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Forum non conveniens
Forum non conveniens
So far as the contractual anti-suit injunction application is concerned, no issue of forum conveniens arises. As the Supreme Court noted in Enka:
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.”
At [184], that “forum conveniens considerations are irrelevant and comity has little if any role to play.”
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.
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].
- Heading
- A INTRODUCTION
- The parties
- The evidence
- The UMAA
- The Client Agreement
- The ISDA Master Agreement
- The Terms
- The Correspondent Bank Account
- C THE BACKGROUND
- Proceedings in the Russian courts
- D THE “WHOLLY CONTRACTUAL” ANTI-SUIT CLAIMS
- The UMAA and the Client Agreement
- The 2017 Terms
- Which of the JPM Entities are entitled to enforce the 2017 Terms Arbitration Agreement?
- 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?
- The ISDA Master Agreement
- E THE APPLICATION BY A CONTRACTING PARTY TO RESTRAIN CLAIMS AGAINST NON-CONTRACTING PARTIES AS A MATTER OF CONTRACT
- Contractual promises not to sue third parties
- Cases where a third party seeks to enforce a contractual right which is subject to an arbitration agreement
- The special status of arbitration agreements under English law
- The authorities
- The construction argument
- An implied term
- F THE APPLICATION TO RESTRAIN CLAIMS ON THE “VEXATIOUS AND OPPRESSIVE” BASIS
- The UMAA and Client Agreement Claims
- The ISDA Claim
- G SHOULD THE COURT REFUSE TO MAKE THE INJUNCTION IN THE EXERCISE OF ITS DISCRETION?
- H THE CLAIM FOR AN ANTI-ENFORCEMENT INJUNCTION
- I VTB’S CHALLENGE TO JURISDICTION
- Forum non conveniens
- Alternative service
- Conclusions