“43.1 This Agreement and any non-contractual obligations arising in connection with it shall be governed by and interpreted in accordance with the laws of England and Wales. 43.2 If any dispute should arise in relation to the Customer Document Pack and it cannot be resolved within thirty (30) Business Days by negotiation between the Parties, such dispute shall be referred to and finally resolved by arbitration under the rules of the London Court of International Arbitration which are deemed to be incorporated by reference into this Clause 43. Such arbitration shall take place in London and shall be conducted by a single arbitrator appointed by agreement between the Parties or, failing agreement, by the London Court of International Arbitration. The language in which such arbitration shall be conducted shall be English. Any award rendered shall be final and binding on both Parties and may be entered in any court having jurisdiction and application may be made to such court for an order of enforcement as the case may require. 43.3 To the extent that you may be entitled in any jurisdiction to claim for yourself or for your property or Assets immunity from service of process, jurisdiction, suit, judgment, execution, attachment or legal process in respect of your obligations or to the extent that in any such jurisdiction there may be attributed to you or your property or Assets such immunity (whether or not claimed), you hereby waive such immunity to the fullest extent under the laws of such jurisdiction.”
“The High Court may by order (whether interlocutory or final) grant an injunction … in all cases in which it appears to the court to be just and convenient to do so.”
“This is the extent to which an exclusive jurisdiction clause in a contract (between A and B) can be enforced (by B against A) by an anti-suit injunction so as to prevent tort proceedings against a third party (i.e. by A against C) (assuming that, subject to this third party point, the tort proceedings would otherwise be covered by the jurisdiction clause).”
“… I accept that Laurence Rabinowitz QC in the Ghossoub case was correct that, absent express words as to the jurisdiction clause extending to claims against non-parties, the starting point in interpreting a jurisdiction clause (covering, let us say, ‘all disputes arising out of the contract’) will be that only the parties to the contract are covered. But I also agree with Lord Scott in the Donohue case that, where one has an alleged joint tort committed in relation to a contract by a contracting party and a non-contracting party, the objective interpretation of the jurisdiction clause (covering all disputes ‘arising out of the contract’) will tend to include a tort claim against the non-party because this will help to prevent forum-fragmentation on essentially the same issues. Such fragmentation is contrary to what the parties are likely to have objectively intended. Ultimately there may be no real conflict between the speech of Lord Scott and the judgment of Laurence Rabinowitz QC because the resolution of the issue turns on the interpretation of the particular contract in the light of the particular facts.”
“… The jurisdiction is to be exercised rarely, and with proper recognition of comity, i.e. of the respect owed to the foreign court.”
“It is the exceptional cases in which justice requires the English court to intervene which cannot be categorised or restricted. But a theme common to certain recent decisions is that the foreign court is, judged by its own jurisprudence, likely to assert a jurisdiction so wide either as to persons or subject matter that to English notions it appears contrary to accepted principles of international law. In such cases the English court has sometimes felt it necessary to intervene by injunction to protect a party from the injustice of having to litigate in a jurisdiction with which he had little, if any, connection, or in relation to subject matter which had insufficient contact with that jurisdiction, or both. Since the foreign court is ex hypothesi likely to accept jurisdiction, this is a decision which has to be made here if it is to be made at all. These are cases in which the judicial or legislative policies of England and the foreign court are so at variance that comity is overridden by the need to protect British national interests or prevent what it regards as a violation of the principles of customary international law.”
“Leaving aside the provisions of the Brussels I Regulation and previous conventions, which are not relevant in this case, I would summarise the relevant key principles as follows. (1) Under English law the court may restrain a defendant over whom it has personal jurisdiction from instituting or continuing proceedings in a foreign court when it is necessary in the interests of justice to do so. (2) It is too narrow to say that such an injunction may be granted only on grounds of vexation or oppression, but, where a matter is justiciable in an English and a foreign court, the party seeking an anti-suit injunction must generally show that proceeding before the foreign court is or would be vexatious or oppressive. (3) The courts have refrained from attempting a comprehensive definition of vexation or oppression, but in order to establish that proceeding in a foreign court is or would be vexatious or oppressive on grounds of forum non conveniens, it is generally necessary to show that (a) England is clearly the more appropriate forum (‘the natural forum’), and (b) justice requires that the claimant in the foreign court should be restrained from proceeding there. (4) If the English court considers England to be the natural forum and can see no legitimate personal or juridical advantage in the claimant in the foreign proceedings being allowed to pursue them, it does not automatically follow that an anti-suit injunction should be granted. For that would be to overlook the important restraining influence of considerations of comity. (5) An anti-suit injunction always requires caution because by definition it involves interference with the process or potential process of a foreign court. An injunction to enforce an exclusive jurisdiction clause governed by English law is not regarded as a breach of comity, because it merely requires a party to honour his contract. In other cases, the principle of comity requires the court to recognise that, in deciding questions of weight to be attached to different factors, different judges operating under different legal systems with different legal policies may legitimately arrive at different answers, without occasioning a breach of customary international law or manifest injustice, and that in such circumstances it is not for an English court to arrogate to itself the decision how a foreign court should determine the matter. The stronger the connection of the foreign court with the parties and the subject matter of the dispute, the stronger the argument against intervention. (6) The prosecution of parallel proceedings in different jurisdictions is undesirable but not necessarily vexatious or oppressive. (7) A non-exclusive jurisdiction agreement precludes either party from later arguing that the forum identified is not an appropriate forum on grounds foreseeable at the time of the agreement, for the parties must be taken to have been aware of such matters at the time of the agreement. For that reason an application to stay on forum non conveniens grounds an action brought in England pursuant to an English non-exclusive jurisdiction clause will ordinarily fail unless the factors relied upon were unforeseeable at the time of the agreement. It does not follow that an alternative forum is necessarily inappropriate or inferior. (I will come to the question whether there is a presumption that parallel proceedings in an alternative jurisdiction are vexatious or oppressive). (8) The decision whether or not to grant an anti-suit injunction involves an exercise of discretion and the principles governing it contain an element of flexibility.”
“90. The jurisdiction of the English court to grant an anti-suit injunction is of long standing. The basic principle is that the jurisdiction is to be exercised ‘when the ends of justice require it’: Société Nationale Industrielle Aerospatiale v Lee Kui Jak[1987] AC 871 , 892A‒B; Airbus Industrie GIE v Patel [1998] CLC 702, 708E-G;[1999] 1 AC 119 , 133D‒E. It was common ground between the parties that established categories of case where an injunction may be appropriate (which may overlap) include cases where an injunction is necessary to protect the jurisdiction of the English court and cases where the pursuit of foreign proceedings is regarded as vexatious or oppressive: Aerospatiale at 892G‒893D. Equally, it was common ground that the jurisdiction is not confined to these categories and must be applied flexibly: Castanho v Brown & Root (UK) Ltd[1981] AC 557 , 573 (‘the width and flexibility of equity are not to be undermined by categorisation’); Aerospatiale at 892G (the cases ‘show, moreover, judges seeking to apply the fundamental principles in certain categories of case, while at the same time never asserting that the jurisdiction is to be confined to those categories’). … 91. The English cases, including in particular Airbus, emphasise that great caution must be exercised before such an injunction is granted, at any rate in cases where the injunction is not sought in order to enforce an arbitration or exclusive jurisdiction clause, and that this is necessary because of the requirements of comity. …”
“When an anti-suit injunction is sought on grounds which do not involve a breach of contract, comity, telling against interference with the process of a foreign court, will always require careful consideration. The mere fact that things are done differently elsewhere does not begin to justify an injunction. …”
“In essence … it is necessary to read the arbitration agreement as a whole and do so in the context of the contract in which it is embedded, read as a whole, for the purpose of deciding what the arbitration agreement would have meant to reasonable people with all the relevant background knowledge reasonably available to all the parties down to the time at which the contract is concluded.”
“34. I start with clause 43.2 itself. I accept that read in isolation, the phrase ‘… any dispute … in relation to …’ is capable when read in isolation of applying to claims against non-parties. However, that is not to approach the construction exercise correctly. It requires the arbitration agreement to be read as a whole and in the context of the ISA in which it is embedded again as a whole. Adopting that approach, firstly, the arbitration agreement requires the negotiation of any dispute ‘between the Parties …’. Who are Parties is identified at the start of the ISA as being exclusively Renaissance on the one hand and respectively the second and sixth Defendants on the other. There is a contractual expansion of that, but Renaissance has not suggested that the express contractual expansion is relevant to any issue that arises in this case. 35. Secondly, in my judgment, the requirement to negotiate between the parties means that the dispute to which this obligation applies is likely to be confined to disputes between the parties, not one of the parties and a non-party. Any negotiation on behalf of a non-party by a Party would require that Party to be authorised to negotiate on behalf of a non-party The absence of any provisions dealing with that point is inconsistent with the intention of the parties being that the arbitration agreement would apply to claims relating to the contract by a Party against a non-party. 36. Thirdly. the final sentence of the clause is inconsistent with the intention being that the arbitration agreement should apply to claims by or against non-parties, because it refers expressly to the award being binding between both parties. That is consistent with the agreement applying only to disputes between the parties, not a party and a non-party. If the agreement was intended to apply to a claim between a Party and a non-party the final sentence would either not have appeared at all or would have attempted to address finality and enforcement against the non-party concerned. 37. Fourthly, confining the applicability of the agreement to disputes between Parties is consistent with the phraseology of clause 43.3, which applies only to immunities available to the Defendant and not affiliates. 38. Fifthly, the word ‘you’ is defined as referring exclusively to respectively the second and sixth Defendants. Clause 43.4 applies only to the defendant as a result of the use of the word ‘you’ in that clause. This is consistent with the way in which third party issues are addressed elsewhere in the ISA. Sixthly, third party rights under theContracts (Rights of Third Parties) Act 1999 are excluded. Thus the privity point made by Mr Burrows in [23(iii)] of his judgment in Clearlake would apply with full force in this case. 39. Seventhly, the Contracts (Rights of Third Parties) Act exclusion is significant also because it shows that where third party involvement is relevant, it has been addressed by the parties expressly. That point is apparent also from the set-off provisions in clause 26. That point is apparent too from clause 29, where, for example, relevant third parties are identified in clause 29.3(iii) and (iv). This is a non-exclusive list of provisions where the issue of non-party engagement arises but the point that matters is that where the parties considered it appropriate to refer to third parties, they did so expressly.”
“… It is sufficient for our purposes simply to reiterate that, to imply a term by fact, the term must be necessary for business efficacy or the term must be so obvious that it goes without saying; it must be capable of clear expression; and it must not contradict any express term of the contract. Importantly, as Lord Hughes JSC emphasised in Ali v Petroleum Co of Trinidad and Tobago[2017] ICR 531 , para 7…, the process of implying a term into the contract must not become the rewriting of the contract in a way which the court believes to be reasonable, or which the court prefers to the agreement which the parties have negotiated.”
“41. It is necessary, therefore, to turn to the alternative basis for seeking an ASI, that is that the proceedings which the Applicant seeks to restrain are vexatious or oppressive. Where this ground is relied upon, two questions generally arise being (a) are the courts in England clearly the more appropriate forum for the trial of the claim and (b) is it necessary in the interests of justice to grant the injunction taking into account considerations of comity – see in this regard Clearlake at [18(2)] following Court of Appeal authority to that effect. As Mr Burrows emphasised in his summary of the principles, the categories of factors which indicate vexation and oppression are not closed – see Elektrim SA v Vivendi Holdings EWCA Civ 1178, [2009] I Lloyds Rep 59 per Lawrence Collins LJ as he then was at [83]. 42. The Defendants submit that (a) unless the forum issue can be resolved in favour of Renaissance, the enquiry ends at that point; (b) only if the forum in question is or can be resolved in favour of Renaissance is it necessary for the court to decide if pursuit of the foreign proceedings is vexatious or oppressive; (c) the forum issue cannot be resolved in favour of arbitration where it has been concluded that an arbitration agreement does not already exist requiring both parties, that is the Defendants respectively and the RREs to arbitrate. 43. Renaissance did not address these points at all in its skeleton submissions. It confined itself to submitting that if the claims against the RREs ‘… do not fall within the arbitration agreements, they should nonetheless be restrained because they are vexatious and oppressive’. This avoids addressing the forum issue and the implications for it of a conclusion that the claims against the RREs do not fall within the arbitration agreements because on their proper construction, the RREs are not parties there to. At the end of this judgment I refer to one decision that might impact on this issue but which was not relied on by Renaissance or cited to me by either party which for that reason I have left out of account. 44. Renaissance submits that the RRE claims are vexatious because, ‘(1) they are a collateral attack on Renaissance’s rights under the arbitration agreements and (2) form part of an orchestrated attempt to evade international sanctions by Russian companies with the use of Russian legislation specifically enacted for that purpose.’ This last point is wrong. Whilst the point can undoubtedly be made in relation to a claim against Renaissance by the Defendants because that depended jurisdictionally on Article 248.1 of the Arbitration Procedure Code of the Russian Federation, because that Article was enacted specifically so as to enable disputes to be submitted for determination in Russia rather than to foreign courts or arbitral panels that would apply sanctions law to the extent it was applicable, the claims by the Defendants against the RREs are different. They do not depend on Article 246. They are tort claims brought before the Russian courts by Russian Claimants against Russian registered domicile or resident Defendants for which it is alleged to be an actionable civil wrong according to the laws of Russia. The jurisdiction of the Russian courts in relation to the claims against the RREs is not dependant on Article 248. On the arguments advanced before me there is no answer to the point that there is no alternative jurisdiction available. The arbitration agreement between Renaissance does not apply and the fact that the RREs consent to arbitration is nothing to the point unless there is an agreement by all parties to the RRE litigation that the claims be referred to arbitration.”
“There is no answer to the point that there is no alternative jurisdiction available.”
“The evidence adduced by Renaissance establishes a realistically arguable case that Mr Guryev is or he and his daughter are the ultimate beneficial owners of the Defendants.”
“On the basis of this material, I accept Renaissance’s submission that the delictual claims by the Defendants against the RREs, are claims to recover damages in a sum equivalent to what is alleged to be the value of the assets that that have been frozen by Renaissance and I accept that the claims have been brought in Russia because the Defendants are precluded from recovering their assets from Renaissance, other than in LCIA arbitration proceedings against Renaissance in London, in which the Defendants would have to prove their case that they were not properly to be regarded as subject to any relevant sanctions.”
“It might have been said on behalf of the defendants or Sovcombank at any rate that commencing proceedings in England deprives them of a legitimate juridical advantage because the Russian courts will disregard as a matter of public policy the sanctions laws imposed by English law. If and to the extent that is relied upon then, in my judgment, it is a proposition to be rejected. The parties having agreed English law, to attempt to litigate in a foreign jurisdiction where full effect is not given to English law including therefore sanctions law is not to seek to obtain a legitimate juridical advantage but, on the contrary, is to seek to obtain an illegitimate juridical advantage, a point which has been recognised in the case law as a reason for treating a claim brought in such a jurisdiction as vexatious and oppressive.”
“The grant of an anti-suit injunction, as of any other injunction, involves an exercise of discretion by the court. To exercise its discretion reliably and rationally, the court must have the fullest possible knowledge and understanding of all the circumstances relevant to the litigation and the parties to it. This is particularly true of an anti-suit injunction because, as explained below, the likely effect of an injunction on proceedings in the foreign and the domestic forum and on parties not bound by the injunction may be matters very material to the decision whether an injunction should be granted or not. Thus although the two main issues before the House cannot be regarded entirely independently of each other, it is preferable to consider the issue of joinder of the PCCs before considering the grant of an anti-suit injunction more generally.”