The High Court has allowed a bank's application for a final anti-suit injunction (ASI) and anti-enforcement injunction (AEI), aimed at restraining the foreign respondents from continuing proceedings in a foreign court in breach of the exclusive element of an asymmetric jurisdiction clause in a syndicated loan facility agreement: Barclays Bank PLC v PJSC Sovcombank & Anor [2024] EWHC 1338 (Comm).
The decision illustrates the willingness of the English courts to enforce asymmetric jurisdiction clauses, which are common in finance agreements. Such clauses typically provide for exclusive jurisdiction in relation to claims brought by an obligor, but permit finance parties to bring claims in any relevant jurisdiction. The English courts have consistently held that asymmetric clauses are valid – in contrast to the courts of some other jurisdictions (see this blog post on a pending reference to the European court on the validity of such clauses under EU law).
Asymmetric jurisdiction clauses are not generally considered to be exclusive jurisdiction clauses for the purposes of the Hague Choice of Court Convention 2005 (see this post), but that does not prevent them being treated as exclusive jurisdiction clauses for other purposes, including where the English court is considering whether to grant injunctive relief to enforce a jurisdiction clause. As the present decision shows, where foreign proceedings are pursued in breach of an exclusive jurisdiction clause – including the exclusive element of an asymmetric clause – the English court will typically grant injunctive relief to enforce the clause, unless the respondents can show strong reasons for not doing so. The judgment also confirms that an AEI may be appropriate where an ASI has been sought at an early stage of the foreign proceedings and there is a concern that the ASI will not be effective.
The decision is also of interest for the court's commentary on negative declarations. The court said that the English courts have moved away from their previous reluctance to grant negative declaratory relief, particularly where such declarations would serve a useful purpose.
For more information, see this post on our Banking Litigation Notes blog.
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