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Journal of International Banking and Financial Law
(2011) 2 JIBFL 81
1 February 2011
Jonathan Lawrence
K&L Gates LLP
Jonathan.Lawrence@ klgates.com
www.klgates.com
© Reed Elsevier (UK) Ltd 2011
Nordea Bank Norge ASA and Vasonia Shipping Company Limited v Unicredit Corporate Banking SpA and
Banca Di Roma SpA [2011] EWHC 30 (Comm) (QB Division, Commercial Court) (Gloster J) (19 Jan 2011)
FACTS
Nordea Bank Norge ASA ('Nordea') and Vasonia Shipping Company Limited ('Vasonia') issued proceedings against Unicredit Corporate Banking SpA ('Unicredit'), seeking enforcement of a guarantee (the 'Guarantee') under which Unicredit was obliged to pay, on default of payment by Marritima Fluviale SpA ('MF'), certain sums due to Vasonia. Prior to this, MF had commenced arbitration proceedings with Vasonia in London, and also applied to the Tribunale di Genova (the 'Genoa Court') for an interim injunction preventing Unicredit from paying out under the Guarantee (pending the outcome of the arbitration proceedings).
MF filed a further claim in the Genoa Court against Vasonia and Unicredit, seeking a determination of the rights under the Guarantee.
Unicredit applied to stay proceedings in England (the 'English Claim') until proceedings in Italy (the 'Italian
Claim') had been determined. The basis of the application being the Italian Claim was a 'related action' within the meaning of art 28 of Council Regulation 44/2001 (the 'Regulations'). Unicredit further argued that the
English Claim should be stayed under Article 27 of the Regulations by virtue of the fact the English court was not the 'court first seised' within the meaning of the Regulations.
CONCLUSION
Unicredit's application for a stay of proceedings in the English Claim was dismissed.
Article 27 of the Regulations contains a mandatory requirement to stay proceedings if certain conditions are met. The judge decided that the English Claim could not be stayed for the purposes of art 27 because: (a) the Genoa Court was not the court first seised; (b) the English Claim and the Italian Claim did not involve the same cause of action, nor the same parties and (c) the Italian proceedings were no longer 'pending'.
Since art 27 could not apply, the judge also found that there was no basis to stay the proceedings under the discretionary power in art 28. The judge agreed with Vasonia who, amongst other things, submitted that this power only applies to courts other than the court first seised. The English court was the relevant court in this case, and so there was no possibility of staying the proceedings under art 28.