of the ISDA Master Agreement and the related Schedule of Specific Clauses do not bind Patrimonio in any way to the conclusion of derivative transactions.”
“Dear Dexia We hereby inform you that the deadline by which your acceptance of the ISDA Contracts must be sent to Patrimonio - by e-mail to […] – has been extended to27 September 2010 (acceptance must be received by 4 p.m. on27 September 2010 ). In the coming days, […] will send you the Schedule that Patrimonio is willing to sign. This is without prejudice to what else was defined in our letter of3 September 2010 .”
“(i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the Court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it.”
“…the party relying on the existence of the agreement must supply an evidential basis showing that it has the better argument (and not much the better argument); second, if there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so; but, third, the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the existence of the agreement if there is a plausible (albeit contested) evidential basis for it.”
“… the concept of “capacity” has to be given a broader, “internationalist”, meaning and must not be confined to the narrow definition accorded by domestic English law. In my view it should be interpreted as the legal ability of a corporation to exercise specific rights, in particular, the legal ability to enter a valid contract with a third party. So I agree with the approach of Tomlinson J; for the purposes of English conflicts of laws, a lack of substantive power to conclude a contract of a particular type is equivalent to a lack of “capacity”, to use English terminology.”
“320. I therefore conclude that, because those acting for Vestia purported to enter into the ultra vires contracts under the Master Agreement and those contracts were not in compliance with their articles of association, Vestia were in breach of the compliance provision of the Additional Representations. Moreover the ultra vires contracts were outside Vestia’s capacity as a natural (but not inherent) result of them being made for the purpose of speculation and not for the purpose of hedging: this led to them in fact not being hedging contracts. Accordingly the ultra vires contracts were invalid because Vestia were in breach of the hedging provision of the Additional Representations. I conclude that therefore it is not open to Vestia to dispute their liability to Credit Suisse under the Master Agreement on the grounds that the ultra vires contracts were outside their capacity and so invalid.”
“It is, however, possible for the Agreement to be valid even though a particular Transaction governed by it is not. For example, the Agreement could be entered into in anticipation of a course of trading”
“In my view, the words in cl. 18 “notwithstanding the provisions of clause 3 hereof” are crucial. In construing two clauses in the time charter which, read together, display not only a tension but also an inconsistency, it is clear to me that cl. 18 must override cl. 3…”
“it seems to me that by entering into an agreement containing a jurisdiction clause with provisions similar to the final paragraph of the jurisdiction clause in issue in this case, the parties must have had in contemplation the possibility of virtually simultaneous trials with all the additional burdens which the judge describes since such is an obvious possible consequence of permitting parallel proceedings in the absence of provision in the jurisdiction clause, or elsewhere in the agreement, for the means of avoiding those consequences.”
“the submission does not reflect what the jurisdiction clause says […] 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.”
“(i) The fact that the parties have freely negotiated a contract providing for the non-exclusive jurisdiction of the English courts and English law, creates a strong prima facie case that the English jurisdiction is the correct one. In such circumstances it is appropriate to approach the matter as though the claimant has founded jurisdiction here as of right, even though the clause is non-exclusive … (ii) Although, in the exercise of its discretion, the court is entitled to have regard to all the circumstances of the case, the general rule is that the parties will be held to their contractual choice of English jurisdiction unless there are overwhelming, or at least very strong, reasons for departing from this rule; … (iii) Such overwhelming or very strong reasons do not include factors of convenience that were foreseeable at the time that the contract was entered into (save in exceptional circumstances involving the interests of justice); and it is not appropriate to embark upon a standard Spiliada balancing exercise. The defendant has to point to some factor which it could not have foreseen at the time the contract was concluded. Even if there is an unforeseeable factor or a party can point to some other reason which, in the interests of justice, points to another forum, this does not automatically lead to the conclusion that the court should exercise its discretion to release a party from its contractual bargain … In particular, the fact that the defendant has, or is about, to institute proceedings in another jurisdiction, not contemplated by the non-exclusive jurisdiction clause, is not a strong or compelling reason to relieve a party from his bargain …”
“… even where there is an FNC waiver with a non-exclusive jurisdiction clause, if very strong or exceptional grounds for granting a stay are demonstrated, the court may in an appropriate case grant a stay, provided that the grounds in question can properly be described as unforeseen and unforeseeable at the time the agreement was made. In other words, the bargain which the defendant makes in entering a contract with an FNC waiver is that he will not seek to argue that England is not an appropriate forum in relation to forum non conveniens grounds which were foreseeable at the time that the relevant agreement was made.”