[2025] EWHC 1368 (Comm)

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.

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.

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.

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”.

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

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.

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.

The UMAA and Client Agreement Claims were issued on 7 October 2024.

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.

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.

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.

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]).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.