Swissmarine Corporation Ltd v O.W. Supply & Trading A/S

An anti-suit injunction should be granted cautiously. A foreign insolvency proceeding will not ordinarily fall within a contractual jurisdiction clause merely because it concerns rights arising under the contract. Clear wording is required before the court will infer that a party agreed to abandon the protection of its national insolvency regime.

A non-exclusive jurisdiction clause does not ordinarily prevent proceedings elsewhere, particularly where the agreement expressly contemplates proceedings in more than one jurisdiction. Proceedings seeking determination of how a foreign insolvency regime affects contractual rights are not necessarily vexatious or oppressive. The court may refuse permission to amend insolvency-related proceedings where the application depends on an unexplained and material change of position.

SwissMarine sought an anti-suit injunction restraining O.W. Supply & Trading A/S, acting through its Danish bankruptcy trustees, from pursuing proceedings in Denmark. The Danish proceedings sought payment under a derivatives transaction governed by an ISDA 2002 Master Agreement and relied on Danish insolvency legislation concerning close-out netting.

SwissMarine argued that the Danish claim breached the agreement’s jurisdiction clause or was vexatious and oppressive. It also sought permission to amend its English claim to introduce injunctive relief and permission under article 20.6 of Schedule 1 to the Cross-Border Insolvency Regulations 2006. The central issues were whether the Danish proceedings fell within the jurisdiction agreement, whether that agreement conferred exclusive English jurisdiction, and whether the Danish claim should be restrained.

1. The injunction and related permissions were refused. SwissMarine had not shown a sufficiently strong case that the Danish proceedings breached the jurisdiction agreement. Permission to amend the claim and permission under article 20.6 of Schedule 1 to the Cross-Border Insolvency Regulations 2006 were also refused.
2. The court should exercise caution before restraining proceedings in a foreign court. The principles in The Angelic Grace apply where breach of a contractual jurisdiction or arbitration agreement is established, but SwissMarine had not shown the necessary contractual breach.
3. The Danish claim, as presently constituted, was materially similar to the insolvency proceedings considered in AWB (Geneva) SA v North America SS Ltd. Its real purpose appeared to be to determine how Danish insolvency law affected the parties’ rights, rather than to determine the contractual rights and obligations under the ISDA Agreement. The additional wording covering non-contractual obligations did not materially expand the clause to cover that issue. Clearer wording would have been required to show an intention to abandon protection under Danish insolvency law.
4. The jurisdiction clause did not create an implied exclusive obligation to sue only in England. Its wording provided for exclusive English jurisdiction only in the specified Convention Court circumstances, and section 13(b)(iii) contemplated proceedings in more than one jurisdiction. The reasoning in BNP Paribas SA v Anchorage Capital Europe LLP was distinguishable because the proceedings there concerned essentially the same issues as the English proceedings.
5. The Danish proceedings were not shown to be vexatious or oppressive. The Danish trustees had a proper interest in obtaining a determination of the operation of Danish insolvency law, and the proceedings did not seek to determine the construction of the ISDA Agreement or undermine SwissMarine’s English claims.
6. The court would in any event have needed to determine independently whether the Brussels Regulation applied. The parties’ agreement on that issue was not conclusive. SwissMarine’s inconsistent positions before Warren J and on the present application were not adequately explained, so permission to amend was refused.