CL-2025-000010 and CL-2025-000091 - [2025] EWHC 1842 (Comm)

Fecha: 18-Jul-2025

THE BACKGROUND

THE BACKGROUND

The transaction and its aftermath

Viva is a Greek fintech company. JPM holds 48.51% of the shares in Viva, having acquired them by a contract dated 24 January 2022 for EUR 809m (“the SPA”). JPM injected EUR 100m into Viva at the same time. The remaining 51.49% in Viva is held by WRL.

The relationship of JPM and WRL as shareholders in Viva is, in the usual way, governed by a shareholders’ agreement (“the SHA”). Viva became a party to the SHA by a Deed of Adherence executed on 16 December 2022. It will be necessary to consider some of the terms of the SHA in more detail in due course, but the following features should be noted:

The SHA creates call options, and defines the circumstances in which JPM can acquire WRL’s shares. In brief, JPM’s call option was potentially exercisable in four periods at six-monthly intervals, but for the first three of these four periods, WRL was not bound to accept it if Viva had been valued below EUR 5 billion. WRL also had a call option, on different terms (in particular, JPM did not benefit from a “floor” valuation).

ii)

There was provision for Viva to have a board of 7 directors, four to be nominated by WRL, two by JPM, with a seventh “independent and non-executive director” to be nominated by JPM (the other six directors not being required to be “independent”). Voting was by simple majority, save that decisions on certain issues (so-called “Reserved Matters”) required a level of shareholder approval which gave JPM a veto.

iii)

Clause 33 contained what was introduced as a “whole agreement” clause which created certain limitations on the types of claim which could be brought by and against certain persons. This clause is of central importance to the parties’ dispute. Clause 38.5 provided for the enforcement of clause 33 by certain categories of person under the Contracts (Rights of Third Parties) Act 1999 (“the 1999 Act”), the operation of which was otherwise excluded by clause 38.6 of the SHA.

iv)

Clause 41 provides that “this Agreement and any non-contractual obligations arising out of, or in connection with, it shall be governed by and interpreted in accordance with, English law.”

Clause 42 contains a tiered dispute resolution clause, clause 42.5 of which provides for the exclusive jurisdiction of the English courts (“the EJC”).

vi)

Clause 43 provides for JPM and WRL to appoint and maintain agents in this jurisdiction for the service of process.

Viva’s relationship with its shareholders is also governed by its articles of association (“the Articles of Association”) which are governed by Greek law, and which, reflecting an obligation to this effect in the SHA, have been amended so as to replicate the various rights and obligations of shareholders set out in the SHA.

The co-founder of Viva, and the first claimant in the claim brought by the Directors, is Mr Charalampos Karonis (“Mr Karonis”). Mr Karonis is also a director of WRL, and is a Greek national domiciled in Greece.

The relationship between JPM, WRL and Viva has been acrimonious, albeit a fruitful one for the legal community in two jurisdictions.

On 17 January 2024, Viva issued defamation proceedings in the Greek courts against the three JPM nominated directors (“the JPM Directors”) in relation to their interactions with the Bank of Greece. The following day, the Directors issued their own defamation proceedings in the Greek courts against the JPM Directors.

On 14 February 2024, JPM and WRL each commenced proceedings against the other in the Commercial Court, principally in connection with the valuation of Viva for the purposes of the call options, and an issue raised by WRL by amendment as to the circumstances in which JPM’s call option became exercisable:

In its Particulars of Claim for what was essentially a dispute on the construction of the SHA, JPM made some broad and generalised assertions about WRL’s and Mr Karonis’ conduct in relation to the management of Viva in one paragraph. WRL responded by asserting (correctly) that the allegations were irrelevant. They did not subsequently feature.

ii)

Dame Clare Moulder DBE in 2024 ([2024] EWHC 1437 (Comm)) upheld JPM’s case that JPM’s call option could be exercised anew in each option period, provided the earlier exercise of the option did not result in a concluded share transfer.

iii)

WRL succeeded on appeal ([2025] EWCA Civ 57), the Court of Appeal holding that JPM had, in effect, “one shot” at exercising the JPM call option. There is a dispute between JPM and WRL, which has yet to be resolved, as to whether that shot has already been fired and missed its intended target. There were other issues of construction in the case, on which there was mixed success.

10.

On 13 September 2024, Mr Karonis and WRL made a criminal complaint to the Greek authorities against 14 current and former JPM executives and associates, which made allegations of attempted fraud and extortion in relation to WRL’s entry into the SPA and the SHA. The complaint was dismissed by the Greek prosecuting authorities.

11.

On 7 January 2025, JPM commenced a second set of proceedings in the Commercial Court seeking declaratory and injunctive relief premised on the assertion that WRL intended to act otherwise than in accordance with the “Reserved Matters” provisions of the SHA. By way of further explanation:

JPM alleged that WRL “has wrongly threatened and/or caused Viva to threaten various actions that would be clear breaches of the SHA and are designed to undermine and remove JPM’s rights under the SHA …”.

ii)

There were a series of complaints about what WRL had asserted, or caused Viva to assert, or planned to do, using its control of Viva’s board of directors.

iii)

WRL served a Defence denying any intention to breach the SHA, or to carry out the actions which JPM had alleged. It also served a Counterclaim asserting that the Greek Proceedings (addressed below and which had been commenced on 2 January 2025) should be restrained by an anti-suit injunction.

iv)

JPM no longer seeks to pursue its claims in that second set of Commercial Court proceedings. I have been unable to match the enthusiasm shown by the parties on the issue of whether this is because they had no merit in the first place, or because they achieved what they were intended to achieve in the light of WRL’s Defence.