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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> JP Morgan Securities PLC & Ors v VTB Bank PJSC (Rev1) [2025] EWHC 1368 (Comm) (05 June 2025)
URL: https://www.bailii.org/ew/cases/EWHC/Comm/2025/1368.html
Cite as: [2025] EWHC 1368 (Comm)

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Neutral Citation Number: [2025] EWHC 1368 (Comm)
Claim Nos: CL-2024-000671
CL-2024-000672

IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
KING'S BENCH DIVISION
COMMERCIAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
05/06/2025

B e f o r e :

MR JUSTICE FOXTON
____________________

Between:
JP MORGAN SECURITIES PLC & ORS
JPMORGAN CHASE BANK, N.A., LONDON BRANCH & ORS
Claimants / Respondents
- and -

VTB BANK PJSC
Defendant / Applicant

____________________

Louise Hutton KC and Akash Sonecha (instructed by Linklaters LLP) for the Claimants/Respondents
Justin Fenwick KC and Anthony Jones (instructed by PCB Byrne LLP) for the Defendant

Hearing dates: 13 May 2025
Draft to the parties: 21 May 2025

____________________

HTML VERSION OF APPROVED JUDGMENT (REV 1)
____________________

Crown Copyright ©

    This judgment was handed down remotely at 10.00am on 05 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
    .............................

    Mr Justice Foxton:

    A INTRODUCTION

  1. These applications arise from anti-suit injunctions granted by Mr Justice Andrew Baker on 13 December 2024 ("the Interim ASIs") to two companies in the JPMorgan group to restrain the Defendant ("VTB") from pursuing proceedings in Russia against the applicants and certain other companies in the JPMorgan group:
  2. i) In CL-2024-000671, the anti-suit injunction was granted on the application of JP Morgan Securities Plc and others ("JPMS plc").

    ii) In CL-2024-000672, the anti-suit injunction was granted on the application of "JPMorgan Chase Bank, N.A., London Branch" and others.

  3. At this hearing:
  4. i) The Claimants ask for the Interim ASIs to be made final.

    ii) The other JPM entities, save for JP Morgan Bank International OOO CB ("JPM Russia"), seek final anti-suit relief in their own right.

    iii) Those claimants seeking anti-suit relief also seek anti-enforcement injunctions.

    iv) VTB seeks to set aside the service of the claims, a declaration that the court does not have and/or should not exercise jurisdiction and the discharge of the Interim ASIs.

  5. The hearing was very well argued on both sides, and raised some interesting issues.
  6. The parties

    The Claimants

  7. JPMS plc is an English company, and a subsidiary of JPMorgan Chase & Co, an international financial services firm incorporated in Delaware and with its headquarters in New York.
  8. JPMorgan Chase Bank, N.A. ("JPMCB") has an authorised London branch ("JPMCB London") and its role in these proceedings concerns business conducted through that branch. An issue was raised by Mr Fenwick KC with which it is convenient to deal at this point, which arises because the proceedings were issued in the name of a branch of JPMCB (just as they had previously been issued by VTB against that branch). Mr Fenwick KC submitted that as the branch is not a legal entity, this involved issuing a claim in the name of a non-existent entity. There is nothing in this point:
  9. i) I accept that a branch of a bank in a particular jurisdiction does not, by reason of its branch identity alone, constitute a separate legal entity. It would be different if the branch business was conducted by an incorporated subsidiary.

    ii) However, the location of a branch is of obvious importance for regulatory purposes, different branches in different jurisdictions being subject to different national regulatory regimes, which assess their solvency, regulatory capital requirements etc in many respects on a "stand alone" basis.

    iii) For that reason, it is very common for proceedings concerning the business of a particular branch of a bank to reflect that fact in the title. A quick database search revealed nearly 100 examples of a "London branch" of a bank being named as claimant or defendant.

    iv) In this case, there can be no doubt that the proceedings were commenced by the legal entity JPMCB, in respect of business conducted through its London branch.

    v) In any event, JPMCB has now been named as a claimant without a branch designation.

  10. JPMS plc and JPMCB using the London branch designation are the first and second claimants in CL-2024-00671 and the second and first claimants in CL-2024-000672. JPMCB (without the London branch designation) is also named as the third claimant in each action.
  11. As to the other claimants:
  12. i) JPM Russia is a company incorporated in Russia, and the fourth claimant in both claims.

    ii) JP Morgan Chase & Co is the fifth claimant in both claims and has its address in New York.

    iii) J.P. Morgan Capital Holdings Limited is the sixth claimant in both claims and has its address in London.

    iv) J.P. Morgan Limited is the seventh claimant in both claims and has its address in London.

    v) J.P. Morgan International Finance Limited is the eighth claimant in both claims and has its address in Delaware.

    vi) JPMorgan Emerging Europe, Middle East and Africa Securities Plc is the ninth claimant in both claims and has its address in London.

  13. On 7 May 2025, JPM Russia filed notices of discontinuance of its claims. It has been suggested by VTB that the court's permission is required for JPM Russia to discontinue because JPM Russia's claim is one "in relation to which … the court has granted an interim injunction" (cf CPR 38.2(2)(a)(i)). In this case, JPM Russia has not itself obtained any injunctive relief, but such relief has been obtained by other claimants which extends to proceedings against JPM Russia.
  14. I am satisfied that CPR 38.2(2)(a)(i) does not apply to a claimant who has not itself obtained interim injunctive relief, simply because another claimant has. In Kazakhstan Kagazy plc v Zhunus [2016] EWHC 2363 (Comm), a freezing order was obtained which initially extended to Manx law claims brought by the first claimant (who had also brought Kazakh law claims), but the Manx law claims were later excluded from the scope of the order. Leggatt J held that the court's permission was not required to discontinue the Manx law claims, holding at [26] that "permission of the court is required only when the subject matter of the injunction includes whatever claim or part of a claim it is that the clamant wishes to discontinue", continuing:
  15. "In such circumstances it may be necessary to consider whether the injunction should be discharged or varied, so the claimant cannot simply be allowed to discontinue without having such issues sorted out. Such issues do not arise where the claimant wishes only to discontinue a part of its claim which falls outside the scope of the injunction."
  16. The present case falls squarely within the last sentence. In any event, even if permission had been required, I can see no reason not to grant it.
  17. I will refer to all of the Claimants as "the JPM Entities", save that the use of that term in relation to orders of this court after JPM Russia's discontinuance does not include JPM Russia.
  18. VTB

  19. VTB is a major Russia bank. It is majority state-owned.
  20. The evidence

  21. The court has factual witness statements from the English lawyers retained by the parties – Satindar Singh Dogra of Linklaters LLP for the Claimants and Anthony Riem of PCB Byrne LLP for VTB.
  22. In addition the court has expert evidence on Russian law:
  23. i) for the Claimants, from Drew Holiner, who practises from Monckton Chambers and has been qualified and admitted to practice law as an advocate in Russia since 2002; and

    ii) for VTB, from Professor Mikhail Zinovievich Schwartz, Professor and Head of the Department of Civil Procedure at Saint Petersburg State University.

  24. There was no oral evidence, and while the expert reports were referred to in the parties' written arguments, they did not feature in the oral presentations.
  25. B THE CONTRACTS

  26. A number of contracts (or alleged contracts) are relevant to the applications before the court.
  27. The UMAA

  28. First, there is the "Unallocated Metals Account Agreement" ("UMAA") dated 22 April 2002 between JPMCB and VTB. The signature block identifies the signatory as JPMCB London.
  29. The UMAA provides for an account to be opened for VTB at the JPMCB London branch for precious metals, which would record the amount of precious metal which either party could call on from the other (depending on the state of the account at the relevant time). Withdrawals from the account could be made by "transfers" to another precious metal account (which would have the same effect as a "transfer" of funds, namely a negative adjustment in the balance of the UMAA account and a positive adjustment in the balance of the transferee account) or by VTB collecting the relevant precious metal from the JPMCB London branch vault. In the latter event, JPMCB London branch was "entitled to select what bars are to be made available to you". JPMCB London branch was entitled to refuse to execute transfer instructions if in its opinion they were or might be contrary to any applicable law.
  30. There was provision for termination of the UMAA which stated that the Unallocated Account would remain in being if redelivery or repayment arrangements which were acceptable to JPMCB London branch were not made.
  31. The UMAA is governed by English law. Clause 14.2 ("the UMAA Arbitration Agreement") provides as follows:
  32. "Arbitration. Any dispute arising out of or in connection with this agreement, including any question regarding its existence validity or termination, shall be referred to and finally resolved by arbitration under the rules of the London Court of International Arbitrators, which rules are deemed to be incorporated into this clause".
  33. There is no provision in the UMAA to suggest that any third party is intended to be able to enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999 ("the 1999 Act"), although the operation of the 1999 Act is not expressly excluded. However, clause 13.3 provides "this agreement is for the benefit of and binding upon us both and our respective successors and assigns" and requires JPMCB's written consent for any assignment by VTB (but not vice versa).
  34. It was suggested by VTB that the obligations to pay any credit balance in the Unallocated Account to it, or for it to pay any debit balance, did not arise under the UMAA but as a result of "general legal principles", it being suggested that the "UMAA was premised on [a] common law liability". The UMAA is a contract creating and regulating a bank account. The UMAA provides the terms on which that account is operated, as reflected in the introductory paragraph:
  35. "This agreement sets out the terms under which we will provide those services to you and the arrangements which will apply in connection with those services".
  36. The UMAA makes it clear that the account records "the amount of that Precious Metal which either we or you, as the case may be, have a right to call upon the other party to deliver to it", and it regulates the circumstances in and manner by which VTB can make deposits, and make a demand for a payment in its favour. The suggestion that the right to withdraw or the obligation to deposit arises somehow at common law and not under the UMAA makes no sense, no more than the suggestion that the entitlement to the credit or obligation to pay any debit arising on the closing of a conventional bank account would. Reflecting that fact, clause 10.3 provides that termination "shall not affect rights and obligations then outstanding under this agreement which shall continue to be governed by this agreement until all obligations have been fully performed" (emphasis added) and clause 13.6 provides that the UMAA "supersedes any previous agreements between us relating to the subject matter of this agreement." On VTB's case, it was wholly unexplained what the legal source of the rights and obligations relating to withdrawals and deposits is, what type of legal rights these were said to be and what law governed them. While VTB points to clause 13.6 reserving JPMCB's rights arising outside the UMAA (notably set-off and any lien), there is no similar provision for VTB.
  37. The Client Agreement

  38. On 11 March 2021, JPMS plc (formerly J.P. Morgan Securities Ltd) and VTB entered into a contract by which JPMS plc opened a futures and options account for the execution and/or clearing of exchange listed or over-the-counter clearing products in the name of VTB ("the Client Agreement").
  39. The second recital provides:
  40. "Where the Client has entered into Terms of Business with JPMSL, this Agreement, rather than the Terms of Business, shall govern the Client's relationship with JPMSL for the execution and/or clearing of exchange listed or OTC cleared products and options accounts at JPMSL. However, the Terms of Business shall continue to govern all other investment business with JPMSL as defined by FSMA. In the event of any conflict between the clauses of this Agreement and the Terms of Business, the clauses of this Agreement shall prevail. This is a 'Specific Product Contract' for the purposes of the Terms of Business".
  41. The Client Agreement includes a definition of "Affiliate" which is used in various provisions, none of them concerned with dispute resolution.
  42. Clause 10 provides that money received from VTB or held on it behalf is to be treated as "Client Money", and includes provisions determining when Client Money is to be released to VTB. Clause 13 gives JPMS plc a right to transfer Client Money and other property between VTB accounts with JPMS plc or its affiliates.
  43. Under clause 21, following an Event of Default, JPMS plc is entitled to liquidate VTB's positions or transactions, and to arrive at a "single sum" payable to one or other party; to set off the amount of VTB's deposits against any indebtedness of VTB to JPMS plc; and to retain amounts payable "for such period as is commercially reasonable" for JPMS plc to perform certain activities.
  44. Clause 24 excuses JPMS plc when it is unable to perform "by reason of any cause beyond [its] reasonable control" including, without limitation, "acts or regulations of any governmental or supra national bodies or authorities".
  45. Clause 31 provides for the application of English law and that:
  46. "The parties to this Agreement agree that any dispute arising out of or connected with this Agreement including a dispute as to the validity or existence of this Agreement and/or this clause or any non-contractual obligations arising out of or relating to this Agreement shall be resolved in accordance with the Rules of the London Court of International Arbitration … The Arbitration Rules are deemed to be incorporated by reference into this clause"

    ("the CA Arbitration Agreement").

  47. Rather curiously, clause 33 provides for the service of a notice electing to resolve a dispute "by arbitration and not litigation", stating that if the party in receipt of such a notice objects, "the Dispute shall be referred to the courts of England pursuant to clause 31 but otherwise the dispute shall be referred to arbitration under the Rules of the London Court of International Arbitration". Mr Fenwick KC faintly argued that the result was that there was no binding arbitration agreement in the Client Agreement, while recognising that this would not take his client very far because its inevitable consequence was that there was an exclusive jurisdiction agreement in favour of the English courts.
  48. In any event, I am persuaded that there is nothing in the point:
  49. i) The terms of clause 31 are clear and mandatory.

    ii) Clause 33 does not contain a general right to opt to refer a dispute to court, only a right to do so "pursuant to clause 31". As there is no such right, this goes nowhere.

    iii) The extensive overlap between clauses 31 and 33, the "misdirection" to clause 31 in clause 33, and the fact that it is clear from the 2011 Terms (see [42] below) that JPM at one time adopted English court jurisdiction as its preferred choice of forum, make it clear that clause 33 is legacy drafting, and reflects an error in the drafting process. This is one of those cases where the court is driven to the conclusion that "something must have gone wrong with the language" (Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101, [14]-[15]). There is other evidence indicative of drafts having been unhappily combined (for example the overlap and inconsistency between clauses 35 and 36), providing reason to suppose a Malapropian drafting influence (Scottish Power UK plc v BP Exploration Operating Company Limited [2005] EWHC 2658 (Comm), [80]).

    iv) Clause 33 has not been engaged in any event, because there has been no attempt by either party to refer a dispute to arbitration. These proceedings are concerned with alleged breaches of the negative covenant in clause 31 not to pursue proceedings elsewhere than in the permitted forum.

  50. Clause 35 provides that the agreement is "for the benefit of and binding upon the Parties both and the Parties respective successors and assigns" and that "a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999".
  51. Clause 37, addressing termination, provides that "notwithstanding any notice of termination, all the rights and obligations of the parties hereunder shall remain in full force and effect until such liquidation or transfer of open positions and return of all such Property".
  52. The ISDA Master Agreement

  53. On 18 June 2015, VTB and JPMS plc entered into an ISDA Master Agreement on the 2002 Master Agreement form ("the ISDA Master Agreement").
  54. By Part 5(4) of the Schedule to that agreement:
  55. "A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy that exists or is available apart from that act."
  56. By Part 5(7), section 13(b) of the ISDA Master Agreement was amended to provide as follows:
  57. "Any dispute (a 'Dispute') arising out of or in connection with this Agreement and any Transaction (including any question regarding the existence, validity or termination of this Agreement or the consequences of its nullity) shall be referred to and finally resolved by arbitration under the Arbitration Rules of the London Court of International Arbitration …"

    ("the ISDA Arbitration Agreement").

    The Terms

  58. There is a dispute between the parties as to whether the JPMorgan Standard Client Terms of Business ("the Terms") were ever applicable by contract as between VTB and any of the JPM Entities. Before considering that issue, I will identify the relevant parts of the Terms for the purposes of the argument before me.
  59. The Terms are stated to be applicable to JPMS plc, JPMCB London (and hence JPMCB) and the Seventh Claimants. Clause 35.1 states:
  60. "Any Affiliate may enforce and rely on any provision of these Terms conferring a benefit on it to the same extent as if it were a party to these Terms or any transactions hereunder.
    Save as aforesaid, a person who is not a party to these Terms has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of these Terms."
  61. "Affiliates" is defined widely as "the direct or indirect subsidiaries of JP Morgan and the direct or indirect subsidiaries of JP Morgan's direct or indirect holding company from time to time, any entity directly or indirectly controlled by JP Morgan and any entity directly or indirectly under common control with JP Morgan and any other connected or associated person …"
  62. Clause 1.3 provides:
  63. "Without limiting the application of these Terms to transactions entered into, or deemed to be entered into, under these Terms, or services received, or deemed to be received, under these Terms, these Terms are without prejudice to and shall not supersede or amend any other contract(s) entered into by you … and JP Morgan (whether prior to or after our despatch of these Terms to you (each a 'Product Contract') including, without limitation, any contract(s) relating to specific, or specific types of, products, services or transactions … In the event of any conflict between any Product Contract(s) and these Terms, the provisions of the Product Contract(s) shall prevail."
  64. The 2011 version of the Terms ("the 2011 Terms") included at clause 30:
  65. i) An agreement to the exclusive jurisdiction of the English courts in respect of "any dispute, difference or other question arising in any way out of or in connection with these Terms, any agreement to which these Terms relate, any agreement or transaction executed in connection with any services provided to you … under these Terms by JP Morgan or any Affiliate … or any other aspect of our relationship … " (clause 30.2).

    ii) A agreement that either party was entitled to serve a notice requiring the Dispute to be referred to arbitration prior to the service of any defence, the dispute to be referred in that eventuality to LCIA Arbitration (clause 30.3).

  66. In the 2017 iteration of the Terms ("the 2017 Terms"), clause 32.2 provided that:
  67. "any dispute, controversy or claim (including, without limitation, (1) any contractual, pre-contractual or non-contractual right, obligations or liabilities arising in any way out of, in relation to or in connection with our relationship, and (2) any issue as to the existence, validity or termination of these Terms or any related or connected agreement) (a 'Dispute') shall be referred to and finally resolved by arbitration under the Arbitration Rules … of the London Court of International Arbitration … which are deemed to be incorporated by reference into this Clause 32.2"

    ("the 2017 Terms Arbitration Agreement").

  68. There is a dispute as to whether the 2011 or 2017 Terms ever became binding on VTB, it being suggested that there was no sufficient acceptance on VTB's part for either set of Terms to have contractual effect.
  69. Taking the 2011 Terms first:
  70. i) Mr Riem for VTB effectively put the Claimants to proof that either version of the Terms had been provided to VTB, and stated that VTB's legal team had investigated and "found no evidence that these terms were ever sent to VTB". No details of the investigation were provided.

    ii) On the evidence before the court, there was an update to JPMS plc's terms in 2011 after the FCA gave approval for it to become a credit institution. A letter to VTB's Head of Compliance dated 26 April 2011 has been produced which explains the important context to the updating of the Terms. Given that context, and the existence of the letter, I am satisfied that the 2011 Terms were sent to VTB. In any event, an internal note records that VTB featured in the process undertaken to distribute the 2011 Terms, and that there was evidence of DHL delivery of the relevant correspondence dated 21 June 2011 (although the documents referred to have not been located). There is also a statement that delivery of the 2011 Terms at VTB's office was acknowledged by "A Buford" on 9 May 2011. It has been suggested that this was a public holiday in Russia. I am willing to assume that is the case, but the overall effect of this material is very strongly to suggest the 2011 Terms were sent to VTB, and I so find on the balance of probabilities.

    iii) In the face of this evidence, I am unable to attach any significance to the evidence Mr Riem gives from unidentified individuals at VTB as to what records have been found on the basis of unparticularised searches.

    iv) Clause 1.2 of the 2011 Terms provided that they were accepted by giving instructions to the JPM. In this case, VTB had active banking relations with the JPM entities on whose behalf the 2011 Terms were distributed and thereby accepted them.

    v) Significantly, clause 24.1 provided that the relevant JPM entities "have a right to amend these Terms at any time by sending you either a notice of amendment in writing or a revised Terms of Business."

  71. The 2017 Terms were produced to address a significant regulatory development, MiFID II:
  72. i) An email of 16 November 2017 shows the 2017 Terms being emailed to Mr Dmitry Zaykov and that the email was read. A log entry records that the terms were sent to Mr Zaykov's VTB Capital email.

    ii) The letter to Mr Zaykov made it clear that the terms were intended for a number of VTB entities, including VTB Capital plc and VTB. This was obviously an important communication, and one which Mr Zaykov is likely to have ensured came to the attention of the relevant VTB personnel even if he was not one of them.

    iii) An internal JPM email of 23 November 2017 records that "VTB Capital" had sent a letter regarding acceptance of the 2017 Terms and that "according to the letter we are likely to be dealing in bonds with them" (once again the letter referred to has not been located). Further internal JPM emails suggest direct contact was made using contact information provided by VTB, and an email from VTB Capital to JPM of 15 December 2017 refers to JPM having provided its Terms of Business.

    iv) JPM's "Xceptor" log records the despatch of the 2017 Terms on 16 November 2018, and a "read receipt" in response. An entry for 2 January refers to "rebuttal sent for VTB Capital PLC … as client says '17.4, 17.5 and 17.6 of Our Terms.'"

    v) VTB submits that Mr Zaykov had no authority to receive the 2017 Terms on its behalf. However, Mr Zaykov was one of VTB's authorised signatories for correspondent accounts in 2017, able to "sign documents and correspondence on behalf of" VTB, which supports the contention that he acted in some respects on behalf of VTB. Further, VTB Capital plc was authorised to accept service of proceedings at VTB Capital plc's London office, which is consistent with them being an authorised and reliable conduit of information to VTB, and individuals from VTB Capital Inc (in particular Mr Ivanov) were involved on VTB's side in the termination of the ISDA Master Agreement. It is clear that information sent to Mr Zaykov in relation to the 2017 Terms had elicited a substantive response on VTB's behalf, which, uncontradicted by evidence from VTB, suggests that either Mr Zaykov was indeed authorised to receive the 2017 Terms on VTB's behalf, or he passed them on to someone who was. It should be noted that Mr Zaykov only needed to have authority to receive the 2017 Terms on behalf of VTB: that receipt is sufficient to give them contractual effect because of the term to that effect in the 2011 Terms.

    vi) Finally, Mr Fenwick KC also submitted that the log entry showed a "counter-offer" (although VTB has itself adduced no evidence as to what this related to). However, by virtue of clause 24.1 of the 2011 Terms, VTB had already bound itself to the amendments made by the 2017 Terms by receiving them. In any event, given the obvious importance of the communication sending the 2017 Terms, against the MiFID II background, it seems to me improbable that the issue regarding the 2017 Terms would have been left in some form of limbo over a period of years, while JPM and VTB's relationship continued on a significant scale. I would have required considerably more by way of evidence and engagement from VTB to rebut the obvious inference that the terms – and certainly the essential terms of law and jurisdiction – were agreed in the terms in which they appeared in the 2017 Terms.

    The Correspondent Bank Account

  73. VTB also held an account with JPMCB in New York as part of a conventional correspondent banking relationship ("the Correspondent Account"). This did not form part of VTB's banking relationship with JPMCB London. Filings in proceedings commenced by JPMCB in the United States District Court for the Southern District of New York in relation to the Correspondent Account exhibit the account terms. They provide for the Account Terms, the relevant Account Documentation and "the rights and obligations of the Customer with the Bank in respect of each Account" to be governed in accordance with the laws of the country where the bank holding the relevant account is situated (i.e. the laws of New York State). The courts of New York State (as the situs of the branch) have exclusive jurisdiction.
  74. C THE BACKGROUND

    The dispute emerges

  75. Following the Russian invasion of Ukraine in February 2022, sanctions were imposed on VTB by, amongst others, the governments of the United Kingdom and the United States of America.
  76. On 28 February 2022, JPMS plc notified VTB that it was exercising a right to close out VTB's transactions under the ISDA Master Agreement, the Client Agreement and a Futures & Options Agreement on basis of an "Event of Default". The ISDA Master Agreement was terminated on the basis that the Event of Default under the Client Agreement triggered the "cross-default" provisions in the ISDA Master Agreement.
  77. On 24 March 2022:
  78. i) JPMS plc notified VTB that it had calculated the amount outstanding from VTB under the ISDA Master Agreement as USD 11,975,725, providing supporting material, and stated that it was exercising a right of set-off in relation to this amount.

    ii) VTB notified JPMS plc of its calculation of EUR 108,636,829.56 in its favour, providing supporting material.

  79. On 20 April 2022, JPMS plc wrote to VTB informing VTB that the outstanding balance in VTB's favour following the liquidation of transactions under the Client Agreement was USD 93,308,910.01, against which the USD 11,975,752 had been credited to produce a balance in VTB's favour of USD 81,333,185,01, which would be paid into a blocked account.
  80. VTB challenged those calculations and provided its calculations on 25 May 2022. It claimed USD 440,653,535.01. VTB's calculation assumed the correctness of JPMS plc's USD 11,975,725 figure for the net balance under the ISDA Master Agreement.
  81. On 15 July 2022, JPMCB closed the Correspondent Account in New York, stating that the balance "will continue to be held by J P Morgan … until such time as the applicable sanctions are lifted or all necessary authorizations are granted and the appropriate authorities allowing for the funds to be released".
  82. On 10 October 2022, JPMCB London informed VTB that it was terminating the UMAA with effect from 18 November 2022, closing the accounts for gold and silver operated under the UMAA, and ceasing to provide any services. The letter stated that where any account contained a residual balance blocked by applicable sanctions, it would continue to be held by JP Morgan "until such time as the applicable sanctions are lifted or the client obtains authorisations from the appropriate authorities for the funds to be released". There is a dispute as to the efficacy of that letter, with VTB taking the position that it terminated the UMAA by a notice dated 15 May 2024.
  83. Proceedings in the Russian courts

  84. On 17 April 2024, VTB issued proceedings in Russia against JPMCB and the various other JPM entities (including JPM Russia) in relation to the Correspondent Account, seeking freezing order relief pending the determination of the claim ("the Correspondent Account Claim").
  85. In response, on 18 April 2024, JPMCB commenced proceedings against VTB in the New York courts seeking anti-suit relief in respect of the Correspondent Account Claim, which was granted on a temporary basis ("the New York Proceedings").
  86. On 22 April 2024, VTB was granted freezing order relief in the Correspondent Account Claim. JPM Russia filed responses challenging that order.
  87. On 24 April 2024, VTB applied in the Russian courts for an anti-anti-suit injunction in respect of the New York Proceedings, which was granted on 25 April 2024.
  88. JPMCB sought to challenge the Correspondent Account Claim on jurisdictional grounds, and JPMCB, JPMS plc and JPM Russia all sought to challenge the freezing order relief granted in those proceedings (in particular so far as the freezing order appeared to apply to client money). The challenges concerning the freezing orders succeeded to a limited extent (the orders being clarified to ensure that they did not apply to assets being held on behalf of others). JPMCB and JPMS plc filed appeals in relation to other aspects of the challenge which were rejected on 24 June 2024.
  89. In the face of the anti-anti-suit injunction granted in the Correspondent Account Claim, on 9 July 2024, JPMCB applied to discontinue the New York Proceedings, which order was granted on 15 August 2024.
  90. During and after that period, JPMCB, JPMS plc and JPM Russia continued to file documents and applications in the Correspondent Account Claim including, in the case of JPM Russia, filing a defence on the merits, a counterclaim and seeking to join additional parties. JPM Russia's counterclaim was dismissed on 14 August 2024. An appeal against that dismissal was rejected on 27 September 2024.
  91. At this point we reach the Russian court proceedings which are the subject of the applications made to this court. On 7 October 2024, VTB commenced two sets of proceedings in the Arbitrazh Court of St Petersburg and Leningrad Region against the nine JPM entities who are now parties to the Commercial Court proceedings.
  92. The first, claim A56-99151/2024, concerned the Client Agreement ("the Client Agreement Claim"):
  93. i) The claim referred to the Client Agreement and to the transfer of the balance into a blocked account and stated "thus Defendant 1 unilaterally disposed of the Claimant's property in the absence of any instructions from the Defendant." It is alleged that JPMS plc "committed unlawful actions in respect of the Claimant's property, including failing to transfer (retaining) the monies that were due".

    ii) It is alleged that "the other co-defendants in turn have failed to act and have made no attempt to assist Defendant 1 in settling the debt".

    iii) The articles of the Russian Civil Code relied upon are Articles 1064(1), 1080, 1082 and Article 15(1). They will be familiar to those who have been involved in Russian litigation in the Commercial Court. Article 1064 imposes liability of someone who causes harm to the person or property of another, and is clearly a liability in tort. As Hamblen J noted in OJSC VTB Bank v Parline Limited [2015] EWHC 1135 (Comm), [8], this article "provides a general basis of tortious liability for causing harm". Article 1082 obliges the person who has caused harm to compensate for the losses caused. Article 15(1) provides for the payment of compensation for losses caused by invasions of legal rights more generally, including for breach of contract as well as in tort. Article 1080 provides for the joint and several liability of tortfeasors.

    iv) The claim against JPMS plc is pleaded as a tort claim, the substance of which is the failure to pay the balance due under the Client Agreement and the retention of the same.

    v) The claim against the remaining JPM entities is as joint and several tortfeasors in that alleged wrong.

    vi) In addition to general provisions of the Russian Civil Code, the claim refers to various principles of law developed by the Russian courts in response to sanctions imposed on Russian entities and individuals by foreign states, referring to post-sanctions decisions involving Citibank, ING Bank NV and Nordea Bank which appear to involve the imposition of joint and several liability on all the companies in the same corporate group.

    vii) So far as JPMB Russia is concerned, reference is made to a principle of "de facto representation" which is once again said to permit the separate legal personality of companies in the same corporate group to be ignored. Reference is made to "an approach … developed in Russian jurisprudence whereby the actions of subsidiaries and indirect subsidiaries of a foreign group of companies are interpreted by the courts as an abuse of a legal entity's formal independence", such that all the companies in a single economic unit are liable. This refers to post-sanctions decisions of the Russian courts involving Google, Siemens, Citibank and Linde.

    viii) The claim asserts the application of Russian law on the basis that the harm alleged is said to have been suffered in the territory of the Russian Federation and because the application of foreign law would be contrary to Russian public policy.

    ix) Finally, jurisdiction was asserted on the basis of the now notorious Article 248.1 of the Arbitrazh Civil Code, which gives that court exclusive jurisdiction over disputes involving sanctioned Russian individuals or entities or which concern such sanctions, regardless of any choice-of-forum agreement.

    x) The amount claimed is USD 81,333,185.01 – i.e. JPMS plc's calculation of the net balance due to VTB under the Client Agreement having deducted the amount due from VTB under the ISDA Master Agreement.

  94. The second, claim A56-99242/2024, concerns the UMAA ("the UMAA Claim"):
  95. i) It pleads the conclusion of the UMAA between VTB and JPMCB through its London branch, and the termination of the UMAA.

    ii) It pleads that the balance of the precious metal accounts had not been repaid to VTB, notwithstanding its demand.

    iii) It pleads that JPMCB's failure to transfer the balance, and the failure of the other JPM entities to take measures to restore VTB's rights, constituted an abuse of rights (a Russian law tort).

    iv) Claims are advanced on the basis of the same articles of the Russian Civil Code and the same Russian case law developments as in the Client Agreement Claim, and also under Article 10(1) (the tort of abuse of rights).

    v) The applicable law and jurisdiction contentions were the same as those in the Client Agreement Claim.

  96. The Arbitrazh Court made freezing orders in the UMAA and Client Agreement Claims between 8 and 15 October 2024. Preliminary hearings in the two claims initially fixed for 8 and 27 November respectively were adjourned to 18 December and 15 January.
  97. On 11 October 2024, JPM Russia made a further attempt to appeal the order dismissing its counterclaim, by way of an appeal to the Court of Cassation. That appeal was rejected on 18 November 2024.
  98. On 24 October 2024, judgment on the merits was entered against the various JPM entities in the Correspondent Account Claim.
  99. On 25 November 2024, various of the JPM entities, including JPMCB, JPM Russia and JPMS plc, filed an appeal against that judgment.
  100. On 12 December 2024, JPMS plc and JPMCB as JPMCB London issued these proceedings and made without notice applications for anti-suit injunctions. The following day the Interim ASIs were granted by Andrew Baker J:
  101. i) VTB was prohibited from taking any steps to pursue, prosecute or progress its claims against the various JPM entities in the Client Agreement and UMAA Claims.

    ii) VTB was prohibited from taking any step to pursue, prosecute or progress "any other proceedings in any court or tribunal concerning any dispute arising out of or in connection with" the Client Agreement and the UMAA "otherwise than through LCIA arbitration" in accordance with the terms of the CA and UMAA Arbitration Agreements.

    iii) VTB was prohibited from "seeking any interim or conservatory order or relief or remedy or measure" inconsistent with the relevant Arbitration Agreement or the Claimants' steps to enforce that agreement.

  102. As a result of those injunctions, and to VTB's credit, the preliminary hearing in the UMAA Claim was moved to 31 January 2025 (and later to 14 May 2025), and that in the Client Agreement Claim to 23 April 2025. The Interim ASIs were continued by Mr Justice Calver on 16 January 2025, who adjourned the return date to a final hearing.
  103. On 14 February 2025, JPMS plc and JPMCB applied to join the other JPM parties to the proceedings, which application was granted by Bright J on 19 February 2025.
  104. On 11 March 2025, VTB issued its jurisdiction challenge to the English proceedings. Mr Riem of VTB's solicitors stated that "VTB does not dispute the calculation of the sums held on its behalf by JPMS and JPMCB". At paragraph 8.2 of his first witness statement, Mr Riem stated "the Client Agreement was terminated, with underlying derivatives being closed out and the balance (amounting to USD 81,333,185.01 once set-offs were applied) … then being transferred to a blocked account." Elsewhere, Mr Riem identified USD 81,333,185.01 as "the value of the Securities Account Balance". Mr Riem also stated that "VTB does not dispute the calculation of the sums held on its behalf by" JPMS plc and JPMCB.
  105. On 14 March 2025, VTB issued a further claim in the Arbitrazh Court under claim A56-24289/2024 ("the ISDA Claim"). The claim referred to the ISDA Master Agreement and to the "Respondent's failure to comply with the obligation to pay funds upon termination of transactions under the General Agreement".
  106. The pleading referred to VTB's notification of the early termination date under the ISDA Master Agreement, its calculation of the amounts due "in connection with" that early termination date of EUR 108,636,829.56 and alleged that Respondent 1 – JPMS plc – "failed to comply with Claimant's claims, misappropriated the funds due to the Claimant, which caused VTB Bank losses." The claims against the other JPM entities were, once again, on the basis that "the remaining Defendants, in turn, do not act and do not attempt to assist D1 in resolving the debt." The legal and jurisdictional arguments were otherwise those advanced in the UMAA and Client Agreement Claims.
  107. D THE "WHOLLY CONTRACTUAL" ANTI-SUIT CLAIMS

  108. I shall first consider the applications for what might be regarded as the most straightforward form of anti-suit injunction: where one party to an arbitration or exclusive jurisdiction agreement sues another party to that agreement, to restrain it from pursuing proceedings against the applicant elsewhere than in the chosen forum. I will also deal in this section with cases in which anti-suit relief is sought by a non-signatory who is entitled to enforce the exclusive forum agreement under the 1999 Act.
  109. Each of the UMAA, CA and ISDA Arbitration Agreements are governed by English law (Enka Inaat ve Sanayi AS v OOO Insurance Company Chubb [2020] 1 WLR 4117).
  110. The UMAA and the Client Agreement

  111. JPMCB and JPMS plc each seek to restrain the proceedings brought against them in the UMAA and Client Agreement Claims respectively, on the basis that such claims are brought in breach of the UMAA and CA Arbitration Agreements.
  112. I am satisfied that they are right that those claims are being pursued in breach of the applicable arbitration agreement. Indeed, the contrary is not seriously arguable. Both arbitration agreements are expressed in very wide words, and benefit from the benevolent presumption of "one stop adjudication" approved in Fiona Trust & Holding Corp v Privalov [2007] UKHL 40.
  113. I can deal with Mr Fenwick KC's two contrary arguments briefly (and with no disrespect).
  114. First, it is said that there is no dispute about the terms or performance of those contracts. That is not correct. Taking the agreements in turn:
  115. i) The UMAA is for the operation of accounts for precious metals, with a running balance and provision for transfer, and a right on JPMCB's part not to act on a transfer instruction which might be contrary to any applicable law. The obligations survive termination (clause 10.3). The arrangements for transferring any balance on the closure of the accounts had to be acceptable to JPMCB London branch. Clearly, therefore, the UMAA addressed issues of entitlement to payment of any undisputed balance. There is a dispute as to whether JPMCB has acted wrongfully in not making the transfer. That clearly has a close connection with the UMAA.

    ii) The Client Agreement also provides for the liquidation of the open positions to generate a single sum payable to one or other party, for the circumstance in which money received from VTB or generated from trading conducted on its behalf can be released to VTB, and for the circumstances in which JPMS plc is relieved from performing its obligations. Clause 37 confirms the continuation of the Client Agreement after termination until all business is wound-up.

    iii) More generally, the suggestion that a dispute as to the transfer of money or property when a contract is terminated does not engage the terms of the contract under which the money was due, or the property held, but rather unspecified "general principles of law" (in this case, apparently, Russian law as the person demanding transfer is a Russian entity seeking to receive them there) is hopeless. If a bank account is closed with a credit due to the account holder, the obligation to pay the debt will arise under the terms of the contract governing the account, and, in any event, a dispute about a failure to pay that debt will fall within the dispute resolution agreement in that contract and be governed by its applicable law.

    iv) Even if the claimant relies on a property right (and I think it highly doubtful that VTB has a proprietary right in specific gold or silver, as opposed to a contractual right under the UMAA to delivery of a particular quantity of gold and silver or its value), a dispute about whether JPMCB was obliged to transfer such property falls within the arbitration agreement in the UMAA, just as a dispute about whether a shipowner was obliged to deliver cargo to its owner or a warehouse to redeliver goods to the bailor would fall within a dispute resolution clause in the contract of carriage or warehousing terms.

  116. Second, it is said that the UMAA and Client Agreement Claims are brought in tort. I accept that the claims are tortious as a matter of Russian law, but that is of no moment when considering the application of the UMAA and CA Arbitration Agreements, the applicability of which does not depend on the type of cause of action advanced (see Mustill & Boyd: Commercial and Investor State Arbitration (3rd) [3.118]-[3.121]). Claims for, in substance, failing to make transfers alleged to be due following on from the termination of agreements under which the debt arose clearly fall within the scope of the arbitration agreements in issue.
  117. Finally, I should record that the Claimants submitted in a footnote in their submissions:
  118. "To the extent necessary, the Claimants will argue that the Second to Ninth Claimants may also enforce the UMAA Arbitration Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999".
  119. This argument was not otherwise developed. I have been unable to identify any obligation capable of engaging section 1 of the 1999 Act, and hence either s.8(1) or 8(2) – provisions I discuss in more detail shortly. The Second to Ninth Claimants had the burden of persuading me of this argument, and they have not done so.
  120. The 2017 Terms

  121. I have already concluded that VTB is bound by the 2017 Terms as a matter of contract. Two further issues arise:
  122. i) which of the JPM Entities are entitled to enforce the 2017 Terms Arbitration Agreement; and

    ii) the effect of the contractual hierarchy provisions on the status of the 2017 Terms Arbitration Agreement in relation to the various claims brought by VTB.

    Which of the JPM Entities are entitled to enforce the 2017 Terms Arbitration Agreement?

  123. Three of the Claimants are parties to the 2017 Terms: JPMS plc, JPMCB and the Seventh Claimant.
  124. The 2017 Terms Arbitration Agreement applies to "any dispute, controversy or claim (including, without limitation, (1) any contractual, pre-contractual or non-contractual rights, obligations or liabilities arising in any way out of, in relation to or in connection with our relationship", which is extremely broad. It is clear from clause 1.3, quoted at [41] above, that the application of the 2017 Terms is not limited to "transactions entered into or deemed to be entered into … or services received or deemed to be received under the Terms", and that the 2017 Terms are capable of applying to disputes concerning products and services supplied under other contracts, subject to the hierarchy provision considered below.
  125. What of JPM Russia, and the Fifth, Sixth, Eight and Ninth Defendants? It is accepted that they fall within the broad definition of "Affiliates" in the 2017 Terms. Clause 35.1 provides that "any Affiliate may enforce and rely upon any provision of these Terms conferring a benefit upon it to the same extent as if it were a party to these Terms". Does this provision apply to clause 32, which creates both a right to sue (and only be sued) in arbitration, and a corresponding obligation?
  126. I do not find that a wholly straightforward question, and it received relatively little time in argument:
  127. i) Section 8 of the 1999 Act provides for the operation of arbitration agreements in relation to third party beneficiaries in two instances.

    ii) First, under s.8(1), where the third party is given a right under s.1 of the 1999 Act to enforce a term (which it will have if the contract expressly so provides or "the term purports to confer a benefit on him") and the enforcement of that term is itself subject to a term providing for the submission of disputes to arbitration. In this case, the arbitration agreement takes effect not as a benefit in itself, but as a condition of the term which is intended to benefit the third party (see Mustill & Boyd, [3.87]).

    iii) Second, under s.8(2), where the right which the third party is entitled to enforce under s.1 is the right to arbitrate disputes with the promisor, in which case the third party can exercise the right to arbitrate, and, if it does so, is treated as a party to the arbitration agreement "in relation to the matter with respect to which the right is exercised" (ibid, [3.89]).

    iv) So far as s.8(1) is concerned, there are a number of provisions of the 2017 Terms which expressly confer benefits on Affiliates. By way of a non-exhaustive list: clause 7.1 (which confers a right of indemnity); clause 7.2 (which exclude liabilities in certain circumstances); clause 8.9 (rights relating to "own account" trading); clause 8.19 (the sufficiency and effect of any confirmation); clause 8.13 (the exclusion of an advisory duty); clause 8.16 (the provision as to trading venues); clause 10.7 (various provisions about the effect, and non-effect, of statements); clauses 10.9 and 11 (addressing potential conflicts of interest); clause 16 (contractual liens, charges and rights of set-off); clause 18.1 (exclusion of liability) and clause 29 (force majeure).

    v) However, the argument before me was not advanced on a s.8(1) basis, but on the basis that the right to enforce the arbitration agreement was itself a benefit intended to be conferred on Affiliates. It is clear that the essentially procedural right to arbitrate can be conferred on a third party under the 1999 Act. The question is whether the 2017 Terms do so.

    vi) On balance, I am satisfied that they do. Specially, clause 32.5 of the 2017 Terms, which appears in the same clause as the 2017 Terms Arbitration Agreement, provides:

    "Without prejudice to any other remedy, you (and/or, where applicable, any principal or principals on whose behalf you are acting) will indemnify us, any Affiliate and any of our or its respective directors, officers, employees or representatives against any costs, loss, liability or expense whatsoever which may be suffered or incurred by us and/or them directly or indirectly in connection with or as a result of any suit, action, proceeding or any step in any suit, action or proceeding taken by you (and/or, where applicable, your principal or principals) and/or any person connected or affiliated with you (and/or, where applicable, your principal or principals) otherwise than in accordance with this Clause 32 or in accordance with the MiFIR Election Letter where applicable."

    vii) It seems implicit in that clause that Affiliates have a contractual right that claims will not be brought "arising out of, in relation to or in connection with our relationship" otherwise than in accordance with clause 32, and that this is a benefit conferred on Affiliates (and therefore enforceable under clause 36.1).

    viii) It is not necessary for present purposes to determine the width of any right to arbitrate conferred on Affiliates. However, I am persuaded that the negative covenant in any arbitration agreement is a benefit which the 2017 Terms confer on Affiliates, and that it would be open to the Affiliates to commence an arbitration to enforce the clause 32.5 indemnity and the negative covenant.

  128. It should be noted that JPM Russia has not sought to enforce the contractual right which, on my findings, it has.
  129. What is the effect of the contractual hierarchy provisions on the status of the 2017 Terms Arbitration Agreement in relation to the various claims brought by VTB?

  130. By way of a reminder, the relevant provisions are:
  131. i) Clause 1.3 of the 2017 Terms:

    "These Terms are without prejudice to and shall not supersede or amend any other contract(s) entered into by you … and JP Morgan (whether prior to or after our despatch of these Terms to you (each a 'Product Contract') including, without limitation, any contract(s) relating to specific, or specific types of, products, services or transactions … In the event of any conflict between any Product Contract(s) and these Terms, the provisions of the Product Contract(s) shall prevail."

    ii) The second Recital to the Client Agreement:

    "Where the Client has entered into Terms of Business with JPMSL, this Agreement, rather than the Terms of Business, shall govern the Client's relationship with JPMSL for the execution and/or clearing of exchange listed or OTC cleared products and options accounts at JPMSL. However, the Terms of Business shall continue to govern all other investment business with JPMSL a defined by FSMA. In the event of any conflict between the clauses of this Agreement and the Terms of Business, the clauses of this Agreement shall prevail. This is a 'Specific Product Contract' for the purposes of the Terms of Business".
  132. I accept that the 2017 Terms Arbitration Agreement will not displace:
  133. i) the UMAA Arbitration Agreement so far as claims relating to the UMAA against JPMCB are concerned;;

    ii) the CA Arbitration Agreement so far as claims relating to the Client Agreement against JPMS plc are concerned; and

    iii) the ISDA Arbitration Agreement so far as claims relating to the ISDA Master Agreement against JPMS plc are concerned.

  134. However, Mr Fenwick KC went further, and argued that in so far as VTB had brought claims against non-parties to those three agreements (and non-parties to the three arbitration agreements) relating to the non-performance of those agreements, the hierarchy clauses prevented those non-parties from relying on the 2017 Terms Arbitration Agreement.
  135. I am unable to accept this argument, essentially because I cannot see how a clause giving rights to someone who is not party to an earlier agreement, while leaving the rights and obligations of those who are parties unchanged, can be said to "supersede", "amend" or "conflict with" those earlier terms. The approach to be adopted when determining whether provisions "conflict" in a two-party context has been the subject of a number of Court of Appeal authorities:
  136. i) In Pagnan SpA v Tradax Ocean Transportation SA [1987] 2 Lloyd's Rep 342, 350, Bingham LJ noted that "it is not enough if one term qualifies or modifies the effect of another; to be inconsistent a term must contradict another term or be in conflict with it, such that effect cannot fairly be given to both clauses." Dillon LJ (at p.353) held "there is inconsistency where two clauses cannot sensibly be read together, but can it really be said that there is inconsistency wherever one clause in a document qualifies another?" (answering his rhetorical question in the negative).

    ii) In Alexander v West Bromwich Mortgage Co [2016] EWCA Civ 496, [62], Hamblen LJ said "one way of testing whether clauses can be 'fairly' or 'sensibly' read together is by seeking to put them together in a single clause".

    iii) In Septo Trading Inc v Tinetrade Ltd (The NouNou) [2021] EWCA Civ 718, [28], Males LJ stated that "the question is whether the two clauses can be read together fairly and sensibly so as to give effect to both," a question to "be approached practically, having regard to business common sense, and is not a literal or mechanical exercise."

  137. In this case, it is possible to give both terms effect, and a businesslike and common sense approach justifies doing so. It is far from uncommon for claims to be brought against affiliates in an effort to avoid dispute resolution provisions or exclusions or limitations in the contract. The 2017 Terms are fully alive to that danger, as is apparent from the numerous provisions conferring benefits on non-party affiliates. The inclusion, in the 2017 Terms, of a dispute resolution provision which protected Affiliates who did not benefit as a matter of contractual privity from dispute resolution provisions in specific contracts to which they were not parties from claims relating to those specific contracts, is obviously sensible. There is no difficulty in giving effect to this clause conferring a right to arbitrate disputes on Affiliates alongside the UMAA and CA Arbitration Agreements so far as the signatories to those agreements are concerned.
  138. The ISDA Master Agreement

  139. That leaves JPMS plc in its capacity as a party to the ISDA Master Agreement. No application was made by JPMS plc to enforce the ISDA Arbitration Agreement (whether for its own benefit of for the benefit of the other defendants to that claim), on the basis that this might involve a breach of the anti-suit injunction granted by the Russian court when those proceedings were commenced. The application was pursued:
  140. i) by reference to the CA Arbitration Agreements; and

    ii) on the "vexation and oppression" basis.

  141. I will address the second of those arguments at Section E below. Before considering the first argument, it is first necessary to summarise the role of the ISDA Master Agreement:
  142. i) The JPM Entities claim that the ISDA Master Agreement was terminated for VTB's default, the relevant event of default being a "cross-default" under the Client Agreement. While it is common ground that the ISDA Master Agreement has been terminated, it is VTB's case that it was terminated by reason of an illegality affecting JPMS plc. Those differing contentions manifested themselves in different calculations in correspondence of the net balance.

    ii) JPMS plc calculated a balance due to it of USD 11,975,725. JPMS plc set-off that figure against amounts payable to VTB under the Client Agreement, relying on the right of set-off granted by Section 6(f) of the ISDA Master Agreement (JPMS plc's letter of 24 March 2022).

    iii) VTB calculated a balance due to it of EUR 108,636,829.56.

  143. Where parties enter into a number of agreements which exist alongside each other, each with its own dispute resolution clause, it will often be the case that disputes under one agreement might, as a matter of literal interpretation, fall not only within the arbitration agreement embodied in the same agreement, but also a arbitration agreement in one of the other contracts. The approach to construction in this situation is summarised in Mustill & Boyd at [3.128] as follows:
  144. "The approach to construction in this situation was summarised by Hamblen LJ in BNP Paribas SA v Trattamentio Rifiuti Metropolitani SpA:
    i) The starting point is that a jurisdiction clause in one contract was probably not intended to capture disputes more naturally seen as arising under a related contract.
    ii) A broad, purposive and commercially-minded approach is to be followed.
    iii) Where the jurisdiction clauses are part of a series of agreements they should be interpreted in the light of the transaction as a whole, taking into account the overall scheme of the agreements and reading sentences and phrases in the context of that overall scheme.
    iv) Sensible business people are unlikely to intend that similar claims should be the subject of inconsistent jurisdiction clauses.
    v) The starting presumption will therefore be that competing jurisdiction clauses are to be interpreted on the basis that each deals exclusively with its own subject matter and they are not overlapping, provided the language and surrounding circumstances so allow.
    vi) The language and surrounding circumstances may, however, make it clear that a dispute falls within the ambit of both clauses. In that event the result may be that either clause can apply rather than one clause to the exclusion of the other."
  145. In this case, I am satisfied that the dispute as to the termination of the ISDA Master Agreement and the resultant balance falls within the ISDA Arbitration Agreement and does not fall within the CA Arbitration Agreement. This is so even though what JPMS plc contends to be the amount of that balance is relied upon as a set-off in respect of amounts due under the Client Agreement. It is not necessary for the purposes of this judgment to consider the jurisdictional status of the set-off claimed in an arbitration under the Client Agreement, which raises difficult issues which were not explored before me (see Mustill & Boyd [5.66]-[5.73]), and which are entirely hypothetical in this case.
  146. E THE APPLICATION BY A CONTRACTING PARTY TO RESTRAIN CLAIMS AGAINST NON-CONTRACTING PARTIES AS A MATTER OF CONTRACT

  147. At this point we sail into much choppier waters: when, and if so, in what circumstances, will it be a breach of an arbitration agreement for one party to bring claims against a non-party? I will refer to such an obligation as a "Third Party Claim Obligation". That is an issue on which the Court of Appeal has recently made certain observations, with a difference in the (obiter) views expressed by Singh LJ and Males LJ, in Renaissance Securities v Chlodwig [2025] EWCA Civ 369.
  148. The legal context

  149. Before reviewing the various authorities which have considered the Third Party Claim Obligation issue, it is helpful first to provide some legal context.
  150. Contractual promises not to sue third parties

  151. Parties to an agreement will often provide that one of them cannot sue certain categories of third parties, the concern frequently being that to permit them to do so would undermine the contractual allocation of risk because the liability of the third party might come to rest with the other contracting party. Perhaps one of the most complex clauses of this kind is the so-called "Himalaya" clause in contracts for the carriage of goods or persons by sea, named after the decision in Adler v Dickson (The Himalaya) [1955] 1 QB 158. Clauses of this kind are concerned with the issue of whether the third party should be capable of being sued at all, rather than the forum in which such a claim might be brought.
  152. There are contexts in which the court has been prepared to construe an agreement not to sue one party as extending as a matter of construction to its servants or agents: most obviously, where two parties settle a dispute, and then one of the parties seeks to renew its claims against a servant or agent of the other party. This was the position in Starlight Shipping Company v Allianz Marine and Aviation Versicherungs AG (The Alexandros T) [2014] EWHC 3068 (Comm), in which there were two sets of settlement agreements arising from the same insurance casualty, one expressly referring to claims against the underwriters and their servants and agents, the other just to claims against underwriters. The Court held that the phrase "underwriters" in the release provisions in the latter settlement embraced the underwriters' servants or agents, because the contrary conclusion would undermine the fundamental purpose of the settlement agreement (to draw a line under a particular dispute) by allowing claims which, if they succeeded, would ultimately be visited on a settling party ([51]-[52]).
  153. In The Alexandros T, the court's conclusion was driven by the effect of the alternative argument on the primary rights and obligations created by the contract. Where it is a clause which is ancillary to those main objects (in the sense used by Lord Diplock in Moschi v LEP Air Services [1973] AC 331, 350-51) which is said to have this effect, the argument is more challenging. In construing a contract, the court "starts from the assumption that in the absence of clear words the parties did not intend the contract to derogate from [their] normal rights and obligations" (Triple Point Technology Inc v PTT Public Co Ltd [2021] UKSC 29, [108] citing Modern Engineering (Bristol) Ltd v Gilbert-Ash (Northern) Ltd [1974] AC 679).
  154. As between the parties to a dispute resolution agreement, the effect of agreeing a particular forum will frequently involve a contractual foregoing of the right to bring claims under causes of action recognised in other jurisdictions but not in the chosen forum. As Longmore LJ noted in Starlight Shipping Company v Allianz Marine and Aviation Versicherungs AG [2014] EWCA Civ 1010, [12] "the owners had promised to submit to the exclusive jurisdiction of the English courts and thus promised not to bring claims in other courts where such claims might (or might not) succeed". Indeed this is often a desired rather than merely a collateral consequence of an exclusive forum agreement (Riverrock Securities Ltd v International Bank of St Petersburg [2020] EWHC 2483 (Comm), [61]).
  155. Where, however, the contention is advanced that a dispute resolution agreement involves an agreement not to sue a third party in some other forum, the position is rather more complex, and there is potentially a distinction of significance between exclusive jurisdiction clauses ("EJCs") and arbitration agreements, depending on how the obligation is formulated:
  156. i) Where there is an EJC, and the issue arises whether as a matter of interpretation or implication it restrains proceedings by one party against a third party, a distinction can be drawn between an obligation not to sue a third party at all, and the rather less onerous obligation not to sue the third party in a different forum to the agreed forum. While that still leaves open the possibility of there being no jurisdiction over the third party in the chosen jurisdiction (cf Team Y&R Holdings Hong Kong Ltd v Ghossoub [2017] 2401 (Comm), [82(5)]), this is likely to be an infrequent occurrence, particularly when there is a close connection between the two claims (the very context in which some limit on the ability to sue the third party elsewhere will be most important). The risk that the claim which a contracting party wishes to bring against a non-party may not be available in the chosen forum remains.

    ii) Where there is an arbitration agreement, an implied obligation not to sue the third party other than in the arbitration will, in the vast majority of cases, amount to an obligation not to bring that claim at all. There is a possible exception where, as here, the arbitration is on the LCIA Rules, because Article 22.1(x) provides for "forced joinder" of non-parties to the arbitration agreement in certain circumstances. However, this is an "institution-specific" provision, and one which depends both on the third party's consent and the willingness of the arbitral tribunal to exercise its power of joinder.

  157. It should also be noted that there are numerous instances in which a claim will be brought in arbitration, and a connected claim against a third party in some other forum, without any suggestion that this involves a breach of the arbitration agreement. This is so where the contract with the principal debtor is subject to arbitration, but not the guarantee, and where it is necessary to prove the liability of the principal debtor as between the creditor/ beneficiary and the guarantor, with the guarantor having a claim against the debtor for the amount of its liability if called upon to pay. Or where an entity selling a company engages an agent to market it, with the sale contract being subject to arbitration, and a claim in tort is brought by the buyer against the agent in respect of pre-contractual statements, with the agent having a potential right of indemnity against the seller. Fact patterns of this kind raise issues of the sequencing of proceedings in the two fora (e.g. ACP v Sacyr SA [2017] EWHC 2228 (Comm) and Reichhold Norway Asa v Goldman Sachs International [2000] 1 WLR 173), but there is no suggestion that both claims cannot proceed.
  158. This is the case even when there are claims against two parties in conspiracy, or on the basis that they are jointly and severally liable for the same loss. Thus in Egiazaryan v OJSC OEK Finance [2015] EWHC 3252 (Comm), Burton J held that an arbitral tribunal had jurisdiction over a claim against one alleged conspirator, noting at [31] that "the fact that there may be outstanding claims against other parties arising out of the same facts is not an objection to the bringing of a claim which falls within the terms of an arbitration clause." In VTB Commodities Trading DAC v JSC Antipinsky Refinery [2019] EWHC 3292 (Comm), [57], Teare J rejected the suggestion that arbitrators did not have jurisdiction over a conspiracy claim against one of the conspirators, noting:
  159. "Counsel referred to the fact that MachinoImport and Sberbank were not party to the arbitration agreement and so any claim against them would have to be advanced elsewhere. That is true but the tortious, non-contractual claim brought against the Refinery for being party to an unlawful means conspiracy clearly arises out of or in connection with the pre-payment agreements and off-take contracts. The claim is therefore very clearly caught by the arbitration clause."
  160. Indeed Fiona Trust itself was a case in which claims in conspiracy and for joint and several liability were stayed under s.9 of the Arbitration Act 1996 as against some conspirators, while proceedings in this court continued against the others.
  161. Once again, the fact that proceedings in respect of the same alleged conspiracy may be proceeding against one conspirator in arbitration and against another in court proceedings is managed, if at all, by the sequencing of proceedings through a temporary stay, rather than holding that the arbitration agreement involves an implied promise not to pursue a party alleged to be jointly and severally liable with the arbitrating party in another forum. Even then, the court will readily countenance the simultaneous pursuit of the claims. For example in Mabey and Johnson Ltd v Danos [2007] EWHC 1094 (Ch), Henderson J observed at [37];
  162. "I accept Mr Johnson's submissions, and have come to the clear conclusion that it would be wrong to grant the stay requested. In reaching this conclusion I am influenced in particular by the desirability of a single trial taking place, in public, at which the strong prima facie case of fraud and conspiracy against the three human defendants can be fully investigated and determined. DAG's invocation of the arbitration clause, presumably at the instance of Mr Gibson, has prevented the claim against DAG from being determined in the same forum as the claim against Mr Gibson. DAG is fully entitled to take that step, but I can see no good reason why Mr Gibson too should be permitted to take advantage of the arbitration clause, or to hold up the English action while the arbitration proceeds."

    Cases where a third party seeks to enforce a contractual right which is subject to an arbitration agreement

  163. A related issue to that which arises in the present case is where a third party seeks to assert what the English court regards in substance as an attempt to enforce a right arising under a contract between two other parties, otherwise than in accordance with the dispute resolution provision for which the parties have stipulated in that contract. It is not necessary to review the extensive case law on this subject, but there are a number of features of the court's approach which are of interest. For reasons of familiarity only, I have drawn on my summary of the judgments of other judges in QBE Europe SA/NV v Generali Espana de Segurosy Reasaguros [2022] EWHC 2062 (Comm):
  164. i) The English court has chosen not to treat applications for anti-suit relief in these circumstances as turning on the general jurisdiction to grant relief where the proceedings to be injuncted are vexatious and oppressive ([13]).

    ii) The English court applies the same decision-making framework as for "wholly contractual" anti-suit injunctions, in effect according the right not to be sued for the enforcement of a contractual right otherwise than in accordance with the dispute resolution procedure conditioning that right the same status as a promise by a contracting party only to bring proceedings in the agreed forum ([16]-[20]).

    iii) For the purposes of exercising its jurisdiction to grant anti-suit relief, the court will classify the right asserted in the non-contractual forum by reference to English conflict of law principles, looking at the position as a matter of substance. The characterisation of the right as a matter of the relevant foreign law is not determinative ([23]-[27]). This is consistent with the approach adopted generally when determining whether foreign law claims fall within a jurisdiction of arbitration clause: Nori Holding Ltd v PJSC Bank Otkritie Financial Corpn [2018] EWHC 1343 (Comm), [63].

  165. The decision to treat anti-suit injunctions in these circumstances in the same way as "wholly contractual" anti-suit injunctions, rather than relying on the "vexatious and oppressive" basis, can be significant for a number of reasons:
  166. i) Establishing that the foreign proceedings are vexatious and oppressive has been held to involve "a more onerous and more nuanced test" (Times Trading Corp v National Bank of Fujairah [2020] EWHC 1078 (Comm), [42]), with issues of comity weighing more heavily against granting relief (SAS Institute Inc v World Programming Ltd [2020] EWCA Civ 599, [91]).

    ii) There may be more difficulty in establishing the court's jurisdiction, the view having been expressed that one of contractual gateways is available in a "conditional benefit" cases (QBE, [22]). By contrast, it has been held (by reference to an older version of the service out gateways) that there is no gateway for vexatious and oppressive anti-suit injunctions (Navig8 Pte Ltd v Al-Riyadh Co for Vegetable Oil Industry [2013] EWHC 328 (Comm)).

    iii) Finally, depending on where the law ends up in this area after the hearing in the Supreme Court, it is possible that the correct classification may affect the court's ability to award relief by way of equitable compensation (cf Kingdom of Spain v The London Steam-Ship Owners' Mutual Insurance Association Limited [2024] EWCA Civ 1536).

    The special status of arbitration agreements under English law

  167. Finally it should be noted that English law attaches a particular value to an agreement to arbitrate disputes, and to ensuring that such agreements operate in a businesslike way, and are not undermined. The particular policy issues at play in this area are reflected in the special rule for the construction of arbitration agreements in Fiona Trust, the greater readiness to grant anti-suit injunctions than for EJCs (Nori Holding Ltd v Public Joint Stock Company 'Bank Otkritie Financial Corpn' [2018] EWHC 1343 (Comm), [106]); in the development of the "quasi-contractual" injunction jurisdiction, and in the injunctive jurisdiction to prevent collateral attacks on the arbitral process or the court's supervisory role (Sodzawiczny v Smith [2024] EWHC 231 (Comm)). In the course of resolving the legal issues which follow, it is important to keep the particular context in mind, and to recognise that the court is not concerned with a wholly conventional exercise in contractual analysis. With that I turn to the authorities.
  168. The authorities

  169. The first case of which I am aware which addressed the Third Party Claim Obligation is Credit Suisse First Boston (Europe) Ltd v MLC (Bermuda) Ltd [1999] 1 All ER 37. Rix J rejected the suggestion that a conventionally worded EJC prevented one party to it from suing the other's affiliate in New York, stating at 252a that:
  170. "… it seems to me to be far-fetched to regard 'any disputes' as covering disputes between MLC and any one other than MLC's contract partner under the purchase agreements, namely CS Europe. Clause 5.2 is part of a bilateral agreement between a seller and a buyer, and the disputes to which such an agreement may give rise are prima facie bilateral disputes. Indeed, it is I would have thought axiomatic that, at any rate in the absence of plain language to the contrary, a contract seeks neither to benefit nor to prejudice non-parties: even where such plain language is used, it is black-letter law that the non-party can himself neither take the benefit nor suffer the burden of the contract. In the present case there is nothing in the language of cl. 5.2 to suggest that it is intended to have an ambit beyond the parties to the purchase agreements themselves. While it is true that the agreements mention CS affiliates, there is nothing in the express language of cl. 5.2 to suggest that the clause is intended to bind MLC as to where it is entitled to sue such affiliates…."
  171. However, the contrary argument gained significant support from Lord Scott (but only from Lord Scott) in Donohue v Armco Inc [2001] UKHL 64, [60]. In that case, there were New York proceedings brought by a number of claimants against a number of defendants in relation to a transaction. Some of the claimants and some of the defendants, including Mr Donohue, were parties to an EJC in the transaction documents. Lord Bingham at [30] did not see any basis on which New York proceedings against non-party defendants could be restrained. However, Lord Scott at [60]-[61] said the following:
  172. "There is a point of construction of the exclusive jurisdiction clause that it is convenient to deal with at this point. It is accepted that the clause is not restricted to contractual claims. A claim for damages for, for example, fraudulent misrepresentation inducing an agreement containing an exclusive jurisdiction clause in the same form as that with which this case is concerned would, as a matter of ordinary language, be a claim in tort that arose 'out of or in connection with' the agreement. If the alleged fraudulent misrepresentation had been made by two individuals jointly, of whom one was and the other was not a party to the agreement, the claim would still be of the same character, although only the party to the agreement would be entitled to the benefit of the exclusive jurisdiction clause. The commencement of the claim against the two alleged tortfeasors elsewhere than in England would represent a breach of the clause. The defendant tortfeasor who was a party to the agreement would, absent strong reasons to the contrary, be entitled to an injunction restraining the continuance of the foreign proceedings. He would be entitled to an injunction restraining the continuance of the proceedings not only against himself but also against his co-defendant. The exclusive jurisdiction clause is expressed to cover 'any dispute which may arise out of or in connection with' the agreement. It is not limited to 'any claim against' the party to the agreement. To give the clause that limited construction would very substantially reduce the protection afforded by the clause to the party to the agreement. The non-party, if he remained alone as a defendant in the foreign proceedings, would be entitled to claim from his co-tortfeasor a contribution to any damages awarded. He could join the co-tortfeasor, the party entitled to the protection of the exclusive jurisdiction clause, in third party proceedings for that purpose. The position would be no different if the claim were to be commenced in the foreign court with only the tortfeasor who was not a party to the exclusive jurisdiction clause as a defendant. He would be able, and well advised, to commence third party proceedings against his co-tortfeasor, the party to the exclusive jurisdiction clause.
    ... In my opinion, an exclusive jurisdiction clause in the wide terms of that with which this case is concerned is broken if any proceedings within the scope of the clause are commenced in a foreign jurisdiction, whether or not the person entitled to the protection of the clause is joined as defendant to the proceedings. An injunction restraining the continuance of the proceedings would not, of course, be granted unless the party seeking the injunction, being someone entitled to the benefit of the clause, had a sufficient interest in obtaining the injunction. It would, I think, be necessary for him to show that the claim being prosecuted in the foreign jurisdiction was one which, if it succeeded, would involve him in some consequential liability. It would certainly, in my opinion, suffice to show that if the claim succeeded he would incur a liability as a joint tortfeasor to contribute to the damages awarded by the foreign court."

    (emphasis in italics added, emphasis in bold in original).

  173. This was a jurisdiction rather than arbitration case (cf [105]-[107]), but even in this context the italicised statement is highly contentious so far as the "non-party" defendant is concerned, certainly in its absolute form. While the "indirect liability" argument has real force in the course of a settlement agreement intended to draw a line under a dispute (cf [102]-[103] above), it is far less compelling in the context of an agreed forum clause. In any event, there is clearly no similar rule in relation to arbitration (see [107]-[109]). The issue was not, apparently, the subject of oral or written argument in the case (Morgan Stanley & Co International Plc v China Haishen Juice Holdings Co Ltd [2009] EWHC 2409 (Comm), [30]).
  174. The issue appears next to have come before Norris J in Winnetka Trading Corp v Julius Baer International Ltd [2008] EWHC 3146 (Ch), in which proceedings were brought in this jurisdiction against the second defendant and its agent who had rendered the contractual performance on its behalf, in circumstances in which there was an EJC in favour of the courts of Guernsey as between the claimant and the second defendant. Norris J was asked to stay the proceedings against the first defendant. At [28], he said that "this is a point which has greatly troubled me, but I am persuaded that the answer is to be found in" Lord Scott's judgment, in circumstances in which the second defendant would face an indemnity claim from the first defendant if it was liable.
  175. In Morgan Stanley & Co International Plc v China Haishen Juice Holdings Co Ltd [2009] EWHC 2409 (Comm), proceedings were brought against the claimant and an affiliate in China when there was an English EJC between the claimant and the defendant. Teare J rejected the contention that the wide wording of the EJC (in terms of the required nexus between the claim and the contract) had the effect that the defendant had promised not to sue third parties in respect of disputes which met the required nexus. In reaching that conclusion he relied (as Mr Fenwick KC does here) on provisions addressing the issue of third party rights (which gave affiliates the right to enforce terms expressly granted to them on giving prior notice), stating that "the fact that the parties dealt expressly with Third Party Rights but did not expressly deal with claims against third parties supports the suggestion that the parties were not addressing claims against third parties in clause 13." He also relied on the fact that there was no provision for affiliates to appoint a process agent (in contrast to the provision made for service on agents appointed by the signatories).
  176. The Third Party Claim Obligation issue received detailed consideration in a judgment of Laurence Rabinowitz KC in Team Y&R Holdings Hong Kong Ltd v Ghossoub [2017] EWHC 2401 (Comm). An agreement for the sale and purchase of shares in a Hong Kong company included an English EJC. This was also the case for an associated employment contract. An unfair prejudice petition to the Hong Kong court was brought in respect of the affairs of the company, the factual basis of which included a significant number of matters which amounted to breaches of the two contracts, but the Hong Kong proceedings included a number of respondents who were not parties to either contract. Mr Laurence Rabinowtiz KC reviewed the various authorities I have referred to, and summarised the principles he extracted from them at [82]:
  177. "(1) Whether an exclusive jurisdiction clause should be understood to oblige a contractual party to bring claims relating to the contract in the chosen forum even if the claim is one against a non-contracting party, requires a consideration of the contract as a whole including not just the language used in the exclusive jurisdiction clause but also all other terms in the contract that may shed light on what the parties are likely to have intended.
    (2) The principle that rational businessmen are likely to have intended that all disputes arising out of or connected with the relationship into which they had entered would be decided by the same court cannot apply with the same force when considering claims brought by or against non-contracting third parties. More particularly, whist it is well established that the language of an exclusive jurisdiction clause is to be interpreted in a wide and generous manner, the starting position in considering whether disputes involving a non-contracting third party might come within the scope of the clause must be that, absent plain language to the contrary, the contracting parties are likely to have intended neither to benefit nor prejudice non-contracting third parties.
    (3) Where it is clear from the express terms that the contracting parties have turned their minds to the position of third parties and more particularly whether such third parties are to benefit or bear the burden of rights and obligations agreed between the contracting parties, the absence of any express language in the exclusive jurisdiction clause that provides for the application of that term in relation to claims brought by or against third parties may be an indication that the clause was not intended either to benefit or prejudice such third parties.
    (4) Where the exclusive jurisdiction clause is silent on the question, the fact that any provision in the contract dealing with third parties indicates an intention that third parties should not acquire rights as against the contracting parties by virtue of the contract, may be a further indication that the clause was not intended either to benefit or prejudice such third parties.
    (5) Where a particular interpretation of the exclusive jurisdiction clause produces a material contractual imbalance because for example it results in one party to a dispute relating to the contract being subjected to an obligation to bring proceedings in the chosen jurisdiction in circumstances where the other party to the dispute is not similarly obliged, or where that interpretation would require a claim against a non-contracting third party to be brought in the agreed jurisdiction even where the chosen forum may not actually have jurisdiction over such a claim against that party, this too may be an indication that the clause was not intended to so apply because such a result is unlikely to be what the contracting parties as rational businessmen would have agreed.
    (6) The fact that there is nothing in the contract that might indicate a rational limit in terms of the identity of non-contracting third parties whose rights and interests might be affected by the application of an exclusive jurisdiction clause might provide a further indication that the clause was only intended to affect the rights and interests of the contracting parties.
    (7) It follows that where contracting parties intend that any claim relating to the contract be subject to the exclusive jurisdiction clause even where it is one brought by or against a non-contracting party, clear words should be used expressly setting out this intention, the parties to be affected and, if relevant, the manner in which submission of any non-contracting parties to the jurisdiction of the chosen court is to be ensured."
  178. In Dell Emerging Markets (EMEA) Ltd v IB Maroc.com SA [2017] EHWC 2397 (Comm), Teare J considered whether an EJC in an international distributor agreement ("IDA") between Dell UK and IB Maroc extended to claims against Dell UK's affiliates. Clause 27 provided that claims brought by IB Maroc against "Dell or any of its affiliates" had to be brought within one year. Clause 2.5 contemplated affiliates of Dell UK supplying products under the IDA. The operation of the 1999 Act was excluded. IB Maroc sued Dell UK and Dell Maroc in Casablanca. An issue arose as to whether Dell UK was entitled to an injunction preventing IB Maroc from suing Dell Maroc. Teare J held that Dell UK was entitled to such an injunction, placing particular reliance on clause 27. As an EJC case, it was possible for IBM Maroc to sue Dell Maroc in the agreed forum.
  179. The Third Party Claim Obligation was next considered in Clearlake Shipping Pte Ltd v Xiang Da Marine Pte Ltd [2019] EWHC 2284 (Comm), a decision of Mr Andrew Burrows QC. Head and sub-voyage charterparties provided (in relevant respects) for the exclusive jurisdiction of the English court (but, notably, for LMAA arbitration for small claims), and those provisions were incorporated into the bills of lading. There were also letters of indemnity intended to allow for the delivery of cargo without production of the bills which also contained English EJCs. The head owner was sued in Singapore, and sought to bring a third party claim against its charterer (Clearlake) and the sub-charterer (Gunvor) who sought anti-suit injunctions to restrain those claims, initially on the "wholly contractual" and "quasi-contractual" bases respectively (the latter description, for understandable reasons, not meeting with the judge's approval: [25]). By the time of the hearing before the judge, injunctions were sought on the "wholly contractual" and "vexatious and oppressive" bases.
  180. At [20] the Judge said:
  181. "… [T]here is a further aspect of the law before me that is not so straightforward (although it was the application of the relevant legal principles, rather than the principles themselves, that appeared to divide the parties). This is the extent to which an exclusive jurisdiction clause in a contract (between A and B) can be enforced (by B against A) by an anti-suit injunction so as to prevent tort proceedings against a third party (i.e. by A against C) (assuming that, subject to this third party point, the tort proceedings would otherwise by covered by the jurisdiction clause)."
  182. After referring to Lord Scott's judgment in Donohue and to Team Y&R Holdings, at [23] the Judge offered his own summary of the law as follows:
  183. "(i) It is a matter for the interpretation of the jurisdiction clause whether the clause extends to cover the tort proceedings against the third party. Applying the general law of contract, the correct approach to that question of interpretation requires the application of the modern contextual and objective approach. One must ask what the clause, viewed in the light of the whole contract, would mean to a reasonable person having all the relevant background knowledge reasonably available to the parties at the time the contract was made (excluding the previous negotiations of the parties and their declarations of subjective intent). Business common sense and the purpose of the term (which appear to be very similar ideas) may also be relevant …
    (ii) If, as a matter of interpretation, the jurisdiction clause does extend to cover the tort proceedings against the third party, the contractual basis for an anti-suit injunction applies so that, as regards an application by the contracting party (B), the injunction will be granted unless there are strong reasons not to do so.
    (iii) Applying privity of contract, only the contracting party (B) and not the third party (C) can enforce the jurisdiction clause (against A) by an anti-suit injunction on the contractual basis (unless an exception to privity of contract applies). But the jurisdiction clause may be a relevant factor in granting the third party (C) an anti-suit injunction on the alternative basis that the foreign proceedings are vexatious or oppressive. (It is also presumably possible in certain circumstances that the jurisdiction clause, even though not contractually enforceable by the contracting party (B) in favour of the third party (C), may be a relevant factor in granting the contracting party (B) an anti-suit injunction against the other contracting party (A) on the basis that the foreign proceedings are vexatious or oppressive.)".
  184. At [24], he stated:
  185. "Absent express words as to the jurisdiction clause extending to claims against non-parties, the starting point in interpreting a jurisdiction clause (covering, let us say, 'all disputes arising out of the contract') will be that only the parties to the contract are covered. But I also agree with Lord Scott in the Donohue case that, where one has an alleged joint tort committed in relation to a contract by a contracting party and a non-contracting party, the objective interpretation of the jurisdiction clause (covering all disputes 'arising out of the contract') will tend to include a tort claim against the non-party because this will help to prevent forum-fragmentation on essentially the same issues."
  186. I have referred to my difficulty with Lord Scott's "joint tortfeasor" analysis at [115] above. Those difficulties are reinforced in Clearlake by the fact that, for claims below a certain value, the parties had agreed to LMAA arbitration, where forum fragmentation is inevitable. In an obiter passage, the Judge considered whether Clearlake was entitled to an interim injunction to prevent Gunvor being sued. He did not express a concluded view, but at [36]-[37] stated:
  187. "This raises the interesting question of interpretation discussed in paragraphs 20 to 24 above. The exclusive jurisdiction clause is in the Clearlake charter … The question is whether the reference in the exclusive jurisdiction clause to disputes arising out of the charter, on its correct interpretation, can apply to the claims by Xiang Da against Gunvor for tortious misrepresentation …
    I have set out, in paragraph 23 above, the correct approach to this question of interpreting the jurisdiction clause in the Clearlake charter. In this case, the application of that law (i.e. the question of contractual interpretation raised) does not admit of an easy answer. At root, one is asking whether Clearlake and Xiang Da objectively intended that Xiang Da's tortious misrepresentation claims against Gunvor should be covered by that jurisdiction clause. The starting point in answering that is that, not least because there is no express reference to Gunvor, the clause does not extend to cover (tort) claims against Gunvor. But as against that there are the following five factors:
    (i) The misrepresentation claims against Gunvor may be said to constitute 'a dispute arising out of this charter'. The alleged misrepresentations arose in relation to the performance of the Clearlake charter.
    (ii) There is nothing in the Clearlake charterparty expressly indicating that the jurisdiction clause should not apply in relation to Xiang Da's tort claims against Gunvor.
    (iii) There is a close relationship between Clearlake and Gunvor. Both are part of the Gunvor Group and Clearlake is the chartering arm of the group. In that role, it had a long-term contract of affreightment with Gunvor and it was pursuant to that contract that the Gunvor sub-charter was entered into.
    (iv) It is clear that, had Clearlake been sued by Xiang Da for the tort of misrepresentation in relation to the Clearlake charter, that would have been caught by the exclusive jurisdiction clause. Similarly, had Xiang Da sued both Clearlake and Gunvor for the (same) misrepresentations, it would appear that the jurisdiction clause would have applied not only as regards Clearlake but also as regards Gunvor. If that is correct, it is not clear that it can make a significant difference that Xiang Da has chosen to sue only Gunvor for misrepresentation and not Clearlake.
    (v) Clearlake has an interest in the proceedings by Xiang Da against Gunvor. This is because, for at least two reasons, there is potential prejudice to Clearlake if the claim by Xiang Da against Gunvor goes ahead in Singapore. First, if Gunvor is found liable to Xiang Da, there is a realistic prospect of Gunvor having a contribution (or indemnity) claim against Clearlake as a joint and several tortfeasor. It is therefore of importance to Clearlake that the English courts make the determination of Gunvor's tort liability to Xiang Da. Secondly, I have decided on issue (1) above (see paragraphs 27-32) that Xiang Da's claims against Clearlake based on the re-documentation letter of indemnity should be heard in England not Singapore. There is a close link between those claims and the tort claim brought by Xiang Da against Gunvor and it is in the interests of Clearlake to avoid forum-fragmentation (and the waste of resources involved) by having all third party proceedings (by Xiang Da against Clearlake and Gunvor) heard in the same jurisdiction (i.e. England)."
  188. Even leaving aside the LMAA complication, the attempt to construe the words "the High Court in London shall have exclusive jurisdiction over any dispute which may arise out of this Charter" as including a negative covenant not to sue third parties in certain circumstances in any other fora by any conventional process of contractual interpretation seems distinctly heroic. That does not preclude that outcome being reached by an unconventional process of construction, reflecting the particular policy issues at play (cf [112] above).
  189. The first case to address the Third Party Claim Obligation in an avowedly arbitral context appears to have been EuroChem North-West-2 v Tecnimont [2023] EWCA Civ 688. EuroChem had engaged Tecnimont as contractors, with Tecnimont procuring the issue of performance bonds by banks in EuroChem's favour. The works contract between EuroChem and Tecnimont had an ICC arbitration clause, the bonds English EJCs. EuroChem obtained anti-suit relief to prohibit Tecnimont commencing proceedings in Spain and Italy with a view to preventing the banks paying on the bonds, on the basis that it breached the EJC or the ICC arbitration clauses. The claim in relation to the EJC was rejected on the basis that Tecnimont was not a party to the bonds ([2022] EHWC 2444 (Comm), [13]) but it was held that the relevant proceedings had been brought in breach of the arbitration agreement, and injunctive relief granted on that basis. One of the reasons why payment had not been made under the bonds as it should have been was that an Italian court in separate proceedings had held that an Italian EuroChem subsidiary was controlled by sanctioned persons. The Italian subsidiary applied to the Italian court to set that finding aside, and Tecnimont applied to intervene in the proceedings to oppose that application. The issue then arose as to whether that application was a breach of the anti-suit injunction.
  190. The Court of Appeal, by a majority, upheld the first instance judge's conclusion that it was. That judgment was premised on the interpretation of the court's order, but the Court considered (obiter) whether the intervention also breached the London arbitration agreement. Carr LJ addressed this issue at [60]-[64]:
  191. " … EuroChem NW and Tecnimont agreed to refer to arbitration '[a]ny Dispute arising between [EuroChem NW] and [Tecnimont] in relation to this Contract or in any way connected therewith'. 'Dispute' was defined as 'any question, dispute or difference arising out of or in connection with this Contract including any dispute as to its existence, validity, interpretation, performance, breach or termination or the consequences of its nullity (each a 'Dispute')'. The clauses are thus drafted very broadly, and in any event are to be construed widely.
    It is common ground that any cause of action between EuroChem NW and the Appellants concerning the enforceability of the Bonds falls within the scope of the London arbitration clauses (to which EuroChem NW and Tecnimont were bound). It appeared during the course of the appeal hearing also to be common ground that the ownership/control issue (centrally) in dispute between Tecnimont and EuroChem NW in the Arbitration and Bank Proceedings was also (centrally) in dispute between Tecnimont and EuroChem Agro in the Italian Proceedings.
    The definition of 'Dispute' makes it clear that a 'Dispute' is not limited to separate formal proceedings or claims, but extends to mere questions or differences between the parties. The ownership/control issue is such a question or difference. Its outcome concerns, amongst other things, whether the Banks are liable to pay under the Bonds. Put simply, the 'Dispute' arises between EuroChem NW and Tecnimont in relation to or in connection with the Contracts. The fact that EuroChem NW was not party to the Italian Proceedings does not mean that EuroChem NW and Tecnimont are not to be taken as having agreed that the ownership/control issue (which relates to EuroChem AG and its subsidiaries) was to be litigated only in accordance with the London arbitration clauses, and not otherwise.
    The conclusion sits entirely comfortably with the notion that these commercial parties would not have intended the same issue to be litigated here and abroad in different tribunals. As the Judge put it at [43], such proliferation of proceedings would be inimical to Tecnimont's agreement to resolve its disputes with EuroChem NW solely by means of London arbitration. It is to be remembered that the sole reason provided for Tecnimont's participation in the Italian Proceedings was its involvement in the Arbitration and Bank Proceedings. At the fundamental core, Tecnimont was seeking to litigate in Italy the very issue that it had agreed with EuroChem NW to address exclusively in London arbitration proceedings."
  192. Lewison LJ agreed with that judgment, but with some circumspection, stating at [127]:
  193. "On the second of these questions there is, I accept, more room for doubt. Although the ownership/control issue is the same in the Italian proceedings as in the Arbitration Proceedings, it could be said that in the Arbitration Proceedings the issue arises as between Tecnimont and EuroChem NW, whereas in the Italian Proceedings it arises as between Tecnimont and EuroChem Agro. Tecnimont agreed to arbitrate its disputes with EuroChem NW. It made no such agreement in respect of its disputes with EuroChem Agro. But that very strict interpretation of the arbitration agreement ignores the underlying reality. There is no evidence that Tecnimont has any real dispute with EuroChem Agro. Its position in the Italian proceedings is no more than a cover or façade for the real dispute which is between it and EuroChem NW. The Italian Proceedings are no more than a vehicle by which it hopes to engage in a proxy war with EuroChem NW. In my judgment the scope of the ASI was justified."

    The reasons for his conclusion have echoes of the types of consideration frequently invoked in applications for anti-suit injunctions on vexatious and oppressive grounds.

  194. The concern which Lewison LJ referred to is considerably reinforced by the subsequent decision of the Supreme Court in Mozambique v Credit Suisse International [2023] EWCA UKSC 32 when considering whether a stay should be granted under s.9 of the Arbitration Act 1996 in relation to one of the issues in that complex litigation on the basis that it was a matter which the parties had agreed to arbitrate. At [75], Lord Hodge said "if the 'matter' is not an essential element of the claim or of a relevant defence to that claim, it is not a matter in respect of which the legal proceedings are brought", which requires "something more than a mere issue or question that might fall for decision in the court proceedings or in the arbitral proceedings." At [79]-[80], the Supreme Court approved Blair J's judgment in ACP v Sacyr SA [2017] EWHC 2228 (Comm) that the question of whether the principal debtor was liable to the creditor, which arose both in the arbitration between them under the construction contract and in proceedings by the creditor against the bank under a guarantee, was not the same "matter" and the parties had not agreed it would only be determined in arbitration, including as between the creditor and the bank. In my view, the Supreme Court's judgment has significant implications for the reasoning in Tecnimont, at least in its broader formulation.
  195. That brings me, finally, to Renaissance Securities (Cyprus) v Chlodwig Enterprises [2024] EWHC 2843 (Comm) and on appeal [2025] EWCA Civ 369. The case has many similarities with the present case. The defendant sued the claimant in Russia for the return of assets held by the claimant under certain investment service agreements. The claimant had refused to return those assets on the basis that the defendant was sanctioned. In addition to suing the claimant in Russia, the defendant also sued various affiliates of the claimant on the basis of what HHJ Pelling KC described as Russian law "delictal claims for damages based on contract claims that the Second and Sixth Defendants have against Renaissance" (Com Ct [1]). The investment agreements with the claimant contained LCIA arbitration agreements. It is apparent from the first instance judgment that, as here, the Russian claims involved treating the claimant and the affiliates as a single entity liable for each other's debts, with reference to Article 180 of the Russian Civil Code. At [34]-[39], the Judge undertook a close textual analysis of the arbitration agreement and the surrounding contract, placing particular reliance on the exclusion of rights under the 1999 Act, and concluded that the arbitration agreement did not involve a Third Party Claim Obligation.
  196. In the appeal against that decision, the thrust of Mr Gilmore's argument for the appellant was that the effect of the LCIA arbitration agreement was not to require the defendant to arbitrate against the affiliates, but to preclude the defendant from suing them for joint and several liability elsewhere than in arbitration. The argument was based on an obligation said to arise as an implied term of the arbitration agreement.
  197. Singh LJ was not persuaded, noting at [44]
  198. " The fundamental difficulty in the way of this line of argument, in my view, is that it requires the court to imply a negative obligation into the terms of the agreements which is simply not there. It may well be that, considered with hindsight, it would have been preferable (certainly from the Appellant's point of view) if the parties had agreed to include such a term in their agreement but the fundamental problem is that they did not. As is well-established, the function of the court is to construe the agreement which the parties have in fact reached rather than to impose an agreement upon them which it might have been better, particularly with hindsight, for them to reach."

    Singh LJ then went on to address the possibility of anti-suit relief on the vexatious and oppressive basis, a subject with which I deal below.

  199. Males LJ addressed the issue at [77]-[78], stating:
  200. "Although the Respondents characterise those proceedings as involving an independent claim between Russian companies under Russian tort laws, closer examination suggests that this characterisation is at best incomplete. The supposedly wrongful conduct on which the Russian claims are founded appears to be the failure of the companies within the Renaissance group to procure the transfer of the assets held by the Appellant to a Russian entity within the group which would not be subject to western (including UK) sanctions. But the Appellant could not have effected such a transfer without breaching those sanctions. In other words, the Respondents' essential complaint is that the Appellant failed to act in a way which would itself have involved a breach of sanctions (i.e. would have been illegal under English law), and that this somehow gives rise to joint and several liability on the part of other companies within the group.
    This may be a valid claim under Russian law. I am prepared to assume that it is. But its artificiality, viewed as a matter of English law, which is the law applicable to the relationship between the parties, is obvious. Its only purpose is to circumvent the parties' arbitration clause. It seems to me to be at least arguable in these rather distinctive circumstances that it is necessary for business efficacy, and is so obvious that it goes without saying, to imply a term that the Respondents would not circumvent the arbitration clause in this way. The Judge concluded at para 40 that the arbitration clause does not apply to claims against either party by a non-party. But the issue here is whether the clauses apply to artificial claims against one party's affiliate by the other party, whose only purpose is to circumvent the obligation to arbitrate. That is a rather different issue. However, as resolution of this issue cannot affect my decision that no injunction should be granted for the reason already stated, I would prefer to leave this point open for decision, if it arises, in a case where it will be decisive."
  201. Phillps LJ preferred not to express a view in circumstances, particularly given the unsatisfactory state of the evidence before the court ([79]).
  202. The construction argument

  203. Beyond the width of the connecting language used, there is nothing in the UMAA and CA Arbitration Agreements to suggest that they limit one party's right to bring proceedings against certain third parties and/or for certain types of claim. The inevitable need for nuance in the content of a Third Party Claim Obligation in both these respects makes it impossible to derive an obligation of this type from the bare assertion that the disputes between VTB and the non-party affiliates "arise out of" or are "connected with" the relevant contract, or raise the same issue or question as one which arises between the contracting parties. Ms Hutton KC relied on the width of the language used, but that is more naturally concerned with the types of inter partes disputes which can be arbitrated. It would, I suspect, come as a considerable surprise to arbitrating parties that the use of wide connecting factors had brought with it an implied covenant not to pursue third party claims available to them. In any event, taken to its logical conclusion this argument would preclude numerous claims of a kind it is generally accepted an arbitrating party can pursue in court against third parties to the arbitration agreement: see [106]-[109] above. There is no provision similar to clause 27 of the IDA in the Dell Emerging Markets case to suggest that the broadly drafted reference to disputes in the relevant arbitration agreement extends to disputes between a signatory and some non-signatories, and that construction is more difficult in the context of an arbitration agreement than an EJC, because its effect may well be to prevent any claim at all.
  204. Mr Fenwick KC sought to bolster that argument by references to various provisions in the two agreements of which the UMAA and CA Arbitration Agreements formed part:
  205. i) In the UMAA, the confidentiality clause with its reference to associated companies (clause 6); the clause regulating assignment (clause 13.3) and the entire agreement clause (clause 13.6).

    ii) In the Client Agreement, the references to affiliates in various clauses but not the arbitration agreement; the scope of the general exclusion (clause 24); the clauses precluding assignment (clauses 35 and 36) and the exclusion of the 1999 Act (clause 35).

  206. If it had been possible to derive from the terms of these agreements an obligation which specifically and directly addressed third party claims intended to circumvent the agreement to arbitrate disputes arising between the parties, or the use of a claim against a third party as no more than a proxy for the pursuit of such a claim in a non-contractual forum, then I rather doubt that these provisions of what are largely legal boilerplate would themselves be sufficient to rebut it. Indeed, on such a fundamental issue, some of the textual arguments have unwelcome echoes of the pre-Fiona Trust approach to the construction of arbitration agreement deprecated by Lord Hoffmann at [11]-[12]. However, they make the task of finding such an obligation as a matter of interpretation of the express terms alone still more challenging.
  207. What of the 2017 Terms? Viewed on its own, I am not persuaded any different outcome follows from the 2017 Terms Arbitration Agreement. However, there is clause 32.5 to consider. There is a strong argument that the "affiliates" issue has been addressed by giving affiliates their own claims (rather than the 2017 Terms Arbitration Agreement on its proper construction involving a promise by VTB to the three JPM Entities who are directly parties to those terms not to sue other Affiliates). There is also the issue, so far as the UMAA and Client Agreement Claims are concerned, of whether the hierarchy clauses would prevent any promise to JPMCB and JPMS plc under the 2017 Terms not to sue other affiliates taking effect, if the UMAA and Client Agreement Arbitration Agreements did not themselves impose such an obligation. I have not heard argument on these issues, and in the circumstances have not addressed them further, given my conclusion that the affiliates have their own rights under the 2017 Terms.
  208. An implied term

  209. Any implied term analysis usually best starts with a formulation of the term to be implied. In this case, the closest the hearing came to that was Males LJ's comment (which was clearly not an attempt at formulation, but a mere outlining of a potential argument) at [78] of Renaissance Securities, where he refers to "a term that the Respondents would not circumvent the arbitration clause in this way" and "to artificial claims against one party's affiliate by the other party, whose only purpose is to circumvent the obligation to arbitrate."
  210. I share Males LJ's instinctive attraction to an implied term analysis, and if a term could appropriately be formulated, it might well be one which would fall to be implied as a matter of law to reflect the important English public policy referred to at [112]. I also doubt that the provisions referred to at [137] would themselves be capable of precluding that implication. Like quasi-contractual anti-suit injunctions, I can also see the benefits of giving relief in the appropriate circumstances a contractual foundation (cf [111]).
  211. However, despite my best efforts, I have been unable to formulate an acceptable term, reflecting the very nuanced nature of the issue, and the very real risk of any formulation "over-reaching" and extending to conduct of a kind which most English lawyers would regard as legitimate, or which would at least offer scope for debate. By way of a non-exhaustive list of some of the difficulties which arise:
  212. i) The width of the concepts of "circumventing" an arbitration agreement or the "artificiality" of a claim are inherently disputatious. A litigating party may carefully choose which claims to advance in court proceedings in an effort to avoid a s.9 stay application. There are many species of claim which involve bringing proceedings against someone who is not the natural defendant – "parent trap" cases, or those rare cases in which a corporate veil can be pierced, or where a director can be made liable for the torts of a company.

    ii) The attempt to use the purpose of the foreign proceedings, and in particular a requirement of "sole" purpose, to determine which claims against third parties can and cannot be pursued presents a number of potential difficulties, particularly when other credible reasons can be offered for the desire to sue the third party including deeper and more readily accessible pockets or a more favourable applicable law. Mr Fenwick KC advanced a number of similar arguments here.

    iii) It is very difficult within an implied term analysis to allow for the extent to which the basis of liability in the foreign proceedings is or is not consistent with generally accepted principles of civil liability, and yet the court's sense of this matter is likely to be a significant factor in framing its response.

    iv) The concept of who and who does not constitute an "affiliate" (if that is to be an element in the implied term) is also inherently disputatious, and may also overreach where different companies in the same group are performing different functions and there are legitimate criticisms to be made of each (e.g. where one corporate group includes a marketing entity which makes pre-contractual statements but other entities who sell products or provide services).

    v) There is also the complexity of how the implied term operates in the context of agreements to arbitrate on arbitral institution rules which include "forced joinder" provisions. Are there implied obligations on the parties to seek to facilitate the joinder to the arbitration of their affiliates against whom the other party wishes to claim?

  213. Ultimately, the question of whether to order relief in these circumstances is one which inherently requires a multi-factorial assessment, reflecting the interplay of different factors which may have more or less weight in different combinations. An exercise of that kind can readily be performed if the court is asked to grant relief on the vexatious and oppressive basis, but I have found it too difficult to capture it within the constraints of an implied term. An implied term which amounted to no more than an obligation not vexatiously and oppressively to sue third parties would simply dress up the court's evaluation of any particular case in contractual clothing. It would also turn what in conception and execution is a discretionary jurisdiction into an absolute contractual obligation, with all that follows, and make the availability of such injunctions depend on the applicable law of the arbitration agreement.
  214. It follows that I have been unable to conclude that any of the Arbitration Agreements in this case include some form of Third Party Claim Obligation as an implied term.
  215. F THE APPLICATION TO RESTRAIN CLAIMS ON THE "VEXATIOUS AND OPPRESSIVE" BASIS

    The relevant principles

  216. The principles for the granting of anti-suit relief on the vexation and oppression basis are summarised by Males LJ in SAS Institute Inc v World Programming Ltd [2020] EWCA Civ 599 at [90]-[91], [103] and [108]:
  217. i) The basic principle is that the jurisdiction is to be exercised "when the ends of justice require it".

    ii) Established categories of case where an injunction may be appropriate (which may overlap) include cases where an injunction is necessary to protect the jurisdiction of the English court and cases where the pursuit of foreign proceedings is regarded as vexatious or oppressive, but the jurisdiction is not confined to these categories and must be applied flexibly.

    iii) Great caution must be exercised before such an injunction is granted, at any rate in cases where the injunction is not sought in order to enforce an arbitration or exclusive jurisdiction clause, because of the requirements of comity.

    iv) When an anti-suit injunction is sought on grounds which do not involve a breach of contract, comity, telling against interference with the process of a foreign court, will always require careful consideration.

    v) Comity requires that in order for an anti-suit injunction to be granted, the English court must have "a sufficient interest" in the matter in question. Often that sufficient interest will exist by reason of the fact that the English court is the natural forum for the determination of the parties' dispute. In a case where the injunction is sought in order to protect the jurisdiction or process of the English courts, the existence of a sufficient interest will generally be self-evident.

  218. It has been noted that the categories of factors which may amount to vexation and oppression are not closed (Elektrim SA v Vivendi Holdings EWCA Civ 1178, [83]).
  219. Even in cases in which injunctive relief is not sought on a contractual or quasi-contractual basis, the fact that the foreign proceedings involve the circumvention of an agreement for arbitration with an English seat, or an English EJC, can itself be relevant in determining whether the commencement and pursuit of the foreign proceedings is vexatious and oppressive, as well as establishing the necessary "sufficient interest" of the English court to act. In Clearlake Shipping Pte Ltd v Xiang Da Marine Pte Ltd [2019] EWHC 2284 (Comm), Andrew Burrows QC relied upon the EJCs in the head and sub-voyage charterparties and the bills of lading, which pointed to England as "the natural forum" ([34(i)], and found that Xiang Da had "manipulated its third party claims to try to avoid being caught by the exclusive jurisdiction clause in the Clearlake charter", the claim being a "procedural manoeuvre designed to evade the exclusive jurisdiction clause" ([34(ii)]).
  220. The second of those considerations featured prominently in Renaissance Securities. At [55], Singh LJ stated that he saw "some force in the submission made by Mr Paul Lowenstein KC for the Appellant that the proceedings in Russia … are vexatious and oppressive" even if not in breach of the arbitration agreements, because "they do appear to be designed to circumvent and undermine the effect of those agreements." At [56] he identified three reasons why the court should be prepared to contemplate granting an anti-suit injunction in that case:
  221. i) to protect the integrity of the arbitral process;

    ii) to protect the integrity of the orders made by courts of this jurisdiction, in particular the anti-suit injunctions made by of Dias J and Henshaw J; and

    iii) to protect the public policy of the United Kingdom in having the sanctions regime which it does.

  222. In relation to that last point, at [59], Singh LJ referred to the following passage in HHJ Pelling KC's judgment in Barclays Bank plc v PJSC Sovcombank [2024] EWHC 834 (Comm), [25]:
  223. "It might have been said on behalf of the defendants or Sovcombank at any rate that commencing proceedings in England deprives them of a legitimate juridical advantage because the Russian courts will disregard as a matter of public policy the sanctions laws imposed by English law. If and to the extent that is relied upon then, in my judgment, it is a proposition to be rejected. The parties having agreed English law, to attempt to litigate in a foreign jurisdiction where full effect is not given to English law including therefore sanctions law is not to seek to obtain a legitimate juridical advantage but, on the contrary, is to seek to obtain an illegitimate juridical advantage, a point which has been recognised in the case law as a reason for treating a claim brought in such a jurisdiction as vexatious and oppressive."
  224. At [60] Singh LJ said he agreed "with the principle which lies behind that passage" which was not "confined to cases in which the parties have agreed that English law should apply to their dispute because, in my judgment, for a party to seek to circumvent the sanctions regime of this country is to seek an 'illegitimate juridical advantage'." However, he did not reach a final conclusion on the "vexatious and oppressive" anti-suit application due to evidential uncertainties as to whether the appellants still had a sufficient interest in the application (there having been company sales in the period since the first instance judgment). That was also the view of Males LJ, who said that for that reason "it is unnecessary to decide whether an injunction should be granted on the ground that the proceedings brought by the Respondents … in Russia are vexatious and oppressive" but that "at first sight, there appears to be a powerful case that they are".
  225. Singh LJ's judgment refers to the illegitimate advantage which a party who has agreed that English law will apply to a dispute would obtain by commencing proceedings in another jurisdiction where a different law would apply. Where the application of foreign law to a particular dispute is exorbitant and unnatural, this can be a factor supporting anti-suit relief, although the mere fact that the content of the foreign law which will be applied is different to English law will not (Thomas Raphael KC, The Anti-Suit Injunction (2nd), [5.30]-[5.31]). The interest of the English courts in the protection of contractual rights governed by English law is also manifest in the rule of public policy in Adams v National Bank of Greece SA [1961] 1 AC 255, by which retrospective legislation in the country of the debtor's domicile was held to be incapable of discharging an obligation governed by English law.
  226. The UMAA and Client Agreement Claims

  227. I am satisfied that the commencement and pursuit of both of these claims is vexatious and oppressive, and, subject to issues going to the court's discretion more generally which I address below, should be restrained by anti-suit relief:
  228. i) It is necessary to consider the claims asserted in the UMAA and Client Agreement Claims as a matter of substance, categorising them as a matter of English law by analogy with the cases referred to at [110] above. So analysed, they are attempts to recover amounts said to be due under contracts governed by English law. In their substance, the Russian law tort claims are an attempt to enforce inherently contractual obligations in an inherently contractual way.

    ii) I am satisfied that the pursuit of those claims in Russia is intended to circumvent the UMAA and CA Arbitration Agreements, the rules of English law which would apply in that context, and more generally the English law sanctions regime. In doing so, VTB is seeking to obtain an illegitimate juridical advantage (namely avoiding the laws of England and Wales including the UK sanctions regime) and is undermining the efficacy of that regime. Mr Fenwick KC suggested that, taken as a general proposition, Singh LJ's reference to the significance of any circumvention of the English law sanctions regime "cannot stand because to circumvent the sanctions regime of this country is something which is either a breach of the sanctions regime or not". However, I accept that such a circumvention is a relevant factor which forms part of the overall assessment of whether a claim is vexatious and oppressive, even though there is no absolute rule that such claims are always vexatious and oppressive. The ability to take a factor into account without making it determinative is one of the benefits of approaching this issue on the basis of the "vexatious and oppressive" jurisdiction rather than as an implied term.

    iii) The provisions of Russian law used to impose liability on non-parties to the UMAA and Client Agreement do not accord with generally recognised principles of civil law. The claim in tort for failure to pay a debt and a tortious obligation imposed on all companies in the same corporate group regardless of any involvement in the transaction to take steps to require a debtor to pay are an unnatural form of liability as a matter of general principles of civil law. Further, the claims involve the wholesale disregard of corporate personality and contractual privity, by reference to special legal principles developed in response to international sanctions. As a result, the inevitable consequence of the pursuit of the Russian proceedings is the application of an "unnatural law" to these trading relationships governed by English law.

    iv) The effect of the Russian legal principles developed in response to sanctions is to purport to make a significant retrospective change to English law obligations, in particular as to the identity of the parties to those obligations, but also as to the circumstances in which payment is required.

    v) The matters in (ii) to (iv) establish a sufficient interest of the courts of England and Wales for the purposes of granting anti-suit relief.

    vi) Taking account of all of these factors, I have come to the conclusion that the UMAA and Client Agreement claims are vexatious and oppressive both as regards JPMS plc and JPMCB, and also as regards the other JPM Entities joined to them. In particular, it is vexatious and oppressive to JPMS plc and JPMCB to pursue an affiliate such as JPM Russia, in the circumstances I have outlined, bringing what are in substance claims to enforce obligations arising under agreements to which JPMS pls and JPMCB are parties, but otherwise than in accordance with the applicable law and dispute resolution provisions and as a means of circumventing sanctions which apply to the amounts payable in connection with the UMAA and Client Agreement.

    The ISDA Claim

  229. As I have stated, the effect of anti-suit relief granted by the Russian court is that the Claimants cannot rely, and do not rely, for the purposes of the application before me on the ISDA Arbitration Agreement. I have assumed, for the purposes of this judgment, that that externally imposed limitation prevents reliance on the ISDA Arbitration Agreement as a reason why those proceedings are vexatious and oppressive, and that the case of the various JPM Entities is that those proceedings are vexatious and oppressive for other reasons.
  230. That brings something of an artificial quality to this part of the case. However, I can see no reason why the fact that a party would, if free to avail themselves of it, be able to seek a "wholly contractual" anti-suit injunction (in JPMS plc's case) prevents an application for relief on some other basis. English law does not generally limit a party with a contractual claim to a particular form of relief to the pursuit of that claim where relief can also be obtained on some other legal basis, a "non-cumul" approach which Lord Goff famously described as succumbing to the "temptation of elegance" (Henderson v Merrett Syndicates Ltd (No 1) [1995] 2 AC 145, 186). Still less is there any reason why the other JPM Entities should not seek a vexation and oppression anti-suit injunction but without relying on a particular factor which might otherwise be relied upon in support of the contention that the proceedings are vexatious and oppressive.
  231. In this case, the chronology of events is of some importance:
  232. i) JPMS plc notified VTB of the close out of the ISDA Master Agreement and its intention to set-off the balance as early as 28 February 2022, providing its calculations on 24 March 2022.

    ii) On 24 March 2022, VTB notified JPMS plc of its calculation of EUR 108,636,829.56 in its favour, providing supporting material. However, in responding to JPMS plc's calculations of the net balance due under the Client Agreement of 20 April 2022 (arrived at using JPMS plc's ISDA calculation), VTB assumed the correctness of JPMS plc's ISDA figure and its reducing effect on the Client Agreement Claim (letter of 25 May 2022).

    iii) Thereafter VTB took no steps to indicate it was challenging JPMS plc's ISDA calculation.

    iv) The Client Agreement Claim commenced by VTB still assumed the correctness of JPMS plc's ISDA calculation (if VTB had been maintaining its own calculation, there would have been no net balance for JPMS plc to deduct).

    v) In the face of that apparent acceptance of JPMS plc's ISDA calculation, it is not surprising that the anti-suit relief sought by JPMS plc and JPMCB from this court did not expressly refer to the ISDA Master Agreement. However, the court's order was expressed in terms, prohibiting VTB from taking any step to pursue, prosecute or progress "any other proceedings in any court or tribunal concerning any dispute arising out of or in connection with" the Client Agreement and the UMAA "otherwise than through LCIA arbitration" and from "seeking any interim or conservatory order of relief or remedy or measure" inconsistent with the relevant Arbitration Agreement or the Claimant's steps to enforce that agreement.

    vi) On 11 March 2025, VTB's solicitor Mr Riem confirmed that "VTB does not dispute the calculation of the sums held on its behalf by JPMS and JPMCB" and did not dispute JPMS plc's calculations or the set-off.

    vii) Three days later, the ISDA Claim was begun. By asserting that there was a balance due in VTB's favour in relation to the ISDA Master Agreement, VTB was necessarily challenging JPMS plc's position that the Client Agreement balance fell to be reduced by an USD 11.7m credit in JPMS plc's favour. It is not necessary to decide whether there was a breach of the injunctions made by this court, but the commencement of those proceedings at that time and in those circumstances was contrary to the spirit of the court's order.

  233. Against that background, I am satisfied that the commencement and pursuit of the ISDA Claim is vexatious and oppressive, even if no regard is had to the ISDA Arbitration Agreement:
  234. i) In the circumstances referred to in the previous paragraph, the claim appears to involve an opportunistic volte face by VTB in circumstances in which its previous approach to the ISDA Master Agreement was to suggest that there was no live dispute as to the amount due.

    ii) I am satisfied that an injunction is necessary to maintain the integrity of the orders of Andrew Baker J and Calver J.

    iii) Once again, I am satisfied that the claims asserted in the ISDA Claim are, in substance, attempts to recover amounts said to be due under a contract governed by English law.

    iv) The pursuit of those claims in Russia is intended to circumvent the rules of English law which apply to claims under the ISDA Master Agreement and to obtain an illegitimate juridical advantage (namely avoiding the UK sanctions regime), and undermine the efficacy of that regime.

    v) The provisions of Russian law used to impose liability on non-parties to the ISDA Master Agreement do not accord with generally recognised principles of civil law for the reasons I have already given.

    vi) Once again, the effect of the Russian legal principles developed in response to sanctions is to purport to make a significant retrospective change to English law obligations, in particular as to the identity of the parties to those obligations, but also as to the circumstances in which payment is required.

    vii) The matters in (ii) to (iv) and (vi) establish a sufficient interest of the courts of England and Wales for the purposes of granting anti-suit relief.

    G SHOULD THE COURT REFUSE TO MAKE THE INJUNCTION IN THE EXERCISE OF ITS DISCRETION?

  235. For the reasons I have set out, I am satisfied that it is in principle appropriate to grant the injunctions sought:
  236. i) So far as the JPM Entities are concerned, with the exception of JPM Russia for all claims and JPMS plc's claim in respect of the pursuit of the ISDA Claim against it, primarily on a "wholly contractual" basis, with an alternative finding on the "vexation and oppression" basis.

    ii) So far as JPM Russia and JPMS plc's claim in respect of the pursuit of the ISDA Claim against it are concerned, on the "vexation and oppression" basis.

  237. In these circumstances, certainly so far as [156(i)] is concerned, the court will grant anti-suit relief unless there are strong reasons not to do so (Ust-Kamenogorsk Hydropower Plant JSC v AES Ust-Kamenogorsk Hydropower Plant LL [2013] 1 WLR 1889, [25]). In any event, having concluded that the pursuit of the proceedings in [156(ii)] is vexatious and oppressive, it would require cogent reasons for it not to be just and convenient to grant the relief sought.
  238. I can deal with various reasons why it is said that the court should refuse to make and/or discharge the injunctions shortly.
  239. First, it is said that the Correspondent Account Claim will continue anyway, and that the JPM Entities have engaged in those proceedings before the Russian court to a significant degree. However:
  240. i) Those are separate proceedings, concerning a different relationship centred on an account with a New York branch of JPM subject to New York law and jurisdiction.

    ii) JPMCB obtained anti-suit relief in respect of the Correspondent Account Claim, which was brought and is being pursued in breach of contract, but JPMCB was forced by an order obtained by VTB from the Russian court in breach of the promises it had made to discharge the New York court's order. As District Judge Lorna G Schofield's order of 15 August 2024 recites, the "plaintiff represented that it was coerced into filing a motion to discontinue".

    iii) Only JPM Russia (which had little alternative) has submitted to the jurisdiction of the Russian court, as VTB accepts.

    iv) Given their separate subject-matter, and the discreditable circumstances in which they have come to be issued and remain in being, the fact of these proceedings provides no reason not to give relief in relation to three separate sets of proceedings subsequently commenced by VTB in relation to three different contracts with different applicable law and dispute resolution clauses.

    v) In any event, one consequence of the parties having separate jurisdiction clauses for the Correspondent Account and the contracts in issue here with different forum selection clauses was that disputes relating to these different relationships were always going to be tried separately, and the parties clearly contemplated and accepted this (albeit they contemplated those different tribunals would be the New York courts and LCIA arbitration). In these circumstances, ex-post "dispute fragmentation" concerns carry little weight.

  241. Second, VTB suggests that there was delay seeking injunctive relief, placing particular reliance in this regard on the fact that certain actions were taking place in the Correspondent Account Claim during the period between the commencement of the UMAA and Client Agreement Claims and the application for injunctive relief. I am not persuaded that there was any unreasonable delay in this case and, in any event, the period of time which elapsed before the applications for anti-suit injunctions did not involve any significant progress in the Russian proceedings to be injuncted:
  242. i) The UMAA and Client Agreement Claims were issued on 7 October 2024.

    ii) On 11 October 2024, JPM Russia made a further attempt to appeal the order dismissing its counterclaim, by way of an appeal to the Court of Cassation (i.e. a second appeal). That application did not in any way relate to the UMAA and Client Agreement Claims, and is of no relevance to the issue of whether JPMCB and JPMS plc responded promptly to those claims. It did not involve the progression of the claims which are the subject of these anti-suit applications.

    iii) On 24 October 2024, judgment on the merits was entered against the various JPM entities in the Correspondent Account Claim and on 25 November 2024, various of the JPM entities, including JPMCB, JPM Russia and JPMS plc, filed an appeal against that judgment. Once again that application did not in any way relate to the UMAA and Client Agreement Claims, and is of no relevance to the issue of whether JPMCB and JPMS plc responded promptly to those claims.

    iv) These applications were brought on 12 December 2024, by which date there had been no preliminary hearing in either the UMAA or Client Agreement Claims.

  243. It will be apparent that the applications for anti-suit relief were made at an early stage in the relevant Russian claims and before there had been submission to jurisdiction, the later stage often being something of a Rubicon in this context (A v B [2020] EWHC 3657 (Comm), [36]). In considering the period of time before the anti-suit injunctions were sought, it is also relevant to consider JPMCB's prior experience of obtaining anti-suit relief in respect of the Correspondent Account Claim, and the potential risks in such an application which would need to have been carefully weighed up (cf Bayerische Landesbank v RusChemAlliance LLP [2025] EWHC 924 (Comm)).
  244. There are a series of further points I can deal with briefly:
  245. i) Criticism is made of the fact that none of the JPM Entities has commenced arbitration against VTB. However, these are contractual applications to enforce the negative covenant in the arbitration agreements not to issue proceedings elsewhere, or to restrain the vexatious and oppressive pursuit of litigation elsewhere. There is no requirement for the JPM Entities themselves to commence arbitration (see in the former context Ust-Kamenogorsk Hydropower Plant JSC v AES Ust-Kamenogorsk Hydropower Plant LL [2013] 1 WLR 1889, [48]).

    ii) It is said that VTB would be deprived of the interim conservatory orders obtained from the Russian courts. However, the fact that, in addition to commencing proceedings in breach of contract or vexatiously or oppressively, VTB has obtained orders from the Russian courts on the basis of those proceedings, does not provide a reason to refuse injunctive relief. That is one of the illegitimate judicial benefits VTB has wrongfully obtained.

    iii) It is said that there was a looming time bar under the ISDA Claim. Assuming that to be the case, VTB could have sought a voluntary suspension of the period, and, if necessary, asked this court to make that a condition of the continuation of the injunctions. In any event, it would seem that the time bar referred to is a Russian law time bar in respect of Russian law tort claims, in which case it can be no answer to commencing proceedings wrongfully that it was necessary to satisfy a limitation requirement only applicable to such wrongful proceedings.

    iv) It is said that the position of JPM Russia is unattractive because it briefly sought injunctive relief, discontinued that application but still stands to benefit from the injunctions sought by others. However, I have found that the pursuit of the claims against JPM Russia are themselves vexatious and oppressive so far as JPMCB and JPMS plc are concerned. Those entities having their own independent legitimate interest in obtaining anti-suit relief, there is no reason why that interest should not be protected by an order of this court. It is not particularly surprising that an entity located in Russia may have been wary of seeking anti-suit relief, or perceived difficulties arising from its own actions in the Russian proceedings in doing so.

  246. It is also said there are, in effect, forum conveniens reasons why Russia is a more appropriate forum, given (a) the governing law of the claims in the Russian proceedings is Russian law; (b) the relevant evidence and witnesses are more readily available there and (c) all the parties have "operations and assets in Russia". I have addressed this issue in the context of the jurisdictional challenge below. However, considerations of this kind carry only limited weight in the context of the contractual anti-suit provisions, not least because, to the extent they are valid, they are a foreseeable consequence of the parties' agreement to chose a particular forum. A great deal more than a conventional forum non conveniens exercise is required to make it inappropriate to grant anti-suit relief: Aercap Ireland Capital Designated Activity Company v PJSC Insurance Company Universalna [2024] EWHC 1365 (Comm), [265]-[268]. Nor does the fact that the foreign forum might be a better place to pursue vexatious and oppressive proceedings take VTB very far.
  247. Finally, it is suggested that there was a lack of full and frank disclosure in seeking the "without notice" injunctions from Mr Justice Andrew Baker. I was referred to the familiar authorities on what "full and frank disclosure" requires, including Brink's Mat Ltd v Elcombe [1988] 1 WLR 1350, 1356 and Bank Mellat v Nikpour [1985] FSR 87.
  248. I have carefully reviewed the non-disclosures alleged and read the materials placed before Mr Justice Andrew Baker and the transcript of the application. The Judge made it clear that he had managed to complete extensive pre-reading, including the expert reports, and that he was very familiar with applications for anti-suit relief in the sanctions context.
  249. I am satisfied that there is nothing in the complaints:
  250. i) It is said that the true nature of the Russian law claims was not made clear (i.e. that they were claims in tort). However, for reasons I have explained above, it is the substance of the claims as a matter of English law categorisation which matters. In any event the legal provisions relied upon were summarised in Dogra 1 and in Holiner 1 paras. 70 to 72 where they are described as "claims in tort". The claims are referred to in the skeleton as "tortious claims" (paragraph 43) and were described in oral submissions as a "tort claim" on a number of occasions.

    ii) It is said that JPMCB and JPMS plc failed sufficiently to draw the hierarchy clauses so far as the 2017 Terms were concerned to the court's attention. However, the interrelationship between the UMAA, Client Agreement and 2017 Terms was addressed at Dogra 1 paragraphs 14 to 18; Dogra 2 paragraphs 13-17 and in the skeleton argument (at paragraphs 5 and 44-45). The Judge referred to the hierarchy issue in oral argument.

    iii) It is said that the application was wrongly presented to the court as urgent and one that had to be made on a "without notice" basis because of a risk that the Russian court would proceed immediately to determine the claim on the merits. However, against the background of the anti-anti-suit obtained in the Correspondent Account proceedings, there was an obvious risk of VTB taking steps to preclude an anti-suit application if given notice. Further, on the evidence of Mr Holiner, there was a risk the Russian court might refuse to adjourn the upcoming preliminary hearings, although he thought that unlikely. That risk was fairly presented to the court. There is clearly room for legitimate differences of opinion in evaluating that risk, as there would appear to be between Mr Holiner and Professor Schwarz. In any event, this would not provide a sufficient reason for setting aside any order.

    iv) It is said that delay was inadequately explained. However I am satisfied that the Claimants' position was explained at the without notice hearing, including in oral argument, in essentially the same terms as at this hearing, which explanation I have found to be satisfactory.

    v) It is said the JPM Entities did not explain that they did not themselves intend to commence arbitration. However, there being no requirement that they do so, no explanation was required.

    vi) It is said that there was a failure to explain the similarities between the UMAA and Client Agreement Claims on the one hand, and the Correspondent Account Claim on the other. However, beyond the fact that VTB was relying on the same Russian "anti-sanctions" provisions in each, there was no such similarity. In any event, the history of the Correspondent Account proceedings was set out in some detail.

    vii) It was at one point said that Mr Justice Andrew Baker was not told about the interim measures ordered by the Russian courts. However, they are addressed in at Dogra 1 paragraph 65 and Dogra 2 paragraph 56 and in the Claimants' skeleton (paragraph 50). This complaint was not pursued in VTB's skeleton.

    H THE CLAIM FOR AN ANTI-ENFORCEMENT INJUNCTION

  251. There is "no jurisdictional requirement that an anti-enforcement injunction will only be granted in exceptional cases" (SAS Institute, [93]). It has become increasingly common for relief of this kind to be granted in anti-suit injunction cases concerning proceedings in Russia, because of the risk that the Russian court will not permit proceedings to be discontinued even if the party who has commenced those proceedings seeks such an order: see for example Deutsche Bank AG v RusChemAlliance LLC [2023] EWCA Civ 1144, [43] (Nugee LJ); Airbus Canada Ltd Partnership v Joint Stock Company Ilyushin Finance Co [2024] EWHC 790 (Comm), [24] (HHJ Pelling KC) and my judgment in Barclays Bank plc v PJSC Sovcombank [2024] EWHC 1338 (Comm), [14].
  252. There is evidence from Mr Holiner of such a risk here. The JPM Entities clearly have assets in a number of jurisdictions against which efforts to enforce a Russian judgment might be made. In these circumstances, I am satisfied that it is appropriate to grant the anti-enforcement injunctions sought.
  253. I VTB'S CHALLENGE TO JURISDICTION

    Gateway

  254. For any JPM Entities unable to avail themselves of the right to serve proceedings within the jurisdiction on a process agent, it is necessary to show that proceedings can be served out of the jurisdiction. The JPM Entities served proceedings out of the jurisdiction under CPR 62.5(1) and CPR 62.5(2A). CPR 62.5(1)(c) applies where "the claimant – (i) seeks some other remedy or requires a question to be decided by the court affecting an arbitration (whether started or not), an arbitration agreement or an arbitration award; and (ii) the seat of the arbitration is or will be within the jurisdiction or the conditions in section 2(4) of the 1996 Act are satisfied."
  255. CPR 62.5(2A) states that "an arbitration claim form falling within (1) … (c) above may be served out of the jurisdiction without permission if— (a) the seat of the arbitration is or will be in England and Wales; and (b) the respondent is party to the arbitration agreement in question."
  256. In the event, the only challenge made to the application of these provisions was the suggestion (which I have rejected so far as the "wholly contractual" anti-suit applications are concerned) that the anti-suits did not relate to claims falling within the relevant arbitration agreement. It has been held that CPR 62.5(1)(c) can be relied upon even if the anti-suit injunction is sought under s.37(1) of the Senior Courts Act 1981 and no arbitration proceedings have been or will be commenced provided the arbitration agreement designates a seat (as they do here): Ust-Kamenogorsk Hydropower Plant JSC v AES Ust-Kamenogorsk Hydropower Plant LL [2013] 1 WLR 1889, [50].
  257. To the extent that any issue had arisen as to the availability of these arbitration specific gateways so far as applications under the vexation and oppression jurisdiction are concerned (and none was raised), where an EJC or arbitration agreement governed by English law is a central feature of the alleged vexation and oppression, which in essence involves a complaint of improper circumvention of that agreement, I would note that CPR Practice Direction 6B para 3.1(6)(c) applies where a claim is "in respect of" a contract governed by English law, words of obvious width on which I commented in the QBE case (see [111(ii)] above).
  258. Forum non conveniens

  259. So far as the contractual anti-suit injunction application is concerned, no issue of forum conveniens arises. As the Supreme Court noted in Enka:
  260. i) At [179], forum conveniens was not relevant to the application to enforce the arbitration agreement because "by agreeing to arbitrate in London the parties were agreeing to submit to the supervisory and supporting jurisdiction of the English courts, including its jurisdiction to grant anti-suit injunctions."

    ii) At [184], that "forum conveniens considerations are irrelevant and comity has little if any role to play."

  261. The Supreme Court in UniCredit Bank GmbH v RusChemAlliance LLC [2024] UKSC 30, [92]-[93] suggested there where the purpose of proceedings is to protect a right to arbitrate (a fortiori to do so in England), CPR 6.37(3) does not impose an additional requirement beyond the position under CPR 62.
  262. In any event, self-evidently the Russian courts are not a convenient forum for the determination of the issue of whether the UMAA, Client Agreement and ISDA Claims are being pursued there wrongfully, whether in breach of contract or vexatiously and oppressively. In reality, they are not even an available forum. The error in VTB's submissions was that it sought to test the issue of forum non conveniens by reference to the claims it wishes (wrongfully on my findings) to pursue in Russia, not the applications brought by the Claimants with a view to halting those wrongful claims. Approached from that perspective, and to the extent that the issue arises, England and Wales is manifestly the most appropriate forum for the determination of that question, the issues raised by this aspect turning on the agreements to arbitrate in England, the agreement to English law, the public policy arising from UK sanctions and, in the case of the ISDA Claim, the significance of prior orders of the English court. The significance, in the present context, of the fact that the contractual rights in issue are governed by English law was stressed by the Supreme Court in UniCredit at [83].
  263. Alternative service

  264. I am satisfied that it is appropriate to serve the order recording the effect of my rulings on VTB using the same means of alternative service set out in paragraphs 7.1 and 7.3 of the December 2024 Order and on PCB Byrne LLP, and to dispense with personal service for the purpose of CPR 81.4(2)(c). The court having concluded that these coercive orders are appropriate, service should be effected with the minimum delay.
  265. J CONCLUSION

  266. For these reasons:
  267. i) VTB's challenge to the court's jurisdiction and its application to set aside the Interim ASIs are dismissed.

    ii) Final anti-suit injunctions and anti-enforcement injunctions are granted to the Claimants, save for JPM Russia.

    iii) Permission for alternative service is granted.


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