[2025] EWHC 1368 (Comm)

That leaves JPMS plc in its capacity as a party to the ISDA Master Agreement. No application was made by JPMS plc to enforce the ISDA Arbitration Agreement (whether for its own benefit of for the benefit of the other defendants to that claim), on the basis that this might involve a breach of the anti-suit injunction granted by the Russian court when those proceedings were commenced. The application was pursued:

I will address the second of those arguments at Section E below. Before considering the first argument, it is first necessary to summarise the role of the ISDA Master Agreement:

Where parties enter into a number of agreements which exist alongside each other, each with its own dispute resolution clause, it will often be the case that disputes under one agreement might, as a matter of literal interpretation, fall not only within the arbitration agreement embodied in the same agreement, but also a arbitration agreement in one of the other contracts. The approach to construction in this situation is summarised in Mustill & Boyd at [3.128] as follows:

“The approach to construction in this situation was summarised by Hamblen LJ in BNP Paribas SA v Trattamentio Rifiuti Metropolitani SpA:

i)

The starting point is that a jurisdiction clause in one contract was probably not intended to capture disputes more naturally seen as arising under a related contract.

ii)

A broad, purposive and commercially-minded approach is to be followed.

iii)

Where the jurisdiction clauses are part of a series of agreements they should be interpreted in the light of the transaction as a whole, taking into account the overall scheme of the agreements and reading sentences and phrases in the context of that overall scheme.

iv)

Sensible business people are unlikely to intend that similar claims should be the subject of inconsistent jurisdiction clauses.

v)

The starting presumption will therefore be that competing jurisdiction clauses are to be interpreted on the basis that each deals exclusively with its own subject matter and they are not overlapping, provided the language and surrounding circumstances so allow.

vi)

The language and surrounding circumstances may, however, make it clear that a dispute falls within the ambit of both clauses. In that event the result may be that either clause can apply rather than one clause to the exclusion of the other.”

In this case, I am satisfied that the dispute as to the termination of the ISDA Master Agreement and the resultant balance falls within the ISDA Arbitration Agreement and does not fall within the CA Arbitration Agreement. This is so even though what JPMS plc contends to be the amount of that balance is relied upon as a set-off in respect of amounts due under the Client Agreement. It is not necessary for the purposes of this judgment to consider the jurisdictional status of the set-off claimed in an arbitration under the Client Agreement, which raises difficult issues which were not explored before me (see Mustill & Boyd [5.66]-[5.73]), and which are entirely hypothetical in this case.