In UBS AG v HSH Nordbank AG [2008] EWHC 1529 (Comm), the claimant advanced claims arising from a complex credit swap transaction involving multiple agreements. Some of the agreements contained non-exclusive New York jurisdiction agreements. Others contained exclusive English jurisdiction clauses. The claimant alleged that the disputes between the parties fell within the scope of the English clauses.

Walker J held that the contracts had to be construed against the background of the transaction as a whole. Each clause focused upon matters directly relating to the contract in which it was found, and here the claims related more closely to the contracts which contained the New York jurisdiction clauses. Because the English clauses were exclusive, it could not be the case that claims fell within both clauses. It followed that the claims fell outside the scope of the English clauses, and the English court had no jurisdiction to hear them.

The case is a helpful reminder that the broad, benevolent approach to jurisdiction clauses exemplified by cases such as Fiona Trust will not necessarily apply where the court is faced with several potentially competing clauses. In such a case, the court's primary inquiry will be to identify the contract to which the claims most closely relate, and then to apply the jurisdiction provisions contained in that contract.

Note: This decision was upheld by the Court of Appeal in UBS AG v HSH Nordbank AG [2009] EWCA Civ 585 (18 June 2009), see Legal update, Court of Appeal upholds commercial approach to competing jurisdiction clauses.