Nordic Power Partners P/S & Ors v Rio Alto Energia, Empreendimentos E Participações LTDA & Ors [2025] EWHC 2875 (Comm)

[2025] EWHC 2875 (Comm)Case No CL-2025-000376Case No CL-2025-000373
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
KING’S BENCH DIVISION
COMMERCIAL COURT
Venue Royal Courts of Justice,, Rolls Building, Fetter Lane,Date 05/10/2025
London, EC4A 1NL
Before
LIONEL PERSEY KCSITTING AS A JUDGE OF THE HIGH COURT
Between
NORDIC POWER PARTNERS P/SApplicantNPP BRAZIL I K/SApplicantNPP BRAZIL II K/SApplicant- and –
Between
RIO ALTO ENERGIA, EMPREENDIMENTOS E PARTICIPAÇÕES LTDA.RespondentFUNDO DE INVESTIMENTO EM PARTICIPAÇÕES RIO ALTO – MULTIESTRATÉGIA DE RESPONSABILIDADE LIMITADARespondentFUNDO DE INVESTIMENTO EM PARTICIPAÇÕES CONJUNTO COREMAS – MULTIESTRATÉGIARespondentTMF BRASIL SERVIÇOS DE ADMINISTRAÇÃO DE FUNDOS LTDA.RespondentAnd Between:ApplicantNPP BRAZIL II K/SApplicant- and –
Between
FUNDO DE INVESTIMENTO EM PARTICIPAÇÕES RIO ALTO – MULTIESTRATÉGIA DE RESPONSABILIDADE LIMITADARespondentsFUNDO DE INVESTIMENTO EM PARTICIPAÇÕES CONJUNTO COREMAS – MULTIESTRATÉGIARespondents
Douglas Grant (instructed by Clyde & Co) for ApplicantsAndrew Lomas (instructed by Culbert Ellis) for RespondentsMatthew Abraham (instructed by Hogan Lovells International LLP) for TMF PartiesHearing Hearing date: 19 September 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 5 November 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Lionel Persey KC:

[1]In this Judgment I give my reasons for continuing the injunction orders that had previously been made by Robin Knowles J. on 15 August 2025 and Bryan J. on 28 August 2025.[2]These Injunctions Applications arise out of disputes between the Applicants (the “NPP Parties”) and the Rio Alto Respondents (the “RAE Parties”) relating to their joint ownership, through the Third Defendant, Fundo De Investimento Em Participações Conjunto Coremas – Multiestratégia “FIP Coremas”, of three solar power plants in Brazil (the “Projects”). The Projects are in the process of being sold to a third-party buyer. The proceeds of that sale (the “Sale Proceeds”) will be received by FIP Coremas and distributed by the Fourth Defendant, TMF Brasil Serviços De Administração De Fundos Ltda (“TMF”), the manager and administrator of FIP Coremas.[3]The NPP Parties submit that they are contractually entitled to receive 100% of the Sale Proceeds. The RAE Parties, however, assert for their part, that they are entitled to approximately 13.85% of the Sale Proceeds (the “Disputed Proceeds”). The TMF Parties (comprising FIP Coremas and TMF) do not oppose the continuation of the present injunctions.[4]By these Injunction Applications, the NPP Parties have sought to prevent the Disputed Proceeds from being distributed to the RAE Parties pending the resolution of the parties’ disputes in proceedings in England (the “English Proceedings”) and London-seated arbitration (the “Arbitration”). They do so because RAE is currently undergoing a reorganisation (i.e. restructuring process) in Brazil. There is, they say, therefore a significant risk that, if RAE receives the Disputed Proceeds, it will subsequently go out of business and be unable to satisfy the NPP Parties’ claim to recover the Disputed Proceeds, in circumstances where it is submitted that the Disputed Proceeds should never have been paid to the RAE Parties in the first place.

Background

[5]The First Applicant (“NPP”) is a company registered in Denmark. It is a joint venture between European Energy A/S and the Danish Climate Investment Fund. The Second and Third Applicants (“NPP Brazil I” and “NPP Brazil II”) are companies connected with NPP and are also registered in Denmark.[6]RAE is a company registered in Brazil. RAE wholly owns FIP Rio Alto, a Brazilian investment fund through which RAE owns its interest in FIP Coremas and, in turn, the Projects. The RAE Parties are part of a group of companies known as the “Rio Alto Group”.

The contractual arrangements

[7]By a Cooperation Agreement dated 23 December 2016 (the “Cooperation Agreement”), NPP and RAE agreed the terms on which they would jointly develop and operate the Projects. The Cooperation Agreementis governed by English law and contains an English jurisdiction clause.[8]By an amendment dated 13 March 2018 (the “First Amendment”), the parties amended the terms on which any proceeds of sale of the Projects would be distributed. The effect of those amendments is that the NPP Parties are entitled to receive 100% of the Sale Proceeds in priority to RAE.[9]The parties subsequently altered the ownership structure, such that the Projects would be owned through Brazilian investment funds known as “FIPs”. Shares in FIPs are known as “quotas”. The current ownership structure is as follows:-(1) Each Project is owned by a single-purpose vehicle (the “Coremas SPVs”).(2) The Coremas SPVs are owned by Newco S.A. (“Newco”).(3) Newco is owned by FIP Coremas, save for one share which is owned by NPP.(4) FIP Coremas is owned by the Second and Third Applicants (“NPP Brazil I” and “NPP Brazil II”) and FIP Rio Alto. It is managed and administered by TMF.(5) FIP Rio Alto is wholly owned by RAE.[10]The relationship between NPP Brazil I, NPP Brazil II and FIP Rio Alto is governed by a Quotaholders’ Agreement dated 17 August 2018 (the “Quotaholders’ Agreement”). The Quotaholders’ Agreement is governed by Brazilian law and contains an arbitration agreement providing for ICC arbitration seated in London.

The SPA and the disputes between the parties

[11]On 24 January 2025, FIP Coremas and NPP entered into a sale and purchase agreement (the “SPA”) for the sale of Newco (and, therefore, of the Coremas SPVs and the Projects) to China Energy Overseas Investimento Gestão e Serviços do Brasil Ltda. Under the SPA, the “Base Purchase Price” is R§320.1m. As at the date of the Injunction Applications, the Longstop Date was 29 August 2025. However, the parties to the SPA subsequently agreed an extension to 28 October 2025 to enable FIP Coremas and NPP to satisfy certain conditions precedent.[12]The Sale Proceeds will be paid to FIP Coremas and will then be distributed by TMF. Because FIP Rio Alto is nominally the holder of 13.85% of the quotas in FIP Coremas, it asserts that it is entitled to receive 13.85% of the Sale Proceeds i.e. around R$44m (c.US$8m) (the “Disputed Proceeds”).[13]The NPP Parties contend, however, that 100% of the Sale Proceeds should be distributed to them because:(1) In accordance with the First Amendment to the Cooperation Agreement, the NPP Parties are entitled to 100% of the Sale Proceeds in priority to the RAE Parties.(2) In any event, the NPP Parties have compulsorily acquired FIP Rio Alto’s quotas in FIP Coremas (the “Disputed Quotas”) by exercising their rights under the Quotaholders’ Agreement and are therefore entitled to receive the Disputed Proceeds.[14]Accordingly, in order to enforce their rights under the Quotaholders’ Agreement and the Cooperation Agreement the NPP Parties:(1) have commenced the Arbitration, seeking a declaration (with retroactive effect) that the Disputed Quotas belong to the NPP Parties, with the consequence that the NPP Parties are entitled to any share of the proceeds to which FIP Rio Alto might otherwise be entitled; and(2) have commenced these English Proceedings to enforce their rights to the Sale Proceeds under the Cooperation Agreement.

The reorganisation process

[15]The Rio Alto Group (including RAE) is undergoing a reorganisation (i.e. a restructuring) process. In anticipation of the reorganisation process, the Rio Alto Group applied to the Brazilian court for the suspension of enforcement actions against it. By an order dated 25 February 2025, the Brazilian court ordered “the suspension of all actions, executions and acts of constraint against the Plaintiffs, for credits subject to recovery and submitted to mediation…” (the “Suspension Order”).[16]The Rio Alto Group has since filed a reorganisation plan (the “Reorganisation Plan”) which is subject to the approval of the Brazilian court. The Reorganisation Plan involves the restructuring of the Group’s debts and is predicated on the sale of parts of the business to a third party. However, as explained below, the potential buyer of the Rio Alto Group has recently withdrawn its interest.

The Injunction Applications

[17]The NPP Parties proposed that the Disputed Proceeds be kept within FIP Coremas pending the resolution of the parties’ disputes. The Respondents did not accept this proposal. On 14 August 2025, the NPP Parties issued Injunction Applications to preserve the status quo pending the outcome of the English Proceedings and the Arbitration. Following an ex parte hearing on 15 August 2025, Robin Knowles J. ordered that the Respondents be restrained from disposing of, dealing with or diminishing the value of the Sale Proceeds (the “Injunction Orders”). The return date was listed for 28 August 2025.[18]On 28 August 2025, a special meeting of the quotaholders of FIP Coremas was convened by TMF, at which the majority quotaholders (NPP Brazil I and NPP Brazil II) voted in favour of the commencement of “arbitration proceedings aimed at the consignment of [the Disputed Proceeds]”, without prejudice to the Injunction Applications and the jurisdiction of the English Court.[19]The return date was adjourned on the application of the TMF Parties and Bryan J. instead continued the injunctions and gave directions for the present hearing. The Applicants and the TMF Parties then agreed that the injunctions against the TMF Parties would be discharged in exchange for the TMF Parties giving undertakings to the Court that they would pay the Disputed Proceeds into escrow (the “TMF Undertakings”).

The Injunction Orders

[20]By the Injunction Orders, the Respondents were restrained from dealing with, disposing of or diminishing the value of the Sale Proceeds. The Injunction Orders were based on the standard-form freezing order. The Injunction Applications were originally framed as applications for Mareva relief. As part of the process of agreeing the undertakings with the TMF Parties, the NPP Parties have reformulated the relief sought against the RAE Parties. In summary, the NPP Parties seek now orders:(1) Requiring the RAE Parties to cause, procure and permit the TMF Parties to deposit the Disputed Proceeds into escrow; and(2) In the event that the RAE Parties receive the Disputed Proceeds, restraining the RAE Parties from dealing with the Disputed Proceeds other than by depositing the Disputed Proceeds into escrow.[21]By email dated 12 September 2025, and as had been contemplated by Bryan J, the NPP Parties stated their position that their entitlement to the reformulated relief was to be determined in accordance with American Cyanamid principles. The RAE Parties did not object to or express any disagreement with that approach and nor did they do so at the oral hearing before me.

The American Cyanamid Principles

[22]The relevant principles are as follows:(1) The Court must be satisfied that there is a “serious issue to be tried”. If so, then the fundamental question is whether granting or withholding an injunction is more likely to produce a just result: National Commercial Bank Jamaica Ltd v Olint Corp [2009] 1 WLR 1405 at [16].(2) In answering that question, the Court should consider (i) whether, if the injunction is refused, damages would be an adequate remedy for the applicant; and (ii) whether, if the injunction is granted, damages would be an adequate remedy for the respondent.(3) Where there is doubt as to the adequacy of damages for either party, the Court should determine where balance of convenience lies. The “basic principle is that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other”: National Commercial Bank v Olint at [17].(4) If the risk of irremediable prejudice does not differ widely, it may be appropriate to take into account the relative strength of the parties’ cases: American Cyanamid Co v Ethicon Ltd [1975] AC 396, per Lord Diplock at 409, and the further authorities cited at paragraph 39 below.(5) Where the factors are evenly balanced, it may be a counsel of prudence to preserve the status quo: American Cyanamid, per Lord Diplockat 408.[23]The relief sought against the RAE Parties is mandatory insofar as it requires RAE to take positive steps to facilitate the payment of the Disputed Proceeds into escrow. It has been said that the Court should only grant mandatory relief where it has a high degree of assurance that the injunction will be found to have been properly granted. It is, however, now well-established that mandatory injunctions are not governed by different principles, and that to the extent that the test of “high degree of assurance” has any continuing relevance, its rationale is that a mandatory order usually carries a greater of risk injustice than a prohibitory order which maintains the status quo. In the present case, however, a mandatory order merely facilitates the payment of the Disputed Proceeds into escrow and thereby maintains the status quo. Its effect is therefore more akin to a prohibitory order.

Serious issue to be tried

[24]The RAE Parties accept that the NPP Parties have a good arguable case and/or that there is a serious issue to be tried in both the English Proceedings and in the Arbitration.[25]However, the Applicants submit that they do not merely have a good arguable case in the English Proceedings, but rather that they have clearly and distinctly the better of the arguments. This is, they say, because the Cooperation Agreement expressly provides that NPP is entitled to receive any proceeds from the sale of the Projects in priority to RAE: (1) Clause 2.2 of the First Amendment provides:
“… All net proceeds, income, gain, profits or other monetary value arising out of or in connection with the Projects… shall be distributed and attributable to the Parties in the following order and priority: a) The NPP Parties shall receive an amount corresponding to the Actual Investment after Brazilian Taxes. b) Following the NPP Parties’ receipt of the Actual Investment …” (the “Waterfall Mechanism”). (2) Clause 2.3 provides “… For the avoidance of doubt, RAE and its Affiliates shall in no event be entitled to receive any proceeds, income, gain, profit, remuneration or other form of payment arising from or related to the Projects, the Companies or the FIP Companies prior to the NPP Parties receipt of the Actual Investment …” (3) Clause 2.1 of the Second Amendment provides: “… RAE shall take any and all actions, or shall cause the member of FIP RAE’s Investment Committee to take any and all actions, to: … f) take any and all other actions, as required for the compliance of… (iii) RAE’s obligations and liabilities under the Cooperation Agreement, as amended herein, including but not limited to: … (y) the approval of distribution of proceeds by FIP RAE to RAE as soon as FIP RAE has received proceed from FIP Coremas for RAE to fulfil its payment obligation to the NPP Parties under the Cooperation Agreement …”
[26]The Applicants submit that Clause 2.1 of the Second Amendment requires RAE to take “any and all other actions” required for the compliance of “its obligations and liabilities under the Cooperation Agreement”, and that this includes an obligation to ensure compliance with the Waterfall Mechanism. Thus, on a proper construction of the Cooperation Agreement, they say that RAE is required to take any and all actions, including giving instructions to any relevant third parties (including TMF, FIP Coremas and FIP Rio Alto), to ensure that proceeds are distributed in accordance with Waterfall Mechanism.[27]There is an issue between the Parties as to the amount of the Actual Investment. The NPP Parties contend that it was around R$680m. It is, however, asserted in the RAE Parties’ evidence that the Actual Investment is only R$296,862,000. This was the amount of the Actual Investment as at 31 December 2017 (R$80,609,754.44, as recorded in Clause 2.3.1 of the First Amendment), uplifted by inflation and ROI. This calculation assumes that no further investment was made by the NPP Parties after 31 December 2017. The NPP parties say that this is incorrect and that they have made further investments in the Projects since the date of the First Amendment. The definition of “Actual Investment” assumes that the NPP Parties would make further investments in the Projects. The entire scheme of the First Amendment was designed to ensure that the NPP Parties would receive a return on the investments that would be made over the course of the Projects. As at the date of the First Amendment, none of the Projects had commenced commercial operation. The Projects therefore needed further investment. The NPP Parties referred me to evidence showing that RAE has acknowledged in submissions to the Brazilian court that such investment came from NPP.[28]I consider that the NPP Parties have a compelling case that the Actual Investment significantly exceeds the Sale Proceeds and that they are entitled to 100% of the Sale Proceeds in priority to the RAE Parties.[29]The NPP Parties seek specific performance of RAE’s obligation to ensure that the Sale Proceeds are distributed in accordance with the Waterfall Mechanism. Specific performance may be granted where the defendant may not be “good for the money”: Gravelor Shipping Ltd v GTLK Asia M5 Ltd [2023] 1 CLC 272, per Foxton J at [99]. Adequacy of Damages Adequacy of damages for the NPP Parties[30]The Rio Alto Group entered into the reorganisation process because, the evidence shows, it is in “financial crisis” and “at serious risk of default regarding the payment of certain debts with their main creditors”. The NPP Parties contend that there is a real risk that the Rio Alto Group’s reorganisation process will fail and RAE will enter insolvency, such that RAE would be unable to satisfy an award of damages. The RAE Parties state, for their part, that the Rio Alto Group “fullyexpects and intends the implementation of the Plan to generate a business that is viable and able to satisfy any potential future arbitral awards or judgements”. This, the Applicants say, is no more than wishful thinking and there is no basis for concluding that the Reorganisation Plan is likely to succeed.[31]I am asked by the NPP Parties to assume that the Reorganisation Plan is in fact likely to fail. This Plan is predicated on the sale of the business to the third party: see e.g. Recital G (a sale to third parties “is a necessary and indispensable condition for the… implementation of this Plan”). The Reorganisation Plan was prepared on the basis that the business would be sold on terms equal to or better than the terms of a non-binding offer made by IG4 Capital (“IG4”). The NPP Parties became aware that IG4 had informed Rio Alto Group’s financial advisers, LAPLACE, that it would not be making a binding offer. The RAE Parties’ solicitors, Culbert Ellis, confirmed on 17 September 2025 that this could be treated as agreed. Accordingly, it appears that a sale to IG4 (or another third party on the same or better terms) – a “necessary and indispensable condition” for the success of the Reorganisation Plan – is unlikely to be achieved. IG4 has withdrawn and there is no reason to think that an alternative buyer could be found who is willing to proceed on the same or better terms. The RAE Parties have adduced no evidence of the existence of an alternative buyer.[32]Further and in any event, the NPP Parties submit that even if an alternative buyer could be found, it would provide no assurance about the position of RAE and its ability to satisfy an award of damages. RAE and its interests in the Projects fell outside the scope of IG4’s non-binding offer. There is no reason to think that an alternative buyer would wish to broaden the scope of the transaction. This would not resolve the uncertainty as to what might happen to RAE at the end of the reorganisation process. Even if the Reorganisation Plan were (somehow) to succeed, in the sense of salvaging some part of the Rio Alto Group, it does not mean that RAE – the putative judgment debtor – will survive. I find these submissions to be compelling.[33]For these reasons, it is likely that the Reorganisation Plan will fail and that the Rio Alto Group and/or RAE will enter some form of insolvency, with the consequence that the NPP Parties will only be able to recover, at best, a fraction of the Disputed Proceeds to which they are entitled. At the very least, there is a real risk that such a scenario will arise. It follows that damages would not be an adequate remedy for the NPP Parties. Adequacy of damages for the RAE Parties[34]The RAE Parties contend that damages would not be an adequate remedy in the event that the injunction turns out to have been wrongly granted, because the receipt of the Disputed Proceeds is critical to the success of the Reorganisation Plan such that, without the Disputed Proceeds, they will go out of business. Mr Lomas for the RAE Parties said in argument that these Disputed Proceeds “are a shot of adrenaline needed to keep the patient alive”.[35]The RAE Parties’ submission depends on the proposition that the success or failure of the Reorganisation Plan depends entirely on whether RAE receives the Disputed Proceeds of R$44m. I do not consider this submission to be realistic on the evidence before me. The Rio Alto Group is already in a perilous position. The central plank of Reorganisation Plan – the non-binding offer from IG4 – has disintegrated. As matters stand, therefore, the Reorganisation Plan is likely to fail in any event. Furthermore, the total debts of the Rio Alto Group set out in the Reorganisation Plan amount to over R$1.7 billion. The Disputed Proceeds (R$44m) would cover approximately 2.5% of those debts. The receipt of the Disputed Proceeds would not make a material difference to the Rio Alto Group’s ability to pay its creditors. The RAE Parties were unable to point to any evidence that would enable me to conclude that the contrary is arguable.[36]Accordingly, I agree with the NPP Parties that the Rio Alto Group / RAE Parties had no justification for seeking to pin the success of the Reorganisation Plan on receipt of the Disputed Proceeds. Conclusion on the adequacy of damages[37]I am satisfied there is at least a significant risk that the Rio Alto Group and the RAE Parties will go out of business such that the NPP Parties will be unable to recover the Disputed Proceeds to which they have established a strong case that they are entitled. I reject the RAE Parties’ suggestion that, if they receive the Disputed Proceeds, the business will survive, but if they do not receive the Disputed Proceeds, the business will fail. Balance of Convenience and other relevant factors Balance of convenience[38]The question of determining which“course seems likely to cause the least irremediable prejudice” largely overlaps with the matters addressed above. I have concluded that refusing the injunction would most probably result in irremediable prejudice to the NPP Parties. I think it unlikely that granting the injunction would itself result in the Rio Alto Group or RAE going out of business. Relative strength of parties’ cases[39]A further important factor is the relative strength of the parties’ cases, to the extent that it is possible to form a view as to the merits at the interlocutory stage: American Cyanamid, per Lord Diplock at 409; Series 5 Software Ltd v Clarke [1996] CLC 631, per Laddie J at 640-641; Quick Draw LLP v Global Live Events LLP [2012] EWHC 233 (Ch) per Nicholas Strauss QC at [6], citing the unreported judgment of the Court of Appeal in Guardian Media Group v Associated Newspapers Ltd (20 January 2000); and Sportsdirect.Com Retail Limited v Newcastle United Football Club Limited [2024] EWCA Civ 532, [2024] 1 WLR 4324, per Sir Geoffrey Vos MR at [17] and [41].[40]I can form a view as to the merits of the NPP Parties’ claim under the Cooperation Agreement. The meaning and effect of the Cooperation Agreement is a straightforward question of contractual construction. The language of the Cooperation Agreement is clear and unambiguous and the RAE Parties did not, in either their written or oral arguments, identify any reason why the NPP Parties’ construction should be rejected. I am also satisfied that the RAE Parties’ position that the “Actual Investment” is effectively frozen in time as at 2017 is not credible.[41]I do therefore take into account the strong likelihood that the NPP Parties will succeed at trial. Although I do not consider that there is any risk that the non-receipt of the Disputed Proceeds might result in the Rio Alto Group going out of business, any such risk would not be caused by my granting of the injunction but rather because of the fact that the RAE Parties were never entitled to the Disputed Proceeds in the first place. Preservation of the status quo[42]The factors addressed above point clearly in favour of granting the injunctions. To the extent that there is any doubt, the Court should take the safest course and preserve the status quo, which is that neither party has received the Disputed Proceeds. The Reorganisation Process and proceedings in Brazil Are the Disputed Proceeds within the jurisdiction of this Court?[43]The RAE Parties placed particular emphasis upon the Reorganisation Plan and the proceedings in Brazil. They argue that I should decline to contine the injunctions on the grounds of comity, in circmstances where the Injunction Applications overlap with or intrude on the reorganisation process and/or matters over which the Brazilian court has exercised jurisdiction. The RAE Parties submit that the Disputed Proceeds are assets that fall outside the grasp of the English court and that the Brazilian Court was the court first seized of the matters with which the Injuction Applications are concerned.[44]The RAE Parties contend that NPP, as a creditor of RAE, is subject to the reorganisation process in Brazil. NPP is named as a creditor in the Reorganisation Plan in respect of two “Illiquid” debts. These appear to be references to the NPP Parties’ claims under the loan agreements rather than the Disputed Proceeds. The NPP Parties’ entitlement to receive the Disputed Proceeds does not seem to me to be a “Subject Credit” within the meaning of the Reorganisation Plan. This is because it is not a debt owed by RAE to NPP. Any future liability that RAE might incur to the NPP Parties would post-date the filing of the Reorganisation Plan. The RAE Parties accept that “credits that originated after 14 July 2025” fall outside the scope of the Reorganisation Plan. In any event, the Reorganisation Plan has not received judicial approval (and may perhaps be unlikely to do so, given the withdrawal of IG4). It is therefore not binding on NPP.[45]Nor do the Injunction Applications seem to me to fall within the scope of the Suspension Order, by which the Brazilian court ordered “the suspension of all actions, executions and acts of constraint against the Plaintiffs, for credits subject to recovery and submitted to mediation…”. The NPP Parties’ entitlement to the Disputed Proceeds is not a “credit subject to recovery”. Nor is it a debt owed by RAE to NPP and it has not been “submitted to mediation”. Furthermore, any future liability RAE might incur would post-date the Suspension Order and therefore likely fall outside its scope.[46]I am satisfied that the NPP Parties are correct when they submit that the reorganisation process and the Suspension Order are concerned with the enforcement of debts by creditors of the Rio Alto Group and that the Injunction Applications are not concerned with the enforcement of a debt. They are rather concerned with the RAE Parties’ entitlement to receive the Disputed Proceeds in accordance with the Waterfall Mechanism in the Cooperation Agreement i.e. directly from FIP Coremas and in priority to the RAE Parties; and the NPP Parties’ exercise of their right to acquire the Disputed Quotas under the Quotaholders’ Agreement. I reject the RAE Parties’ submission that the subject matter of the Injunction Applicatons is firmly before the Brazilian courts. I do not consider that any issues of comity arise on the present application. I consider that the Disputed Proceeds fall squarely within the jurisdiction of this Court. The AGM Injunction and its effect[47]During the course of the Projects, the NPP Parties entered into various loan agreements with the RAE Parties. RAE defaulted on those loans and NPP has taken steps to enforce the debts (the “Loan Enforcement Proceedings”) including obtaining attachment orders over the receipt of the Disputed Proceeds (the “Attachment Orders”).[48]Following the Suspension Order, the RAE Parties obtained a stay of the Loan Enforcement Proceedings. The Attachment Orders therefore have been, or are likely to be, set aside. On 10 July 2025, the NPP Parties called a General Meeting of the Quotaholders of FIP Coremas to vote on a proposed amendment to FIP Coremas’ byelaws, which was scheduled for 25 July 2025. The purpose of the proposed amendment to the byelaws was to allow the proceeds to be re-invested into other projects and thereby to prevent the distribution of the Disputed Proceeds to FIP Rio Alto. On 23 July 2025, the RAE Parties applied for an urgent ex parte injunction to block the proposed meeting. On 24 July 2025, the NPP Parties filed short written submissions in which they asked for time to respond to the RAE Parties’ application. However, on 25 July 2025, the court granted an order which restrained the scheduled General Meeting (the “AGM Injunction”). The NPP Parties have appealed.[49]The RAE Parties have suggested that there is little difference between what the NPP Parties attempted to achieve in Brazil and what they seek to achieve by way of the Injunction Applications. I do not agree. The RAE Parties’ submissions to the Brazilian court repeatedly referred to NPP as a “creditor” and gave the impression that the amendment of the byelaws formed part of the Loan Enforcement Proceedings. It seems to me that the picture painted in the RAE Parties’ submissions (to which the NPP Parties have not had a proper opportunity to respond) means that it is hardly surprising that the Brazilian court concluded that the NPP Parties appeared to be attempting to enforce debts that fell within the scope of the Suspension Order and thereby circumvent the reorganisation process. However that may be, the Brazilian court did not in my judgment decide or purport to decide whether the enforcement of the NPP Parties’ rights under the Cooperation Agreement, which is governed by English law and subject to English jurisdiction, would constitute a circumvention of the Suspension Order or the Reorganisation Plan. Plainly it would not since, as I have already found above, the NPP Parties’ entitlement to the Disputed Proceeds is not a debt which falls within the scope of the Suspension Order and the Reorganisation Plan.[50]Furthermore, although the RAE Parties sought an order restraining NPP from taking any steps to prevent the distribution of the Disputed Proceeds, the Brazilian court declined to grant such wide relief. The court only suspended the General Meeting and any future meetings with a similar agenda. I do not consider that these Injunction Applications in any way breach the AGM Injunction. Recent matters in Brazil[51]On 15 September 2025, the RAE Parties applied to the Brazilian court for an urgent injunction to (among other things) restrain the NPP and TMF Parties from preventing the distribution of the Disputed Proceeds to the RAE Parties. The NPP Parties submit that this application flies in the face of the Injunction Orders.[52]In a letter to the Court dated 16 September 2025, the RAE Parties suggested that their application to the Brazilian court was a reason why the English Court should not accept the TMF Undertakings, because compliance with the TMF Undertakings would constitute a breach of the putative Brazilian injunction. In effect, therefore, the RAE Parties appear to submit that this Court should not continue the injunctions or accept the TMF Undertakings because they would be inconsistent with an application made by the RAE Parties after the Injunction Orders were made, after the TMF Parties agreed to give the TMF Undertakings, and in circumstances where the RAE Parties’ application has not even been granted.[53]This seems to me nothing more than an attempt by the RAE Parties to tie the hands of the English Court in determining whether the Injunction Orders should be continued. I consider that the pre-existing Injunction Orders, which were made by the English Court in the exercise of its exclusive jurisdiction over disputes under the Cooperation Agreement (and its supervisory jurisdiction over the Arbitration) should take priority.[54]Moreover, if (as requested by the RAE Parties) the Brazilian court orders an injunction without giving the NPP and TMF opportunities a proper opportunity to be heard, any such injunction will in my view have been ordered on a false premise. For example, the RAE Parties have asserted in their application to the Brazilian court that the Injunction Applications form part of the NPP Parties’ efforts to enforce a “bankruptcy claim”. This a mischaracterisation of the NPP Parties’ claim to be entitled to the Disputed Proceeds. The application fails to explain the NPP Parties’ position that they are entitled to the Disputed Proceeds pursuant to the Waterfall Mechanism in the Cooperation Agreement and instead gives the, what I consider to be misleading, impression that the Injunction Orders were only made in support of the Arbitration.[55]In conclusion, I do not consider that comity requires the English Court to defer to an order of the Brazilian court in circumstances where that order conflicts with pre-existing orders of the English Court, where it was sought with the apparent purpose of circumventing the English Court’s jurisdiction to determine whether the Injunction Orders should be continued, and where it was obtained on the basis of what seems to me to be misleading and incomplete information provided to the Brazilian court.

Conclusion

[56]As set out above, I conclude that:(1) The NPP Parties have clearly and distinctly the better of the arguments that they are entitled to 100% of the Sale Proceeds.(2) There is a significant risk that RAE will be unable to satisfy an award of damages. Conversely, it is in my judgment highly unlikely that the grant of the injunction would result in the Rio Alto Group and/or RAE going out of business.(3) Refusing the injunction is therefore likely to cause irremediable prejudice to the NPP Parties, whereas granting the injunction is unlikely to affect RAE’s position. The balance of convenience therefore weighs heavily in the NPP Parties’ favour, particularly when taking into account the relative strength of the parties’ cases.(4) There is no conflict or tension between the Injunction Applications and the reorganisation process or orders of the Brazilian court.(5) The sensible course is to preserve the Disputed Proceeds pending the resolution of the Parties’ disputes in the jurisdictions (the Engiish Court and London arbitration) chosen by them.[57]For the above reasons I made the orders in the terms agreed by the Parties.

Cited in 1 later judgment