Jurisdiction(s):
United Kingdom

NatWest Markets v CMIS: English Commercial Court holds ‘Deeds of Indemnity’ are indemnities; ‘due’ means accrued despite deferral; co‑extensiveness inapplicable; drafting and contemporaneous evidence key in securitisation swaps

Published on: 22 April 2025

Published by a LexisNexis Banking & Finance expert

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Article summary

Natwest Markets Nv and another company v CMIS Nederland BV and another company [2025] EWHC 37 (Comm)

What are the practical implications of this case?

The court’s ruling underscores the dangers tied to sophisticated financial deals and the premium on precise contractual wording. In substance, the court concluded that because the Deeds appeared to be indemnities (they were labelled as such) and adopted indemnity-style language, they were probably indemnities, in form and effect. The experienced professionals who prepared the documents were taken to understand the significance of those features, and accordingly these points carried considerable weight when construing the instruments. If the parties had not meant them to operate as indemnities, the drafters could, and should, have made that plain in the text. Form and language therefore played a central role in the court’s analysis. For the purposes of the questions the court was required to resolve, each side argued that its interpretation of the agreements best reflected the parties’ commercial objectives and aligned with business common sense...

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