“In such circumstances it may be necessary to consider whether the injunction should be discharged or varied, so the claimant cannot simply be allowed to discontinue without having such issues sorted out. Such issues do not arise where the claimant wishes only to discontinue a part of its claim which falls outside the scope of the injunction.”
“A person who is not a party to this Agreement has no right under theContracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy that exists or is available apart from that act.”
“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 theContracts (Rights of Third Parties) Act 1999 to enforce any provision of these Terms.”
“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 JP 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.”
“The approach to construction in this situation was summarised by Hamblen LJ in BNP Paribas SA v Trattamentio Rifiuti Metropolitani SpA: i) The starting point is that a jurisdiction clause in one contract was probably not intended to capture disputes more naturally seen as arising under a related contract. ii) A broad, purposive and commercially-minded approach is to be followed. iii) Where the jurisdiction clauses are part of a series of agreements they should be interpreted in the light of the transaction as a whole, taking into account the overall scheme of the agreements and reading sentences and phrases in the context of that overall scheme. iv) Sensible business people are unlikely to intend that similar claims should be the subject of inconsistent jurisdiction clauses. v) The starting presumption will therefore be that competing jurisdiction clauses are to be interpreted on the basis that each deals exclusively with its own subject matter and they are not overlapping, provided the language and surrounding circumstances so allow. vi) The language and surrounding circumstances may, however, make it clear that a dispute falls within the ambit of both clauses. In that event the result may be that either clause can apply rather than one clause to the exclusion of the other.”
“Counsel referred to the fact that MachinoImport and Sberbank were not party to the arbitration agreement and so any claim against them would have to be advanced elsewhere. That is true but the tortious, non-contractual claim brought against the Refinery for being party to an unlawful means conspiracy clearly arises out of or in connection with the pre-payment agreements and off-take contracts. The claim is therefore very clearly caught by the arbitration clause.”
“… it seems to me to be far-fetched to regard 'any disputes' as covering disputes between MLC and any one other than MLC's contract partner under the purchase agreements, namely CS Europe. Clause 5.2 is part of a bilateral agreement between a seller and a buyer, and the disputes to which such an agreement may give rise are prima facie bilateral disputes. Indeed, it is I would have thought axiomatic that, at any rate in the absence of plain language to the contrary, a contract seeks neither to benefit nor to prejudice non-parties: even where such plain language is used, it is black-letter law that the non-party can himself neither take the benefit nor suffer the burden of the contract. In the present case there is nothing in the language of cl. 5.2 to suggest that it is intended to have an ambit beyond the parties to the purchase agreements themselves. While it is true that the agreements mention CS affiliates, there is nothing in the express language of cl. 5.2 to suggest that the clause is intended to bind MLC as to where it is entitled to sue such affiliates….”
“There is a point of construction of the exclusive jurisdiction clause that it is convenient to deal with at this point. It is accepted that the clause is not restricted to contractual claims. A claim for damages for, for example, fraudulent misrepresentation inducing an agreement containing an exclusive jurisdiction clause in the same form as that with which this case is concerned would, as a matter of ordinary language, be a claim in tort that arose ‘out of or in connection with’ the agreement. If the alleged fraudulent misrepresentation had been made by two individuals jointly, of whom one was and the other was not a party to the agreement, the claim would still be of the same character, although only the party to the agreement would be entitled to the benefit of the exclusive jurisdiction clause. The commencement of the claim against the two alleged tortfeasors elsewhere than in England would represent a breach of the clause. The defendant tortfeasor who was a party to the agreement would, absent strong reasons to the contrary, be entitled to an injunction restraining the continuance of the foreign proceedings. He would be entitled to an injunction restraining the continuance of the proceedings not only against himself but also against his co-defendant. The exclusive jurisdiction clause is expressed to cover ‘any dispute which may arise out of or in connection with’ the agreement. It is not limited to ‘any claim against’ the party to the agreement. To give the clause that limited construction would very substantially reduce the protection afforded by the clause to the party to the agreement. The non-party, if he remained alone as a defendant in the foreign proceedings, would be entitled to claim from his co-tortfeasor a contribution to any damages awarded. He could join the co-tortfeasor, the party entitled to the protection of the exclusive jurisdiction clause, in third party proceedings for that purpose. The position would be no different if the claim were to be commenced in the foreign court with only the tortfeasor who was not a party to the exclusive jurisdiction clause as a defendant. He would be able, and well advised, to commence third party proceedings against his co-tortfeasor, the party to the exclusive jurisdiction clause. ... In my opinion, an exclusive jurisdiction clause in the wide terms of that with which this case is concerned is broken if any proceedings within the scope of the clause are commenced in a foreign jurisdiction, whether or not the person entitled to the protection of the clause is joined as defendant to the proceedings. An injunction restraining the continuance of the proceedings would not, of course, be granted unless the party seeking the injunction, being someone entitled to the benefit of the clause, had a sufficient interest in obtaining the injunction. It would, I think, be necessary for him to show that the claim being prosecuted in the foreign jurisdiction was one which, if it succeeded, would involve him in some consequential liability. It would certainly, in my opinion, suffice to show that if the claim succeeded he would incur a liability as a joint tortfeasor to contribute to the damages awarded by the foreign court.”
“(1) Whether an exclusive jurisdiction clause should be understood to oblige a contractual party to bring claims relating to the contract in the chosen forum even if the claim is one against a non-contracting party, requires a consideration of the contract as a whole including not just the language used in the exclusive jurisdiction clause but also all other terms in the contract that may shed light on what the parties are likely to have intended. (2) The principle that rational businessmen are likely to have intended that all disputes arising out of or connected with the relationship into which they had entered would be decided by the same court cannot apply with the same force when considering claims brought by or against non-contracting third parties. More particularly, whist it is well established that the language of an exclusive jurisdiction clause is to be interpreted in a wide and generous manner, the starting position in considering whether disputes involving a non-contracting third party might come within the scope of the clause must be that, absent plain language to the contrary, the contracting parties are likely to have intended neither to benefit nor prejudice non-contracting third parties. (3) Where it is clear from the express terms that the contracting parties have turned their minds to the position of third parties and more particularly whether such third parties are to benefit or bear the burden of rights and obligations agreed between the contracting parties, the absence of any express language in the exclusive jurisdiction clause that provides for the application of that term in relation to claims brought by or against third parties may be an indication that the clause was not intended either to benefit or prejudice such third parties. (4) Where the exclusive jurisdiction clause is silent on the question, the fact that any provision in the contract dealing with third parties indicates an intention that third parties should not acquire rights as against the contracting parties by virtue of the contract, may be a further indication that the clause was not intended either to benefit or prejudice such third parties. (5) Where a particular interpretation of the exclusive jurisdiction clause produces a material contractual imbalance because for example it results in one party to a dispute relating to the contract being subjected to an obligation to bring proceedings in the chosen jurisdiction in circumstances where the other party to the dispute is not similarly obliged, or where that interpretation would require a claim against a non-contracting third party to be brought in the agreed jurisdiction even where the chosen forum may not actually have jurisdiction over such a claim against that party, this too may be an indication that the clause was not intended to so apply because such a result is unlikely to be what the contracting parties as rational businessmen would have agreed. (6) The fact that there is nothing in the contract that might indicate a rational limit in terms of the identity of non-contracting third parties whose rights and interests might be affected by the application of an exclusive jurisdiction clause might provide a further indication that the clause was only intended to affect the rights and interests of the contracting parties. (7) It follows that where contracting parties intend that any claim relating to the contract be subject to the exclusive jurisdiction clause even where it is one brought by or against a non-contracting party, clear words should be used expressly setting out this intention, the parties to be affected and, if relevant, the manner in which submission of any non-contracting parties to the jurisdiction of the chosen court is to be ensured.”
“… [T]here is a further aspect of the law before me that is not so straightforward (although it was the application of the relevant legal principles, rather than the principles themselves, that appeared to divide the parties). 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 by covered by the jurisdiction clause).”
“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.”
“This raises the interesting question of interpretation discussed in paragraphs 20 to 24 above. The exclusive jurisdiction clause is in the Clearlake charter … The question is whether the reference in the exclusive jurisdiction clause to disputes arising out of the charter, on its correct interpretation, can apply to the claims by Xiang Da against Gunvor for tortious misrepresentation … I have set out, in paragraph 23 above, the correct approach to this question of interpreting the jurisdiction clause in the Clearlake charter. In this case, the application of that law (i.e. the question of contractual interpretation raised) does not admit of an easy answer. At root, one is asking whether Clearlake and Xiang Da objectively intended that Xiang Da’s tortious misrepresentation claims against Gunvor should be covered by that jurisdiction clause. The starting point in answering that is that, not least because there is no express reference to Gunvor, the clause does not extend to cover (tort) claims against Gunvor. But as against that there are the following five factors: (i) The misrepresentation claims against Gunvor may be said to constitute ‘a dispute arising out of this charter’. The alleged misrepresentations arose in relation to the performance of the Clearlake charter. (ii) There is nothing in the Clearlake charterparty expressly indicating that the jurisdiction clause should not apply in relation to Xiang Da’s tort claims against Gunvor. (iii) There is a close relationship between Clearlake and Gunvor. Both are part of the Gunvor Group and Clearlake is the chartering arm of the group. In that role, it had a long-term contract of affreightment with Gunvor and it was pursuant to that contract that the Gunvor sub-charter was entered into. (iv) It is clear that, had Clearlake been sued by Xiang Da for the tort of misrepresentation in relation to the Clearlake charter, that would have been caught by the exclusive jurisdiction clause. Similarly, had Xiang Da sued both Clearlake and Gunvor for the (same) misrepresentations, it would appear that the jurisdiction clause would have applied not only as regards Clearlake but also as regards Gunvor. If that is correct, it is not clear that it can make a significant difference that Xiang Da has chosen to sue only Gunvor for misrepresentation and not Clearlake. (v) Clearlake has an interest in the proceedings by Xiang Da against Gunvor. This is because, for at least two reasons, there is potential prejudice to Clearlake if the claim by Xiang Da against Gunvor goes ahead in Singapore. First, if Gunvor is found liable to Xiang Da, there is a realistic prospect of Gunvor having a contribution (or indemnity) claim against Clearlake as a joint and several tortfeasor. It is therefore of importance to Clearlake that the English courts make the determination of Gunvor’s tort liability to Xiang Da. Secondly, I have decided on issue (1) above (see paragraphs 27-32) that Xiang Da’s claims against Clearlake based on the re-documentation letter of indemnity should be heard in England not Singapore. There is a close link between those claims and the tort claim brought by Xiang Da against Gunvor and it is in the interests of Clearlake to avoid forum-fragmentation (and the waste of resources involved) by having all third party proceedings (by Xiang Da against Clearlake and Gunvor) heard in the same jurisdiction (i.e. England).”
“ … EuroChem NW and Tecnimont agreed to refer to arbitration ‘[a]ny Dispute arising between [EuroChem NW] and [Tecnimont] in relation to this Contract or in any way connected therewith’. ‘Dispute’ was defined as ‘any question, dispute or difference arising out of or in connection with this Contract including any dispute as to its existence, validity, interpretation, performance, breach or termination or the consequences of its nullity (each a ‘Dispute’)’. The clauses are thus drafted very broadly, and in any event are to be construed widely. It is common ground that any cause of action between EuroChem NW and the Appellants concerning the enforceability of the Bonds falls within the scope of the London arbitration clauses (to which EuroChem NW and Tecnimont were bound). It appeared during the course of the appeal hearing also to be common ground that the ownership/control issue (centrally) in dispute between Tecnimont and EuroChem NW in the Arbitration and Bank Proceedings was also (centrally) in dispute between Tecnimont and EuroChem Agro in the Italian Proceedings. The definition of ‘Dispute’ makes it clear that a ‘Dispute’ is not limited to separate formal proceedings or claims, but extends to mere questions or differences between the parties. The ownership/control issue is such a question or difference. Its outcome concerns, amongst other things, whether the Banks are liable to pay under the Bonds. Put simply, the ‘Dispute’ arises between EuroChem NW and Tecnimont in relation to or in connection with the Contracts. The fact that EuroChem NW was not party to the Italian Proceedings does not mean that EuroChem NW and Tecnimont are not to be taken as having agreed that the ownership/control issue (which relates to EuroChem AG and its subsidiaries) was to be litigated only in accordance with the London arbitration clauses, and not otherwise. … The conclusion sits entirely comfortably with the notion that these commercial parties would not have intended the same issue to be litigated here and abroad in different tribunals. As the Judge put it at [43], such proliferation of proceedings would be inimical to Tecnimont's agreement to resolve its disputes with EuroChem NW solely by means of London arbitration. It is to be remembered that the sole reason provided for Tecnimont's participation in the Italian Proceedings was its involvement in the Arbitration and Bank Proceedings. At the fundamental core, Tecnimont was seeking to litigate in Italy the very issue that it had agreed with EuroChem NW to address exclusively in London arbitration proceedings.”
“On the second of these questions there is, I accept, more room for doubt. Although the ownership/control issue is the same in the Italian proceedings as in the Arbitration Proceedings, it could be said that in the Arbitration Proceedings the issue arises as between Tecnimont and EuroChem NW, whereas in the Italian Proceedings it arises as between Tecnimont and EuroChem Agro. Tecnimont agreed to arbitrate its disputes with EuroChem NW. It made no such agreement in respect of its disputes with EuroChem Agro. But that very strict interpretation of the arbitration agreement ignores the underlying reality. There is no evidence that Tecnimont has any real dispute with EuroChem Agro. Its position in the Italian proceedings is no more than a cover or façade for the real dispute which is between it and EuroChem NW. The Italian Proceedings are no more than a vehicle by which it hopes to engage in a proxy war with EuroChem NW. In my judgment the scope of the ASI was justified.”
“Although the Respondents characterise those proceedings as involving an independent claim between Russian companies under Russian tort laws, closer examination suggests that this characterisation is at best incomplete. The supposedly wrongful conduct on which the Russian claims are founded appears to be the failure of the companies within the Renaissance group to procure the transfer of the assets held by the Appellant to a Russian entity within the group which would not be subject to western (including UK) sanctions. But the Appellant could not have effected such a transfer without breaching those sanctions. In other words, the Respondents' essential complaint is that the Appellant failed to act in a way which would itself have involved a breach of sanctions (i.e. would have been illegal under English law), and that this somehow gives rise to joint and several liability on the part of other companies within the group. This may be a valid claim under Russian law. I am prepared to assume that it is. But its artificiality, viewed as a matter of English law, which is the law applicable to the relationship between the parties, is obvious. Its only purpose is to circumvent the parties' arbitration clause. It seems to me to be at least arguable in these rather distinctive circumstances that it is necessary for business efficacy, and is so obvious that it goes without saying, to imply a term that the Respondents would not circumvent the arbitration clause in this way. The Judge concluded at para 40 that the arbitration clause does not apply to claims against either party by a non-party. But the issue here is whether the clauses apply to artificial claims against one party's affiliate by the other party, whose only purpose is to circumvent the obligation to arbitrate. That is a rather different issue. However, as resolution of this issue cannot affect my decision that no injunction should be granted for the reason already stated, I would prefer to leave this point open for decision, if it arises, in a case where it will be decisive.”
“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.”