Court revokes UniCredit anti-suit injunction on bank’s request

UniCredit has successfully applied to revoke the anti-suit injunction (ASI) it obtained in support of a Paris-seated arbitration after its Russian counterparty continued proceedings in Russia and obtained an anti-anti-suit injunction from the Russian courts.

As covered in previous articles, UniCredit established new law when the Supreme Court upheld the grant of an anti-suit injunction forbidding RusChemAlliance (RCA) from continuing proceedings in the Russian courts in breach of an arbitration agreement between the parties. What marked this case out from others was that the arbitration agreement in question designated Paris as the seat of any arbitration, not London. The English courts held that they still had jurisdiction to grant an ASI, as the French courts have no power to do so.

The revocation application

UniCredit applied to revoke the ASI following RCA obtaining its own injunction from the Russian courts, making UniCredit liable to a fine of €250 million if it did not do everything in its power to revoke the English ASI. In a judgment handed down on 11 February 2025, the Master of the Rolls granted the revocation, notwithstanding concerns that UniCredit had "undoubtedly been coerced into making this application".

The Court of Appeal considered whether there was a real risk of UniCredit being forced to pay the penalty by the Russian court. The Russian court order required UniCredit to "take all measures within its control" to revoke the ASI. It might be that making the application would fulfil this, even if the court refused to grant the application, but Vos MR noted that it was unknown how the Russian court would assess whether UniCredit had taken all measures within its control and therefore the risk of UniCredit having to pay the "eye-watering" fine was real.

The Court was satisfied from previous applications and practical examples that it had the power to revoke an ASI in private commercial litigation. Turning to whether the obvious coercion of the Russian courts should prevent the revocation being granted, the court took account of the fact that UniCredit is "a major bank, capable of making its own decisions." The court would not "second guess that decision." While RCA had changed its position, having initially said it would comply with the ASI, and therefore committed a contempt of court, Vos MR noted the practicalities of the situation, where RCA had no assets or presence in England and Wales, but UniCredit has assets in Russia.

It is noteworthy that the Attorney General was represented at the hearing, presumably because UniCredit was making the application to revoke the injunction and RCA was obviously not going to object, so the Court wanted someone to put the contrary case. It does not appear that the AG's intervention was particularly forceful, though. On the question of RCA's contempt, for example, the AG submitted ultimately that it did not "add up to much".

What this means

The decision is interesting not only for the outcome, but also because of the court's approach to respecting the decisions of foreign courts and the commercial decisions of large and sophisticated commercial organisations. The fact that the Russian ASI only acted upon UniCredit and did not purport to compel the English courts to take any steps was sufficient for the principle of comity to be observed and the court will not lightly assume that a substantial corporate entity is susceptible to coercion.

The effectiveness of an ASI is obviously highly fact-specific. Here RCA could breach the English ASI with effective impunity because of its lack of connections with England and Wales, with no assets or officers in the jurisdiction. That is not true of all Russian parties who have sought to breach arbitration agreements by bringing proceedings in Russia. Nor is it the case that all parties without assets in England and Wales would be willing to breach an order of the English courts, given the potential exposure of individual directors to proceedings for contempt of court.

An analysis of the counterparty's circumstances and likely attitude (and that of their directors) is always needed.