Rely on the most comprehensive, up-to-date legal content designed and curated by lawyers for lawyers
Work faster and smarter to improve your drafting productivity without increasing risk
Accelerate the creation and use of high quality and trusted legal documents and forms
Streamline how you manage your legal business with proven tools and processes
Manage risk and compliance in your organisation to reduce your risk profile
Stay up to date and informed with insights from our trusted experts, news and information sources
Access the best content in the industry, effortlessly — confident that your news is trustworthy and up to date.
With over 30 practice areas, we have all bases covered. Find out how we can help
Our trusted tax intelligence solutions, highly-regarded exam training and education materials help guide and tutor Tax professionals
Regulatory, business information and analytics solutions that help professionals make better decisions
A leading provider of software platforms for professional services firms
In-depth analysis, commentary and practical information to help you protect your business
LexisNexis Blogs shed light on topics affecting the legal profession and the issues you're facing
Legal professionals trust us to help navigate change. Find out how we help ensure they exceed expectations
Lex Chat is a LexisNexis current affairs podcast sharing insights on topics for the legal profession
Can English proceedings be stayed under the Lugano Convention or under the court's inherent jurisdiction on case management grounds? The case of Fondazione Enasarco v Lehman Brothers Finance SA  EWHC 34 (Ch),  All ER (D) 90 (Jan) looked at this. In the case Lehman Brothers Finance SA's (LBF) application for a stay of English proceedings in respect of a claim brought by the claimant (Enasarco) for relief under a derivative agreement was refused where there were strong grounds for such refusal and where the English court was the natural court to consider the issues raised because they raised contractual questions governed by English law.
Mr Justice Richards decided that:
Enasarco invested in notes marketed by the Lehman group. ARIC was the special purpose vehicle for the notes programme. The principal amount of the notes was protected by a derivative agreement between LBF and ARIC. The agreement was governed by English law and contained an exclusive jurisdiction clause, as regards states which are parties to the Lugano Convention, in favour of the English courts.
In 2008, LBF's holding company filed for protection under Ch 11 of the US Bankruptcy Code, which constituted an event of default under the derivative agreement and resulted in its automatic early termination, with LBF as the defaulting party. LBF subsequently entered bankruptcy proceedings in Switzerland. In 2009, the English court recognised the Swiss bankruptcy proceedings of LBF as foreign main proceedings under the Cross-Border Insolvency Regulations 2006, SI 2006/1030 (the CBIR).
ARIC filed a claim in the Swiss bankruptcy of LBF for the loss under the derivative agreement. LBF rejected ARIC's calculation of loss and contended that ARIC in fact owed it money under the derivative agreement. ARIC's claim under the derivative agreement was assigned to Enasarco, which sought to resolve the loss calculation in the English courts.
The effect of the recognition o
Access this article and thousands of others like it free by subscribing to our blog.
Read full article
Already a subscriber? Login
0330 161 1234