What constitutes an insolvency-derived claim?

Fondazione Enasarco v Lehman Brothers Finance SA & anr [2014] EWHC 34 (Ch), 16 January 2014, is an important decision in the context of characterising which claims will fall as insolvency-derived claims and thus be subject to separate ‘insolvency’ jurisdictional rules.

Proceedings before the Swiss court, challenging the rejection by Swiss liquidators of a claim under a derivative agreement in Swiss bankruptcy proceedings, were closely connected with and directly derived from the Swiss bankruptcy proceedings so as to be excluded from the scope of the Lugano Convection.

Thus, proceedings before the English court to enforce the derivative agreement, which contained an English jurisdiction clause, would not be stayed. Essentially, the insolvency-derived aspects of the matter were to be determined by the Swiss court, which could then be guided by the decision of the English court on English-law-governed contractual matters…

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