Anti-Suit Injunctions: Recent Developments

In the current globalised business environment, legal disputes frequently transcend national borders, presenting unique challenges to parties seeking their resolution, as well as to legislators and governments setting the rules for dispute resolution. Anti-suit injunctions are one of the available legal tools that are used regularly now and which attract significant attention.

Understanding Anti-Suit Injunctions

At its core, an anti-suit injunction is a court order that prohibits an individual or entity from initiating or continuing legal proceedings in a foreign jurisdiction. This means that if one party is engaged in litigation against another party in one country in breach of an arbitration or jurisdiction agreement, the latter party may seek an injunction to prevent the former party from pursuing parallel litigation in another jurisdiction. The rationale behind such injunctions is to maintain the integrity of legal proceedings, prevent forum shopping, and uphold agreements between the parties regarding the choice of forum.

There has been a notable increase recently in the use of anti-suit injunctions, particularly in cases that contain international element. This growth can be attributed to various factors, including the increased complexity of cross-border disputes, the polarisation of political conflicts between different jurisdictions, and the wide-reaching use of sanctions.

The practical effects of obtaining an anti-suit injunction are significant. By securing an anti-suit injunction, parties can avoid the uncertainties associated with parallel proceedings in multiple jurisdictions and avoid adjudicating their dispute in a jurisdiction said to have biases and prejudices towards them specifically. Anti-suit injunctions can also safeguard the enforceability of arbitration and jurisdiction agreements, ensuring that disputes are resolved in accordance with contractually agreed terms.

Subsequent sections in this article will explore the requirements, procedure, and strategic considerations surrounding anti-suit injunctions, providing practical guidance for practitioners and businesses alike.

Anti-Suit Injunctions in England and Wales

The history of anti-suit injunctions in England and Wales goes back to the evolution of the Court of Chancery and its exercise of equitable jurisdiction.[1] Initially stemming from the concept of the ‘common injunction,’ the Court of Chancery used its authority to restrain litigants from pursuing actions in other common law courts. As disputes began to transcend national borders, the Court was tackled with the question of whether it could prevent litigants from pursuing proceedings in foreign jurisdictions. The question was resolved positively.

General Rules for Application

The modern principles governing the granting of anti-suit injunctions were crystallised in the milestone judgment in Société Nationale Industrielle Aérospatiale v Lee Kui Jak.[2] Under English law, the court may restrain a defendant from pursuing proceedings in a foreign court when it is necessary in the interests of justice to do so. While the grounds for granting such injunctions extend beyond mere possible oppression of a party within a foreign forum, a party seeking relief must typically demonstrate that proceeding in a foreign court would be vexatious or oppressive.

In determining whether to grant an anti-suit injunction, the court weighs up various factors, including whether England is the natural forum for the dispute and whether granting the injunction would offend principles of international comity. The decision to grant or deny an anti-suit injunction involves an exercise of discretion, implied with a degree of flexibility to accommodate the peculiarities of every case.

Anti-Suit Injunctions in the russian federation

The history of anti-suit injunctions in russia is relatively recent, dating back to the enactment of Federal Law No. 171-FZ dated 8 June 2020. This law introduced amendments to the russian Arbitration Procedure Code, specifically Articles 248.1 and 248.2 (Article 248).

The proposed amendments aim to grant exclusive jurisdiction to russian courts in cases involving entities subjected to sanctions in foreign jurisdictions. The russian legislator argued that when sanctions target an entity, it inherently suggests potential bias and unfair treatment abroad. Therefore, based on this logic, to safeguard the rights of such entities, disputes concerning them should be resolved exclusively by russian courts, disregarding any arbitration or jurisdiction agreements between the parties.

Article 248 also enables a party in russia to obtain court orders restraining the commencement or continuation of proceedings in foreign jurisdictions, including before arbitral tribunals. This is similar to the concept of anti-suit injunctions in English law, as described above.

The following case illustrates how the regimes of anti-suit injunctions in two jurisdictions could clash and produce competing outcomes, requiring the parties to a dispute to make strategic choices to secure their legal position.

Case of UniCredit Bank GmbH v RusChemAlliance LLC

One of the most recent cases dealing with the application of anti-suit injunctions in England and Wales in connection with Article 248 is UniCredit Bank GmbH v RusChemAlliance LLC.

RusChemAlliance (RCA), a russian company, hired a contractor to construct gas processing plants in russia. RCA was supposed to pay around EUR 10 billion to the contractor, with EUR 2 billion in advance payments. UniCredit, a German bank with a presence in russia, issued bonds totalling EUR 420 million to guarantee the contract and repayment of advance payments (as did several other German banks, including Deutsche Bank AG, Landesbank Baden-Wurttemberg, Bayerische Landesbank, Commerzbank AG). The bonds were governed by English law, and any disputes related to them were to be resolved by ICC arbitration in Paris.

Due to the EU sanctions imposed in connection with russia’s invasion of Ukraine, the contractor could not fulfil the contract or return advance payments. RCA sued UniCredit in russian courts for EUR 448 million under the bonds, relying on Article 248 and disregarding the arbitration agreement, which provided for ICC arbitration in Paris. UniCredit commenced proceedings before English courts, claiming a breach of the arbitration agreement and seeking an anti-suit injunction to stop the russian proceedings.

Following conflicting decisions from the lower instance English courts, the UK Supreme Court upheld an anti-suit injunction granted in support of a Paris-seated ICC arbitration agreement, restraining RCA from pursuing litigation in russia against UniCredit Bank.

The dispute marks the first instance of an English court affirming jurisdiction to grant anti-suit relief enforcing an arbitration agreement specifying a foreign (non-UK) seat.

At the same time, after the UK Supreme Court issued its final decision in April 2024, the russian court nevertheless resumed its proceedings and in May 2024 it grantnted a freezing order in favour of RCA in respect of UniCredit Bank’s assets in russia for a total amount of approximately EUR 462 million. In June 2024, the russian court granted RCA’s claim on the merits and ordered UniCredit Bank to pay RCA a total of EUR 448 million.

Therefore, UniCredit Bank’s position remains precarious to the extent that its russian assets remain under threat, and it still has to devote resources and attention to the proceedings in russia, which RCA commenced in breach of the arbitration agreement and continued in breach of the English court’s anti-suit injunction.

In other cases where foreign parties started arbitration proceedings in other jurisdictions seeking monetary relief against russian parties, the russian courts, at the request of russian parties, have also imposed their anti-suit injunctions, including heavy penalties thay go up to the amount of monetary relief pursued by foreign parties abroad. Ukrainian businesses equally suffer from the same practice employed by russian parties.

While it is very unlikely that any judgments on the merits or anti-suit injunctions issued by the russian courts under Article 248 could ever be enforced outside of russia, enforcement could still be conducted against the assets of foreign parties still held in russia.

Are there any solutions that could help the parties to deal with parallel russian proceedings and anti-suit injunctions under Article 248? The EU recently tried to address this matter in its 14th package of sanctions against russia.

Response EU to russia’s Anti-Suit Injunctions

On 24 June 2024, the European Council adopted Regulation (EU) 2024/1745 that subjected companies which obtain any injunction, order, relief, judgment or other court decision under Article 248 to a ban on transactions with EU companies.

In adopting this measure, the European Council observed that it intended to put a stop to the use of Article 248 by russian parties, which circumvents effective EU sanctions by judicial means.

It is a welcome and innovative step by the European Council. However, it may still fail to have an impact on those russian companies that are already subject to EU sanctions and cannot in practice do business with EU companies. Furthermore, on a more general level, as long as EU companies continue to hold assets in russia, these companies and their assets will remain vulnerable and subject to judicial actions in russia.

Accordingly, the recent efforts by the EU still demonstrate the limits of what is possible to achieve when one rogue country decides to disregard the established international legal order. Hopefully, the situation may change if more jurisdictions join the EU’s proposed approach and create a united front to oppose the misuse of Article 248 by russian parties.

In the meantime, businesses would still need to consider how to approach best any disputes involving russian parties, including whether to obtain their own anti-suit injunctions, as well as how to minimise risks to their assets and to secure enforcement of awards and/or judgments against russian parties.

[1] Raphael, T. The Anti-Suit Injunction (2nd edition). Oxford University Press, 2019.

[2] Supra, 1.

  • Olexander Droug

    Partner, Sayenko Kharenko

    Olexander Droug is a partner at Sayenko Kharenko, which specialises in dispute resolution and restructuring with a focus on international arbitration and cross-border commercial litigation. His experience includes advising local and foreign clients at all stages of complex multijurisdictional proceedings, as well as commercial and investment arbitration under the arbitration rules of all major international arbitration institutions (LCIA, ICC, SCC), CIS-based arbitration institutions, ICSID Arbitration Rules and ad hoc arbitration rules. Mr Droug also advises clients on obtaining and implementing interim relief, as well as on the recognition and enforcement in Ukraine of arbitration awards and foreign court judgments.

    In March 2017 Olexander was added to the list of arbitrators elected to settle disputes arising in financial restructuring procedures.

    Mr. Droug regularly contributes to key legislation in the areas of arbitration, litigation and restructuring.

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    Associate, Sayenko Kharenko

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