Lloyd's Maritime and Commercial Law Quarterly
NON-ADMISSIBILITY AND RESTITUTION IN THE EUROPEAN COURT OF JUSTICE
Kleinwort Benson Ltd. v. Glasgow City Council
The fallout from the ill-fated interest rate swap transactions1 of the 1980s has reached the European Court of Justice but it was hardly worth the considerable time, effort and money involved. In Kleinwort Benson Ltd. v. City of Glasgow District Council,2 the Court of Justice was asked to give a preliminary ruling on the interpretation of provisions contained in the Brussels Convention,3 in order to assist the English courts in their interpretation of provisions contained in Sched. 4 of the Civil Jurisdiction and Judgments Act 1982 (the “Modified Convention”). In a somewhat timid judgment, which appears to fly in the face of previous decisions, the court held that it does not have jurisdiction to give such a ruling, notwithstanding that the provisions in both Conventions are identical. In doing so, it has missed the opportunity to indicate where at least one type of restitutionary claim might have been accommodated within the scheme of the Convention when there are no obvious answers.4
1. Most readers will be familiar with the concept of an interest rate swap. At its simplest, it is a transaction under which the parties stand to make or lose money dependent upon movements in market interest rates. For a fuller description, see Westdeutsche Landesbank Girozentrale v. Islington Borough Council [1994] 4 All E.R. 890, 895–896, per Hobhouse, J.
2. [1995] 1 ECR 615.
3. The Convention on Jurisdiction and the Enforcement of Foreign Judgments in Civil and Commercial Matters signed on 27 September 1968 (hereafter “the Brussels Convention” or “the Convention”). Unless otherwise stated, all references to the Convention are based on the version amended in accordance with the San Sebastian Convention 1989 O.J. L285/1 which is set out in S.I. 1990 No. 2591, Sched. 1.
4. Save that the defendant shall be sued in the courts of his own domicile.
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