BNP Paribas S.A. v Anchorage Capital Europe LLP & Ors

For jurisdiction purposes, a claimant need only establish the applicable jurisdictional basis to the required good arguable standard; the court need not finally determine disputed contractual issues. That standard is flexible where alternative contractual analyses depend on facts within the defendants’ knowledge. A jurisdiction agreement may bind group companies where an authorised agent agreed to it on the group’s behalf. A clause requiring a party to submit to English jurisdiction may be non-exclusive as to the claimant, yet still prohibit that party from pursuing parallel foreign proceedings concerning the same matters. Such proceedings may be restrained by anti-suit injunction.

BNP Paribas claimed that instant-message communications created contracts for the sale of distressed bank notes to entities in the Anchorage group. The overseas defendants challenged the English court’s jurisdiction. BNP Paribas also sought to restrain Anchorage Capital Group LLC from pursuing substantially identical proceedings in New York.

The issues included whether there was a good arguable case that binding contracts had been made, which Anchorage entities were liable, whether the parties had agreed to English law and jurisdiction, whether jurisdiction was available under the Brussels Regulation and CPR PD6B, and whether the New York proceedings breached the jurisdiction clause.

1. Jurisdictional standard. Under the Brussels Regulation, BNP Paribas had to show a good arguable case that jurisdiction was available. Under CPR PD6B, it also had to show a serious issue to be tried, a good arguable case within a jurisdictional gateway, and that England was clearly or distinctly the appropriate forum.
2. Contracts and parties. The communications, subsequent conduct and commercial context gave BNP Paribas a good arguable case that the Friday and Monday trades were immediately binding contracts. For jurisdiction purposes, the court could accept good arguable cases against multiple defendants even though only one might ultimately be liable. The contractual analysis should reflect commercial intention and should not be approached unduly technically.
3. Jurisdiction clause and applicable law. The English jurisdiction clause in BNP Paribas’s London terms was agreed in writing. The agreement of Anchorage’s associate general counsel was properly understood as binding the Anchorage group. English law applied under the express choice in the terms or, alternatively, under Article 4 of the Rome I Regulation. The alleged later variation to New York law was unsupported.
4. Other jurisdictional bases. Jurisdiction was also available against Anchorage New York under the relevant CPR PD6B gateways and against the Luxembourg defendants under Articles 5(1), 5(5) and 6(1) of the Brussels Regulation. England was the appropriate forum, given the English law governing the transactions and the closely connected claims.
5. Anti-suit injunction. The clause required Anchorage to submit to English jurisdiction in respect of disputes arising from the transactions. Although it did not prevent BNP Paribas suing elsewhere, Anchorage’s New York proceedings sought to litigate essentially the same matters and undermined BNP Paribas’s contractual right to litigate in England. The jurisdiction challenge was dismissed and an injunction was granted pending trial restraining Anchorage New York from pursuing the New York proceedings.