On 17 April 2025, the Court of Appeal (Phillips LJ) refused permission to appeal against a final anti-suit injunction granted by Bright J on 23 December 2024 restraining a Vietnamese airline, VietJet, from pursuing certain litigation before the Vietnamese courts and ordering it to discontinue that litigation. The injunction was sought by a number of parties, including BNP Paribas SA (“BNP”).
The injunction was granted on the basis of an exclusive jurisdiction clause (“EJC”) in favour of the English courts, contained in sub-leases that formed part of a suite of contractual documentation pertaining to a Japanese Operating Lease with Call Option (“JOLCO”) transaction for the financing of aircraft purchases. BNP led the banking syndicate in relation to two of the aircraft.
The point of more general interest arising from the case is that, although the rights of the sub-lessor under the sub-lease had been assigned to BNP as part of the transaction, BNP later assigned those rights onwards to a third party. At the time the claim for anti-suit relief was brought in England, therefore, BNP was no longer the party entitled to exercise the substantive rights under the sub-lease. The claim before the Vietnamese courts concerned alleged matters that pre-dated the onward assignment by BNP.
Bright J held that, in contrast to the substantive rights and obligations of the contract, choice of law and choice of jurisdiction provisions are not a “zero-sum game under which one party assumes a burden and another receives a matching benefit”. He said it was “positively desirable” that such provisions should apply to assignor, counterparty and assignee. Further, unlike other primary contractual rights and obligations, under the doctrine of separability, such provisions survive the termination of the contract. Bright J held that, as a matter of construction, BNP was not intended, by reason of its assignment of the sub-lease, to be precluded from relying on the EJC. Indeed, he did not regard this question as “even slightly difficult”. The Judge also held that there were particular features of the terms of the sub-leases which provided additional reasons for his conclusion.
When refusing PTA, Phillips LJ said that the Judge was plainly right to hold that the EJCs continued to apply in relation to claims against BNP in respect of matters occurring before the assignment of the sub-leases. He saw “no remotely arguable error in that reasoning”.
The case is also of interest for the speed of the decision at first instance. The final hearing of the claim was heard on 17-18 December 2024, the Judge circulated a 125-paragraph draft judgment on the morning of 20 December 2024 and final orders were made at a consequentials hearing on 23 December 2024.
Conall Patton KC and Jarret Huang appeared for BNP, instructed by Linklaters LLP. The judgment of Bright J is found here.