London Litigation Update

English Court Upholds Forum-Selection Clauses Even When Doing So Results in Proceedings in Multiple Forums: A recent appellate decision further clarifies the extent to which courts in England and Wales will adhere to the parties’ forum-selection provisions even when doing so would result in proceedings in multiple jurisdictions pursuant to multiple agreements. In Sebastian Holdings Inc v. Deutsche Bank AG (2010) EWCA Civ 998, the parties Sebastian Holdings Inc (“SHI”) and Deutsche Bank AG (“DB”) entered into a series of agreements for trading in the financial markets. Most of the agreements provided for the jurisdiction of the English courts, although one agreement provided for the jurisdiction of New York courts (the “Brokerage Agreement”). Trading by DB resulted in losses of approximately $750 million to SHI, which consequently commenced proceedings against DB in the Supreme Court of New York to recover damages. DB then commenced proceedings in the Commercial Court in England to recover approximately $250 million in unpaid debts under two agreements from the series, both containing English jurisdiction clauses. SHI challenged the jurisdiction of the English court, arguing that looking at the series of agreements, the English court should not have jurisdiction.

At first instance, Mr. Justice Walker (the English trial court) found that DB was entitled to rely on the jurisdiction clauses in the two agreements and thus commence proceedings in England. He looked to the parties’ early use of an International Swap Dealers’ Association (ISDA) clause that allowed concurrent parallel proceedings in different courts, and found that subsequent agreements between the parties did nothing to change that clause.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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