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The Court of Appeal refused to grant an anti-suit injunction to restrain Russian proceedings, underscoring the Court's reluctance to grant such relief where disputes have a strong connection to a foreign forum
In FH Holding Moscow Ltd v AO UniCredit Bank & UniCredit S.p.A [2026] EWCA Civ 468, the Court of Appeal upheld the High Court's decision not to grant an anti-suit injunction (an ASI) to prevent proceedings commenced in Moscow to enforce Russian law governed security which was provided as part of a financing transaction where the Facility Agreement was governed by English law and provided for Vienna-seated arbitration.
Applying English law principles of contractual interpretation, the Court found that the bringing of proceedings in Moscow was not in breach of the arbitration agreement in the Facility Agreement. The judgment highlights the English court's reluctance to intervene where the contractual framework and the substance of the dispute point strongly towards a foreign forum.
From a practical perspective, the case also serves as a reminder that (i) in financing transactions, disputes may fall under multiple different dispute resolution provisions, and (ii) to reduce the risk of jurisdictional battles, finance parties should make very clear whether or not establishing an event of default under a facility agreement is a condition precedent to enforcement of any security.
Finally, the judgment indicates that the position regarding service out of the jurisdiction in respect of foreign-seated arbitration claims may not be settled.
Background
Cypriot company FH Holding Moscow Limited (FH Holding) entered into a facility agreement (the Facility Agreement) with UniCredit S.p.A. (UniCredit) and its Russian subsidiary, AO UniCredit Bank (the Bank). The Facility Agreement was governed by English law and provided for arbitration seated in Vienna under the VIAC Rules. As part of the transaction, FH Holding granted a Russian-law governed mortgage over Moscow real estate to the Bank (the Mortgage). The Mortgage permitted immediate execution following an event of default under the Facility Agreement, with disputes subject to the exclusive jurisdiction of the Russian court.
The Bank commenced foreclosure proceedings in the Arbitrazh Court of the Moscow Region under the mortgage (Russian Proceedings) alleging that an event of default had occurred under the Facility Agreement. FH Holding joined UniCredit to the Russian proceedings as a third party without bringing any separate claims against it. FH Holding argued in the Russian proceedings that no event of default had occurred and also challenged the court's jurisdiction, contending that disputes regarding events of default were subject to the arbitration clause in the Facility Agreement, rather than the jurisdiction clause in the Mortgage. In parallel, FH Holding sought an ASI from the English High Court under s37 of the Senior Courts Act 1981 to restrain the UniCredit entities from pursuing the Russian Proceedings.
FH Holding was granted permission to serve the ASI application out of the jurisdiction. The Bank contested the jurisdiction of the English court to grant the ASI, while UniCredit applied for summary judgment to have FH Holding's claim against it dismissed.
High Court Judgment
As recently summarised in Renaissance Securities (Cyprus) Limited v ILLC Chlodwig Enterprises [2025] EWCA Civ 369, the court will only grant an ASI if it is satisfied that (i) it is "just and convenient to do so"; and (ii) "the ends of justice so require".
FH Holding's two main arguments in support of maintaining the ASI were:
- the Russian Proceedings contravened the arbitration clause in the Facility Agreement by raising disputed issues, including whether an event of default had occurred, that should be determined by a VIAC tribunal; and
- allowing the Russian Proceedings to continue might ultimately compel FH Holding to act in breach of EU sanctions, amounting to vexatious or oppressive conduct.
The High Court (Henshaw J) declined to issue the ASI, awarded summary judgment in favour of UniCredit, and upheld the Bank's jurisdictional objection.
Court of Appeal judgment
No breach of the Facility Agreement arbitration clause
The Court dismissed the appeal, endorsing the first-instance analysis in full.
The Court agreed that the principles to be applied in a case of competing dispute resolution clauses are those set out in BNP Paribas SA v Trattamento Rifiuti Metropolitani SpA [2019] EWCA Civ 768. These include that (i) a clause in one contract does not capture disputes more naturally arising under a related contract, (ii) sensible business people are unlikely to intend similar disputes to be subject to inconsistent forums; and (iii) the language and circumstances may indicate that both clauses may apply to the same dispute in which case either clause may apply.
As held at first-instance, the Court found that the dispute about whether an event of default had occurred fell within both clauses, and the Mortgage had already "legislated for [this] position":
- clause 9.1.1 conditioned enforcement on an Event of Default having "occurred", not on its prior determination by a VIAC tribunal;
- clause 9.1.2 permitted execution "immediately after the occurrence of the Event of Default", but expressly "subject to Clause 21 (Dispute Resolution)" (the Mortgage's Moscow jurisdiction clause); and
- clause 9.1.3 required enforcement to proceed by judicial procedure in the Moscow courts.
Together these provisions indicated that disputes about whether an Event of Default had occurred were intended to be resolved within the Moscow enforcement proceedings, not through a prior Vienna-seated arbitration. To interpret the clause as requiring a VIAC award as a condition precedent to enforcement would substantially negate the lenders' ability to take prompt enforcement steps.
The Moscow court followed the same approach to interpretation of the dispute resolution clause in the Mortgage dismissing FH Holding's jurisdictional objection.
Despite accepting the first-instance court's analysis, the Court of Appeal also observed that applying English law principles of construction to the Russian-law Mortgage was "by no means obvious" and that accepting FH Holding's case would have required the English court to conclude, applying those English law principles, that the Moscow court's interpretation of that Mortgage was wrong — described as "an ambitious conclusion".
The jurisdictional questions
The Court of Appeal only made obiter remarks on the jurisdictional questions. In particular, the second ground of FH Holding's appeal was that the judge was wrong to hold that the English court did not have jurisdiction over the Bank, as the claim for an ASI was "in respect of" a contract governed by English law, namely the Facility Agreement. The High Court judge had emphasised that the claim was not "in respect of" the Facility Agreement governed by English law, but rather concerned the arbitration agreement in it, which (as a matter of English law) was governed by Austrian law as the law of the seat of arbitration (under new s6A of the Arbitration Act 1996) because there was no express governing law of the arbitration agreement.
The Court of Appeal stated that FH Holding's argument had a potentially wide-ranging impact, and that although it was raised belatedly in UniCredit v RusChemAlliance (see our blog on this case here), it was not decided. While expressly not indicating a view, the Court noted that the words "in respect of" have generally been regarded as extremely wide for the purpose of establishing a sufficient connection to the jurisdiction, and that there is no reason in principle why a claim could not be ‘in respect of’ more than one contract.
The Bank also argued that the gateways in CPR Practice Direction 6B (on which FH Holding relied) are not available for service out of the jurisdiction of an arbitration claim form because CPR 62.5 provides an exclusive route. However, the Court of Appeal noted that this argument runs up against two decisions of the Supreme Court, both of which proceeded on the basis that the gateways in Practice Direction 6B can be relied on for service out of the jurisdiction for an arbitration claim form, even if the contrary was not argued in either case. An additional layer of complexity is that CPR 62.5(1)(c) does not apply where the arbitration clause in question provides for a foreign seat, such as in this case. The Court of Appeal suggested that this issue would usefully be considered by the Rules Committee.
Conclusion
This decision underscores the exceptional nature of anti-suit injunctions and the reluctance of English courts to grant such relief where the dispute has a strong connection to a foreign forum and the contractual framework supports proceedings in that jurisdiction.
This case also serves as a timely reminder for parties drafting finance and security documents to pay close attention not only to the choice of law, forum, and the governing law of any arbitration agreement, but also to ensure clarity and coherence in structuring dispute resolution provisions in cross-border transactions, especially where enforcement and jurisdictional issues may arise. Where arbitration to determine substantive rights is intended to function as a condition precedent to enforcement of security, this should be made express in the security document itself.
The unresolved service-out issue is worth noting. The Court's suggestion that the Rules Committee address whether Part 6 gateways can be used in foreign-seated arbitration claims leaves uncertainty in the current procedural framework. Until the position is resolved — whether by the Rules Committee, further case law, or legislation — parties commencing arbitration claims in England in connection with a foreign-seated arbitration agreement should take early advice on jurisdiction and should not assume that the approach taken in earlier cases will go uncontested.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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