Key Facts
- •Barclays Bank PLC (Claimant) sought anti-suit and anti-enforcement orders against PJSC Sovcombank and LLC Sodeistvie Mezhdunarodnym Raschetam (Defendants), two Russian entities.
- •The dispute arose from a syndicated loan agreement where Barclays, as agent, owed Sovcombank US$139,000 in interest but couldn't pay due to sanctions.
- •The Loan Agreement contained an exclusive jurisdiction clause (Clause 45.1(a)) stipulating English courts' exclusive jurisdiction and a clause stating English courts were the most appropriate forum (Clause 45.1(b)).
- •Sovcombank commenced proceedings in Russia against Barclays, arguing jurisdiction based on Russian law allowing Russian entities to sue in Russia despite foreign sanctions.
- •Sovcombank allegedly assigned its rights under the Loan Agreement to the second defendant (SMR).
Legal Principles
A third party to whom rights are assigned that are derived from a contract containing exclusive jurisdiction and/or arbitration agreements is bound by those clauses.
The Jay Bola [1997] 2 Lloyd's Rep 279 and Royal Bank of Scotland Plc v Highland Financial Partners LP [2012] 2 CLC 109
For a contractually based anti-suit injunction, the court must be highly probable that an exclusive jurisdiction clause exists.
The Angelic Grace [1995] 1 Lloyd's Rep 87
Delay in bringing an application is only relevant to comity if foreign proceedings have substantively engaged with the issues.
The Angelic Grace [1995] 1 Lloyd's Rep 87
An anti-suit injunction can be granted on a non-contractual basis if the English court is the natural forum and the foreign proceedings are vexatious or oppressive.
Not explicitly cited but implied throughout sections 22-27
Service by alternative means can be authorized despite the Hague Service Convention if exceptional circumstances exist, such as a mandatory injunction enforceable by coercive means.
Axis Corporate Capital UK II Ltd v ABSA Group Ltd [2021] EWHC 225 (Comm)
Outcomes
Granted anti-suit and anti-enforcement orders against both defendants.
The court found a strong probability that the Loan Agreement's exclusive jurisdiction clause was valid, despite a potentially contradictory clause (Clause 45.2(c)), which it construed as erroneous.
Granted permission to serve proceedings out of the jurisdiction and by alternative means.
The court found a good arguable case, met the CPR Practice Direction 6B gateways, England was the most appropriate forum, and exceptional circumstances justified alternative service due to the mandatory nature of the injunctions.