Bundesgerichtshof; 2021-06-15; II ZB 35/20
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2021:150621BIIZB35.20.0
Date: 2021-06-15
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82021DE0615(51)_ENG_SUMJURE
JURE summary
JURE summary
An insolvency administrator (hereinafter the ‘plaintiff’) of the assets of a company domiciled in London with its actual centre of administration in Berlin (hereinafter the ‘debtor’) filed an action against a joint-stock company domiciled in the United Arab Emirates (hereinafter the ‘defendant’) demanding the payment of EUR 495_718_251.40.
The defendant provided the debtor with liquidity since 2011. In a loan agreement for the amount of EUR 350,000,000 concluded between the defendant and the debtor in April 2017, the applicability of English law and the sole jurisdiction of the English courts were agreed. On the same day, the defendant sent a comfort letter to the debtor confirming the necessary support for the fulfilment of its financial obligations. In August 2017, the defendant refused to pay a due instalment in the amount of EUR 50,000,000 and informed the debtor that it would provide no further financial support. Consequently, the debtor applied for insolvency.
In response to the action filed with the Landgericht Berlin (hereinafter ‘the Court of First Instance’), the defendant filed another action with the High Court of Justice in London requesting that the court declare that no rights in favour of the plaintiff were established upon the violation of the obligations under the comfort letter. The Court of First Instance stayed the proceedings in accordance with Article 31(2) of the Brussels I Regulation (recast) (1) until the High Court of Justice has made a final decision regarding its jurisdiction.
The immediate appeal of the plaintiff lodged with the Kammergericht Berlin (hereinafter ‘the Court of Appeal’) was dismissed at the expense of the plaintiff.
The revision of the plaintiff filed with the Bundesgerichtshof (hereinafter ‘the Supreme Court’) was only successful with regard to the costs of the appellate proceedings.
The Court of Appeal correctly found that the proceedings fell within the scope of the Brussels I Regulation (recast). The exclusion of insolvency, settlement and other proceedings under Article 1(2)(b) of the Brussels I Regulation (recast) did not apply in this case. The intention to avoid the insolvency of the debtor by the means of the comfort letter represented solely an economic but not legal connection to the insolvency proceedings.
The Court of Appeal was further correct in assuming that Article 31(2) of the Brussels I Regulation (recast) was applicable to unilaterally exclusive agreement on the place of jurisdiction in cases where such agreement laid down the exclusive place of jurisdiction of the later seised court (High Court of Justice in London) to the detriment of the plaintiff within the proceeding in the court first seised (the Court of First Instance).
The Supreme Court dismissed the appeal of the plaintiff against the decision of the Court of Appeal.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.