[2025] EWHC 1368 (Comm)

An agreement to the exclusive jurisdiction of the English courts in respect of “any dispute, difference or other question arising in any way out of or in connection with these Terms, any agreement to which these Terms relate, any agreement or transaction executed in connection with any services provided to you … under these Terms by JP Morgan or any Affiliate … or any other aspect of our relationship … ” (clause 30.2).

A agreement that either party was entitled to serve a notice requiring the Dispute to be referred to arbitration prior to the service of any defence, the dispute to be referred in that eventuality to LCIA Arbitration (clause 30.3).

Mr Riem for VTB effectively put the Claimants to proof that either version of the Terms had been provided to VTB, and stated that VTB’s legal team had investigated and “found no evidence that these terms were ever sent to VTB”. No details of the investigation were provided.

On the evidence before the court, there was an update to JPMS plc’s terms in 2011 after the FCA gave approval for it to become a credit institution. A letter to VTB’s Head of Compliance dated 26 April 2011 has been produced which explains the important context to the updating of the Terms. Given that context, and the existence of the letter, I am satisfied that the 2011 Terms were sent to VTB. In any event, an internal note records that VTB featured in the process undertaken to distribute the 2011 Terms, and that there was evidence of DHL delivery of the relevant correspondence dated 21 June 2011 (although the documents referred to have not been located). There is also a statement that delivery of the 2011 Terms at VTB’s office was acknowledged by “A Buford” on 9 May 2011. It has been suggested that this was a public holiday in Russia. I am willing to assume that is the case, but the overall effect of this material is very strongly to suggest the 2011 Terms were sent to VTB, and I so find on the balance of probabilities.

In the face of this evidence, I am unable to attach any significance to the evidence Mr Riem gives from unidentified individuals at VTB as to what records have been found on the basis of unparticularised searches.

Clause 1.2 of the 2011 Terms provided that they were accepted by giving instructions to the JPM. In this case, VTB had active banking relations with the JPM entities on whose behalf the 2011 Terms were distributed and thereby accepted them.

Significantly, clause 24.1 provided that the relevant JPM entities “have a right to amend these Terms at any time by sending you either a notice of amendment in writing or a revised Terms of Business.”

An email of 16 November 2017 shows the 2017 Terms being emailed to Mr Dmitry Zaykov and that the email was read. A log entry records that the terms were sent to Mr Zaykov’s VTB Capital email.

The letter to Mr Zaykov made it clear that the terms were intended for a number of VTB entities, including VTB Capital plc and VTB. This was obviously an important communication, and one which Mr Zaykov is likely to have ensured came to the attention of the relevant VTB personnel even if he was not one of them.

An internal JPM email of 23 November 2017 records that “VTB Capital” had sent a letter regarding acceptance of the 2017 Terms and that “according to the letter we are likely to be dealing in bonds with them” (once again the letter referred to has not been located). Further internal JPM emails suggest direct contact was made using contact information provided by VTB, and an email from VTB Capital to JPM of 15 December 2017 refers to JPM having provided its Terms of Business.

JPM’s “Xceptor” log records the despatch of the 2017 Terms on 16 November 2018, and a “read receipt” in response. An entry for 2 January refers to “rebuttal sent for VTB Capital PLC … as client says ‘17.4, 17.5 and 17.6 of Our Terms.’”

VTB submits that Mr Zaykov had no authority to receive the 2017 Terms on its behalf. However, Mr Zaykov was one of VTB’s authorised signatories for correspondent accounts in 2017, able to “sign documents and correspondence on behalf of” VTB, which supports the contention that he acted in some respects on behalf of VTB. Further, VTB Capital plc was authorised to accept service of proceedings at VTB Capital plc’s London office, which is consistent with them being an authorised and reliable conduit of information to VTB, and individuals from VTB Capital Inc (in particular Mr Ivanov) were involved on VTB’s side in the termination of the ISDA Master Agreement. It is clear that information sent to Mr Zaykov in relation to the 2017 Terms had elicited a substantive response on VTB’s behalf, which, uncontradicted by evidence from VTB, suggests that either Mr Zaykov was indeed authorised to receive the 2017 Terms on VTB’s behalf, or he passed them on to someone who was. It should be noted that Mr Zaykov only needed to have authority to receive the 2017 Terms on behalf of VTB: that receipt is sufficient to give them contractual effect because of the term to that effect in the 2011 Terms.

Finally, Mr Fenwick KC also submitted that the log entry showed a “counter-offer” (although VTB has itself adduced no evidence as to what this related to). However, by virtue of clause 24.1 of the 2011 Terms, VTB had already bound itself to the amendments made by the 2017 Terms by receiving them. In any event, given the obvious importance of the communication sending the 2017 Terms, against the MiFID II background, it seems to me improbable that the issue regarding the 2017 Terms would have been left in some form of limbo over a period of years, while JPM and VTB’s relationship continued on a significant scale. I would have required considerably more by way of evidence and engagement from VTB to rebut the obvious inference that the terms – and certainly the essential terms of law and jurisdiction – were agreed in the terms in which they appeared in the 2017 Terms.