Bank of New York Mellon v GV Films

MR. JUSTICE FIELD:

1 There are two applications before the court:

(i) an application by the defendant (“GV Films”) dated 10^th July 2009 seeking a stay of these proceedings, essentially on the basis that there are proceedings before the High Court of Madras in India; and

(ii) an application by the claimant, (“the Bank”) for an anti-suit injunction dated 14^th August 2009 to restrain those Indian proceedings on the basis that they are brought in breach of an exclusive jurisdiction clause, or are vexatious and oppressive.

2 The Bank is a US bank with a London branch. GV Films is an Indian company incorporated and based in Chennai. In 2006 GV Films made two bond issues:

(i) an issue of US$ 4.5 million, 2¼ per cent convertible bonds (“the Dollar Bonds”); and (ii) the issue of €9 million zero coupon convertible bonds

(“the Eurobonds”). The Bank is trustee in relation to both bond issues under two Trust Deeds with GV Films. In relation to the Dollar Bonds the Trust Deed is dated 20^th April 2006 (“the Dollar Bonds Trust Deed”). In relation to the Eurobonds the Trust Deed is dated 23^rd October 2006 (“Eurobonds Trust Deed”).

3 Both Trust Deeds contained identical jurisdiction clauses. The case has been fought out on the wording of the jurisdiction clause in the Dollar Bonds Trust Deed. Under clause 25.1 the deed is governed by English law.

Clause 25.2 provides:

“The Courts of England are to have jurisdiction to settle any disputes which may arise out of or in connection with this Trust Deed or the Bonds and accordingly any legal action or proceedings arising out of or in connection with this Trust Deed or the Bonds (‘Proceedings’) may be brought in such courts. The Company irrevocably submits to the jurisdiction of such courts and waives any objections to Proceedings in such courts on the ground of venue or on the ground that the Proceedings have been brought in an inconvenient forum. This submission is for the benefit of the Trustee and each of the Bondholders and shall not limit the right of any of them to take Proceedings in any other court of competent jurisdiction nor shall the taking of Proceedings in any one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction.”

Condition 19 of the Dollar Bond Terms provides:

(a) these conditions, the agency agreement, the Trust Deed and the Bonds are governed by and shall be construed in accordance with English law. The company has in the Trust Deed irrevocably agreed for the benefit of the trustee and the Bondholders that the courts of England are to have jurisdiction to settle any disputes which may arise out of or in connection with these conditions, the Trust Deed or the Bonds, and that accordingly any legal action or Proceedings arising therefrom or in connection therewith may be brought by the Bondholders in the courts of England.

(b) the company has in the Trust Deed irrevocably and unconditionally waived and agreed not to raise any objection which may have now or subsequently to the laying of the venue of any Proceedings in the courts of England and any claim that any Proceedings had been brought in an inconvenient form and, further, it irrevocably and unconditionally agreed that a judgment in any Proceedings brought in the courts of England shall be conclusive and binding upon the company and may be enforced in the courts of any other jurisdiction.

(c) Nothing in these conditions shall limit any rights to take proceedings against the company in any other court of competent jurisdiction, nor shall the taking of proceedings in one or more jurisdictions preclude the taking of proceedings in any other jurisdiction whether concurrently or not.”

4 At the end of 2007 GV Films took steps to implement a scheme to demerge into three companies: GV Films Ltd, GV Studio City Ltd and GV New Media Technology Ltd. By an order dated 29^th November 2007 the High Court of Madras directed that a meeting of equity shareholders be held on 24^th January 2008 to consider the proposed scheme. GV Films was of the view that consent of the bond holders was unnecessary. At the end of January 2008 the bond holders contended that the demerger scheme required their permission pursuant to condition 7.1 of the Eurobond Terms and condition 12 of the Dollar Bond Terms. This was not accepted by GV films. By 5^th May 2008 GV Films had been served with notice by two Indian law firms in Chennai acting on behalf of the Dollar Bondholders and the Eurobond holders objecting to the demerger scheme. Lawyers acting for both sets of bond holders intervened to oppose the proposed scheme. Both the Dollar and the Eurobond holders were represented by counsel before the High Court of Madras who put forward arguments in opposition to the demerger.

5 The scheme of arrangement petitions were heard by Venkataraman J who, by a judgment dated 4^th December 2008, refused to sanction the proposed scheme of arrangement and dismissed the petitions. By an appeal notice dated 3^rd April 2009, GV Films has appealed that decision although the appeal has not yet been heard.

6 By letters dated 23^rd February 2009 and 5^th March 2008, the Bank gave notice to GV Films of alleged Events of Default under the Bonds and required them to be remedied to the extent that they were capable of remedy. On 16^th March 2009,

GV Films brought proceedings in the Madras High Court against the Bank and the Euro and Dollar Bond holders, seeking a declaration that the notices from the Bank dated 23^rd May and 5^th March 2009 were premature, invalid and unenforceable and an injunction restraining the Bank from taking any steps pursuant to those notices.

7 On 1^st April 2009 Mr. Balasubramaniam of BVS Legal appeared on behalf of the Bank when the court was moved for an injunction by counsel for GV Films and asked for time to file a reply. At this point no proceedings had been served on the Bank or the Bond Holders. GV Films allege that Mr. Balasubramaniam made no objection as to the jurisdiction of the court.

8 On 25^th May 2009 Peter Beck & Partners, the sole holder of the Eurobonds instructed the Bank to accelerate the Eurobond. The following day Metage Capital Ltd, the sole holders of the Dollar Bonds, wrote to the Bank instructing them to accelerate payment of the Dollar Bonds. In accordance with those instructions on 26^th May 2009 the Bank wrote to GV Films contending that there had been Events of Default under both sets of bonds, and contending that payment of the Bonds had been accelerated. On 29^th May 2009 the Bank brought proceedings in this court to recover the claimed accelerated payments and served Particulars of Claim on 5^th June 2009.

9 There are three alleged Events of Default relied on by the Bank in the proceedings brought in this court. The first contends that there was a failure by GV Films pursuant to clause 9.6 of the Dollar and Eurobonds to supply documentation and circulars to the bank and the bondholders relating to the intended scheme of demerger; the second relates to non-payment of legal fees incurred by the Bank in respect of the demerger proceedings in the Madras High Court, the third relies on condition 11(f) of the Dollar Bond terms and 11.1.4 of the Eurobond terms, and involves an allegation in the Particulars of Claim that the demerger petition brought by GV Films in the Madras High Court amounted to an Event of Default pursuant to these provisions since it:

“... would (had it been sanctioned) have involved the devolution of the rights and liabilities of GV Films in respect of the entire business of GV Films on two new companies. The trustee will refer to:

(i) the proposed scheme of arrangement, and

(ii) the judgment of Mrs. Justice Venkataraman dated 4^th December 2008 as showing what was proposed by GV Films.”

10 At the centre of both applications before the court is the question whether the jurisdiction clause is an exclusive jurisdiction clause so far as GV Films is concerned. The Bank relies on Continental Bank NA v Aeokos Cia Naviera

SA& Ors.[1994] 1WLR 588 and Credit Suisse First Boston (Europe) Ltd v MLC (Bermuda) Ltd [1999] 1All E (Comm) 237, and contends that properly construed the jurisdiction clause is an exclusive jurisdiction clause requiring GV Films to sue only in England in respect of mattes arising out of the Bonds. The jurisdiction clause construed in Credit Suisse was to all intents and purposes identical to the jurisdiction clause in this case. It is set out in the judgment of Rix J at p.244 beginning between G and H. At p.248 of the report under the heading “Clause 5.2 an exclusive or non-exclusive jurisdiction clause, Rix J summarises the arguments of the parties. The claimant in that case relied on the judgment of the Court of Appeal in Continental Bank where the relevant clauses were:

“21.01 This agreement shall be governed by and construed in accordance with English law.

21.02 Each of the borrowers ... hereby irrevocably submits to the jurisdiction of the English courts and hereby irrevocably nominate Messrs. Aegis (London) Ltd of 197 Knightsbridge, London SW7, England, to receive service of proceedings in such courts on its behalf, but the bank reserves the right to proceed under this agreement in the courts of any other country claiming or having jurisdiction in respect thereof.”

The essential reasoning of the Court of Appeal in the Continental case is cited by Rix J at p.249 at A.

“We have already explained why we interpret clause 21.02 in a transitive sense as involving an agreement by the defendants to submit disputes in connection with the loan facility to the jurisdiction of the English courts. That does not necessarily mean that clause 21.02 is an exclusive jurisdiction agreement. Mr. Christopher Clarke QC submits that where there is an agreement to submit disputes to the jurisdiction of a particular country, the parties are taken to have intended the chosen court’s jurisdiction to be exclusive unless there are unusual or particular circumstances which indicate otherwise ... We find it unnecessary to explore this line of authority or to express any view on Mr. Clarke’s submission. We say that because clause 21.02 (the only jurisdiction agreement that we are asked to consider) does not contain a submission to English jurisdiction simpliciter. We regard the concluding words as significant: ‘... but the bank reserves the right to proceed under this agreement in the courts of any other country claiming or having jurisdiction in respect thereof.’ The juxtaposition a submission by the appellants to the jurisdiction of the English courts and the option reserved in favour of the Bank to sue elsewhere brings into play the expressio unius exclusio alterius canon of construction. It suggests that a similar option in favour of the appellants was deliberately omitted. In our judgment the language of clause 21.02 evinces a clear intention that the appellants, but not the bank, would be obliged to submit disputes in connection with the loan facility to the English courts.”

Having noted the arguments advanced by the defendant, Rix J. continued at p.249 J:

“The word “exclusive” was missing in Continental Bank as well and did not affect the issue. The word “may” reflects the possibility that CS Europe may at its option bring proceedings against MLC outside England. The “taking of proceedings” in the context of the final sentence can in my judgment only apply to the taking of proceedings by CS Europe; the presence of different law or jurisdiction clauses in other agreements merely serves to highlight the express wording of this clause; although the presence of an exclusive clause binding on MLC in the Purchase Agreements alone may seem odd, or at any rate incoherent, I do not feel, in the light of Continental Bank and its reasoning which lays stress on the Bank’s unilateral option, to hold otherwise than that MLC is bound by its contract to bring proceedings arising out of or in connection with the purchase of agreements exclusively in the courts of England.”

11 Mr. Gruder QC for GV Films contends that I ought not to adopt the reasoning of Rix J in Credit Suisse. He points out that nowhere is the word “exclusive” used in the jurisdiction clause, and lays emphasis on the word “may” in contra-distinction to the possibility of the use of the word “shall”. He contends that the irrevocable submission which is provided for in the second sentence of the clause applies to the previous sentence, and is governed by the previous sentence. He also relied on Sabah Shipyard (Pakistan) Ltd v ROP [2003] 2 Lloyd’s Reports at 571. That case concerned provisions contained in a guarantee. Clause 2.6 of the guarantee provided:

Clause 2.6 of the guarantee provides as follows:

2.6 Sovereign Immunity

The Guarantor hereby irrevocably and unconditionally agrees that the execution, delivery, and performance by it of this Guarantee constitute private and commercial acts.

The Guarantor hereby irrevocably and unconditionally agrees that:

(i) should any proceedings be brought against the Guarantor or its assets, other than its military aircraft, naval vessels and other defence related assets or assets protected by the diplomatic and consular privileges under the 1978 Immunity Act of the United Kingdom or the 1976 Sovereign Immunities Act of the United States or any analogous legislation

(the "Protected Assets") in any jurisdiction in connection with this Guarantee or any of the transactions contemplated by this Guarantee, no claim of immunity from such proceedings will be claimed by or on behalf of the Guarantor on behalf of itself or any of its assets (other than the Protected Assets); (ii) it waives any right of immunity which it or any of its assets (other than the Protected Assets) now has or may in the future have in any jurisdiction in connection with any such proceedings; and (iii) consents generally in respect of the enforcement of any judgment against it in any such proceedings in any jurisdiction to the giving of any relief or the issue of any process in connection with such proceedings (including without limitation, the making, enforcement or execution against or in respect of any of its assets whatsoever (other than the Protected Assets) regardless of its use or intended use.”

Clause 1.9.1 in the guarantee provided, under the heading: “Submission to Jurisdiction:”

“Each party hereby consents to the jurisdiction of the Courts of England for any action filed by the other Party under this Agreement to resolve any dispute between the Parties and maybe [sic] enforced in England except with respect to the Protected Assets, as defined in the Implementation Agreement of the Guarantor.”

12 The leading judgment was given by Waller LJ. In para. 32 he cites a passage from the unreported judgment of Hobhouse J in Cannon Screen Entertainment Ltd

v Handmade Films (Distributors) Ltd. The clause there construed provided:

“This agreement shall be construed and interpreted pursuant to laws of England and the parties hereby consent and submit to the jurisdiction of the Courts of England in connection with any dispute arising hereunder. The parties further agree that process in any such action may be served upon either of them by registered or certified mail at the address of first above given or such other address as the party being served may from time to time have specified to the other party by previous written notice.”

In the course of his judgment Hobhouse J said:

“Words are an accurate tool and relatively small differences in wording will produce different contractual effects. In these clauses the parties have used neither the word exclusive nor a sentence construction which is transitive. They have used words which are apt to demonstrate an intention to agree to submit to the jurisdiction of the English Courts and not that there should be a contractual obligation not to have any recourse to any other court. This is the natural meaning of the words used. It is consistent with the surrounding circumstances and the general matrix of the contracts and in accord with the general context in which these clauses appear in the contracts.”

Waller LJ went on (in para.34):

“In my view clause 1.9.1 does not lend itself to a transitive construction, and when taken with clause 2.6, it seems to me that it is not an exclusive clause in the sense of making it a breach of contract for either party to commence proceedings in a jurisdiction other than England.”

13 Mr. Gruder QC contended that the essential elements found in the jurisdiction clause in the Bond Terms and the Trust Deeds were present in the Sabah provisions. He accordingly submitted that I should not feel bound by the decision of Rix J, or indeed by Continental Bank, but instead should adopt the approach of Waller LJ in Sabah. Mr. Phillips for the Bank argued that I was bound by the decision in Continental Bank. The hallmark of that case, he argued, was the close juxtaposition in one and the same clause of the acceptance that the courts of England should have jurisdiction with the liberty given to only one of the parties to bring proceedings elsewhere, thereby engaging the expressio unius exclusio alterius rule of construction noted by Steyn LJ in Continental Bank. Mr. Phillips also relied on Sunport Shipping v Tryg Baltica [2003] 1 Lloyd’s Reports 138, where, at para. 28 Clarke LJ said:

“To my mind, that principle ...” [reading words of a condition in the light of existing English decisions]... is essentially a principle of construction. Thus the court is trying to ascertain the intention of the parties in using the expression deployed in the contract. Where a contract has been professionally drawn, as in the case of the Institute Clauses, the draftsman is certain to have in mind decisions of the courts on earlier editions of the clause. Such decisions are part of the context or background circumstances against which the particular contract falls to be construed. If the draftsman chooses to adopt the same words as previously construed by the courts, it seems to me to be likely that, other things being equal, he intends that the words should continue to have the same meaning.”

14 Quite apart from authority, I would hold that the true construction of clause 25.2 in the Dollar Bonds’ Trust Deed is that it is an exclusive jurisdiction clause so far as concerns the company. The clause has to be construed as a whole, and part of the relevant background are the similar provisions contained in the Dollar Bonds’ Terms. In my judgment the words:

“The courts of England are to have jurisdiction to settle any dispute which may arise out of or in connection with this Trust Deed...”

taken together with the express liberty conferred on the trustee but not conferred on the company, to bring proceedings in any other court of competent jurisdiction, clearly show that the intention of the parties was that the courts of England are to be the exclusive jurisdiction so far as proceedings brought by GV Films are concerned. But the matter does not stop there, for I accept the submission of

Mr. Phillips that this question of construction has effectively been decided by the Court of Appeal in Continental Bank. I also, with respect, find the reasoning of Rix J in Credit Suisse entirely persuasive. The Sabah case involved different wording. There, rather than providing that “the courts of England are to have jurisdiction”, (emphasis supplied) the clause provided “each party hereby consents to the jurisdiction to the courts of England”, and further, and more significantly, the reference to the bringing of proceedings in any jurisdiction was not contained in the self-same jurisdiction clause but was contained in the quite separate clause, clause 2.16, that was concerned with exceptions to the doctrine of sovereign immunity.

15 For these reasons I find that clause 25.2 is an exclusive jurisdiction clause so far as concerns GV Films.

16 Where there is an exclusive jurisdiction clause and a party thereto seeks a stay of proceedings within the jurisdiction nominated by the clause, such an application will only succeed if that party can show strong reasons why the clause should not be enforced against them. In Donohue v Armco Inc and Others [2002] 1 Lloyd’s Reports 425 Lord Bingham said:

“If contracting parties agree to give a particular Court exclusive jurisdiction to rule on claims between those parties, and a claim falling within the scope of the agreement is made in proceedings in a forum other than that which the parties have agreed, the English Court will ordinarily exercise its discretion (whether by granting a stay of proceedings in England, or by restraining the prosecution of proceedings in the non-contractual forum abroad, or by such other procedural order as is appropriate in the circumstances) to secure compliance with the contractual bargain, unless the party suing in the non-contractual forum (the burden being on him) can show strong reasons for suing in that forum. I use the word "ordinarily" to recognise that where an exercise of discretion is called for there can be no absolute or inflexible rule governing that exercise, and also that a party may lose his claim to equitable relief by dilatoriness or other unconscionable conduct. But the general rule is clear: where parties have bound themselves by an exclusive jurisdiction clause effect should ordinarily be given to that obligation in the absence of strong reasons for departing from it. Whether a party can show strong reasons, sufficient to displace the other party's prima facie entitlement to enforce the contractual bargain, will depend on all the facts and circumstances of the particular case. In the course of his judgment in The Eleftheria [1970] P 94, 99-100, Brandon J helpfully listed some of the matters which might properly be regarded by the court when exercising its discretion, and his judgment has been repeatedly cited and applied. Brandon J did not intend his list to be comprehensive, but mentioned a number of matters, including the law governing the contract, which may in some cases be material. (I am mindful that the principles governing the grant of injunctions and stays are not the same: see Aérospatiale at p 896. Considerations of comity arise in the one case but not in the other. These differences need not, however, be explored in this case). [para 24]

Where the dispute is between two contracting parties, A and B, and A sues B in a non-contractual forum, and A's claims fall within the scope of the exclusive jurisdiction clause in their contract, and the interests of other parties are not involved, effect will in all probability be given to the

clause ...” [Para 25]

17 Mr. Gruder contended that it was irrelevant that his clients had expressly waived the right to advance contentions based on convenience for resisting the reach of the jurisdiction clause. In his submission, the approach was that formulated by Lord Bingham, and it was not open to the Bank to contend that there was a special rule where there was waiver of convenience-based arguments that only such matters as were not in the contemplation of the parties at the time the clause was concluded could be prayed in aid as constituting strong reasons for disapplying the jurisdiction clause.

18 In my judgment, where a party has expressly agreed not to rely on convenience arguments in resisting the jurisdiction of the nominated court, that is a matter of very considerable significance, and in such a case especially strong grounds will be required before the exclusive jurisdiction clause can be departed from on grounds founded on convenience. The strong reasons relied on by Mr. Gruder are essentially three. First, he says that the Bank freely participated in the demerger proceedings before the Madras High Court where they contended that the proposed demerger scheme was in breach of the terms of the Bonds and the Trust Deeds in preference to seeking to enforce those terms in an English Court by an injunction.

19 Next, Mr. Gruder contended that the Bank had participated in the proceedings brought by GV Films for a negative declaration and an injunction, and had not protested the jurisdiction of the Indian Court until 11^th September 2009. Accordingly, GV Films had an arguable case that the Bank had waived its right to contest the jurisdiction of the Indian Court. The third ground was a straight convenience ground. Mr. Gruder argued that since the terms of the Bonds and the Trust Deeds had been examined in the demerger proceedings in which the separate Bondholders and the Trustee were separately represented, it was significantly more convenient and more cost effective for those legal teams to continue to be involved in dealing with the Bank’s claim for accelerated payment.

20 In my judgment none of the reasons relied on by Mr. Gruder comes anywhere near to constituting a reason why the exclusive jurisdiction clause ought not to be enforced against GV Films. GV Films petitioned the Madras High Court for approval of its demerger scheme. The participation in that proceeding by the Bank was in conformity with the jurisdiction clause and in my judgment was an entirely reasonable course for the Bank to take. It was far more appropriate that the objections of the Bondholders and the Bank to the scheme be taken in the court whose decision was required on the scheme than to seek an injunction in London restraining GV Films from presenting and pursuing its demerger petition.

21 As to the participation of the Bank and/or the Bondholders in the proceedings started in April 2009 in the Madras High Court, the evidence comes to this.

A legal representative attended the Madras High Court on 1^st April 2009 having become aware that GV Films was intending to seek an injunction against the Bank. That legal representative made no positive protest as to the court’s jurisdiction and requested time to file a pleading. He attended at a time before any proceedings had been served on either the Bondholders or the Bank. The uncontradicted evidence is that when an appearance was filed it was filed under protest. It is not clear when that happened, although I infer that it occurred before the 11^th September 2009. The Bank’s proceedings in this court were begun on 29^th May 2006, well before any of the events in September concerning the Indian negative declaration claim recited in the evidence relied on by GV Films. In my judgment it must have been plain to GV Films from the English proceedings brought by the Bank, which were served on them, that the Bank regarded England as the only appropriate forum for the determination of all matters arising out of the bond contracts and the Trust Deeds. It was made clear to the court in India last Friday that jurisdiction was in issue, and that court has embarked upon a determination of an application by the Bondholders and the Bank to have set aside the issuance of the proceedings against them. In my judgment, the participation, such as it was, of the Bondholders and the Bank in the Indian proceedings falls far short of constituting a good reason for not enforcing the exclusive jurisdiction clause which GV Films voluntarily agreed to. Indeed, I am bound to say that the proceedings launched in India for a negative declaration and an interim injunction bear all the hallmarks of an attempt to get an Indian court first seized of issues which inevitably were going to arise as the Bank moved to enforce its rights based on Events of Default. The Indian proceedings were in plain breach of the exclusive jurisdiction clause. The determination of the issues raised in the Bank’s claim depends upon the application of English law and in my judgment the English Court is plainly the appropriate forum for the determination of all the questions arising out of the proceedings brought in India in April 2009 and the proceedings brought in England.

22 Mr. Gruder drew my attention to a decision of Cooke J in Shashoua and Ors v Sharma[2009] EWHC 957 (Comm). There, there was an arbitration in London and an award of costs was made by the arbitral tribunal against Mr. Sharma who attempted to challenge the award not in the courts of England, but in India. Cooke J held that the seat of the arbitration was London and that that finding was substantially as if there were an exclusive jurisdiction clause with the courts of England having exclusive jurisdiction over questions arising out of the supervision of the arbitration. It was contended that the claimant, who was seeking an anti-suit injunction, had waived jurisdiction by proceeding in India. Cooke J found that he could not decide that issue in an interlocutory proceeding and since it was potentially relevant to the exercise of his discretion, ordered there be a mini-trial of that matter. Mr. Gruder appeared to submit that I should adopt a similar course before granting a stay or granting in favour of the Bank an anti-suit injunction. In my judgment, Shashoua involved very different facts from those before me. Thus, there is no suggestion that Mr. Shashoua was at liberty to bring proceedings in any jurisdiction that he chose to invoke. Instead, in effect there was an exclusive jurisdiction clause binding both parties to have disputes involving judicial review of the arbitration determined in England. In the case before me, however, the Bank and the Bondholders have a clear liberty to take proceedings in any foreign court. Further and in any event, on the evidence before me, although there is some dispute as to what might have happened on 3^rd September 2009, it is plain that there was no positive submission to the jurisdiction by the Bondholders of the Bank; and the appearance on 1^st April was before there had been any service effected on the Bank or on the Bondholders. It is also plain that when the appearance was filed it was filed under protest. For these reasons, I see no justification for ordering a mini-trial of the allegations that the Bank and the Bondholders submitted to the jurisdiction.

23 My conclusion therefore is that there are no strong or sufficient reasons for not enforcing the exclusive jurisdiction clause against GV Films. It follows that GV Films’ application for a stay must fail. It equally follows that the Bank’s application for an anti-suit injunction must succeed. In the absence of strong reasons, consistent with the approach of Lord Bingham in Donohue, it is 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. Accordingly, I shall grant the anti-suit injunction sought subject to any necessary debate with counsel as to its precise wording.

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