Barclays Bank PLC v PJSC Sovcombank & Anor

An exclusive English jurisdiction clause will ordinarily justify anti-suit relief unless there is a strong reason to refuse it. The phrase “arising out of or in connection with” has wide scope. An assignee deriving rights from the contract is bound by its jurisdiction provisions. Delay is principally relevant through comity, which becomes material only when the foreign proceedings have substantially progressed. On a non-contractual basis, the English court may restrain foreign proceedings where England is the natural forum and the foreign proceedings seek an illegitimate juridical advantage by avoiding the parties’ chosen governing law. Anti-enforcement relief may also be granted where there is a realistic prospect that the foreign court will not give effect to the anti-suit order. Alternative service may be authorised exceptionally, particularly where urgent coercive relief must be brought to the respondent’s attention.

Barclays Bank PLC sought without-notice anti-suit and anti-enforcement orders against PJSC Sovcombank and LLC Sodeistvie Mezhdunarodnym Raschetam. The dispute arose under a syndicated loan agreement governed by English law and containing an exclusive English jurisdiction clause. Sanctions prevented Barclays from paying sums due to Sovcombank, which commenced proceedings in Russia alleging non-contractual wrongdoing and seeking recovery of the sums.

Sovcombank had purportedly assigned its rights to SMR, and an application to substitute SMR in the Russian proceedings remained unresolved. The application raised contractual and non-contractual grounds for anti-suit relief, the effect of the assignment, service out of the jurisdiction, alternative service, expert evidence and the adequacy of the cross-undertaking in damages.

1. Relief granted. Barclays was entitled to anti-suit and anti-enforcement orders against both respondents, together with permission to serve out of the jurisdiction and permission for alternative service.
2. The loan agreement contained an exclusive jurisdiction agreement in clause 45.1(a). The words “arising out of or in connection with” were of the widest import and covered the Russian dispute. Clause 45.2(c), appearing within provisions otherwise concerned with service, contradicted clause 45.1(a) and was realistically arguable to have been included erroneously. It did not qualify the exclusive jurisdiction clause.
3. The court was satisfied to the required high level of probability that the exclusive jurisdiction agreement existed and that effect should be given to it unless there was a strong reason not to do so. Delay was immaterial because the Russian proceedings had not materially progressed and comity had not become a real issue.
4. An assignee deriving rights from a contract containing an exclusive jurisdiction clause was bound by that clause. SMR’s status as assignee did not prevent orders being made against it, and Sovcombank remained a proper respondent while the assignment and substitution issues remained unresolved.
5. Alternatively, England and Wales was the natural forum. The parties’ agreement that England was the most appropriate forum created a contractual estoppel. The English governing-law clause also made England the appropriate forum for determining the apparent non-contractual claims. Seeking to litigate in Russia to avoid the application of English sanctions law would constitute an illegitimate, rather than legitimate, juridical advantage and could amount to vexation and oppression.
6. Anti-enforcement relief was appropriate because expert evidence established a realistic prospect that a Russian court might refuse to stay or discontinue the Russian proceedings in response to an English anti-suit order.
7. The existing cross-undertaking in damages was adequate at this stage. Its scope could be revisited on the return date, particularly if the sanctions regime changed.
8. Permission to serve out was justified under the tripartite test: a realistically arguable claim, an applicable gateway under Civil Procedure Rules 1998, and England as the most appropriate forum. Alternative service was permitted because exceptional circumstances existed: the orders were potentially enforceable by coercive means and the respondents needed prompt notice. Expert evidence on Russian law was admissible because Russian law was not sufficiently similar to English law.

First-instance application. The judgment does not state any appellate history.