Nordea Bank Norge Asa & Anor v Unicredit Corporate Banking SPA & Anor

Under Articles 27 and 28 of the Jurisdiction Regulation, seisin is determined autonomously by the lodging of the document instituting proceedings or an equivalent document. A responsive document seeking joinder does not itself institute proceedings against the proposed party. Relatedness must be assessed when the later court is seised; subsequent substantive proceedings cannot retrospectively alter the position. Interim protective proceedings and a later substantive claim may lack the necessary identity or connection. Article 28 requires a sufficient connection and a real risk of irreconcilable judgments. Even where the power exists, there is no presumption in favour of a stay. The court should consider the extent of relatedness, procedural stage, proximity to the subject matter, contractual jurisdiction provisions and the commercial purpose of an autonomous demand guarantee.

The defendants sought a stay of proceedings brought in England by the assignee and beneficiary of an English-law demand guarantee. They relied on Articles 27 and 28 of Council Regulation 44/2001, arguing that protective and later substantive proceedings commenced by the guarantor’s customer in Genoa were first seised, involved the same cause of action or were related actions, and remained pending.

The English claim was issued on 17 November 2009. The Genoa proceedings initially sought interim relief preventing payment under the guarantee; substantive proceedings were issued in April 2010. The central questions were whether the Genoa Court was first seised, whether the proceedings satisfied Articles 27 or 28, and, if so, whether a stay should be granted.

1. Article 27. The court held that Article 27 implicitly requires proceedings in both jurisdictions to remain pending. Seisin is governed by the autonomous regime in Article 30, not domestic procedural rules. The defendants’ responsive brief, which asked the Genoa Court to order joinder of the beneficiary, was neither a document instituting proceedings nor an equivalent document against that party. The English Court was therefore first seised as between the beneficiary and the guarantor.
2. The Italian interim proceedings and the English claim did not involve the same cause of action. The relevant comparison concerned the facts, legal basis, object and purpose of the proceedings as at 17 November 2009. The Italian proceedings sought provisional protection, whereas the English proceedings sought substantive enforcement of an autonomous payment obligation. Later substantive Italian proceedings could not relate back under the Regulation.
3. Article 28. The English Court had no power to stay proceedings unless it was the court second seised of related actions. Relatedness required a broad, commonsense and non-mechanical assessment of the degree of connection and the risk of irreconcilable judgments. The interim Italian proceedings were insufficiently connected to the English substantive claim, and the risk of inconsistency was slight.
4. Even if Article 28 applied, the stay would be refused. There was no presumption in favour of a stay and the defendants bore the persuasive burden. Relevant considerations included the slight connection, the advanced or ineffective state of the Italian proceedings, the English law and jurisdiction clause, the absence of any identified defence under the guarantee, the commercial utility of demand guarantees and the absence of a substantial risk of double jeopardy.
5. The application for a stay was dismissed.