UBS AG V HSH NORDBANK AG

[2009] EWCA Civ 585, Court of Appeal, Lord Justice Ward, Lord Collins of Mapesbury and Lord Justice Toulson, 18 June 2009

Conflict of laws – Collateralised debt obligations – Respondent commencing action in New York – Claimant seeking negative declaratory relief in England – Whether transactions contained exclusive jurisdiction clause – Whether court could stay proceedings on forum non conveniens grounds – Brussels Regulation 44/2001, article 23

HSH, a German bank and UBS, and Swiss bank, entered into transactions involving collateralised debt obligations in 2002-2003. HSH commenced proceedings against UBS in New York on 25 February 2008, alleging misselling and mismanagement, but in anticipation of those proceedings UBS issued proceedings for negative declaratory relief earlier on the same day. UBS relied on a jurisdiction clause in the Dealer’s Confirmation. There were other jurisdiction clauses in different agreements forming part of the overall transaction which conferred non-exclusive jurisdiction on the New York courts. The Court of Appeal held that while it was generally the case that exclusive jurisdiction clauses were to be construed widely, in the present case it could not have been the intention of the parties to have different aspects of any dispute litigated in different jurisdictions, and that the Dealer’s Confirmation was not intended to relate to the transactions as a whole: it was a “boiler plate” clause designed to deal with technical banking disputes, and could not override the specifically agreed clauses in the main agreements. Accordingly there was no need to decide the further question of whether, if there had been an exclusive jurisdiction agreement falling within article 23 of the Brussels Regulation, the English court had the power to stay its proceedings on the ground that New York was a more appropriate forum, even where the defendant was not domiciled within the European Union.