THE AUTHORS:
Horatiu Dumitru, Associate at Gibson Dunn
Dimitar Arabov, Associate at Gibson Dunn
Jurisdictional battles have long been a feature of cross-border litigation, with parties keen to resolve their disputes in the forum that they consider best serves their commercial interests. As a result, modern contractual arrangements often contain express jurisdiction clauses that stipulate the precise legal forum in which any future disputes related to the contract ought to be adjudicated as between the parties. The primary tool available under English law to assist a party in enforcing such a clause is the Anti-Suit Injunction (“ASI”) – a court order precluding the other side from commencing or continuing legal proceedings in breach of their jurisdictional agreement. If a party were to breach an ASI, it would risk civil and/or criminal sanctions for acting in contempt of the English court.
The novel question of law that the English Court of Appeal (Vos MR, Asplin LJ, Phillips LJ) considered in UniCredit Bank GmbH v RusChemAlliance LLC [2025] EWCA Civ 99 was whether a final ASI could be revoked or varied upon the request of the party in whose favour the order was granted in the first place, and, if so, what the relevant legal and policy considerations are in such cases.
Background
As covered in further detail here, UniCredit Bank GmbH (“UniCredit”) had previously obtained an ASI prohibiting RusChemAlliance LLC (“RCA”) from continuing its proceedings against UniCredit before Russian courts in breach of the parties’ arbitration agreement. That ASI was initially granted by the English High Court on an interim ex parte basis, but set aside at the return hearing. UniCredit then appealed that decision to the Court of Appeal, which re-instituted the anti-suit injunction against RCA. The Court of Appeal’s decision was then upheld on appeal by the Supreme Court.
Despite the Supreme Court’s ruling, RCA proceeded to apply for, and obtain, an anti-ASI from the Arbitrazh Court in St Petersburg (even though RCA had previously confirmed before English courts that it would comply with any ASI relief). As part of the anti-ASI, the Russian court imposed an obligation upon UniCredit to take all measures within its control to revoke the previously obtained English ASI, threatening a fine of EUR 250 million if it failed to do so.
UniCredit decided that it was in its best commercial interests to comply with the Russian anti-ASI, and not to pursue any contempt of court proceedings in England against RCA. Based on UniCredit’s submissions, a key reason for that decision was the practical reality that, whilst RCA had no assets and officers outside of Russia, UniCredit had both employees and a significant amount of assets in Russia. Accordingly, UniCredit applied to the English Court of Appeal to revoke the ASI.
Judgment
The application by UniCredit was made under CPR 3.1(7) and was supported by RCA. As identified by Vos MR in [10] of the judgment, the application raised five key issues:
- Whether UniCredit was actually at risk of being forced to pay a penalty;
- Whether the Court had the power to revoke or vary a final ASI;
- Whether UniCredit had been coerced into making this application, and, if so, whether that weighed against granting it;
- Whether there were English public policy reasons for refusing to grant the application, and, if so, how strongly they militated against acceding to it; and
- Whether, on balance, the application should be allowed and, if so, whether the ASI should be revoked or varied.
On the first issue, the Court noted that, since the Russian anti-ASI ruling only obliged UniCredit to “take all measures within its control (including applying to cancel and others) aimed at cancelling the effect of [the ASI]” (emphasis added), UniCredit could discharge that obligation merely by applying to revoke the ASI (and was not required to obtain such revocation). Despite that, the Court also observed that it could not predict how the St Petersburg court would judge whether or not UniCredit had indeed taken all measures within its control to achieve the revocation of the ASI. Accordingly, it decided that, if the application were to be refused, there was plainly a risk that the Russian court could take the view that UniCredit had not pursued its application sufficiently vigorously and still decide to impose the penalty on it.
On the second issue, the Court reviewed the existing authorities and ruled that it had the power to revoke and vary a final ASI under CPR 3.1(7). It did so on the basis that:
- ASIs are often made on an interim basis, and can be later discharged, if necessary. Accordingly, it would be unusual if final ASIs could not be so discharged, particularly in circumstances where the finality of the ASI was merely a consequential effect of a previous procedural decision (as was the case in these proceedings);
- It would be “very strange” if, in a private litigation between commercial parties, a party could never return to the court to ask that a previously obtained final injunction be discharged, particularly if circumstances had changed; and
- In relation to ASIs specifically, it is commonplace for competing orders to be made in different jurisdictions, so it would be “strange indeed” if the party that obtained the “losing” order could not return to ask for it to be discharged.
On the third issue, the Court noted that UniCredit had been undoubtedly coerced into making the application (by the “eye-watering” penalties that the St Petersburg court had threatened). However, it decided that this was not a weighty factor against granting the application as it was not appropriate to second guess UniCredit’s decision in circumstances where “UniCredit [was] a major bank, capable of making its own decisions” and was making the application “because its board ha[d] decided that it [was] in its own commercial interests to do so.”
On the fourth issue, the Court identified four possible causes for concern from an English public policy perspective (listed below). However, it decided that none of them militated strongly against granting the application:
- Whether the St Petersburg court was pressurising the English court – the Court found that the Russian anti-ASI was an entirely in personam order made against UniCredit, and did not operate against the English court.
- Whether the penalty imposed by the anti-ASI ruling was contrary to Russia’s international obligations under the New York Convention – the Court found that there was no suggestion that the St Petersburg court was acting outside its own laws and there was no case for suggesting that granting UniCredit’s application to revoke or vary the ASI would amount to condoning a breach of international law.
- Whether granting the application would violate UK sanctions imposed on Russia – the Court found that, although the anti-ASI ruling was clearly directed at circumventing UniCredit’s inability to effect payment to RCA by reason of EU sanctions, it did not infringe upon UK sanctions legislation.
- The relevance of RCA’s refusal to comply with an order of the English court – the Court noted that RCA’s acting in contempt of the English court (in pursuing the anti-ASI in Russia) was a factor to be weighed against granting the application. However, it ultimately ruled that this was not a definitive reason to risk significantly prejudicing UniCredit by rejecting its application.
Accordingly, on the fifth issue, the Court decided to vary the ASI by revoking its injunctive parts (whilst retaining its declaratory findings on jurisdiction) primarily because:
- UniCredit was a commercial party acting in its own interests; and
- In the circumstances of the case, it would be unjust and unfair to force UniCredit to risk significant penalties in Russia that may be avoidable if the ASI was varied.
Key Takeaways
The issue put before the Court of Appeal raised considerable complexities, including:
- The impact of duress on commercial litigants’ decisions in an ongoing litigation
- The English courts’ role in policing their own orders; and
- The treatment of foreign judgments where such judgments “seemingly conflict” with the English courts’ own interpretation of international law obligations.
The oddity of UniCredit’s application being supported by the respondent, and yet requiring a full day hearing and the appointment of an Advocate to the Court, only further serves to underline the novelty of these proceedings.
Perhaps in recognition of the complex interplay between these issues, the Court adopted a very pragmatic approach in its reasoning as it recognised that jurisdictional battles often involve competing orders by the courts involved, with one of the parties ultimately emerging as the “winner” of that jurisdictional contest. Accordingly, the Court found that preventing the “losing” party from discharging or varying its own ASI would risk unfairly prejudicing it, particularly in circumstances where the foreign court is willing and able to impose substantive fines for non-compliance with its order. That is even more so where the “losing” party is a sophisticated business enterprise capable of making informed decisions as to its own best commercial interests. Accordingly, in the absence of strong public policy or international law considerations preventing the variation or revocation of the relevant ASI, English courts ought to be receptive to such applications.
This decision provides a stark reminder of the importance of considering, at the outset of a dispute, the jurisdictions in which the relevant parties’ assets and personnel are located. Such analysis is critically important in assessing the risk that the opposing side may decide not to comply with an eventual court order, and it can prevent a party from incurring significant costs and delay in seeking an order that may, in practice, only be of limited value. For example, in this case, RCA was in a position where it could breach the English ASI with relative immunity, given that it held no assets outside of Russia and that its officers did not travel outside of its home jurisdiction. That may well not be the case for other commercial parties, for whom the threat of civil and/or criminal penalties resulting from contempt of court proceedings in England remains a powerful deterrent.
ABOUT THE AUTHORS
Horatiu Dumitru is an English-qualified associate in Gibson Dunn’s London office, practising in the firm’s International Arbitration and Litigation groups. He has broad experience in investment treaty arbitration, commercial arbitration, and English court commercial litigation. Mr Dumitru holds an LL.M. from the London School of Economics and Political Science, and an LL.B. from University College London.
Dimitar Arabov is an English-qualified associate in Gibson Dunn’s London office, practising in the firm’s International Arbitration, Litigation, and Judgment & Award Enforcement groups. He has broad experience in commercial and investment treaty arbitration, English court commercial litigation, and award enforcement proceedings against sovereign states. Mr Arabov holds a First-Class Law degree from University College London (UCL).
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
