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Note: Swift Aviation Group, Inc. (Buyer/ Applicant) had entered into a series of contracts with Kuwait Petroleum Company (Seller) for the right to purchase, load, and deliver certain petroleum products. In order to fulfill its contractual obligations with Seller, Buyer obtained LCs from BNP Paribas S.A. (Issuer). In exchange, Issuer required Buyer/ Applicant to retain Bronwen Energy Trading, Ltd. (Company) to assist Buyer/Applicant in performing the petroleum contracts. Speedway Motorsports International, Ltd. (Guarantor) provided guarantees to Issuer on behalf of Buyer/Applicant.

Buyer/Applicant and Company executed a series of Third Party LC Agreements, which were submitted to Issuer for approval. Buyer/Applicant claimed that Company, with Issuer's knowledge, mishandled the performance of the petroleum contracts, resulting in over US$21,000,000.00 in losses.

Guarantor sued Buyer/Applicant and Company for breach of contract and sued Issuer for wrongfully claiming on its guarantees. Buyer/Applicant crossclaimed against Issuer for breach of fiduciary duty and fraud and against Company for breach.

Issuer alleged that it covered the US$21,000,000 loss resulting from the performance of the petroleum contracts pursuant to its obligations under the LCs. In separate litigation in Paris, France, Issuer asserted claims against Applicant and Company to recover this amount.

Issuer contended that the forum selection clause of the Third Party LC Agreements required Applicant to pursue its cross-claims in the commercial court in Paris, France.

The North Carolina Superior Court, Diaz, J., agreed that the forum selection clause applied to Applicant's cross-claims and granted Issuer's motion to dismiss without prejudice to Applicant's right to pursue its claims in the commercial court of Paris, France.

[JEB/sal]

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