“Article 248.1. Exclusive competence of commercial courts in the Russian Federation in disputes involving persons in respect of whom restrictive measures have been introduced 1. Unless otherwise established by an international treaty of the Russian Federation or an agreement of the parties, under which the consideration of disputes with their participation is referred to the competence of foreign courts or international commercial arbitration tribunals located outside the territory of the Russian Federation, the exclusive competence of Commercial courts in the Russian Federation shall include cases: 1) on disputes involving persons in respect of whom restrictive measures are applied by a foreign state, state association and (or) union and (or) state (interstate) agency of a foreign state or state association and (or) union; 2) on disputes of one Russian or foreign entity with another Russian or foreign entity, if the grounds for such disputes are restrictive measures imposed by a foreign state, state association and/or union and/or state (interstate) agency of a foreign state or state association and/or union against citizens of the Russian Federation and Russian legal entities. 2. For the purposes of this Chapter, persons in respect of whom restrictive measures are applied by a foreign state, a state association and/or union and/or a state (interstate) agency of a foreign state or a state association and/or union shall include: 1) citizens of the Russian Federation, Russian legal entities in respect of which restrictive measures are applied by a foreign state, state association and (or) union and (or) state (interstate) institution of a foreign state or state association and (or) union; 2) foreign legal entities in respect of which restrictive measures of a restrictive nature are applied by a foreign state, a state association and/or a union and/or a state (interstate) agency of a foreign state or a state association and/or a union and/or a state (interstate) agency of a foreign state or a state association and/or a union and the grounds for application of such measures are restrictive measures introduced by a foreign state, a state association and/or a union and/or a state (interstate) agency of a foreign state or a state association and/or a union and/or a state (interstate) agency of a foreign state or a state association and/or a union. 3. The persons referred to in paragraph 2 of this Article shall have the right to: 1) apply for dispute resolution to the Commercial court of a constituent entity of the Russian Federation at their location or place of residence, provided that there is no dispute between the same persons, about the same subject matter and on the same grounds in the proceedings of a foreign court or international commercial arbitration located outside the territory of the Russian Federation; 2) apply in accordance with the procedure provided for by Article 248.2 of this Code for a prohibition to initiate or continue proceedings in a foreign court or international commercial arbitration located outside the territory of the Russian Federation. 4. The provisions of this Article shall also apply if the agreement of the parties, in accordance with which the consideration of disputes with their participation is referred to the competence of a foreign court and international commercial arbitration located outside the territory of the Russian Federation, is unenforceable due to the application of restrictive measures by a foreign state, state association and (or) union and (or) state (interstate) institution of a foreign state in respect of one of the persons involved in the dispute. 5. The provisions of this Article shall not prevent the recognition and enforcement of a foreign court judgement or a foreign arbitral award made at the suit of a person specified in Part 2 of this Article, or if that person has not objected to the consideration of the dispute with its participation by a foreign court, international commercial arbitration located outside the territory of the Russian Federation, including not applying for a prohibition to initiate or continue the proceedings in a foreign court, international commercial arbitration located outside the territory of the Russian Federation, or if that person has not objected to the consideration of the dispute by a foreign court, international commercial arbitration located outside the territory of the Russian Federation, including not applying for a prohibition to initiate or continue the proceedings in a foreign court, international commercial arbitration located outside the territory of the Russian Federation. ... Article 248.2 Prohibition to initiate or continue proceedings in disputes involving persons in respect of whom restrictive measures have been imposed 1. A person in respect of whom proceedings have been initiated in a foreign court or international commercial arbitration located outside the territory of the Russian Federation on disputes specified in Article 248.1 of this Code, or in the presence of evidence that such proceedings will be initiated, shall have the right to apply to the Commercial court of a constituent entity of the Russian Federation at its location or place of residence with an application for a prohibition to initiate or continue such proceedings in a foreign court or international commercial arbitration court. ... 5. The application provided for by paragraph 1 of this Article shall be considered by the judge alone according to the rules of consideration of the case by the Commercial court of first instance provided for by this Code, taking into account the peculiarities established by this Article. 6. The commercial court shall notify the persons participating in the case about the time and place of the court hearing in the manner prescribed by the present Code. Non-appearance of the said persons duly notified of the time and place of the court hearing shall not be an obstacle for consideration of the application provided for by paragraph 1 of this Article. ... 10. On the basis of the principles of fairness, proportionality and inadmissibility of deriving benefit from illegal or bad faith conduct, the commercial court, at the request of the applicant, shall be entitled to award in his favour a sum of money to be recovered from the person against whom an injunction has been issued to initiate or continue proceedings in a foreign court, international commercial, located outside the territory of the Russian Federation, in the event of his failure to execute a judicial act. The amount of the sum of money to be recovered by the commercial court shall not exceed the amount of the claims, brought in a foreign court, international commercial arbitration located outside the territory of the Russian Federation, and the court expenses incurred by the party to the dispute. ...”
“Based on a systematic interpretation of the aforementioned provisions and taking into account the objectives pursued by the legislature in their adoption, the mere fact of the imposition of a restrictive measure against a Russian person involved in a dispute before a foreign court or international commercial arbitration tribunal situated outside the territory of the Russian Federation is deemed sufficient to conclude that such a person’s access to justice in the foreign state applying the restrictive measures is restricted. The imposition by foreign states of restrictive measures (bans and personal sanctions) against citizens of the Russian Federation and Russian legal entities, motivated by political considerations, inevitably raises doubts as to whether the relevant dispute will be heard in the territory of the foreign state in compliance with the guarantees of a fair trial, including those relating to the impartiality of the court, which constitutes one of the elements of access to justice.”
“As a general rule, the personal attendance of the parties at court hearings in family cases in the UK is mandatory. However, Vladimir Olegovich Potanin is unable to participate in person in court hearings, as sanctions prohibit him from entering the United Kingdom. Natalia Nikolaevna Potanina is not subject to UK sanctions. No licences are required to pay for legal services, nor is it necessary to comply with the restrictions imposed by such licences. Natalia Nikolaevna Potanina is free to participate in person in the legal proceedings in the United Kingdom. Consequently, in the High Court proceedings between Natalia Nikolaevna Potanina and Vladimir Olegovich Potanin, the parties are in a manifestly unequal position. Based on the evidence presented in the case, the court considers that the circumstances set out directly impede Vladimir Olegovich Potanin’s access to justice in the United Kingdom.”
“On the return date the burden is on the applicant to persuade the court afresh to grant the relief sought, including establishing that the court has jurisdiction, without any benefit or presumption from the fact that the court has previously made an order on a without notice basis. Although the order resulting from a successful on notice application may often be expressed as a continuation or variation of the order made without notice, the reality is that a new on notice order is made which supersedes the without notice order.”
“Art 3 In matters relating to maintenance obligations in member states jurisdiction shall lie with: (a) the court for the place where the defendant is habitually resident, or (b) the court for the place where the creditor is habitually resident, or (c) the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties, or (d) the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties.” (a) the court for the place where the defendant is habitually resident, or (b) the court for the place where the creditor is habitually resident, or (c) the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties, or (d) the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties.”
“[42] As I observed in Bloch v Bloch[2002] EWHC 1711 (Fam) ,[2003] 1 FLR 1 (see [73], [88], [89]), there is a difference between the normal type of anti-suit injunction considered in cases such as Aerospatiale, Airbus and Turner v Grovit and a Hemain injunction. A Hemain injunction is not a perpetual injunction permanently restraining the pursuit by a spouse of foreign proceedings; it is merely an interim injunction to maintain the status quo, to preserve a level playing field, pending the determination, typically, of that spouse’s application for a stay of the English proceedings.”
“5.60 English case law on anti-anti-suit injunctions is sparse. They have not been treated as a separate category and are analysed under the same principles as general anti-suit injunctions. In non- contractual cases, the basic tests for non-contractual anti-suit injunctions, and thus most centrally the concepts of vexation and oppression (or unconscionability) have been applied, sometimes with the modification that particular caution needs to be exercised.”
“The law relating to injunctions restraining a party from commencing or pursuing legal proceedings in a foreign jurisdiction has a long history, stretching back at least as far as the early 19th century. From an early stage, certain basic principles emerged which are now beyond dispute. First, the jurisdiction is to be exercised when the "ends of justice" require it: see Bushby v. Munday (1821) 5 Madd. 297, 307, per Sir John Leach V.-C); Carron Iron Co. v. Maclaren (1855) 5 H.L. Cas. 416, 453, per Lord St. Leonards (in a dissenting speech, the force of which was however recognised by Lord Brougham, at p. 459). This fundamental principle has been reasserted in recent years, notably by Lord Scarman in Castanho v. Brown & Root (U.K.) Ltd. [1981] A.C. 557 and by Lord Diplock in British Airways Board v. Laker Airways Ltd. [1985] A.C. 58, 81. Second, where the court decides to grant an injunction restraining proceedings in a foreign court, its order is directed not against the foreign court but against the parties so proceeding or threatening to proceed...Third, it follows that an injunction will only be issued restraining a party who is amenable to the jurisdiction of the court, against whom an injunction will be an effective remedy: see, e.g. In re North Carolina Estate Co. Ltd. (1889) 5 T.L.R. 328, per Chitty J. Fourth, it has been emphasised on many occasions that, since such an order indirectly affects the foreign court, the jurisdiction is one which must be exercised with caution: see e.g., Cohen v. Rothfield [1919] 1 K.B. 410, 413, per Scrutton L.J., and, in more recent times, Castanho v. Brown & Root (U.K.) Ltd. [1981] A.C. 557, 573, per Lord Scarman. All of this is, their Lordships think, uncontroversial; but it has to be recognised that it does not provide very much guidance to judges at first instance who have to decide whether or not to exercise the jurisdiction in any particular case.”
“In the opinion of their Lordships, in a case such as the present where a remedy for a particular wrong is available both in the English (or, as here, the Brunei) court and in a foreign court, the English or Brunei court will, generally speaking, only restrain the plaintiff from pursuing proceedings in the foreign court if such pursuit would be vexatious or oppressive. This presupposes that, as a general rule, the English or Brunei court must conclude that it provides the natural forum for the trial of the action; and further, since the court is concerned with the ends of justice, that account must be taken not only of injustice to the defendant if the plaintiff is allowed to pursue the foreign proceedings, but also of injustice to the plaintiff if he is not allowed to do so. So the court will not grant an injunction if, by doing so, it will deprive the plaintiff of advantages in the foreign forum of which it would be unjust to deprive him.”
“[37] In other words, the mere fact that the husband was seeking to litigate in a foreign court in order to achieve a personal advantage – in that case a more advantageous financial settlement than he would have achieved in the English court – was not of itself any ground for denying him a stay of the English proceedings; and that, be it noted, even though the approach of the French court was treated by the House of Lords as being one ‘no longer acceptable’ in this country. Now if such conduct was not of itself any reason for denying the husband in that case a stay of the English proceedings, it must follow that it could not of itself have sufficed to ground an anti-suit injunction had the wife sought such an order from the English court. [38] So it is not of itself vexatious, oppressive or unconscionable for a husband to pursue what we would call divorce and ancillary relief proceedings in a foreign court merely because his motive for doing so is to obtain what for him will be a financially more advantageous – even much more advantageous – order and for his wife a financially less advantageous –even much less advantageous – order.”
“As a general rule, before an anti-suit injunction can properly be granted by an English court to restrain a person from pursuing proceedings in a foreign jurisdiction in cases of the kind under consideration in the present case, comity requires that the English forum should have a sufficient interest in, or connection with, the matter in question to justify the indirect interference with the foreign court which an anti-suit injunction entails. In an alternative forum case, this will involve consideration of the question whether the English court is the natural forum for the resolution of the dispute.”
“Looking at it objectively from England, without regard to any question of jurisdiction under French law, the French court was a natural and appropriate forum for the resolution of a dispute between two French nationals who had been married in France, where there was a great deal of family fortune in France and French traditions on both sides.”
“I have therefore expressed it as a general rule. This is consistent with my statement of the law in Societe Nationale Industrielle Aerospatiale v. Lee Kui Jak [1987] A.C. 871, an alternative forum case, to the effect that "as a general rule" the court granting the injunction must conclude that it is the natural forum for the trial of the action (p. 896). It is also consistent with Judge Wilkey's statement, at pp. 926-927, that anti-suit injunctions are "most often" necessary for the two purposes which he specified. Indeed there may be extreme cases, for example where the conduct of the foreign state exercising jurisdiction is such as to deprive it of the respect normally required by comity, where no such limit is required to the exercise of the jurisdiction to grant an anti-suit injunction.”
“[52] First, comity is sometimes used not simply in the sense of courtesy to foreign states and their courts, but also in the sense of rules of public international law which establish the proper limits of national legislative jurisdiction in cases involving a foreign element. In that sense it will be contrary to comity for United Kingdom legislation to apply in a situation involving a foreign country when the United Kingdom has no reasonable relationship with the situation. That is not the case here. There is nothing internationally objectionable in legislation which gives a court power to order financial provision notwithstanding a foreign decree of divorce, whether or not the foreign court has ordered financial provision, provided that the forum has an appropriate connection with the parties or their property. The whole point of the factors in section 16(2) is to enable the court to weigh the connections of England against the connections with the foreign jurisdiction so as to ensure that there is no improper conflict with the foreign jurisdiction. That is why in Holmes v Holmes[1989] Fam 47 , 53, Purchas LJ was right to note that section 16 reflected the principles of comity as between competent courts.”
“...established by 1834 (Lord Portarlington v Soulby (1834) 3 My & K 104, 108) and described as being grounded not upon ‘any pretension to the exercise of judicial . . . rights abroad’ but upon the fact that the party being restrained is subject to the in personam jurisdiction of the English court.”
“[24] The power to make the order is dependent upon there being wrongful conduct of the party to be restrained of which the applicant is entitled to complain and has a legitimate interest in seeking to prevent. In British Airways Board v Laker Airways Ltd[1985] AC 58 , 81, Lord Diplock said that it was necessary that the conduct of the party being restrained should fit "the generic description of conduct that is `unconscionable' in the eye of English law". The use of the word "unconscionable" derives from English equity law. It was the courts of equity that had the power to grant injunctions and the equity jurisdiction was personal and related to matters which should affect a person's conscience. But the point being made by the use of the word is that the remedy is a personal remedy for the wrongful conduct of an individual. It is essentially a "fault" based remedial concept. Other phrases have from time to time been used to describe the criticism of the relevant person's conduct, for example, "vexatious" and "oppressive", but these are not to be taken as limiting definitions; it derives from "the basic principle of justice": per Lord Goff, Societe Nationale Industrielle Aerospatiale v Lee Kui Jak[1987] AC 871 , 893. Sometimes, as in the present case, the phrase "abuse of process" (borrowed from another context) is used to express the same general ideas but with particular reference to the effect of the unconscionable conduct upon pending English proceedings.”
“[27] The applicant for a restraining order must have a legitimate interest in making his application and the protection of that interest must make it necessary to make the order. Where the applicant is relying upon a contractual right not to be sued in the foreign country (say because of an exclusive jurisdiction clause or an arbitration clause), then, absent some special circumstance, he has by reason of his contract a legitimate interest in enforcing that right against the other party to the contract. But where he is relying upon conduct of the other person which is unconscionable for some non-contractual reason, English law requires that the legitimate interest must be the existence of proceedings in this country which need to be protected by the grant of a restraining order. This was the point decided by this House in Airbus Industrie GIE v Patel[1999] 1 AC 119 ...The applicant for the restraining order must be a party to litigation in this country at which the unconscionable conduct of the party to be restrained is directed.”
“Similarly, English law attaches a high importance to international comity (Airbus Industrie GIE v Patel, per Lord Goff, at pp 133 and 138) and the English court has in mind how the restraining order will be perceived by foreign courts. This is the prime reason for strictly limiting the making of restraining orders on grounds of forum non conveniens. It is recognised that to make an order against a person who is a party to proceedings before a foreign court may be treated as an interference (albeit indirect) in the foreign proceedings. Thus English law requires the applicant to show a clear need to protect existing English proceedings. The protection of English proceedings is, understandably, regarded as a legitimate subject matter for an English court. It is not the concern of any other court. The order made operates in personam and relies for its enforcement solely upon the English court.”
“[56] There is one final point to be borne in mind. As I have already pointed out, it is fundamental that the English court has no general power to give directions as to whether, and if so how, people are to litigate in foreign courts and that, generally speaking, the English court can grant an anti-suit injunction only if there are relevant proceedings on foot in England which require to be protected against the vexatious, oppressive or unconscionable conduct of one of the parties to those proceedings. Thus the powers of the English court are very limited. The consequence is that in a case where both the English court and a foreign court assert jurisdiction, where neither is prepared to relinquish jurisdiction and where there is no unconscionable conduct justifying the English court granting a permanent anti-suit injunction, the litigants will ultimately be left to litigate freely in both jurisdictions...That is hardly desirable, but this is an area in which perfect justice is probably unattainable and even practical justice may not always be achievable.”
“...does not require the court to determine the only appropriate forum where the case may be tried more suitably for the interests of the parties and the ends of justice. No choice between jurisdictions is involved. The whole basis of Part III is that it may be appropriate for two jurisdictions to be involved, one for the divorce and one for ancillary relief.”
“Lord Faulks accepted the wife’s argument that the Maintenance Regulation gave the court jurisdiction at the time of the application, and prevented a party arguing that the dispute should be heard in another forum.”
“For the foreign court, its jurisdiction and whether to exercise that jurisdiction falls to be decided by the foreign court itself in accordance with its own laws (including Conventions to which the foreign country may be a party). The jurisdiction which the foreign court chooses to assume may thus include an extraterritorial (or exorbitant) jurisdiction which is not internationally recognised. International recognition of the jurisdiction assumed by the foreign court only becomes critical at the stage of the enforcement of the judgments and decisions of the foreign court by the courts of another country. Restraining orders come into the picture at an earlier stage and involve not a decision upon the jurisdiction of the foreign court but an assessment of the conduct of the relevant party in invoking that jurisdiction.”
“Whether or not England is the natural forum it is not in all the circumstances unconscionable for the husband to want to pursue what are on the face of it perfectly proper proceedings in what is from his perspective an entirely natural and, indeed, more appropriate forum...Nor is it unconscionable for the husband to litigate in the forum of his choice merely because his motive for doing so – if indeed this is his motive – is to obtain what for him will be financially a significantly more advantageous order. He is as entitled to seek that personal or juridical advantage in Denmark as the wife is entitled to seek a corresponding advantage in this country.”
“[35] I am further satisfied that there is no force in the husband’s submission that his status as an individual sanctioned under the 2019 Regulations prevents him from participating effectively in these proceedings. [36] I accept the wife’s submission that the husband’s contention that he is unable to participate, and is prejudiced, in the proceedings is undermined by the facts. The husband has, self-evidently, been able to participate in these proceedings, up to and including a successful appeal to the United Kingdom Supreme Court, notwithstanding his designation as a sanctioned individual from29 June 2022 . I further accept that the husband’s contended inability to participate in these proceedings as a sanctioned individual is undermined by the fact that the husband is actively involved as a party to proceedings in the King’s Bench Division. As he has done at this hearing, the husband is able to participate in these proceedings remotely if he is not able to attend hearings in person by reason of his sanctioned status.”