Where There's No Waiver, There's No Way

The English High Court has provided further guidance on the interpretation of "no waiver" clauses in a recent decision.

The backdrop to this decision was a sanctions related dispute about the termination of a currency swap agreement between two banks, one of which was Russian, the other English.

The agreement had a dispute resolution clause where the forum was arbitration unless the English bank gave notice that a dispute should be heard by the English courts.

In breach of this, the Russian bank brought proceedings before the Russian courts. The English bank sought anti-suit and anti-enforcement injunctions from the English courts, which were granted. The Russian bank then started arbitration proceedings, as it was originally supposed to do. However, within the contractual notice period, the English bank informed the Russian bank that the dispute should be moved to the English courts. The Russian bank argued that the English bank had waived that right.