21/05/2026

Asymmetric jurisdiction clauses, anti-suit injunctions and jurisdiction challenges

In Spec 1 Limited et al v The Export-Import Bank of China [2026] EWHC 1162 (Comm), the English court considered in detail for the first time whether anti-suit injunctions and/or jurisdictional stays should be granted in parallel proceedings arising pursuant to an asymmetric jurisdiction clause. Bright J decided that the acceptance of the risk of parallel proceedings inherent in an asymmetric jurisdiction clause meant that neither anti-suit injunctions nor any stay on forum non conveniens or case management grounds was justified.

David Lewis KC and Joshua Folkard acted for the lender, EXIM.

Asymmetric jurisdiction clauses and the relevant clause

Asymmetric jurisdiction clauses are at least partly unilateral, in the sense that they are (more) exclusive for one party than the other. The ‘non-option holder’ is taken to have agreed to submit to the jurisdiction of an ‘anchor’ court, whereas the ‘option holder’ is granted broader rights to sue elsewhere. Such jurisdiction provisions are particularly common in banking and finance contracts, where the lender is often the option-holder and the borrower the non-option holder.

This dispute concerned the refinance of lending arrangements over three vessels. In particular, EXIM (the lender) and the three ship-owning companies (the borrowers) entered into a novated, amended and restated secured loan agreement (the NAR loan agreement) which was partially secured by a First Preferred Liberian Mortgage over the MV Spec Nichole, owned by one of the borrowers, Spec 3.

The NAR loan agreement included the following clauses:

“18.2 Jurisdiction For the exclusive benefit of the Lender, the parties to this Agreement irrevocably agree that the courts of England are to have exclusive jurisdiction to settle any dispute (a) arising from or in connection with this Agreement or (b) relating to any non-contractual obligations arising from or in connection with this Agreement and that any proceedings may be brought in those courts. 

18.3 Alternative jurisdictions Nothing contained in this Clause 18 shall limit the right of the Lender to commence any proceedings against the Borrowers in any other court of competent jurisdiction nor shall the commencement of any proceedings against the Borrowers in one or more jurisdictions preclude the commencement of any proceedings in any other jurisdiction, whether concurrently or not. 

18.4 Waiver of objections Each Borrower irrevocably waives any objection which it may now or in the future have to the laying of the venue of any proceedings in any court referred to in this Clause 18, and any claim that those proceedings have been brought in an inconvenient or inappropriate forum, and irrevocably agrees that a judgment in any proceedings commenced in any such court shall be conclusive and binding on it and may be enforced in the courts of any other jurisdiction.”

The parallel proceedings

The lender first commenced an Admiralty action in rem against Spec 3 and the Spec Nichole was arrested at Singapore (the SG Spec 3 proceedings). Spec 3 submitted to the jurisdiction of the Singapore court and filed a defence and counterclaim, which alleged that the NAR loan agreement and other refinancing documents (the refinancing documents) should be rescinded for alleged fraudulent misrepresentations. By the time of the hearing before Bright J, that action had reached the stage of specific disclosure and the Spec Nichole had been judicially sold.

In the meantime, the borrowers (including Spec 1 and Spec 2, which each owned another of the three vessels in question (together, ‘Specs 1 & 2’)) issued a claim form in England seeking rescission of the refinancing documents (the English proceedings), which they ultimately served within the jurisdiction on English solicitors authorised to accept service by the lender.

Following issue of the English proceedings, the lender commenced in personam proceedings in Singapore against Specs 1 & 2 (the SG Spec 1 & 2 proceedings), seeking declarations that the NAR loan agreement (and refinancing documents) were valid and binding, and had not been rescinded. By the time of the hearing before Bright J, due to agreed interim stays, Specs 1 & 2 had neither filed defences nor challenged jurisdiction in the SG Spec 1 & 2 proceedings.

The lender also applied for an anti-suit injunction in the SG Spec 3 proceedings, seeking to restrain Spec 3 from bringing the English proceedings (the SG ASI application). Shortly before the hearing before Bright J, the Singapore court dismissed the SG ASI application; however the lender obtained permission to appeal from the Singapore Court of Appeal.

The parties’ applications

The borrowers originally sought: (i) an interim anti-suit injunction restraining the lender from pursuing the SG Specs 1 & 2 proceedings; and (ii) an anti-anti-suit injunction preventing prosecution of the SG ASI application. In Singapore, the lender successfully obtained an urgent without notice interim anti-anti-anti-suit injunction to restrain the borrowers from pursuing the latter.

Before Bright J, the borrowers sought: (a) a final anti-suit injunction restraining the lender from pursuing the SG Specs 1 & 2 proceedings; and (b) an anti-anti-suit injunction preventing the lender from seeking any further anti-suit relief in Singapore against Specs 1 & 2 (the ASI applications). The lender applied for the court to decline jurisdiction over the English proceedings on the basis of a forum non conveniens and/or case management stay (the jurisdiction challenge).

The decision

Bright J dismissed both the ASI applications and the jurisdiction challenge.

With regard to the jurisdiction challenge, Bright J reasoned ( [142]) that: “The English court should enable the parties to perform their bargain, rather than obliging them to deviate from it. If they have agreed to be bound by mutual promises that necessarily contemplate parallel proceedings in different jurisdictions, the court should accept this.”

Because England was the anchor court and the exclusive jurisdiction for any proceedings commenced by the borrowers, the lender had to identify “strong reasons” for a stay (by analogy with Donohue v Armco Inc [2001] UKHL 64, in the context of more traditional exclusive jurisdiction clauses). Bright J concluded that there were no such strong reasons: [143].

As to the borrowers’ anti-suit injunction application, Bright J concluded that on a true construction of clause 18 of the NAR loan agreement the borrowers had no legal right not to be sued in Singapore: [146–152]. The borrowers therefore had to show that the SG Spec 1 & 2 proceedings were vexatious and/or oppressive, which they could not do. In particular: (i) the fact of parallel proceedings was foreseeable from conclusion of the NAR loan agreement; and (ii) “an anti-suit injunction will not be granted in respect of proceedings that the relevant party has a contractual right to bring”: [154].

The borrowers’ anti-anti-suit injunction application was rejected on the bases that: (i) there was no realistic basis for any apprehension that the lender would be likely to apply for an anti-suit injunction ( [156]); and (ii) even if the lender were to apply for such an anti-suit injunction in Singapore, “the application would be bound to fail”: [157].

Comment

Whilst every clause will turn on its own wording, Bright J considered that the parties’ (contractual) acceptance of the risk of parallel proceedings, by way of their asymmetric jurisdiction clause, meant that proceedings in both the anchor court and the foreign jurisdiction should continue, even if that meant duplicative proceedings and the risk of inconsistent judgments. Whilst the latter risk may be reduced by the doctrine of issue estoppel, this effectively means a race to judgment in each party’s preferred forum and considerable duplication of effort, resources and costs.

Permission to appeal was sought by the lender from Bright J, but refused on 15 May 2026.

David Lewis KC and Joshua Folkard were instructed by Kirsty MacHardy, Rebecca Crookenden and Charles Anderson of Stephenson Harwood. Josh conducted the oral advocacy at the consequentials hearing, including seeking permission to appeal.