09/01/2024

Deploying anti-suit and anti-anti-suit injunctions to protect a London-seated arbitration agreement

Paul Lowenstein KC, Andrew Dinsmore and Alexandros Demetriades appeared for the claimant applicant in Renaissance Securities v Chlodwig Enterprises Limited and ors [2023] EWHC 2816 (Comm), where the Commercial Court granted an ex parte anti-suit injunction (ASI) and an anti-anti-suit injunction (AASI) to protect a London-seated arbitration agreement and to restrain the respondents from continuing proceedings which they had started against the applicant in Russia, in breach of the arbitration agreement and in purported reliance on new Russian procedural provisions brought in to assist Russian litigants to circumvent international sanctions.

This case will be of interest to commercial litigators in that it clarifies (at least at the ex parte stage) the circumstances in which the English court will grant anti-suit relief where foreign law – in this case, article 248 of the Commercial Procedural Code of the Russian Federation (art 248) – provides for the exclusive jurisdiction of its own courts, contrary to the arbitration clause, and where such foreign proceedings may allow a party to circumvent an applicable sanctions regime.

At the without-notice hearing, Mrs Justice Dias granted the applications for, amongst other things: (1) an ASI (at paragraphs 34–50), (2) an AASI (51–54), (3) a non-disclosure order until all the defendants were served (55–57), and (4) service by alternative methods (58–65).

Mrs Justice Dias held that:

• Where an arbitration agreement is contained in a contract governed by English law and an application is brought before the English court, it is for the English court as a matter of private international law to determine its own jurisdiction.
• To allow the respondents to continue to pursue the foreign proceedings would enable them (1) to litigate in a forum other than that which had been contractually chosen and where sanctions were unlikely to be considered; and (2) potentially to bypass international sanctions by the enforcement of any judgment obtained in the foreign court against the applicant’s assets within that jurisdiction. These considerations made the grant of an ASI just and convenient (41–43).
• An AASI would also be ordered to prevent the respondents from obtaining their own anti-suit relief from the foreign court, the risk being that such anti-suit relief is expressly provided for in art 248. An application by the respondents for anti-suit relief from the foreign court would itself be a breach of the English court’s exclusive supervisory jurisdiction over the contractually contemplated arbitrations (51–54).

The return date is listed for February 2024.

More: Andrew Dinsmore and Alexandros Demetriades appeared in a related proceeding, reported as Renaissance Securities v Chlodwig Enterprises Limited [2023] EWHC 3160 (Comm). See www.twentyessex.com/penal-notices-and-the-babanaft-proviso-in-anti-suit-injunctions/