Court of Appeal upholds contractual limits on challenging enforcement action in cross-border finance transaction

The Court of Appeal has upheld the enforceability of contractual provisions that purported to limit a party’s ability to challenge enforcement action following default, in the context of a cross-border financing arrangement: UNIK Bond SA v Catbalogan Holdings SARL [2025] EWCA Civ 1594.

The decision illustrates the courts' approach to contractual waivers of rights to challenge enforcement, particularly in agreements negotiated between sophisticated commercial parties. It emphasises that freedom of contract is a basic principle of the common law and the courts will, so far as possible, give effect to contractual terms that the parties have agreed – including where they have agreed to curtail or exclude what would otherwise be their right of access to the court.

The Court of Appeal acknowledged that there is a presumption that parties do not normally give up valuable rights unless they use clear words to show that intention. However, it rejected the submission that the court will not conclude that a party has given up a fundamental right unless the contract admits of no other meaning. The question is what the contract really means, applying the presumption. 

For more information see this post on our Banking Litigation Notes blog.