Clear Non‑Contest Clauses and Waiver of Judicial Remedies in Cross‑Border Security Enforcement
Commentary on UNIK Bond SA v Catbalogan Holdings SARL [2025] EWCA Civ 1594
1. Introduction
1.1. The core issue
The Court of Appeal was asked to decide whether UNIK Bond SA (the Appellant) had, by entering into an English‑law “Additional Agreement” dated 11 November 2024, contractually given up its right to bring proceedings in the Tribunal de Commerce in Paris challenging the enforcement of security granted for French‑law governed bonds. Fancourt J in the Chancery Division had held that the Appellant had indeed surrendered that right on the proper construction of clause 5 of the Additional Agreement, and he granted relief accordingly. The Court of Appeal (Underhill, Arnold and Miles LJJ) dismissed the appeal and substantially endorsed the judge’s reasoning. At its heart, the case concerns:- how far parties to complex cross‑border finance arrangements can, by contract, waive their right to challenge security enforcement in any court; and
- what degree of clarity is required for such a waiver, in light of the “clear words” principle and the fundamental right of access to a court.
1.2. Parties and transactional context
The transaction structure comprised:- The Company: Hotel de Mandelieu La Napoule S.à.S. (French operating company holding real estate).
- The Parent: Poséïdon Hospitality S.à R.L. (Luxembourg holding company).
- The Appellant: UNIK Bond SA, a shareholder and creditor of the Parent.
- FL: Financière Luminaire S.à R.L., the other 50% shareholder in the Parent.
- Original bondholder: Regera S.à R.L., whose rights were later transferred to the Respondent (Catbalogan Holdings SARL).
- Security/Administrative Agent: Aether Financial Services (“Aether”).
- Fiducie Trustee: Aloe Private Equity (“Aloe”).
- Lux Share Pledge (Luxembourg law): Appellant and FL pledged all shares in the Parent to Aether. Exclusive jurisdiction: Luxembourg courts.
- Lux Receivables Pledge (Luxembourg law): Appellant and FL pledged receivables owed by the Parent. Exclusive jurisdiction: Luxembourg courts.
- Fiducie (French law): the Parent transferred its shares in the Company to Aloe as trustee, as security for obligations under the bonds and other loans. Exclusive jurisdiction: Tribunal de Commerce in Paris.
- Intercreditor Agreement (English law): co‑ordinating enforcement across the capital structure.
1.3. French proceedings and the dispute before the English courts
After the standstill expired and Aether proceeded to enforce:- On 28 May 2025 Aether enforced the Lux Share Pledge and Lux Receivables Pledge, appropriating the Parent shares to the Respondent and selling them on.
- It also triggered enforcement under the Fiducie, resulting in the removal of Mr Kadi as president of the Company and his replacement by Mr Burgio.
- the validity of the assignment of rights to the Respondent under the Fiducie,
- the validity of the demand under the bonds (allegedly contrary to French good faith obligations),
- whether a “Triggering Event” under the Fiducie had in fact occurred, and
- the lawfulness of steps taken under the Fiducie.
2. Summary of the Judgment
2.1. Holding
The Court of Appeal dismissed the appeal and affirmed Fancourt J’s decision that:- On the true construction of the Additional Agreement—particularly clause 4, clause 5 and clause 6—the Appellant had unequivocally agreed not to contest, in any court, the validity or exercise by the Agent of rights under any Finance Document, including the Fiducie and the bonds.
- Clause 5(d) is not a mere acknowledgement giving rise only to a contractual estoppel; it creates a substantive, forward‑looking obligation not to challenge enforcement steps and includes a release of rights and claims.
- That waiver extends to legal challenges alleging that the Agent’s enforcement is invalid or unlawful under the Finance Documents, although it does not protect fraud or manifestly non‑contractual conduct.
- The “clear words” principle does not require that the contract admit of literally no other meaning, only that, applying orthodox tools of contractual interpretation, the objectively intended meaning is sufficiently clear to show that valuable rights are being surrendered.
- There is no public policy rule preventing sophisticated commercial parties, in this kind of context, from waiving by contract their Article 6 and common‑law rights of access to a court.
2.2. Key reasons
The Court’s reasoning can be summarised as follows:- Text and context of clause 5(d): The language “no Company Party shall contest, or seek to contest or otherwise prevent” strongly indicates a promise controlling future conduct, not merely a backwards‑looking estoppel. The “irrevocable” release of “any rights or claims they may have now or in the future” reinforces this.
- Scope—no temporal or geographical limit: Clause 5(d) contains no limitation as to when or where rights may not be contested. It therefore extends to both pre‑ and post‑enforcement challenges in any forum, including foreign courts such as the Tribunal de Commerce in Paris.
- Commercial purpose: The Additional Agreement was the price the Company Parties paid to obtain a last chance to refinance and avoid the nuclear enforcement of the Lux Pledges. In return, they removed barriers to such enforcement, contractually accepted that the threshold for a “Luxembourg Security Enforcement Event” was satisfied, and agreed not to contest enforcement steps.
- Structure of the Additional Agreement:
- Clause 4 created contractual estoppels about default and insolvency (which triggered the right to enforce the Lux Pledges).
- Clause 5 imposed co‑operation obligations and non‑contest undertakings in respect of “Enforcement Action” and “Transaction Security”.
- Clause 6 dealt primarily with voting rights under the Lux Share Pledge but again included a “no contest” and waiver provision similar to clause 5(d), albeit in a narrower context.
- Clear words principle correctly applied: While the Court recognised that parties are presumed not to abandon valuable rights without clear language, it rejected the Appellant’s attempt to raise this into a near‑insurmountable hurdle, especially in a freely negotiated, sophisticated, cross‑border finance context.
- Access to court and Article 6: Unlike the state‑imposed fees struck down in R (Unison) v Lord Chancellor, this case involved a voluntary contractual waiver between commercial parties. European and domestic jurisprudence recognise that Article 6 rights can be waived, provided the waiver is free, informed and clear. Those conditions were met.
- Limited carve‑outs: The Court accepted (as Fancourt J had) that the non‑contest clause does not extend to fraud or conduct which is obviously not even an attempt to exercise rights under any Finance Document.
3. Detailed Analysis
3.1. The security structure and “nuclear option”
A critical aspect of the court’s contextual analysis was the hierarchy of security:- The Fiducie gave security over the shares in the Company and conferred certain residual economic benefits on the Appellant.
- The Lux Share Pledge and Lux Receivables Pledge gave the bondholder group security over the Parent, including its shares and intra‑group receivables. These were classified as “Luxembourg Transaction Security” in the Intercreditor Agreement and subject to a heightened enforcement trigger.
- Appropriation of the Parent’s shares would extinguish the Appellant’s equity interest.
- Enforcement of the Receivables Pledge would eliminate key debt claims of the Appellant against the Parent.
- Any residual rights under the Fiducie would be of “very limited economic value”.
- By clause 4(b) and (c), the Company Parties contractually acknowledged the Parent’s and Company’s continued payment default and inability to pay their debts as they fell due, facts which fell squarely within the definition of a “Luxembourg Security Enforcement Event”.
- By clause 5 and 6, they undertook to co‑operate with, and not to contest, enforcement steps taken by the Agent.
3.2. Interpretation of the Additional Agreement: contractual framework
The Court applied the orthodox principles of contractual interpretation summarised by Lord Hamblen in Sara & Hossein Asset Holdings Ltd v Blacks Outdoor Retail Ltd [2023] UKSC 2:- Objective interpretation: What would a reasonable person, with all the background knowledge available to the parties at the time, have understood the contract to mean?
- Whole‑contract approach: The language is considered in context and in light of the contract as a whole.
- Unitary, iterative exercise: Different possible constructions are checked against the text, context, and commercial consequences.
- Skilled drafting: The agreements were drafted by specialist professionals in a sophisticated financial transaction. This made the textual analysis especially weighty.
- Headings: Although headings form part of the text and may aid interpretation, they cannot override clear operative language. While the Appellant initially sought to place weight on clause headings (“Co‑operation” for clause 5; “Exercise of rights under security documents” for clause 6), this argument was ultimately not pursued in oral submissions and was given little significance.
3.3. Clause 4: contractual estoppel and removal of the enforcement bar
Clause 4 is central to the Court’s understanding of what the Company Parties gave up. It provides that the Parent and the Company:- “failed to redeem the Bonds” and that Events of Default were continuing;
- “have suspended making payments on certain of their debts”; and
- “but for the terms of the Standstill Agreement … are unable to pay their debts as they fall due.”
- The estopped facts mapped directly onto the definition of “Luxembourg Security Enforcement Event”.
- That removed the contractual bar in clause 10.1(b) of the Intercreditor Agreement, which otherwise restrained the Instructing Group from instructing Aether to enforce the Luxembourg security.
- Thus, by the time the standstill expired, the Agent was contractually entitled to “push the nuclear button”.
3.4. Clause 5: co‑operation and non‑contest obligations
Clause 5, headed “Co‑operation regarding Enforcement Action”, is the linchpin of the case. It provides that, subject to the Standstill Agreement, the “Company Parties”:- 5(a): “undertake to co‑operate fully with the Bondholder and the Agent in relation to any Enforcement Action … (including … preparatory steps … while the Standstill Agreement is in force)”;
- 5(b): “agree and acknowledge that the Agent (acting on the instructions of the Instructing Group) may enforce or refrain from enforcing any Transaction Security as the Instructing Group sees fit, including … sequencing … and any decision to enforce part but not all of the security”;
- 5(c): agree a specific approach to appointing an “Expert” for valuation under the Lux Share Pledge and Lux Receivables Pledge; and
- 5(d): “agree and acknowledge that no Company Party shall contest, or seek to contest or otherwise prevent, the validity of, or exercise by the Agent of its rights under, any Finance Document, including any Security Document … and the Company Parties hereby irrevocably release any rights or claims they may have now or in the future in this regard.”
(a) Clause 5 is not confined to contractual estoppel
The Appellant’s skeleton had suggested that the “agree and acknowledge” wording was characteristic of contractual estoppel; by contrast, “undertake” would connote substantive obligations. The Court rejected a rigid classification:- The effect of the phrase “agree and acknowledge” depends on what is being agreed.
- Clause 5(a) (“undertake to co‑operate”) is clearly promissory—forward‑looking and substantive.
- Clause 5(d) also contains future‑oriented language (“no Company Party shall contest …”) and an express release. This goes “beyond a contractual estoppel” and creates an obligation governing future conduct.
(b) Co‑operation includes not obstructing enforcement
The Appellant had initially argued that co‑operation obligations in clause 5(a) applied only to facilitating enforcement steps but did not prevent later challenges to the lawfulness of those steps. That contention was abandoned in oral argument, and rightly so. The Court endorsed the judge’s view that if a party has expressly agreed to “co‑operate fully” in achieving a particular result (here, Enforcement Action), it is bound not to take steps that would hinder or undo that result. Active litigation to reverse enforcement is the antithesis of co‑operation.(c) Clause 5(d) as a broad non‑contest and waiver clause
The Court gave clause 5(d) a robust, commercially realistic scope:- The “obvious means” of contesting validity is litigation; in the absence of another agreed dispute resolution process, that must mean litigation in court or arbitration.
- There is no temporal limit: “shall contest, or seek to contest” covers both pre‑emptive and ex post facto challenges.
- There is no geographical limit: nothing in the text confines the promise to English courts; it extends to proceedings in France, Luxembourg or anywhere else.
- The “irrevocable release” of rights or claims “now or in the future” applies to the whole of clause 5(d), not merely to the approach to appointing the Expert for valuation.
- undermine the commercial purpose of the clause—preventing disruptive litigation;
- produce a “bizarre” result where the Appellant could launch proceedings, then be liable only in damages if it lost on the merits; and
- render clause 5(b)—which allows the Instructing Group to enforce security “as [it] sees fit”—largely ineffective.
3.5. Clause 6: overlap and reinforcement
Clause 6, headed “Exercise of rights under security documents”, deals mainly with voting rights under the Lux Share Pledge and contains several acknowledgements and waivers. In particular:- 6(a): acknowledges that, because Events of Default are continuing, the Agent is entitled to exercise voting rights in the Parent “at its entire discretion”.
- 6(b): contemplates that the Agent may wish to exercise such voting rights during or after the Standstill Period.
- 6(c): states that “no Company Party shall contest, or seek to contest or otherwise prevent, the exercise by the Agent of the voting rights in relation to the Shares … and [they] hereby irrevocably release any rights or claims they may have now or in the future in this regard.”
- 6(e): confirms that the Pledgors have irrevocably waived any right of recourse or claim further to enforcement of the security.
- Clause 6(c) mirrors the language and structure of clause 5(d), but in a narrower context (voting rights under the Lux Share Pledge).
- That parallel usage strengthens the view that 5(d) was also intended to be a substantive non‑contest and waiver clause, not merely an estoppel.
- There is no rigid divide whereby clause 6 alone deals with waivers and clause 5 only with co‑operation; both contain waivers.
3.6. The “clear words” principle and access to courts
A central plank of the Appellant’s case was that the Additional Agreement purported to deprive it of a “fundamental right” to seek protection against illegality in any court worldwide. This right, it argued, should be shielded by a very strong version of the “clear words” principle, drawing on:- R (Unison) v Lord Chancellor [2017] UKSC 51, where the Supreme Court held that the state cannot curtail access to courts without clear statutory authorisation; and
- Article 6 of the ECHR, guaranteeing a right of access to a court.
- There is a presumption that parties do not relinquish valuable rights without clear words.
- Access to a court is indeed fundamental in the constitutional sense (as stressed in Unison).
- Triple Point Technology Inc v PTT Public Co Ltd [2021] UKSC 29 (Lord Leggatt): clear words are required before parties can be taken to have surrendered important rights, but the question is always what the contract, objectively, means.
- Federal Republic of Nigeria v JP Morgan Chase Bank NA [2019] EWHC 347 (Comm) (Andrew Burrows QC): “clear words” principle is a species of modern interpretative presumption, not a separate regime; the more valuable the right, the clearer the language needed.
- Scottish Power UK Plc v BP Exploration Operating Co Ltd [2016] EWCA Civ 1043: even where two meanings are available, the court must use all interpretive tools to decide which is right; it is not compelled to choose the one that preserves rights simply because an alternative is possible.
- Unison concerned state action—a statutory scheme of employment tribunal fees which obstructed access to justice for vulnerable claimants.
- This case concerned a commercial contract between sophisticated parties, voluntarily entered into. Strasbourg authorities accept that Article 6 rights can be waived in such contexts, provided the waiver is free, unequivocal and limited to lawful purposes.
- Time‑bar clauses requiring claims to be notified or commenced within strict time limits.
- Exclusive jurisdiction clauses, precluding litigation in any but the chosen forum.
- Arbitration clauses, which divert disputes from state courts altogether.
- Covenants not to sue, historically used to protect rights against sureties or co‑obligors.
3.7. Limits of the non‑contest clause: fraud and non‑contractual conduct
The Court emphasised that its interpretation did not give the Agent a blank cheque:- The clause does not protect fraudulent or dishonest conduct; nothing in the wording suggests that the parties intended to immunise fraud from challenge.
- Nor does it cover steps that are manifestly not an exercise of rights under any Finance Document—i.e. conduct that cannot even plausibly be squared with the contractual framework.
3.8. The appellate court’s stance on Fancourt J’s judgment
Lord Justice Underhill drew on Re Portsmouth City Football Club Ltd (in liquidation) [2013] EWCA Civ 916, where Mummery LJ cautioned against unnecessary repetition of sound first‑instance reasoning simply for the sake of re‑writing it. Underhill LJ noted that, although the focus on appeal shifted from clause 5(a) (which dominated at first instance) to clause 5(d), the underlying approach remained the same. The appellate court therefore substantially adopted Fancourt J’s reasoning and conclusions, adding only targeted clarification on the key points raised by the Appellant.4. Complex Concepts Simplified
This case is dense with finance‑law terminology and doctrinal concepts. The following explanations may assist:4.1. Contractual estoppel
A contractual estoppel arises where parties agree, as a matter of contract, that certain facts or states of affairs are to be treated as true between them, even if they are not objectively so. The effect is:- As between the parties, they are estopped (prevented) from denying those “agreed facts”.
- The estoppel is rooted in contract, not representation or reliance in the usual estoppel sense.
- Clause 4 created a contractual estoppel that payment defaults were continuing and that the Parent and Company were unable to pay their debts as they fell due (subject to the standstill).
- This estoppel fed directly into the definition of “Luxembourg Security Enforcement Event”, effectively locking in the preconditions for enforcement of the Lux Pledges.
4.2. Waiver and non‑contest clauses
A waiver is where a party voluntarily abandons or relinquishes a right. In finance documentation, waivers often take the form of clauses in which a borrower or pledgor:- agrees not to set off certain claims,
- consents to actions that might otherwise be open to challenge, or
- promises not to contest enforcement steps.
- challenge the validity of the security or of enforcement steps, and/or
- commence or support legal proceedings aimed at reversing or delaying enforcement.
4.3. Standstill agreements
A standstill agreement is a contract under which creditors agree, usually temporarily:- not to enforce their rights following an event of default,
- to preserve the status quo while the borrower attempts to refinance or restructure.
- The Standstill Agreement gave the Group time to arrange refinancing without fear of immediate enforcement.
- The Additional Agreement was the quid pro quo: the finance parties agreed to the standstill, and in return the Company Parties made far‑reaching acknowledgements and waivers, including enabling the “nuclear option” after the standstill.
4.4. Event of Default vs Luxembourg Security Enforcement Event
An Event of Default is a defined trigger (such as non‑payment, insolvency, breach of covenant) that allows creditors to accelerate debts or enforce security. A Luxembourg Security Enforcement Event (a term defined in the Intercreditor Agreement) was a more stringent condition that had to occur before the Instructing Group could instruct the Agent to enforce Luxembourg Transaction Security. It included, among other things, inability to pay debts as they fall due. Clause 4 of the Additional Agreement effectively pre‑agreed that the conditions for a Luxembourg Security Enforcement Event were satisfied, stripping away the debtor’s ability to dispute the enforcement trigger.4.5. “Nuclear option” in secured finance
The Court used “nuclear option” as shorthand for enforcement steps that:- are decisive and irreversible in terms of control and economic interest (e.g., appropriating pledged shares in the holding company); and
- leave the debtor and associated shareholders with little or no remaining economic stake in the structure.
- removed the Appellant as shareholder and key creditor of the Parent; and
- rendered any remaining rights under the Fiducie of marginal value.
4.6. Fiducie
A fiducie is a French law trust‑like security instrument under which ownership of assets (here, shares in the Company) is transferred to a trustee (Aloe) as security for obligations. Upon a “Triggering Event”, the trustee may exercise rights (including voting rights and possibly sale) over the assets. In this case, the Fiducie was a “Security Document” and part of the broader “Finance Documents” covered by clause 5(d). The Appellant’s French proceedings sought to challenge Fiducie enforcement on various grounds (assignment, good faith, trigger conditions), but the English court held that such challenges were contractually barred.4.7. Exclusive jurisdiction clauses and cross‑border effect
Several exclusive jurisdiction clauses coexisted:- Lux Pledges: exclusive jurisdiction of Luxembourg courts.
- Fiducie: exclusive jurisdiction of the Tribunal de Commerce in Paris.
- Additional Agreement: exclusive jurisdiction of the English courts.
- The French court remained the proper forum for disputes under the Fiducie.
- But as a matter of English contract law, the Appellant had promised not to initiate or pursue such disputes at all.
- Breach of that promise could be remedied in England (e.g., by anti‑suit relief and/or damages).
4.8. Instructing Group and Agent
In many syndicated facilities:- The Agent acts as the central point of contact and holder of security for all lenders.
- An Instructing Group (often the majority of lenders or those holding a defined percentage of exposure) is empowered to instruct the Agent on enforcement and other key matters.
- The Agent (Aether) held the security and implemented enforcement.
- The Instructing Group determined when and how to enforce, with wide discretion under clause 5(b) to choose sequencing and partial enforcement.
5. Impact and Implications
5.1. Precedential value: key legal principles clarified
The decision is significant in several respects:- Enforceability of broad non‑contest clauses
The Court of Appeal confirms that a clause by which a party agrees not to contest, in any court, “the validity of, or exercise by the Agent of its rights under, any Finance Document”, and releases rights or claims in that regard, is effective—subject only to limited exceptions (e.g. fraud). - Interaction of contractual estoppel and substantive waiver
The judgment draws a clear analytic line:- Some clauses (like clause 4) operate as contractual estoppels regarding facts or states of affairs.
- Others (like clause 5(d) and 6(c)) are promises about future conduct—substantive waivers and non‑contest commitments.
- The mere presence of “agree and acknowledge” does not dictate which category a clause falls into; content and context are key.
- Scope of the “clear words” principle in commercial contracts
The Court reiterates that:- The presumption against surrendering valuable rights without clear words is important but not absolute.
- It does not require that no other construction is possible; the court must still ask “what does the contract really mean?” applying all interpretative tools.
- Freedom of contract and party autonomy, particularly in complex financial instruments, carry great weight (Belmont Park).
- Private waiver of access to courts and Article 6
The judgment reinforces that commercial parties can validly waive elements of their Article 6 and common‑law access‑to‑court rights by contract, provided:- the waiver is clear and unequivocal;
- it is part of a freely negotiated arrangement; and
- it does not purport to immunise fraud or fundamentally unlawful conduct.
- Co‑operation obligations as negative covenants
The Court confirms that an obligation to “co‑operate fully” in respect of enforcement carries an implicit negative aspect: a duty not to obstruct enforcement, including by litigation. This will be of practical importance in drafting and litigating “co‑operation” clauses.
5.2. Practical implications for drafting finance documentation
For transaction lawyers and lenders:- Strengthening enforcement packages: Including express, carefully drafted non‑contest and release clauses—modelled on clause 5(d)—can significantly reduce litigation risk around enforcement.
- Cross‑border enforceability: Such clauses can be structured to bite on proceedings in foreign courts, provided they are governed by a law (like English law) that recognises party autonomy and are coupled with an exclusive jurisdiction clause for monitoring and enforcing the waiver.
- Clear language: Drafters should:
- avoid ambiguous formulations;
- expressly include “shall not contest or seek to contest or otherwise prevent” wording; and
- link the non‑contest obligation to an “irrevocable release” of related rights or claims.
- Interaction with estoppels: Where both contractual estoppels and waivers are intended, they should be clearly delineated (as between clause 4 and clause 5/6 in this case) to avoid arguments that one provision exhausts the intended “waiver function”.
- Awareness of waiver breadth: Parties should understand that agreeing to non‑contest clauses in standstill or restructuring contexts may dramatically curtail their options for challenging enforcement later, even in their “home” courts.
- Negotiation leverage: Given the Court’s willingness to enforce such clauses, borrowers should seek:
- tighter carve‑outs (e.g., for manifest breach of specific covenants, not just fraud);
- procedural safeguards around valuation and sale processes; and
- limits on the geographical or temporal scope of the non‑contest obligation, where commercially feasible.
5.3. Implications for litigators and cross‑border strategy
For litigators:- Checking for non‑contest clauses: Before initiating challenges to enforcement (especially in foreign courts), practitioners must examine all intercreditor and side agreements—particularly those concluded in standstill or forbearance phases—for hidden waivers.
- Forum strategy: Creditors may use English‑law non‑contest clauses and exclusive jurisdiction provisions as a basis for anti‑suit injunctions preventing foreign proceedings, or for damages claims for breach of contract.
- Defence strategies: Debtors may still have room to argue:
- that the challenged conduct is fraudulent or dishonest;
- that the conduct is so far outside the contract that it cannot be the “exercise of rights under any Finance Document”; or
- that the clause is limited to a particular type of enforcement (if narrowly drafted).
5.4. Doctrinal development in contract law
Academically, the case sits at the intersection of:- Contractual estoppel and conclusive evidence clauses (as seen in Sara & Hossein): It contributes to the taxonomy by contrasting pure estoppels with forward‑looking waivers.
- Exclusion and limitation of rights: The judgment reinforces that the “clear words” principle, while robust, remains an aspect of ordinary interpretation, not a separate rigid rule favouring rights‑preserving constructions whenever there is doubt.
- Party autonomy versus public policy: It reaffirms the high regard that English commercial law accords to party autonomy in sophisticated financial transactions (Belmont Park), even where the consequence is a very substantial curtailment of a party’s litigation options.
6. Conclusion
UNIK Bond SA v Catbalogan Holdings SARL is a significant authority on the effectiveness of broad, carefully drafted non‑contest clauses in cross‑border secured finance. The Court of Appeal held that:- By clauses 4, 5 and 6 of the English‑law Additional Agreement, the Appellant and its affiliates not only acknowledged facts giving rise to enforcement rights (contractual estoppel), but also promised not to challenge the exercise of those rights and irrevocably released related claims.
- This waiver extended to proceedings in any court, including the Tribunal de Commerce in Paris, and barred legal challenges to the lawfulness of enforcement steps under the Finance Documents, save for exceptions such as fraud or manifestly non‑contractual conduct.
- The “clear words” principle was applied, but without transforming it into a requirement that the contract admit of no alternative reading; the Court instead asked, in orthodox fashion, what the contract really meant in its commercial context.
- In a sophisticated, freely negotiated commercial context, there is no public policy objection to parties voluntarily curtailing their access to courts, including foreign courts, through enforceable non‑contest and waiver clauses.
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