Dexia Crediop S.p.A. v Provincia di Brescia

An English jurisdiction clause covering proceedings relating to an agreement may extend to disputes concerning a later settlement agreement where those disputes concern the underlying transactions. A settlement agreement governed by another law does not necessarily confer jurisdiction on that law’s courts, particularly where it expressly preserves the original jurisdiction clause. An irrevocable contractual waiver of forum non conveniens objections is effective for disputes within the clause. Contractual service provisions may also provide valid service under Civil Procedure Rules 1998, rule 6.11.

Dexia sought declarations concerning two swaps and a later settlement agreement with Provincia di Brescia. The swaps were governed by English law and contained an exclusive English jurisdiction clause, including a waiver of forum non conveniens objections. The settlement agreement was governed by Italian law but stated that the swaps and ISDA agreement remained subject to English law and the exclusive jurisdiction of the English courts.

Brescia challenged jurisdiction over declarations concerning the settlement agreement, disputed service, sought a case management stay and raised a possible abuse of process. It did not attend the hearing. The central issue was whether the disputed declarations related to the swaps and therefore fell within the ISDA jurisdiction clause.

1. Application dismissed. Brescia’s application challenging jurisdiction, seeking a stay, and relying on forum non conveniens grounds was dismissed, with costs sought by Dexia.

2. The court followed the approach in Deutsche Bank v Brescia [2022] EWHC 2859 (Comm). The ISDA jurisdiction clause was in very wide terms and covered disputes relating to the transactions. The later settlement agreement expressly preserved the effect of that clause. Its Italian governing-law provision did not displace the English jurisdiction clause.

3. Declarations 20 to 25, and declarations 27 and 28, related to the swaps because they concerned the validity of the swaps, the settlement agreement’s confirmation of that validity, or an Italian claim seeking to challenge the swaps. Declarations 26 and 29 were to be amended so that they addressed the transactions and did not trespass on the separate mandate dispute, which was subject to an Italian jurisdiction clause.

4. Brescia had irrevocably waived objections that England was an inconvenient forum under section 13(B)(2) of the ISDA Master Agreement. No forum non conveniens challenge was therefore available for disputes falling within the clause.

5. Service was valid. The claim related to the ISDA Master Agreement, and service by the contractual mechanisms, including email, fax and post, satisfied Civil Procedure Rules 1998, rule 6.11. No permission to serve out was required under rules 6.11(2) and 6.33(2B)(b).

6. A case management stay could not be used to circumvent the effect of the jurisdiction clause. The possible abuse of process argument was not sufficiently clear to affect the jurisdiction issue and could be pursued on the merits.