The Court of Appeal has recently refused permission to appeal an order of Bright J granting an anti-suit injunction to major French banking groups Natixis and BNP Paribas. The anti-suit injunction restrains VietJet, a Vietnamese airline, from pursuing certain proceedings in Vietnam and requires it to discontinue its litigation in Vietnam.
The anti-suit injunction gives effect to an exclusive jurisdiction clause in a sub-lease agreement which was entered into as part of a “JOLCO” (Japanese Operating Lease with Call Option) transaction. That transaction involved a network of related agreements between multiple parties, with finance for the purchase of two aircraft being provided by Natixis. Those aircraft had subsequently been sold, and the security rights in respect of the sub-leases had ultimately been assigned to FW Aviation (Holdings) 1 Limited (“FWA”), which is the claimant in related, long-running Commercial Court litigation.
VietJet had sought to avoid the effect of the exclusive jurisdiction clause by arguing that, since the sub-lease agreement within which it was contained had subsequently been assigned to a third party, Natixis could no longer rely on it to prevent litigation against it in Vietnam. Bright J rejected that argument, finding that Natixis was entitled to rely on the exclusive jurisdiction clause, despite no longer being a party to the sub-lease agreement, at least in respect of claims brought by VietJet which concerned conduct occurring prior to the assignment of the sub-lease. Bright J stayed FWA’s application for anti-suit relief upon undertakings from VietJet.
The judgment of Bright J, and the subsequent refusal of permission to appeal, will therefore provide welcome relief for parties (and, perhaps especially, financing parties) where they assign the benefit of a contract as part of a complex financing transaction but still wish to retain the protection of an exclusive jurisdiction clause within the assigned contract.
The judgment of Bright J is available here.
Michael McLaren KC and Rebecca Loveridge (instructed by Jones Day) acted for Natixis.
Robin Lööf (instructed by Quinn Emanuel Urquhart & Sullivan UK LLP) acted for FWA.
