Success for Adrian Beltrami QC and Christopher Bond in claim for declaratory relief

On 11 September 2020 Cockerill J handed down an important judgment in the Commercial Court on res judicata, contractual estoppel and declaratory relief under the ISDA Master Agreement: BNPP Paribas SA v Trattamento Rifiuti Metropolitani SpA [2020] EWHC 2436 (Comm). Adrian Beltrami QC and Christopher Bond acted for the claimant bank, instructed by Mahmood Lone of Allen & Overy LLP.

The bank sought declaratory relief (including as to the existence of contractual estoppels) against the defendant Italian project company in relation to a mis-selling dispute over an interest rate hedging transaction on ISDA standard terms. TRM had previously issued its own claim in Italy and unsuccessfully applied to challenge the jurisdiction of the English Courts. The Court of Appeal decision on that application is now the leading case on the English jurisdiction clause in the ISDA Master Agreement ([2019] EWCA Civ 768; [2020] 1 All ER 762]).

On res judicata, the Judge (at [39]-[57]) considered the impact of jurisdiction decisions on findings at trial. She concluded that, while findings at the jurisdiction phase could not give rise to broader issue estoppels, it was nonetheless appropriate for a trial judge to bear in mind the analysis of the judges at the jurisdiction phase on questions which also had to be decided at trial.

On contractual estoppel, the Judge (at [176]-[193]) rejected the defendant’s argument that the seminal decision of the Court of Appeal in Springwell Navigation Corpn v JP Morgan Chase Bank [2010] EWCA Civ 1221 had been overruled or qualified by the more recent judgment of Leggatt LJ in First Tower Trustees v CDS (Superstores International) Ltd [2018] EWCA Civ 1396. She accepted the bank’s argument that the representations in the ISDA documentation gave rise to contractual estoppels, and so granted the bank the majority of the declarations it sought.

The judgment is also of interest for the Judge’s discussion of negative declaratory relief in the context of foreign proceedings and for her distillation of the principles for the grant of declaratory relief ([58]-[78]); and for her analysis of the Entire Agreement Clause and her emphasis on the importance of certainty and clarity in interpreting the ISDA Master Agreement ([80]-[111]).

The two-day trial in July 2020 was heard fully remotely. A copy of the judgment is available here.