More banks seek to revoke English Anti-Suit injunctions

Battle of the anti-suit injunctions

Following the decision in February 2025 (for more see here) that revoked an anti-suit injunction (ASI) obtained against RusChemAlliance by UniCredit, at the bank's own request, three more German banks have sought to undo the protection they obtained from the English courts against breaches of an arbitration agreement.

In Bayerische Landesbank, Landesbanken Baden-Wurttemberg and Commerzbank AG v RusChemAlliance LLC the High Court was asked to revoke final anti-suit injunctions and reverse final declarations made by the court at previous hearings. The banks are now subject to ASIs from the Russian Arbitrazh Court, obtained by RusChemAlliance after the English ASIs. which would result in significant penalties unless the banks comply. The Russian orders require the banks to seek to reverse not just the ASIs, but the declarations that RusChemAlliance were in breach of the original arbitration agreement, the declarations as to jurisdiction of the English courts and the costs orders made.

Foxton J held that there was no difficulty in revoking the ASIs which the banks had previously obtained, following the UniCredit decision. The banks also achieved the reversal of declarations that RusChemAlliance had breached arbitration agreements, which the judge characterised as having "forward-looking" element, as breaches can be waived. The events since the order was made constituted a material change of circumstances and it was appropriate to revoke that declaration. The court also granted the revocation of the costs orders made against RusChemAlliance, which operated in the banks' favour and were rights they were free to waive.

Revoking a finding of jurisdiction?

However, Foxton J refused to reverse the finding that the English Court had jurisdiction to make the ASIs, as that was not a matter of concern only to the parties and could not be revoked "any more than a bell can be unrung". To make an order reversing this finding would create a misleading impression that the court might not have had jurisdiction when it made the order.

There was no "forward-looking" element to this declaration, which simply recorded the court's view at that point in time. The banks had taken all steps they could to reverse this ruling (and they unsuccessfully sought permission to appeal for this reason), so they had complied with the Russian order. Foxton J stated: "I very much hope the Russian courts will understand in the spirit of comity that those declarations are simply the English court recording its view of its jurisdiction applying its law at a particular point in time in the past."

What this means for you

This decision further highlights the preliminary analysis needed to determine whether an ASI from the English courts will bring practical benefits. Where a party has assets within reach of the Russian courts and its Russian counterparty has little exposure to the UK, an English ASI may prove ineffective, given Russia's recent laws that enable its courts to take jurisdiction regardless of the parties' agreement and to grant a Russian ASI in support of that jurisdiction. Where a party has substantial assets within the English jurisdiction, however, and few assets in Russia which could be attached in retaliation, an English ASI may still prove an effective deterrent against breaches of arbitration agreements.