2 All ER (Comm) 603
The case concerned a challenge to the jurisdiction of the English court by PZL, a Polish aircraft equipment manufacturing company, in relation to a claim on a FX structured product brought by the French bank, Calyon.
Calyon claimed that the agreement between the parties was governed by the ISDA master agreement, and contained an English jurisdiction clause. The Brussels I Regulation applied, and the case raised issues concerning articles 22(2) and 23 of the Regulation.
PZL argued that Calyon could not demonstrate to the requisite standard of proof that the agreement between the parties contained an English jurisdiction clause and it, therefore, maintained that the requirement of “consensus” under article 23, could not be established by Calyon. Field J held that consensus had indeed been established, essentially relying on the evidence of the parties’ prior course of dealing.
PZL also argued that the case fell within the exclusive jurisdiction of the Polish courts, insofar as it disputed that the structured product governed by ISDA was executed with its authority, and that article 22(2) of the Regulation applied. This argument too Field J rejected, holding that the proceedings were not principally concerned with the “validity of the decisions of … organs” of PZL. The case in this respect bears some similarities to the recent decision of Teare J in JP Morgan Chase v BVG.
Leading Counsel for the successful claimant was Jonathan Gaisman QC.