[2025] EWHC 1368 (Comm)

Fecha: 05-Jun-2025

The ISDA Claim

The ISDA Claim

152.

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.

153.

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.

154.

In this case, the chronology of events is of some importance:

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).

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.

155.

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:

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.

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.