Lloyd's Maritime and Commercial Law Quarterly


Deutsche Bank v. APBW

It is well established as a matter of English law that a jurisdiction clause is separable from the contract in which it is contained. As a result, an allegation by one party that the contract is void will not necessarily impugn the jurisdiction clause contained within it. Whether a similar principle operates under art 23 of the Brussels Regulation,1 and how such a principle should be applied in a case where alternative claims are advanced which are actually predicated on the voidness of the underlying contract, was recently considered by the Court of Appeal in Deutsche Bank v. APBW.2
Deutsche Bank had entered into a $210 million credit agreement with APBW, a Taiwanese telecommunications company. The agreement was signed by the chairman of APBW, and was accompanied by a signed and chopped3 board minute approving the transaction. Having previously made withdrawals and interest payments under the agreement, APBW subsequently ceased to do so, leading Deutsche Bank to declare various events of default and to commence proceedings in London to recover the outstanding amounts. In order to establish jurisdiction, Deutsche Bank relied upon a jurisdiction clause in the credit agreement pursuant to art 23 of the Brussels Regulation. APBW defended the claim on the basis that the credit agreement was void for a number of reasons, including that the chairman of APBW had not been properly authorised to enter into the agreement and thus lacked authority. Unsurprisingly, Deutsche Bank then sought to amend its pleadings to add additional alternative claims; if APBW was correct in claiming the agreements were void, the bank sought restitution of the monies advanced, as well as damages for misrepresentation. A jurisdiction battle arose when APBW disputed Deutsche Bank’s ability to rely on the jurisdiction clause in respect of these alternative claims.

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