ENGLISH HIGH COURT GRANTS ANTI-SUIT AND ANTI-ANTI-SUIT INJUNCTIONS TO RESTRAIN RUSSIAN PROCEEDINGS BROUGHT BY SANCTIONED ENTITIES

In Renaissance Securities (Cyprus) Ltd v Chlodwig Enterprises Ltd & Others [2023] EWHC 2816 (Comm), the English High Court granted an anti-suit injunction (an ASI) to restrain Russian court proceedings brought by sanctioned counterparties. The Russian proceedings were brought in breach of a London seated LCIA arbitration clause, with the intention to benefit from the Russian law which allows the Russian courts to take exclusive jurisdiction over cases which involve sanctions. The English Court also granted an anti-anti-suit injunction (an AASI) to restrain the sanctioned entities from seeking countermeasures before the Russian court. This decision illustrates the importance of ASIs and AASIs as tools to try to ensure that arbitration agreements are enforced. This judgment follows hot on the heels of applications for ASIs in the English courts brought (with mixed success) by Deutsche Bank, Commerzbank and Unicredit respectively (see our blogpost here), as well as an interim ASI obtained by a German contractor, Linde from the Hong Kong courts pending an HKIAC arbitration (see our blogpost here).

Background

Renaissance Securities (Cyprus) Limited (RenSec), an investment services company, entered into Investment Services Agreements (the ISAs) with the defendants, which included companies controlled by a Russian individual designated as a sanctioned person in the UK and a US sanctioned person, and, on the basis that they had been designated as companies holding assets for trusts that benefitted sanctioned persons, some of which became US sanctioned entities in 2022. The ISAs were governed by English law and provided for LCIA arbitration with a seat in London.

RenSec holds substantial sums and securities for each of the defendants. The defendants requested that assets held by RenSec, which had been blocked due to sanctions, be transferred to bank accounts in Russia. RenSec did not comply with the requests, as it would be a breach of US, EU, and/or UK sanctions. The defendants then threatened to commence proceedings in the "appropriate forum".

It had come to RenSec's attention that the defendants had initiated proceedings in Russian courts seeking damages in the amount of its blocked assets in Russia. RenSec then applied for an ASI and an AASI in the English Court.

The application was heard without notice to the defendants and in private, as there was a real risk that the defendants would apply for their own ASI and/or AASI if notified and that (as well as publicity) would defeat the purpose of the application.

Russian law: exclusive jurisdiction of the Russian courts due to sanctions

As discussed in one of our previous blog posts (see here), in mid-2020, changes were enacted to the Russian Arbitrazh (Commercial) Procedure Code to establish the exclusive jurisdiction of Russian Arbitrazh courts over cases where Russian parties had limited access to justice in a foreign forum due to sanctions. In 2021, this was broadly interpreted by the Russian Supreme Court so that the very fact that a Russian party was subject to sanctions was sufficient to allow the Russian court to take jurisdiction. The amendments to the Procedure Code also provided the Russian courts with a power to issue ASIs with respect to such disputes. In practice, this has become a tool by which Russian parties have approached their domestic courts in relation to issues which are within the scope of arbitration clauses. There are now multiple examples of the Russian courts taking jurisdiction rather than staying proceedings consistent with Russia’s obligations under the New York Convention 1958.

The underlying principles for the grant of ASIs and AASIs in England

The relevant power to grant an ASI to restrain foreign proceedings in breach of an arbitration agreement arises under s37(1) of the Senior Courts Act 1981. An ASI is a discretionary remedy. The English court will grant an ASI if the claimant can demonstrate with a high degree of probability the existence of an arbitration clause to which the defendant is a party and which covers the dispute, and there are no exceptional circumstances which militate against the grant of relief (The Angelic Grace (Aggeliki Charis Compania Maritima SA v Pagnan SpA [1995] 1 Ll Rep 87). We discuss the underlying principles for the grant of ASIs in more detail in one of our previous blog posts here. Unlike in the applications brought by Deutsche Bank, Commerzbank and Unicredit, as the seat of arbitration was London the question of whether the English court was the proper forum did not arise in relation to RenSec's application.

The purpose of an AASI is to ensure that any measures which an applicant may take to protect and enforce its contractual rights (including by an ASI) are not rendered "nugatory and futile" due to pre-emptive actions or countermeasures taken by the respondent. The principles applicable to the grant of an AASI are similar to those which apply to an ASI. Where the foreign ASI is obtained on a basis which is vexatious or oppressive (e.g. where the foreign proceedings are brought in breach of an exclusive jurisdiction or arbitration clause), the English courts have been willing to grant AASIs, not only prohibiting the pursuit of the foreign proceedings but also ordering that the respondent take steps to discontinue them (Ecom Agroindustrial Corp Ltd v Mosharaf Composite Textile Mill Ltd [2013] EWHC 1276 (Comm)).

Overview of the decision

The Court found that RenSec had demonstrated to the requisite high degree of probability that the dispute raised in the Russian proceedings fell within the scope of the arbitration agreements in the ISAs. As the ISAs were governed by English law, this was also prima facie the governing law of the arbitration agreements (as per Enka Insaat ve Sanayi AS v OOO “Insurance Co Chubb” [2020] UKSC 38, discussed in one of our blog posts here). Given that the arbitration clause provided for a London seat, an ASI could be seen as an exercise of the exclusive supervisory jurisdiction of the English courts. It was not required for RenSec to commence an arbitration to seek the ASI.

The Court concluded that the Russian proceedings were brought in breach of the arbitration agreements, and this was a deliberate choice on the part of the defendants as Russian law imposed no obligation not to comply with the arbitration clause under Russian law. According to the Court, it was just and convenient to grant the ASI, observing that if the Russian proceedings were permitted to proceed, it would potentially allow the defendants to bypass the sanctions regime by obtaining judgment in Russia and then enforcing against RenSec’s assets which were currently frozen in Russia. The Court agreed that damages would be "manifestly an inadequate remedy" (The Angelic Grace) for the breach of the arbitration agreements, and would "thrust the burden of navigating the sanctions regime on to the shoulders of the unsanctioned claimant" as RenSec would have to obtain permission under the sanctions regime to bring proceedings to enforce the arbitration agreements. Finally, the Court concluded that there was no delay in bringing the proceedings before the English court, as a threat by the defendants to commence proceedings in the "appropriate forum" could suggest a possibility that the defendants would abide by their contractual obligations.

The English Court also granted the AASI sought by RenSec, noting that there was a very high probability that the defendants would try to obtain ASIs in Russian courts in breach of the English court’s exclusive supervisory jurisdiction over the arbitrations, unless steps were taken to prevent them. It was therefore just and convenient to grant an AASI to try to prevent any such attempt.

Comment

This is a very pragmatic judgment from the English court. The ASI and the AASI that have been granted in favour of RenSec will require the defendants to apply to discontinue the Russian proceedings to avoid facing contempt of the English court, and should prevent them from applying for an ASI from the Russian courts. The case shows that a timely 'without notice' application for an ASI and AASI may be a useful tool to try to ensure that arbitration agreements agreed with a sanctioned counterparty are upheld, especially in the circumstances where the sanctioned counterparty may ultimately try to enforce a Russian judgment against the non-Russian sanctioned counterparty's assets in Russia.

For further information, please contact Hannah Ambrose, Partner, Liz Kantor, Professional Support Lawyer, Olga Dementyeva, Associate, or your usual Herbert Smith Freehills contact.