i-law

Lloyd's Maritime and Commercial Law Quarterly

INTERNATIONAL PRIVATE LAW

Ardavan Arzandeh*

CASES

260. Commerzbank Aktiengesellschaft v Liquimar Tankers Management Inc 1

Conflict of laws—jurisdiction in civil and commercial matters under the Brussels regime—asymmetric jurisdiction clauses in loan agreements—scope of Brussels Ia Regulation, Art.25

C, a German bank, had entered a number of loan transactions with L, a Liberian ship management company. The transactions contained a so-called asymmetric jurisdiction clause, under which L agreed to subject any disputes arising from the agreements to the exclusive jurisdiction of the courts in England, while C reserved the right for itself to commence proceedings against L “in any other court of competent jurisdiction”. Some time after entering the transactions, a dispute arose between C and L. Notwithstanding the terms under the jurisdiction clause, L commenced proceedings against C in Greece, seeking, among other things, a declaration of non-liability under the loan agreements. Subsequently, L brought a breach-of-contract action against C in England which, essentially, mirrored the ongoing proceedings between the parties in Greece.
In these circumstances, the main question for consideration in the English proceedings was whether the asymmetric jurisdiction clause included in the parties’ agreements constituted an exclusive jurisdiction clause for the purpose of Brussels Ia Regulation,2 Art.25. The answer to this question was significant: if it were in the affirmative, then, pursuant to Art.31(2), it would open the door for the English court to assert jurisdiction over the dispute, regardless of the fact that it was the court second seized. However, if the answer to the question was in the negative, then the English court would have had to decline jurisdiction, by virtue of Art.29, due to the operation of the lis pendens doctrine.
Held: An asymmetric jurisdiction clause falls within the scope of Art.25. Thus, on the facts of the case, and based on Art.31(2), the English court could assert jurisdiction, notwithstanding that it was the court second seized.
Comment: Asymmetric jurisdiction clauses are increasingly common in cross-border financial agreements. Cranston J’s judgment in this case confirms that, by falling within the scope of Art.25, these provisions benefit from the protection afforded by the Brussels Ia


International Private Law

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