[2025] EWHC 1368 (Comm)

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.

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:

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.

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.