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The ISDA Master Agreement
The ISDA Master Agreement
On 18 June 2015, VTB and JPMS plc entered into an ISDA Master Agreement on the 2002 Master Agreement form (“the ISDA Master Agreement”).
By Part 5(4) of the Schedule to that agreement:
“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.”
By Part 5(7), section 13(b) of the ISDA Master Agreement was amended to provide as follows:
“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”).
- 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