The UK Commercial Court has dismissed the Claimant's application for a stay under Article 28 of the Judgments Regulation.
Marme Inversiones 2007 S.L. ("Marme") was a special purpose vehicle incorporated in Spain in 2007 for the acquisition of a commercial property in Spain. In order to complete the acquisition, Marme took out €1.575 billion worth of loans from a syndicate of banks- the main lender being RBS (the "Banks"). In order to fix cash flow following completion of the acquisition, the Banks entered into hedging agreements with Marme, which included an interest swap (the "Agreements"). The Agreements contained an exclusive English jurisdiction clause and were governed by English law. On the expiration of the loans in September 2013, Marme defaulted on their repayments, subsequently being placed into voluntary insolvency under Spanish Law in March 2014. One year later, Marme entered liquidation.
In June 2014, the Banks brought a claim in Spain in relation to the Insolvency Administrator's proposed method of dealing with the payments outstanding under the Agreements. Marme filed a defence and counterclaim to terminate the Agreements. Marme's counterclaim concerned Article 61.2 of Spanish Insolvency law, which allows the court the terminate contracts if it is in the interest of the insolvent estate to do so. Alongside this, in September 2014 Marme, in the English courts, brought a claim to rescind the Agreements on the basis that the Banks had made untrue representations which manipulated Marme into entering the Agreements. The Banks lodged their defences and counterclaims, with RBS claiming that the Agreements had already been terminated by them via notice in November 2014 and that Marme therefore owed the outstanding debt under the Agreements. Marme applied for a stay under Article 28 of the Judgments Regulation on the basis that the claims should be settled in Spain initially as part of the insolvency proceedings. Marme also submitted that as the two cases were so similar, they should be considered 'related' under Article 28 and therefore, to avoid irreconcilable judgments, should be determined together in Spain.
The Court, rejecting Marme's application for a stay, stated that the jurisdictional cases each arose out of "the same factual matrix" however, there was no "conceptual overlap between the cases". The proceedings in Spain concerned the good of the insolvency estate and the appropriate remedies, whereas the English proceedings surrounded a contractual claim. In fact, the Spanish courts may find the decision of the English courts useful to them when considering the insolvency proceedings. The Court also stated that the risk of "inconsistent judgments" could not be ignored, however this risk was not great enough to justify a stay being granted and the actions to be considered 'related' under Article 28.
The Court added that the English exclusive jurisdiction clause contained in the Agreements strongly supported the refusal of a stay, as the clause reflected the bargain struck between the parties. Although the Banks have begun a claim in Spain, this has not required the courts to determine the contractual law point currently before the English courts. The Court also noted that it was Marme itself who had initiated proceedings in England.