BANK OF NEW YORK MELLON V GV FILMS

[2009] EWHC 2338 (Comm), Queen's Bench Division, Mr Justice Field, 15 September 2009

Jurisdiction - Agreement contained jurisdiction clause - Provision that one party irrevocably submit to the jurisdiction waiving objections - Whether exclusive - Anti-suit injunction

The defendant, GV Films, made two bond issues with the claimant as trustee under two trust deeds. The trust deeds contained identical jurisdiction clauses. The claimant sought an anti-suit injunction to restrain proceedings in India on the grounds that they were in breach of an exclusive jurisdiction clause or vexatious and oppressive. The defendant sought a stay in favour of the proceedings in India. Field J allowed the claimant's application for an anti-suit injunction and dismissed the defendant's application for a stay. The clause in question was an exclusive jurisdiction clause so far as concerned GV Films, even though it did not use the words "exclusive" or "shall". The clause stipulated English jurisdiction and went on to specifically state that GV Films should irrevocably submit to that jurisdiction and waived any objection. Based on the precise language of the clause at issue, the judge applied Continental Bank v Aeakos [1994] 1 Lloyd's Rep 505 and Credit Suisse First Boston (Europe) Ltd v MLC (Bermuda) [1999] 1 Lloyd's Rep 767, distinguishing Sabah Shipyard [2003] 2 Lloyd's Rep 571. Where a party had expressly agreed not to rely on convenience arguments in resisting the jurisdiction of the nominated court, that was a matter of very considerable significance, and in such a case especially strong grounds would be required before the exclusive jurisdiction clause could be departed from on grounds founded by convenience. There were no such strong grounds in this case. As for the anti-suit injunction, the judge said that in the absence of strong reasons consistent with the approach of Lord Bingham in Donohue v Armcoe [2002] 1 Lloyd's Rep 425 (HL) it was plain as a matter of principle that the court's discretion should be exercised in favour of an injunction that enforces the contractual rights constituted by the exclusive jurisdiction clause.