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Actions
in New York and London raised the same issues between the same parties
but could both continue because the parties had agreed a jurisdiction
clause which contemplated such a possibility. Applying the test in s.37
Supreme Court Act 1981, it could well be convenient to grant the injunction
sought by the claimant, restraining the New York litigation, but it
would not be just to do so. The New York proceedings were not vexatious
or oppressive.
The claimant,
RBC, sought an injunction restraining the defendant, known as Rabobank,
from taking steps to obtain a determination of any issue raised in proceedings
instituted by Rabobank against RBC in New York. Both parties did business
in London and New York. In January 2001 they entered into a swap agreement,
which formed part of an International Swap Dealers Association Master
Agreement, formed in January 1995. The Master Agreement, which was expressly
governed by and to be construed in accordance with English law, included
the following provision:
"Jurisdiction.
With respect to any suit, action or proceedings relating to the Agreement
("Proceedings"), each party irrevocably:-
(i) submits
to the jurisdiction of the English courts if their Agreement is expressed
to be governed by English law; and
(ii) waives any objection which it may have at any time to the laying
of venue of any Proceedings brought in any such court, waives any claim
that such Proceedings have been brought in an incovenient forum, and
further waives the right to object with respect to such Proceedings,
that such court does not have any jurisdiction over such a party.
Nothing
in the Agreement precludes either party from bringing Proceedings in
any other jurisdiction…nor will the bringing of Proceedings in
any one or more jurisdictions preclude the bringing of Proceedings in
any other jurisdiction."
A dispute
arose between the parties. Rabobank instituted proceedings in New York
and RBC instituted an action in London. RBC applied unsuccessfully in
the New York proceedings to have Rabobank's claim dismissed or stayed
on the basis of forum non conveniens. Moore-Bick J dismissed Rabobank's
application for a stay of the London proceedings. In the New York proceedings,
RBC unsuccessfully renewed its application based on forum non conveniens
relying on the judgment of Moore-Bick J. Rabobank then brought a motion
for summary judgment in the New York proceedings in order to substantially
narrow the issues for trial. It also requested that the New York trial
date be set for early 2004. RBC's objections to the setting of the trial
date so early were dismissed. RBC then sought an injunction in the London
action submitting that the manner in which Rabobank was conducting the
New York proceedings was vexatious and oppressive, that it was unconscionable
for Rabobank to seek the determination of the New York proceedings and
that England was the more natural forum for resolution of the dispute.
It was
held that the last sentence of the jurisdiction clause in the Master
Agreement contemplated that the same dispute might be the subject of
litigation between the same parties contemporaneously in more than one
jurisdiction. Expressly because of the jurisdiction clause, the English
court would more readily assume the task of deciding where the dispute
between the parties should be determined. The jurisdiction clause might
lighten the burden of establishing oppressive conduct but, in so far
as RBC's application was based upon an argument that it would be vexatious
or oppressive for Rabobank to bring the New York proceedings to a determination,
RBC still needed to demonstrate, by evidence, that England was the more
natural forum and that it would be just to restrain Rabobank from pursuing
the New York proceedings. It failed to do so.
If both
trials went ahead it was possible that the English trial would overlap
the New York trial. The second court to deliver judgment could well
find the case before it radically reshaped when the first judgment was
delivered. This could not, however, justify the court in interfering
with Rabobank's prima facie right to choose where it litigated, and
to pursue the litigation to determination. Applying the test in s.37
Supreme Court Act 1981, it could well be convenient to grant the injunction
sought by RBC, but it would not be just to do so.
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