On 11 February 2025, in a further, and perhaps final, twist to the ongoing legal battle between UniCredit Bank GmbH ("UniCredit") and RusChemAlliance LLC ("RCA"), the Court of Appeal discharged its previous final anti-suit injunction against RCA, on application from UniCredit (Court of Appeal judgment). This development is a reminder of the complex interplay between different jurisdictions in the current geopolitical environment and the primacy of the location of assets as one the key factors in pursuing cross-border litigation in such an environment.
Background
The background to these proceedings, as well as developments up to the end of last year, were discussed in our previous article (Supreme Court Confirms Anti-Suit Injunction in favour of foreign-seated arbitration proceedings: UniCredit Bank GmbH v RusChemAlliance LLC).
Recent developments
In December 2024, RCA applied for and obtained a ruling (the "Ruling") from the Arbitrazh Court of Saint Petersburg and Leningrad Region which:
- prohibited UniCredit from initiating arbitrations or court proceedings against RCA, except in the Russian courts, in respect of the bonds that are the subject matter of the proceedings;
- prohibited UniCredit from continuing any proceedings, or enforcing any judgments, except in the Russian courts, against RCA in respect of the bonds;
- obliged UniCredit to "take all measures within its control (including applying to cancel and others) aimed at cancelling the effect of [the Court of Appeal's Order]" within two weeks of the Ruling coming into legal force; and
- provided that, if UniCredit failed to comply with these orders, it would have to pay RCA €250 million by way of a court-imposed penalty.
Accordingly, in January of this year, UniCredit applied to remove the injunction under CPR Part 3.1(7) to avoid paying hefty penalties (EUR250 million if it failed to do so) and to protect its assets in Russia. RCA did not object to UniCredit's application.
In its judgment handed down on 11 February 2025, the Court of Appeal, led by Sir Geoffrey Vos, Master of the Rolls, discharged the final anti-suit injunction.
Court of Appeal decision
Amongst other questions of fact and policy, the central legal issue before the Court of Appeal was:
"... whether there is power under CPR Part 3.1(7) to revoke or amend the CA's Order in this case at the behest of UniCredit, with the agreement of RCA".
That is, whether the final anti-suit injunction previously awarded should be conclusive and binding, or whether the Court had jurisdiction to vary it.
In answer, the Court noted that "[t]he circumstances in which CPR 3.1(7) can be relied upon to vary or revoke a final order are likely to be very rare given the importance of finality." However, it went on to note, inter alia, that "[i]t would be very strange if a party that had obtained an injunction, even a final one, could never return to the court to ask that, in the changed circumstances that followed the grant of the injunction, it wanted it discharged." As such, the Court concluded that such a power must exist in appropriate cases.
Accordingly, in light of the change in circumstances and the commercial realities that UniCredit found itself in, the Court varied the order under CPR Part 3.1(7) so as to discharge the injunctive parts of its previous order. It was reasoned that this approach would allow UniCredit to comply with the Russian court's Ruling while maintaining the declaratory parts regarding the jurisdiction of the English court (as confirmed in a previous Supreme Court judgment in 2024).
Implications
On the one hand, the Court of Appeal's judgment underscores the English courts' willingness and flexibility to adapt their orders in light of new developments, even in the context of final anti-suit injunctions.
On the other hand, the decision draws attention to evolving geopolitical tensions and highlights the increasing challenges faced by international commercial parties navigating conflicting legal orders.
Boris Telyatnikov, Evgeniya Rubinina, Amy Spencer, Jonas Habert, Liam Baum and Ali Murad acted for RCA in the English proceedings before the Supreme Court and in the Courts below instructing Alex Gunning KC and Alex Brown of One Essex Court.
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