J.P. Morgan Securities Plc & Ors v VTB Bank PJSC [2026] EWCA Civ 589

[2026] EWCA Civ 589Case No CA-2025-001585
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2025] EWHC 1368 (Comm)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
KING’S BENCH DIVISION
COMMERCIAL COURT
Mr Justice Foxton
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/05/2026
Before
LORD JUSTICE LEWISONLORD JUSTICE PHILLIPSSIR LAUNCELOT HENDERSON
Between
J.P. MORGAN SECURITIES PLC (2) JPMORGAN CHASE BANK, N.A., LONDON BRANCH (3) JPMORGAN CHASE BANK, N.A.(4) CB JP MORGAN BANK INTERNATIONAL LLC (5) JPMORGAN CHASE & CO (6) J.P. MORGAN CAPITAL HOLDINGS LIMITED (7) J.P. MORGAN LIMITED (8) J.P. MORGAN INTERNATIONAL FINANCE LIMITED (9) J.P. MORGAN EMERGING EUROPE, MIDDLE EAST AND AFRICA SECURITIES PLC Claimants/Respondents CL-2024-000671 (1) JPMORGAN CHASE BANK, N.A., LONDON BRANCH (2) J.P. MORGAN SECURITIES PLC (3) JPMORGAN CHASE BANK, N.A.(4) CB JP MORGAN BANK INTERNATIONAL LLC (5) JPMORGAN CHASE & CO (6) J.P. MORGAN CAPITAL HOLDINGS LIMITED (7) J.P. MORGAN LIMITED (8) J.P. MORGAN INTERNATIONAL FINANCE LIMITED (9) J.P. MORGAN EMERGING EUROPE, MIDDLE EAST AND AFRICA SECURITIES PLC Claimants/Respondents CL-2024-000672-and-VTB BANK PJSC Defendant/Appellant CL-2024-000671 CL-2024-000672
Justin Fenwick KC and Anthony Jones (instructed by PCB Byrne LLP) for AppellantLouise Hutton KC and Akash Sonecha (instructed by Linklaters LLP) for RespondentsHearing Hearing date: 11 February 2026
Approved JudgmentThis judgment was handed down remotely at 2 p.m. on Tuesday, 12 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]The central issue on this appeal concerned the power of the court to grant anti-suit injunctions to restrain a party pursuing foreign proceedings on the grounds that those proceedings are vexatious and oppressive.[2]Following the Russian invasion of Ukraine in February 2022, sanctions were imposed on the appellant (“VTB”), a Russian bank, by the governments of the United Kingdom and the United States of America, among others. Two of the respondents, J.P. Morgan Securities PLC (“JPMS”) An English company and a subsidiary of JPMorgan Chase & Co, an international finance services firm incorporated in Delaware withits headquarters in New York. and JPMorgan Chase Bank, N.A. (“JPMCB”) A company incorporated in the USA, also included as a party in these proceedings under the name JPMorgan Chase Bank, N.A., London Branch, to designate its authorised London branch. invoked various rights in contracts with VTB, as their customer, to close out positions and accounts they held for VTB in this jurisdiction, resulting in balances in VTB’s favour. These included US$81,333,185.01 After setting-off USD11,975,752 claimed by JPMS under an ISDA Master Agreement with VTB. held by JPMS under an agreement for derivatives trading executed on 11 March 2011 (“the Client Agreement”) and precious metals of unspecified value held by JPMCB under an Unallocated Metals Account Agreement dated 22 April 2002 (“the UMAA”). Those balances remain frozen in the hands of JPMS and JPMCB respectively by reason of the sanctions.[3]The relevant contracts between VTB and JPMS and JPMCB were governed by English law and contained London arbitration clauses, including Terms of Business (revised in 2017) (“the 2017 Terms”) which on their face entitled “affiliates” of those companies to enforce the arbitration clause as though a party to those terms. Nonetheless, on 7 October 2024 VTB commenced two sets of proceedings in the Arbitrazh Court of St Petersburg and Leningrad Region against not only JPMS and JPMCB but also six other entities bearing the JPMorgan name, five of them respondents to this appeal, the other being CB JP Morgan Bank International LLC (“JPM Russia”), a company incorporated in Russia. One set of proceedings related to the Client Agreement (“the Client Agreement Claim”) and one related to the UMAA (“the UMAA Claim”).[4]VTB’s claims were tortious claims under Russian law (Articles 1064(1), 1080, 1082 and Article 15(1) of the Russian Civil Code) against JPMS and JPMCB respectively as the principal defendant, alleging unlawful action in relation to VTB’s property, including retention of monies due. In each claim the other JPM entities were joined as joint and several tortfeasors, invoking laws developed by the Russian courts in response to sanctions. Those laws imposed liability on all companies in a corporate group, disapplied applicable foreign law and applied Russian law. Further, jurisdiction was asserted under Article 248.1 of the Arbitrazh Civil Code, giving Russian courts exclusive jurisdiction over disputes involving sanctioned Russian individuals or entities or which concern sanctions, regardless of any contractual choice of forum.[5]On 14 December 2024 JPMS and JPMCB issued these two sets of proceedings, one in relation to the Client Agreement Claim and one in relation to the UMAA Claim, seeking declaratory relief and final anti-suit injunctions against VTB. At or about the same time JPMS and JPMCB applied, without notice, for interim anti-suit injunctions. Those applications were granted by Andrew Baker J the following day and continued to the final hearing by Calver J on 16 January 2025. On 19 February 2025 the other six JPM entities were joined in both sets of proceedings, those companies also seeking final anti-suit and anti-enforcement injunctions.[6]On 20 March 2025, despite having previously accepted the JPMS’s calculation of the balance owed by VTB under the ISDA Master Agreement, and despite that agreement containing an arbitration clause, VTB commenced further proceedings in Russia against JPMS as principal defendant and the other eight JPM entities on a joint and several liability basis, claiming that it was owed EUR 108,636,829.56 (“the ISDA Claim”). The Russian court granted an anti-suit injunction in those proceedings, as a result of which the Respondents have not relied on the arbitration clause in the ISDA Master Agreement.[7]On 7 May 2025, following the anti-suit injunction in the ISDA Claim, JPM Russia discontinued its claim in each set of these proceedings, but the other JPM entities continued to include claims against JPM Russia in the anti-suit and anti-enforcement injunctions they sought.[8]On 13 June 2025, following the hearing of the claims, Foxton J (“the Judge”) made orders in each set of proceedings(i) declaring that the various arbitration agreements were valid and binding on VTB and were governed by English law; and(ii) granting final injunctions restraining VTB from pursuing its claims in Russia (or commencing new claims), including against JPM Russia, or enforcing any order or judgment obtained in its favour in the Russian proceedings. The Judge also rejected applications by VTB challenging the jurisdiction of the English Court. There is no challenge to the Judge’s decision in that regard. The Judge did so having found in his reserved judgment dated 5 June 2025 that: i) the Client Agreement Claim and the UMAA Claim in Russia were being pursued against JPMS and JPMCB respectively in breach of the arbitration clause in the relevant agreement; ii) those claims were also brought against all the JPM entities in breach of the arbitration clause in the 2017 Terms. In the case of JPMS, JPMCB and J.P. Morgan Limited, that was because they were each party to those Terms. In the case of the other five JPM entities, that was because they were “Affiliates” entitled to the benefit of the arbitration clause. JPM Russia however, was no longer a party and so did not itself apply to enforce that clause; iii) the various arbitration clauses did not entitle the parties to those agreements to restrain proceedings against other companies in the JPM group, either as a matter of interpretation or as a matter of implication; iv) however, the Client Agreement Claim and the UMAA Claim were vexatious and oppressive to JPMS and JPMCB, both directly but also by pursuing their affiliates (including JPM Russia); v) although JPMS did not seek to enforce the arbitration clause in the ISDA Master Agreement, and although the Judge held that the ISDA Claim was not a breach of the Client Agreement arbitration clause, nevertheless the commencement of the claim against JPMS and the other seven JPM entities in relation to the ISDA Master Agreement was also vexatious and oppressive; vi) it was appropriate to grant injunctions as a matter of discretion.[9]VTB appealed the Judge’s orders, permission to do so being granted in part by the Judge and in part by Males LJ. VTB did not challenge the Judge’s finding that the Client Agreement Claim and the UMAA Claim were pursued in breach of contract as against JPMS and JPMCB, but argued that the Judge was wrong to find that the claims against the other JPM entities were vexatious and oppressive (Grounds 1 and 2) and wrong to find they could invoke the arbitration clause in the 2017 Terms (Ground 3). VTB further argued that, had the Judge made the correct decision on those issues, he should further have exercised his discretion not to grant injunctions to restrain Russian proceedings against any of the JPM entities, including JPMS and JPMCB (Ground 4).[10]The respondents opposed the appeal and filed a Respondent’s Notice, challenging the Judge’s findings(i) that the ISDA Claim was not a breach of the Client Agreement arbitration clause and(ii) that the arbitration clauses in the Client Agreement and the UMAA did not contain a promise by VTB (whether express or implied) not to bring proceedings against other JPM group companies so as to circumvent the arbitration clauses.[11]After hearing from Mr Fenwick KC for VTB, we announced that the appeal would be dismissed. I set out below my reasons for joining in that decision. We did not need to hear argument on the issues raised in the Respondent’s Notice and I say nothing about their merits.

The contractual provisions

[12]The Judge examined the provisions of the relevant contracts in some detail at [17]-[46] of his judgment. Given the narrowing of issues arising for the purposes of the appeal, it is necessary to refer only to the provisions set out below.

The UMAA

[13]The UMAA provided for an account to be opened for VTB at the JPMCB London branch for precious metals, which would record the amount of precious metal which either party could call on from the other, depending on the state of the account at the relevant time.[14]Clause 13.3 provided for assignment of the parties’ respective interests in the UMAA, but there was no provision for affiliates or any other third party to take the benefit of its provisions. Clause 13.6 contained an “entire agreement” provision.[15]Clause14.1 of the UMAA provided that it was governed by English law. Clause14.2 provided for arbitration as follows: “Any dispute arising out of or in connection with this agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the rules of the London Court of International Arbitrators, which rules are deemed to be incorporated by reference into this clause”.[16]The Judge rejected VTB’s argument that that clause did not encompass its tortious claims against JPMCB in Russia and VTB does not challenge that finding.

The Client Agreement

[17]The Client Agreement set out the terms on which JPMS agreed to open a futures and options account for the execution and/or clearing of exchange listed or over the counter cleared products in the name of VTB.[18]The second recital to the Client Agreement stated:
“Where the Client has entered into Terms of Business with JPMSL, this Agreement, rather than the Terms of Business, shall govern the Client’s relationship with JPMSL for the execution and/or clearing of exchange listed or OTC cleared products and options accounts at JPMSL. However, the Terms of Business shall continue to govern all other investment business with JPMSL as defined by FSMA. In the event of any conflict between the clauses of this Agreement and the Terms of Business, the clauses of this Agreement shall prevail. This is a ‘Specific Product Contract’ for the purposes of the Terms of Business”
[19]Clause 31 provided that:
“The parties to this Agreement agree that any dispute arising out of or connected with this Agreement, including a dispute as to the validity or existence of this Agreement and/or this clause or any non-contractual obligations arising out of or relating to this Agreement, shall be resolved in accordance with the Rules of the London Court of International Arbitration … The Arbitration Rules are deemed to be incorporated by reference into this clause”
[20]The Judge noted that, curiously, clause 33 provided for a party to object to a dispute being referred to arbitration and for it to be referred to the courts of England “pursuant to clause 31”. The Judge held that this was “legacy” drafting where something had plainly “gone wrong” given the clear words of clause 31, which should prevail. VTB did not challenge that finding on this appeal, and did not contest the Judge’s finding that clause 31 covered its tortious claims in Russia.[21]Clause 35 provided that neither party would assign or transfer its rights under the Client Agreement without the consent of the other party and expressly stated that a person who was not a party to the agreement had no right under the Contracts (Rights of Third Parties) Act 1999.

The ISDA Master Agreement

[22]On 18 June 2015 VTB and JPMS entered the ISDA Master Agreement on the 2002 Master Agreement form.[23]By Part 5(7) of the Schedule, section 13(b) of the ISDA Master Agreement was amended to provide as follows:
“Any dispute (a ‘Dispute’) arising out of or in connection with this Agreement and any Transaction (including any question regarding the existence, validity or termination of this Agreement or the consequences of its nullity) shall be referred to and finally resolved by arbitration under the Arbitration Rules of the London Court of International Arbitration …”

The 2017 Terms

[24]As already stated, the 2017 Terms were expressed to be applicable to JPMS, JPMCB and J.P. Morgan Limited. Clause 35 stated:
“Any Affiliate may enforce and rely on any provision of these Terms conferring a benefit on it to the same extent as if it were a party to these Terms or any transactions hereunder. Save as aforesaid, a person who is not a party to these Terms has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of these Terms.”
[25]“Affiliates” was defined in clause 1.1 as “…direct or indirect subsidiaries of J.P. Morgan and the direct or indirect subsidiaries of J.P. Morgan’s direct or indirect holding companies from time to time, any entity directly or indirectly controlled by J.P. Morgan and any entity directly or indirectly under common control with J.P. Morgan and any other connected or associated person …”[26]Clause 1.3 provided:
“Without limiting the application of these Terms to transactions entered into, or deemed to be entered into, under these Terms, or services received, or deemed to be received, under these Terms, these Terms are without prejudice to and shall not supersede or amend any other contract(s) entered into by you … and J.P. Morgan (whether prior to or after our despatch of these Terms to you) (each a ‘Product Contract’) including, without limitation, any contract(s) relating to specific, or specific types of, products, services or transactions … In the event of any conflict between any Product Contract(s) and these Terms, the provisions of the Product Contract(s) shall prevail.”
[27]Clause 32.2 provided that:
“….any dispute, controversy or claim (including, without limitation, (1) any contractual, pre-contractual or non-contractual right, obligations or liabilities arising in any way out of, in relation to or in connection with our relationship, and (2) any issue as to the existence, validity or termination of these Terms or any related or connected agreement) (a ‘Dispute’) shall be referred to and finally resolved by arbitration under the Arbitration Rules … of the London Court of International Arbitration … which are deemed to be incorporated by reference into this Clause 32.2”
[28]Before the Judge, VTB argued that neither the 2017 Terms nor the preceding version dated 2011 (which provided for the exclusive jurisdiction of the English Courts in respect of any dispute, with either party having a right to require that a dispute be referred to arbitration prior to service of a defence) were binding on VTB. The Judge rejected that contention in relation to both versions and VTB did not challenge that finding. In his oral submissions on the appeal Mr Fenwick advanced a new argument, submitting that the fact that the 2017 Terms had replaced the 2011 Terms by a process of notification and deemed acceptance by VTB was relevant in some way to the interpretation of the 2017 Terms, lessening the force of the agreement to arbitrate in London because it replaced an earlier agreement to submit disputes to the jurisdiction of the English court, with either party being entitled to require arbitration. I see no merit in that contention. The 2011 Terms expressly provided that JPMS was entitled to send VTB revised Terms and for them to be applicable in respect of any transaction thereafter. There is no reason why the 2017 Terms, now accepted to have become binding by that process, agreed to by one international bank in its dealings with another, should be interpreted other than on their face. There is certainly no justification whatsoever for reading down the clear LCIA arbitration clause in clause 32.2 because of a relatively minor change, of no real consequence, from the preceding version.[29]Mr Fenwick first addressed Ground 3 of the appeal, recognising that the question of the contractual entitlement of members of the JPM group to rely on the LCIA arbitration clause in the 2017 Terms was logically prior to the issue of whether the claims against them in Russia should be restrained as vexatious and oppressive, as well as delineating the scope of that issue.[30]Although the first part of Ground 3 asserted that non-signatories to the 2017 Terms could not rely upon the LCIA arbitration clause, that was not advanced as an independent argument on appeal by VTB in either its skeleton argument or in oral submissions. Mr Fenwick instead focused on the second part of the Ground, for which Males LJ gave permission to appeal after it was refused by the Judge, contending that there was a “hierarchy” between the 2017 Terms and specific product contracts (here, the Client Agreement and the UMAA), with the result that non-parties to the specific product contracts (that is to say, all the JPM entities other than JPMS and JPMCB) could not rely on the arbitration clause in the 2017 Terms in respect of a dispute concerning the subject matter of the specific product contracts.[31]The argument was founded on clause 1.3 of the 2017 Terms, which provided that in the event of any conflict between any product contract and the 2017 Terms, the provisions of the former should prevail. As the Judge had found that the claims in the Russian proceedings fell within the scope of the arbitration clauses in the Client Agreement and the UMAA respectively, justifying the grant of injunctive relief to JPMS and JPMCB, Mr Fenwick submitted that the disputes in question related to those specific product contracts and were governed by the terms of those contracts. Further, as the Client Agreement and the UMAA did not extend the right to arbitrate such disputes to third parties to those contracts, the provisions in the 2017 Terms which purported to extend the right to invoke arbitration of such disputes to non-parties to the Client Agreement and the UMAA (both parties to the 2017 Terms such as J.P. Morgan Limited and affiliates) were in conflict with the Client Agreement and UMAA, such that the former should prevail.

The Judge addressed this argument as follows:

[32]93. I am unable to accept this argument, essentially because I cannot see how a clause giving rights to someone who is not party to an earlier agreement, while leaving the rights and obligations of those who are parties unchanged, can be said to “supersede”, “amend” or “conflict with” those earlier terms. The approach to be adopted when determining whether provisions “conflict” in a two-party context has been the subject of a number of Court of Appeal authorities: i) In Pagnan SpA v Tradax Ocean Transportation SA [1987] 2 Lloyd's Rep 342, 350, Bingham LJ noted that “it is not enough if one term qualifies or modifies the effect of another; to be inconsistent a term must contradict another term or be in conflict with it, such that effect cannot fairly be given to both clauses.” Dillon LJ (at p.353) held “there is inconsistency where two clauses cannot sensibly be read together, but can it really be said that there is inconsistency wherever one clause in a document qualifies another?” (answering his rhetorical question in the negative). ii) In Alexander v West Bromwich Mortgage Co [2016] EWCA Civ 496, [62], Hamblen LJ said “one way of testing whether clauses can be 'fairly' or 'sensibly' read together is by seeking to put them together in a single clause”. iii) In Septo Trading Inc v Tinetrade Ltd (The NouNou) [2021] EWCA Civ 718, [28], Males LJ stated that “the question is whether the two clauses can be read together fairly and sensibly so as to give effect to both,” a question to “be approached practically, having regard to business common sense, and is not a literal or mechanical exercise.”94. In this case, it is possible to give both terms effect, and a businesslike and common sense approach justifies doing so. It is far from uncommon for claims to be brought against affiliates in an effort to avoid dispute resolution provisions or exclusions or limitations in the contract. The 2017 Terms are fully alive to that danger, as is apparent from the numerous provisions conferring benefits on non-party affiliates. The inclusion, in the 2017 Terms, of a dispute resolution provision which protected Affiliates who did not benefit as a matter of contractual privity from dispute resolution provisions in specific contracts to which they were not parties from claims relating to those specific contracts, is obviously sensible. There is no difficulty in giving effect to this clause conferring a right to arbitrate disputes on Affiliates alongside the UMAA and [Client Agreement] Arbitration Agreements so far as the signatories to those agreements are concerned.”[33]In my judgment nothing said on behalf of VTB in writing or in oral argument undermined the Judge’s analysis above in any respect. The one criticism advanced in VTB’s skeleton related to how the Judge expressed himself in refusing permission to appeal on this point, but no specific aspect of the above reasoning was addressed. It is plainly correct. The JPM entities which are the subject of tortious claims in respect of the dealings of JPMS and JPMCB with VTB under the Client Agreement and the UMAA respectively cannot invoke the terms of those agreements (including the arbitration clauses) because they are not party to them. But, being the subject of claims nonetheless, there is no reason why they should not rely on a clause in the 2017 Terms, of which they have the benefit, which refers to arbitration of “any dispute” including “non-contractual liabilities arising in any way out of, in relation to or in connection with our relationship”. Reliance on that clause, which applies clearly and directly to the claims against the JPM entities who are not parties to the Client Agreement or the UMAA, in no way conflicts with the provisions of those contracts which, as VTB itself avers (and is assumed for present purposes), do not apply to such claims. Any other conclusion would be absurd, entailing that, although every relevant contract between VTB and each and every JPM entity contained an express LCIA arbitration clause, VTB could circumvent those clauses simply by claiming against any affiliate in tort. As the Judge stated, that is precisely what the 2017 Terms were designed to avoid by their wide wording. The argument that the JPM group had failed in that design was, in my view, without merit.[34]It follows that the Judge was right to hold that all the JPM entities were entitled to invoke the LCIA arbitration clauses in the various agreements (although JPM Russia did not do so).

Whether the claims against JPM Russia were vexatious and oppressive

[35]Given that Ground 3 failed, the question of vexation and oppression (Grounds 1 and 2) only arose for decision in relation to JPM Russia, as all other JPM entities had sought to enforce their contractual right to LCIA arbitration of the claims against them. Indeed, Mr Fenwick made his submissions on vexation and oppression primarily in relation to the position of JPM Russia.

The judgment

[36]The Judge set out at [144] the principles for the granting of anti-suit relief on the vexation and oppression basis as summarised by Males LJ in SAS Institute Inc v World Programming Ltd [2020] EWCA Civ 599 at [90]-[91], [103] and [108]: “i) The basic principle is that the jurisdiction is to be exercised “when the ends of justice require it”. ii) 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, but the jurisdiction is not confined to these categories and must be applied flexibly. iii) 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, because of the requirements of comity. iv) 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. v) Comity requires that in order for an anti-suit injunction to be granted, the English court must have “a sufficient interest” in the matter in question. Often that sufficient interest will exist by reason of the fact that the English court is the natural forum for the determination of the parties’ dispute. In a case where the injunction is sought in order to protect the jurisdiction or process of the English courts, the existence of a sufficient interest will generally be self-evident.[37]At [145] the Judge noted that the categories of factors which may amount to vexation and oppression are not closed, citing Elektrim SA v Vivendi Holdings [2008] EWCA Civ 1178 at [83].[38]The Judge then addressed the specific situation where foreign proceedings involve the circumvention of an agreement for arbitration with an English seat or an English exclusive jurisdiction clause (“EJC”), stating at [146] as follows:
“Even in cases in which injunctive relief is not sought on a contractual or quasi contractual basis, the fact that the foreign proceedings involve the circumvention of an agreement for arbitration with an English seat, or an English EJC, can itself be relevant in determining whether the commencement and pursuit of the foreign proceedings is vexatious and oppressive, as well as establishing the necessary “sufficient interest” of the English court to act. In Clearlake Shipping Pte Ltd v Xiang Da Marine Pte Ltd [2019] EWHC 2284 (Comm), Andrew Burrows QC relied upon the EJCs in the head and sub-voyage charterparties and the bills of lading, which pointed to England as “the natural forum” ([34(i)], and found that Xiang Da had “manipulated its third party claims to try to avoid being caught by the exclusive jurisdiction clause in the Clearlake charter”, the claim being a “procedural manoeuvre designed to evade the exclusive jurisdiction clause” ([34(ii)])”
[39]The Judge next referred to Renaissance Securities (Cyprus) v Chlodwig Enterprises [2025] EWCA Civ 369, a similar case to the present in which tortious claims were brought in Russia under the same Russian law and legislation against alleged Russian affiliates of Renaissance to recover sanctioned assets held pursuant to English law contracts containing LCIA arbitration clauses. This Court declined to grant anti-suit injunctions due to deficiencies in the claimants’ evidence. However, Singh LJ identified three reasons why the court should be prepared to contemplate granting anti-suit injunctions where the foreign proceedings appear to be designed to circumvent and undermine the effect of the arbitration agreements, summarised by the Judge at [147] as follows:
“(i) to protect the integrity of the arbitral process; (ii) to protect the integrity of the orders made by courts of this jurisdiction, in particular the anti-suit injunctions made by [Commercial Court Judges]; and (iii) to protect the public policy of the United Kingdom in having the sanctions regime which it does.” (ii) to protect the integrity of the orders made by courts of this jurisdiction, in particular the anti-suit injunctions made by [Commercial Court Judges]; and (iii) to protect the public policy of the United Kingdom in having the sanctions regime which it does.”
[40]The Judge referred at [149] to Singh LJ’s further view that for a party to seek to circumvent the sanctions regime of this country is to seek “an illegitimate juridical advantage”, whether or not the parties had agreed that English law should govern their dispute. The Judge further noted that, in the same case, Males LJ expressed the view that “at first sight, there appears to be a powerful case that” the Russian proceedings against the alleged affiliates were vexatious and oppressive.[41]The Judge set out his reasons for holding the Client Agreement Claim and the UMAA Claim to be vexatious and oppressive at [151]:
“i) It is necessary to consider the claims asserted in the UMAA and Client Agreement Claims as a matter of substance…. So analysed, they are attempts to recover amounts said to be due under contracts governed by English law. In their substance, the Russian law tort claims are an attempt to enforce inherently contractual obligations in an inherently contractual way. ii) I am satisfied that the pursuit of those claims in Russia is intended to circumvent the UMAA and [Client Agreement] Arbitration Agreements, the rules of English law which would apply in that context, and more generally the English law sanctions regime. In doing so, VTB is seeking to obtain an illegitimate juridical advantage (namely avoiding the laws of England and Wales including the UK sanctions regime) and is undermining the efficacy of that regime. Mr Fenwick KC suggested that, taken as a general proposition, Singh LJ’s reference to the significance of any circumvention of the English law sanctions regime “cannot stand because to circumvent the sanctions regime of this country is something which is either a breach of the sanctions regime or not”
. However, I accept that such a circumvention is a relevant factor which forms part of the overall assessment of whether a claim is vexatious and oppressive, even though there is no absolute rule that such claims are always vexatious and oppressive. The ability to take a factor into account without making it determinative is one of the benefits of approaching this issue on the basis of the “vexatious and oppressive” jurisdiction rather than as an implied term. iii) The provisions of Russian law used to impose liability on non-parties to the UMAA and Client Agreement do not accord with generally recognised principles of civil law. The claim in tort for failure to pay a debt and a tortious obligation imposed on all companies in the same corporate group regardless of any involvement in the transaction to take steps to require a debtor to pay are an unnatural form of liability as a matter of general principles of civil law. Further, the claims involve the wholesale disregard of corporate personality and contractual privity, by reference to special legal principles developed in response to international sanctions. As a result, the inevitable consequence of the pursuit of the Russian proceedings is the application of an “unnatural law” to these trading relationships governed by English law. iv) The effect of the Russian legal principles developed in response to sanctions is to purport to make a significant retrospective change to English law obligations, in particular as to the identity of the parties to those obligations, but also as to the circumstances in which payment is required. v) The matters in (ii) to (iv) establish a sufficient interest of the courts of England and Wales for the purposes of granting anti-suit relief. Taking account of all of these factors, I have come to the conclusion that the UMAA and Client Agreement claims are vexatious and oppressive both as regards JPMS plc and JPMCB, and also as regards the other JPM Entities joined to them. In particular, it is vexatious and oppressive to JPMS plc and JPMCB to pursue an affiliate such as JPM Russia, in the circumstances I have outlined, bringing what are in substance claims to enforce obligations arising under agreements to which JPMS pls and JPMCB are parties, but otherwise than in accordance with the applicable law and dispute resolution provisions and as a means of circumventing sanctions which apply to the amounts payable in connection with the UMAA and Client Agreement.”

Grounds 1 and 2 of the appeal

[42]VTB accepted that the Judge correctly set out the law as it currently stands on the vexatious and oppressive ground for the grant of anti-suit injunctions, but submitted that he erred: i) by treating the existence of a “sufficient interest” of the English court as coterminous with, and dispositive of, the comity enquiry, when it should have been regarded as a necessary but not sufficient condition for the satisfaction of the comity enquiry (Ground 1); and ii) in any event, by wrongly regarding the sufficient interest test as satisfied because the Russian claims were intended to circumvent the arbitration clauses contained within the Client Agreement and the UMAA. VTB contended that that was a flawed conclusion given that the claims against JPM Russia did not constitute a breach of the arbitration clauses. As those claims were outside the contractual framework, it was nonsensical to talk of intentional “circumvention” of the English court (Ground 2).[43]As regards Ground 1, Mr Fenwick emphasised that JPM Russia was a Russian company, being sued in Russia (a “not-unfriendly” foreign state) by another Russian company in respect of alleged Russian-law torts in circumstances where the company was not itself asserting a right not to be sued in Russia. Further, the pursuit of those claims, and the satisfaction of them by a Russian company in Russia would not be a breach of UK sanctions. For the English court to interfere in that entirely Russian process, Mr Fenwick urged, would be directly contrary to the requirements of comity, requirements that the Judge should have regarded as outweighing any “sufficient interest” of the English court in the matter in question, but which the Judge did not even specifically address.[44]In my judgment, however, the concept of the English court having “sufficient interest” is (and can only be) a consideration of whether there is an interest sufficient to justify interfering in the process of the foreign court by granting an anti-suit injunction notwithstanding the principles of comity. The two concepts are not separate factors to be balanced against each other, but are two aspects of the same overall issue: whether there is sufficiently good reason for the English court to interfere in foreign process despite the English’s court’s respect for that process and reluctance to do so. Apart from the fact that there can be no other sense in which an interest would be “sufficient” in this context, it is the sense in which the term has been used in the authorities establishing the requirement. Thus in Airbus Industrie v Patel [1999] 1 AC 119 (HL) Lord Goff stated at p. 138G-H that “comity requires that the English forum should have a sufficient interest in, or connection with, the matter in question to justify the indirect interference with the foreign court which an anti-suit injunction entails”. That passage has thereafter been cited as setting out the “requirements of comity”: see Deutche Bank AG v Highland Crusader Offshore Partners LP [2009] EWCA Civ 725; [2010] 1 WLR 1023, per Toulson LJ at [59]. It is apparent that that is the sense in which Males LJ referred to “comity requiring that the English court must have “sufficient interest” in the matter in question” in his summary in SAS Institute, further demonstrated by the examples he gave of such interest: where the English court is the natural forum for the dispute, or where the injunction is sought in order to protect the jurisdiction or process of the English court. The interest in such cases is plainly such as to justify interference notwithstanding comity.[45]In the present case it is clear that the Judge was well aware of the principles of comity and also that an anti-suit injunction would interfere with the process of the Russian court in the ways identified by VTB. In that context, the Judge’s analysis addressed both sides of the “sufficient interest” equation. On the one hand, at sub-paragraphs (iii) and (iv) of [151], he considered the nature and purpose of the relevant legislative scheme and legal principles in Russia, relevant to assessing the degree of respect the English court should accord to the Russian proceedings as a matter of comity. His view that the relevant provisions of Russian law created “an unnatural form of liability”, involving “a wholesale disregard of corporate personality and contractual privity by reference to special legal principles developed in response to international sanctions”, clearly mandated a lower degree of concern, if any, as to interfering in the process of the Russian courts implementing those provisions. On the other hand, at sub-paragraphs (i) and (ii) of [151] he analysed the nature and extent of the interest of the English court in the subject matter of the claims in Russia, including that the Russian proceedings were an attempt to enforce contractual rights governed by English law, involving the circumvention of London arbitration agreements, the applicable rules of English law and the UK sanctions regime. His conclusion was that the interest of the English court was more than sufficient to outweigh any concerns about interfering with the Russian proceedings due to the principle of comity leading to the conclusion that those proceedings should be restrained as vexatious and oppressive.[46]In my judgment there was no error in the Judge’s approach to the interrelationship between the principles of comity and the test of “sufficient interest”. It follows that there was no merit in Ground 1.[47]As regards Ground 2, Mr Fenwick argued that the English court did not have a sufficient interest in the claims in Russia against JPM Russia. He criticised the Judge’s analysis in [151] as follows: i) the claims in Russia were not contractual claims governed by English law (as the Judge himself found), but tortious claims under Russian law brought against a Russian party in Russia in respect of monies and precious metal held by JPM entities “outside the contractual framework”. None of those aspects should attract the English court’s interest; ii) the claim against JPM Russia could not be viewed as circumventing a London arbitration clause which JPM Russia did not seek to invoke; iii) neither did such a claim circumvent the UK sanctions regime, which did not prevent a Russian company paying VTB in Russia. Further, Mr Fenwick submitted, viewing foreign proceedings as vexatious because of UK sanctions was “dangerous territory”, given that the Russian legislation and process was itself a response to what was regarded as a matter of Russian law as an illegitimate interference with contractual and property rights. The English court should not engage in considering the merits of that response; iv) it was inappropriate to regard the Russian legislation and laws as “unnatural” or contrary to some concept of “generally recognised principles of civil law”. The Judge made a value judgment about lawful provisions of foreign law which were no more unnatural than English concepts of attribution of knowledge or vicarious liability; v) saying that it was vexatious and oppressive to sue JPM Russia under Russian law for the debts of other JPM group companies was to ignore Russian law simply because it did not give effect to UK sanctions in Russia. The effect of an anti-suit injunction would be to subvert the rights of VTB in Russia under Russian law in a Russian centric claim.[48]In my judgment Mr Fenwick’s arguments invite far too narrow a view of the Russian proceedings, ignoring their context, purpose and intended effect. Although the claims in Russia are tortious claims, they expressly and directly claim for the failure to pay debts (or honour other obligations) which arise as a matter of contracts governed by English law, but are frozen by sanctions which form part of that law. As Mr Fenwick accepted, the very purpose of the Russian legislative scheme is to circumvent the application of applicable English law and the London arbitration clauses, as well as the sanctions regime. The tortious Russian law claims against affiliates of the debtor companies are not freestanding matters of Russian law that happen to provide a remedy that would not be recognised in this jurisdiction; they were created specifically, and with retrospective effect, to enable Russian parties such as VTB to claim and recover in Russia debts which they would not be entitled to be paid as a matter of the law that governs those debts if they claimed in the contractually agreed forum.[49]As for the alleged “Russian centric” characterisation of the claim against JPM Russia, it must be borne in mind that that company is part of an international group and is being sued for debts of its non-Russian affiliates that are subject to English law and London arbitration clauses. Although JPM Russia did not itself rely on the arbitration clause in the 2017 Terms, the Judge was right to recognise that, as a Russian company with assets in Russia, it had little choice but to submit to the jurisdiction of the Russian courts in the face of Russian anti-suit injunctions.[50]Mr Fenwick suggested that it was particularly inappropriate to injunct VTB from pursuing claims in Russia in circumstances where the JPM entities had not commenced London arbitration claims and plainly had no intention of doing so. But the purpose of anti-suit injunctions is to enforce the negative obligation in arbitration agreements (or EJCs) not to bring claims other than in the chosen forum. The JPM entities are not obliged to commence arbitrations, but can insist that any claims against them are arbitrated in London.[51]It follows that the Judge was fully entitled, as a matter of his evaluation, to find the claims against JPM Russia to be vexatious and oppressive and to include the proceedings against that company in the injunctions he granted. I would have reached the same conclusion.

The exercise of discretion

[52]As VTB accepted, if its appeal failed on Grounds 1 to 3, Ground 4 could not succeed. The appeal therefore failed on all grounds.

Sir Launcelot Henderson:

[53]I agree.

Lewison LJ

[54]I also agree.