Anti-Suit Injunctions, OW Bunker And ISDA Master Agreements

SwissMarine Corporation Limited v O.W. Supply & Trading A/S (in bankruptcy) [2015] EWHC 1571 (Comm)

The Commercial Court has recently refused to grant an anti-suit injunction to SwissMarine Corporation Limited (SwissMarine) to restrain proceedings brought by O.W. Supply & Trading A/S (OW) against SwissMarine in Denmark.

Background On 7 November 2014, OW - a global supplier and reseller of marine fuel - filed for bankruptcy in Denmark. On 3 February 2015, a Recognition Order was made in respect of the Danish insolvency proceedings by the English Court, under the Cross-Border Insolvency Regulations 2006. OW was in the money at the time of its bankruptcy and its trustees have sought to rely on Danish insolvency law, specifically section 58(h) of the Danish Securities Trading, etc Act which, it claimed, permits OW to close-out and value trades as at the date of OW's insolvency. OW has commenced numerous actions against OW's counterparties in Denmark for that purpose, including against SwissMarine (the Danish Proceedings).

SwissMarine had, by the time of the Danish Proceedings, already commenced proceedings in England for declaratory relief against OW, to the effect that it had no liability to OW under the 2002 ISDA Master Agreement, which governed the trades between OW and SwissMarine (the ISDA Agreement). The ISDA Agreement was governed by English law and, it was contended, contained an exclusive jurisdiction agreement conferring jurisdiction on the English courts.

The arguments in summary SwissMarine subsequently brought an application for an anti-suit injunction relating to the Danish Proceedings. For this purpose, it was accepted by the parties that the general rule for the grant of anti-suit relief is as follows:

"...subject to the provisions of the Brussels 1 Regulation and the Lugano Convention, an English court may restrain a party over whom it has personal jurisdiction from the institution or continuation of proceedings in a foreign court....where it is necessary in the interests of justice."1

SwissMarine argued that the anti-suit injunction was necessary in the interests of justice because:

The Danish Proceedings were in breach of the exclusive jurisdiction agreement under the ISDA Agreement The Danish Proceedings were "vexatious or oppressive" Were the Danish Proceedings brought in breach of the jurisdiction agreement? On the first question, the court agreed with OW's argument that the Danish Proceedings did not relate to contractual...