In an unusual set of events, UniCredit Bank GmbH (UniCredit) has been granted an order to vary a final anti-suit injunction, which was originally granted in its favour. The injunctive parts, which once protected UniCredit from proceedings in Russia, have now been discharged.
Brief background
UniCredit obtained a final anti-suit injunction against RusChemAlliance LLC (RusChemAlliance) from the Court of Appeal on 29 January 2024. That order was upheld by the Supreme Court on 23 April 2024. Read our articles about the respective decisions here and here.
The effect of the anti-suit injunction was that RusChemAlliance was restrained from pursuing claims under the performance and payment bonds in any Russian court. The Court of Appeal also ordered RusChemAlliance to discontinue its Russian proceedings, and restrained it from enforcing any ruling of the Russian court in respect of the bonds.
However, a decision from the Russian court on 28 December 2024 changed the game. RusChemAlliance obtained a ruling from the Arbitrazh Court which prohibited UniCredit from initiating arbitrations or court proceedings against RusChemAlliance in respect of the bonds. The ruling also obliged UniCredit to apply to cancel the effect of the Court of Appeal order. If UniCredit did not comply, it faced a penalty of €250 million.
In light of this substantial penalty, UniCredit applied to revoke or vary the order from the Court of Appeal on the grounds of changes of circumstances.
This recent application by UniCredit raises important questions as to whether the UK court has the power to revoke a final injunction, and whether it should do so in circumstances where the penalty imposed by the Russian court appears to be contrary to Russia’s international obligations under the New York Convention.
When can the court revoke or vary a final injunction?
It is very rare circumstances that would give rise to vary or revoke a final order, given the importance of finality in court proceedings. In order to accede UniCredit’s application, the court had to satisfy itself that the tests in CPR Part 52.30 would be satisfied; namely that:
- Reopening would be necessary to avoid real injustice
- The circumstances are exceptional
- There would be no alternative effective remedy
In this instance, those elements were satisfied. In particular, the court gave weight to the “special situation” of an anti-suit injunction, where it is commonplace for competing orders to be made against the parties in different jurisdictions.
Essentially, one party “wins” the jurisdiction battle, and the parties either agree or are constrained to accept that the litigation will take place in that party’s chosen jurisdiction. The court held that it would be strange if the party that obtained the “losing” anti-suit injunction could not return to ask for it to be discharged even if it was an order made after a trial.
Coercion
One of the important points that the court considered was whether or not UniCredit been coerced into making the application, and if it had, then what weight should be given to that?
The court found that “UniCredit has undoubtedly been coerced into making this application.” However, in the unusual circumstances of this particular case, it was not deemed to be a weighty factor to place in the balance against the application.
That is partly to do with the nature of anti-suit injunctions, which are always a coercive remedy, wherever they are granted.
But it also comes down to UniCredit as a commercial entity. UniCredit made the application because its board had decided that it was in its own commercial interests to do so. The court does not second guess the decisions of commercial parties.
Does the decision contravene sanctions or the New York Convention?
If the penalty imposed by the Russian ruling was contrary to Russia’s obligation under the New York Convention, or if granting the application would violate UK sanctions imposed on Russia, then these could be reasons for refusing to accede to UniCredit’s application.
The UK court considered that the failure of the Russian courts to refer RusChemAlliance to arbitration could amount to a breach of its obligations under the New York Convention. However, that breach would not stand if UniCredit could be said to be waiving its right to arbitration.
When it came to the question of sanctions, it was not suggested that any order would have the effect of violating UK sanctions against Russia. The court considered the latest EU sanctions against Russia which came not force on 16 December 2024, which states that no judgment derived from Article 248 of the Arbitration Procedure Code of the Russian Federation shall be recognise or enforced in a Member State. The Russian ruling was made under Article 248, but as the UK is no longer a Member State, the regulation is not applicable to the UK.
While there were some public policy reasons for refusing the application, the court said that “they do not militate, as strongly as one might initially have thought, in favour of refusing the application.”
Reasons for granting the application
Having reviewed all of the factors in its “discretionary balancing exercise,” the court granted UniCredit’s application for four reasons:
- UniCredit is a commercial party acting in its own interests and is entitled to tell the court it no longer needs or wants the anti-suit injunction it had previously sought and obtained.
- the fact that UniCredit is acting under commercial pressure is not a weighty factor in favour of refusing the order it seeks
- the public policy reasons against making the order that UniCredit seeks also do not weigh heavily in the balance, and
- in those circumstances, it would be unjust and unfair to force UniCredit to risk massive penalties in Russia that may be avoidable if the Court of Appeal’s order is discharged or varied.
Accordingly, the injunctive parts of the order were discharged, but the decisions on jurisdiction remained.
Analysis
With this order, UniCredit avoids the €250 million penalty from the Russian court. When these proceedings started, neither party had foreseen the potential penalty, let alone the enormous size of it. That led to exceptional circumstances, where UniCredit wanted to overturn a court judgment in its favour.
It is important to distinguish this case from the circumstances in which one party is seeking to reopen a decision of the court against the interests of another party to that decision. Different factors would arise in those circumstances.
But in this case, the court took a commercial view to allow UniCredit to mitigate the risks it faced from the Russian courts.
RusChemAlliance has similar ongoing battles with Deutsche Bank AG and Commerzbank AG, and we are yet to see if any Russian ruling in those cases will come into effect.
Read the full judgment here: UniCredit Bank GmbH v RusChemAlliance LLC [2025] EWCA Civ 99
