Court of Appeal grants UniCredit's request to discharge final anti-suit injunction in its favour in order to avoid Russian court-imposed penalty

In a highly unusual case, the Court of Appeal has held that it has the power to vary or revoke a final anti-suit injunction (ASI) at the request of the party who originally obtained it, and that that power should be exercised so as to avoid the applicant facing a massive penalty imposed by a foreign court: UniCredit Bank GmbH v RusChemAlliance LLC [2025] EWCA Civ 99.

The original ASI had prohibited the respondent bringing proceedings in Russia, in breach of agreements for Paris-seated arbitration. But rather than complying, the respondent had obtained its own ASI from the Russian courts, which required the applicant to take all measures within its control to cancel the English ASI or face a penalty of €250 million.  

The Court of Appeal took a pragmatic approach in granting the application and discharging the injunctive elements of its previous order. While expressing its disapproval of the respondent's conduct in acting in contempt of the English court, it recognised that many jurisdiction battles will involve one or other party pursuing proceedings in one court in breach of another court's order. Ultimately, the court was swayed by the fact that the applicant was a commercial party that was acting in its own interests and had asked the court to revoke or vary the ASI it had previously obtained in light of the changed circumstances. In the court's view, it would be unfair to force it to risk massive penalties in Russia by refusing to take that course.

The decision should not, however, be taken to indicate any lack of will on the part of the English courts when it comes to policing their own orders. In this case, the respondent had no assets or officers in England, and would not have to enforce any judgment in England, and so there was little the English court could do in practice. On the other hand, the applicant did have business in Russia and was therefore not in a position to ignore the Russian court's order.

Perhaps the most obvious takeaway from the decision is that, when it comes to jurisdiction battles, the outcome may depend on which party has more to lose in practical terms.

Background

The applicant, UniCredit, is a German bank and the respondent, RCA, is a Russian corporation. The two are parties to a number of performance and advance payment bonds which are governed by English law and provide for arbitration in Paris.

UniCredit declined to meet RCA's demands for payment under the bonds, claiming it was unable to pay as a result of EU sanctions. RCA issued proceedings against UniCredit in Russia, relying on Article 248 of the Russian Arbitration Procedural Code which confers jurisdiction on Russian courts over claims involving sanctioned parties (see our Arbitration Notes blog post here).

UniCredit applied to the English court for a final ASI to restrain the Russian proceedings, on the grounds that they were brought in breach of the arbitration agreement. The ASI application was declined by the High Court but granted by the Court of Appeal (see here), and that order was upheld by the Supreme Court (as discussed here).

Following the Supreme Court's ruling, RCA applied for and obtained a ruling from the Russian court (the "Ruling") which prohibited UniCredit from initiating or continuing any proceedings or enforcing any judgments against RCA in respect of the bonds except in the Russian courts. It also ordered 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 and provided for UniCredit to pay a penalty of €250 million if it failed to comply with the Ruling.

UniCredit then applied to the English Court of Appeal to revoke or vary its order under CPR 3.1(7) on the ground of changes of circumstances since the order was made. RCA supported the application and was represented at the hearing by its Russian counsel.  

Decision

The Court of Appeal held that it had power to revoke or vary its previous order under CPR 3.1(7), and that it should exercise that power to discharge the injunctive parts of the order, while leaving in place the declaratory parts which reflected the Court of Appeal's and Supreme Court's decisions on jurisdiction. Sir Geoffrey Vos, Master of the Rolls ("MR"), gave the leading judgment with which Asplin and Phillips LJJ agreed.

Was UniCredit actually at risk of being forced to pay a penalty?

The MR noted that the Ruling obliged UniCredit only to take all measures within its control to cancel the Court of Appeal's order, so it was not required to go beyond making the application. However, there was a risk that, if the Court of Appeal refused UniCredit's application, the Russian court might consider that UniCredit had not taken all measures within its control and might therefore impose the €250 million penalty. That risk was a factor the court could take into account.

Did the court have power to revoke or vary a final order for an ASI?

The MR noted various authorities which suggested that the circumstances in which CPR 3.1(7) could be used to vary or revoke a final order were likely to be very rare given the importance of finality, but it was not precluded, and the question was whether the factors in favour of re-opening the order were sufficient to overcome the finality principle.

The MR left open whether it was necessary to comply with CPR 52.30, which provides that a final determination of an appeal will not be reopened unless it is necessary in order to avoid injustice, the circumstances are exceptional and there is no alterative effective remedy. He considered that these tests could be satisfied, if the court was otherwise satisfied that UniCredit's application should be granted.

He concluded that there was power under CPR 3.1(7) to vary or revoke the order at the behest of UniCredit, with the agreement of RCA. This was for various reasons including because it would be "very strange", in private litigation between commercial parties, if a party that had obtained an injunction – even a final one – could not return to court to ask that it be discharged due to changed circumstances. The MR also doubted that, in the anti-suit context, there is as much logic in the distinction between interim and final orders as there is in other contexts.

Had UniCredit been coerced into making the application and if so did that matter?

The MR said it was clear that the Ruling applied commercial pressure on UniCredit. However, he noted that UniCredit is a major bank, capable of making its own decisions, and was no doubt making the application because it had decided it was in its own commercial interests to do so. The court could not second guess that decision. So this was not a weighty factor in the unusual circumstances of this case.

Were there English public policy reasons for refusing the application?

The MR noted that it would be "of great concern" if the English court were being pressured by a foreign court. However, the Ruling did not operate against the English courts but against UniCredit – in the same way as the English court grants ASIs against parties within its jurisdiction.

As for whether the Ruling was contrary to Russia's international obligations under the New York Convention, the MR said it had not been suggested that the Russian court was acting outside its own law, and that would in any event be difficult for the English court to resolve. He could therefore see no case for suggesting that, in granting the application, the English court would be condoning a breach of international law – though he emphasised that he was not departing from what Lord Leggatt had described in the Supreme Court's decision as the "strong international policy" of giving effect to arbitration agreements.

The MR said it had not been suggested that an order granting UniCredit's application would violate UK sanctions. He noted that the most recent EU sanctions against Russia prohibited giving effect to any order or judgment derived from Article 248 of the Russian Arbitration Procedural Code (see here), and if those applied to the UK he "could well see" an argument that the application should be refused. But they do not.

The fact that RCA had previously said it would comply with the English court's orders, and had then ignored those orders and acted in contempt of the English court, was a factor to be weighed in the balance. The MR noted the court's disapproval of RCA's approach but noted that many jurisdictional contests involve a party pursuing proceedings in one court in breach of another court's order. That did not provide justification for acting in contempt of court but it was a relevant factor. He noted that, in this case, RCA had neither assets nor officers in England, whereas UniCredit had assets and business in Russia.

On balance, the MR concluded that there were some English public policy reasons to refuse the application, but they did not militate "as strongly as one might initially have thought" in favour of refusal.

Should the application be allowed?

Overall, the MR concluded that the application should be granted for four reasons:

1. UniCredit is a commercial party acting in its own interests and is entitled to tell the court it no longer wants the ASI it had previously obtained;
2. The fact that UniCredit is acting under commercial pressure is not a weighty factor in favour of refusal;
3. The public policy considerations do not weigh heavily in the balance; and
4. In those circumstances it would be unjust and unfair to force UniCredit to risk massive penalties in Russia that may be avoided by varying the order.