FH Holding Moscow Limited v AO Unicredit Bank & Anor [2025] EWHC 3111 (Comm)

[2025] EWHC 3111 (Comm)Case No CL-2025-000361
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 25/11/2025
London, EC4A 1NL
Before
THE HONOURABLE MR JUSTICE HENSHAW
Between
(1) AO UNICREDIT BANKRespondents/(2) UNICREDIT S.p.A.Defendants
Rupert D’Cruz KC and Emile Simpson (instructed by Branch Austin McCormick LLP) for Applicant/ClaimantLouise Hutton KC (instructed by Allen Overy Shearman Sterling LLP) for Respondents/DefendantsHearing Hearing date: 13 November 2025Draft judgment circulated to parties: 21 November 2025Approved Judgment.............................
[1]This judgment follows a hearing on 13 November 2025 of:- i) the Claimant’s application under section 37 of the Senior Courts Act 1981 (“SCA 1981”) dated 5 August 2025 for an anti-suit injunction (“ASI”) restraining the First and Second Defendants/Respondents (to whom I shall refer as “AO” and “SPA” respectively) from:- a) pursuing the proceedings in Moscow referred to below, and/or b) commencing any other proceedings, except in arbitration under the rules of the Vienna International Arbitral Centre (“VIAC”), in relation to the disputed issues, at least until:(1) they have been determined in VIAC arbitration under the arbitration agreement referred to below, or(2) further order of the court (“FHM’s ASI Application”); ii) AO’s application dated 10 September 2025 for a declaration pursuant to CPR Part 11 that the English court has no jurisdiction to hear the claim against it, alternatively that it should not exercise any jurisdiction that it may have (“AO’s Jurisdiction Application”); and iii) SPA’s application dated 10 September 2025 for an order pursuant to CPR Part 24 that the claim against it be summarily dismissed (“SPA’s Summary Judgment Application”).[2]It has been necessary to produce this judgment at short notice, in the light of a hearing in the Moscow proceedings listed for 26 November 2025.[3]For the reasons set out below, I have concluded that:- i) I am not persuaded that there is a high probability, or a high degree of assurance, that the Moscow proceedings are in breach of the Arbitration Agreement; ii) it would be inappropriate for an ASI to be granted on the basis of the Moscow proceedings being vexatious and oppressive; iii) SPA’s summary judgment should be granted, on the basis that the claim against it has no realistic prospect of success; and iv) the English court lacks jurisdiction over AO, whose jurisdiction challenge must succeed.

(B) FACTS

[4]The Claimant is a Cyprus company whose business operations are solely in Russia; it is tax resident in Russia. It is part of a group of companies – the “Fashion House Group” which also operates in Poland, Romania, Belgium, and Luxembourg. The main operating company of the group, and the Claimant’s indirect parent, is L&W Development Limited, a Cyprus company, whose managing director is an EU national.[5]AO, a Russian bank, is a wholly owned subsidiary of SPA, a major Italian bank.[6]The Claimant is the borrower under a term loan dated 2 November 2018 (the “Facility Agreement”). The loan originally comprised:- i) a Euro facility consisting of a) €4,300,000 lent by AO, and (b) b) € 21,600,000 lent by SPA (together, the “EUR Facility”); and ii) a Russian rouble loan facility of RUB 1,260,000,000 lent by AO (the “RUB Facility”).[7]SPA entered into the Facility Agreement as lender. AO entered into it as lender, but also as (facility) agent for the other Finance Parties (defined as an Arranger, Agent, Security Agent, Hedge Counterparty or Lender), as Security Agent and as Original Hedge Counterparty. Clause 21.16 of the Facility Agreement provides:
“Sanctions The Borrower will not, directly or indirectly, use the proceeds of any Loan, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or any other person, (i) to fund any activities or business of or with any person, or in any country or territory, that, at the time of such funding, is, a Sanctioned Person or Sanctioned Country, (ii) or in any other manner, that would result in a violation of Sanctions by any person (including any person participating in the loan hereunder, whether as lender, agent or otherwise).”
[8]Clause 23 of the Facility Agreement sets out, over four pages, the events or circumstances constituting an Event of Default, including clause 23.1 as follows:- “Non-payment A Transaction Obligor does not pay on the due date any amount payable pursuant to a Finance Document at the place and in the currency in which it is expressed to be payable unless:23.1.1 its failure to pay is caused by:(a) administrative or technical error; or(b) a Disruption Event; and23.1.2 payment is made within three Business Days of its due date.” One of the consequences of an Event of Default is that under clause 23.23 the Agent may, and shall if so directed by the Majority Lenders, take various steps including acceleration of all or part of the loans so that they become immediately due and payable.

(b) a Disruption Event; and

[9]Clause 27 of the Facility Agreement deals with the role of the Agent, the Security Agent, the Arrangers and the Reference Banks. It includes these provisions:- “27.2.2 Each Transaction Obligor must pay the Security Agent, as an independent and separate creditor, an amount equal to each Finance Party Claim on its due date (each a “Security Agent Claim”). For the purposes of Russian law, the Security Agent is the joint and several creditor with each other Finance Party in respect of each Finance Party Claim, having an independent right to demand and enforce payment of each Security Agent Claim on the terms set out in Clauses 27.2.5 to 27.2.12.” “27.4 Enforcement through Security Agent only The Secured Parties shall not have any independent power to enforce, or have recourse to, any of the Transaction Security or to exercise any right, power, authority or discretion arising under the Security Documents except through the Security Agent. 27.5 Instructions 27.5.1 Each of the Agent and the Security Agent shall:(a) unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent or Security Agent (as applicable) in accordance with any instructions given to it by: (i) all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and (ii) in all other cases, the Majority Lenders; and(b) not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (a) above (or, if this Agreement stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties).” (a) unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent or Security Agent (as applicable) in accordance with any instructions given to it by: (i) all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and (ii) in all other cases, the Majority Lenders; and (b) not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (a) above (or, if this Agreement stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties).”[10]The Facility Agreement is governed by English law and contains an arbitration agreement (“the Arbitration Agreement”) which provides as follows: “42.1 Any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a “Dispute”) shall be referred to and finally resolved by arbitration under the Rules of Arbitration (Vienna Rules) of the Vienna International Arbitral Centre (VIAC) of the Austrian Federal Economic Chamber (the “Rules”). … 42.2.2 The seat of arbitration shall be Vienna, Austria”.[11]The Facility Agreement was entered into alongside a suite of associated Finance Documents and Security Documents.[12]These include a Mortgage Agreement executed on 6 November 2018 between the Claimant as mortgagor and AO as mortgagee, by which various real estate assets in or near Moscow, all of which are fashion retail outlets (the “Assets”) owned by the Claimant were provided as security for the loans provided under the EUR and RUB Facilities. The total value of the Assets as at 31 December 2024 is said to be about € 42 million.[13]Recitals (A) and (B) to the Mortgage Agreement record that:- “(A) The Mortgagee acting in its capacity as Arranger, Original Lender, Facility Agent and Security Agent, under the term loan facilities agreement dated 2 November 2018 (the “Facility Agreement”) and made between, among others, the Mortgagee and the Mortgagor as Borrower (the “Borrower”), has agreed to make available a facility on the terms and conditions of the Facility Agreement. (B) The Mortgagor has agreed to create the Mortgage (as defined below) to secure the fulfilment by the Borrower of its obligations to the Mortgagee assumed under the Facility Agreement, and to secure the repayment by the Borrower of the total received amount upon the Mortgagee’s demand if the Facility Agreement is invalidated or recognised as non-existent.”[14]Clause 1.1 of the Mortgage Agreement provides that:- “In this Agreement (including the Background above) all terms and definitions shall, unless expressly stated otherwise or unless otherwise defined, have the meanings attributed to such terms and expressions in the Facility Agreement (including by reference in that document to any other document) and such terms and definitions are incorporated into this Agreement by setting them out in Schedule 2 (Terms and Definitions of the Facility Agreement), and the terms and definitions agreed by the Parties in Schedule 1 (Terms and Definitions of the Agreement) shall also apply.” Schedule 2 includes a definition of “Event of Default” as “any event or circumstance specified as such in Clause 23 (Events of Default)” of the Facility Agreement.[15]Clause 2.1.1 of the Mortgage Agreement provides that:- “By this Agreement the Parties have created the Mortgage over the Mortgaged Property for the benefit of the Mortgagee to secure the due and full performance of the Secured Obligations.”[16]Clause 3.1.2 defines the Secured Obligations as including:- “payment obligations, described and calculated in accordance with the Facility Agreement and related Fee Letters and/or this Agreement, and include, inter alia, obligations to pay the following amounts: (a) the Facilities in the amount of up to: (i) in the case of Facility A – €25,900,000 (twenty-five million nine hundred thousand euros); (ii) in the case of Facility B – ₽1,260,000,000 (one billion two hundred and sixty million roubles), in accordance with clause 2.1 of the Facility Agreement;” (i) in the case of Facility A – €25,900,000 (twenty-five million nine hundred thousand euros); (ii) in the case of Facility B – ₽1,260,000,000 (one billion two hundred and sixty million roubles),[17]Clause 9 of the Mortgage Agreement provides as follows:- “Clause 9.1: Right to Enforce 9.1.1: Subject to any other provisions of this Agreement and/or the Facility Agreement, the Parties agree that the occurrence of any Event of Default shall constitute a material breach of the Secured Obligations giving rise to the Mortgagee’s entitlement to levy execution of the Mortgaged Property. 9.1.2: The Parties agree that the restrictions under part 3 of Article 348 of the Civil Code and part 5 of Article 54.1 of the Mortgage Law shall not apply, and the Mortgagee may levy execution on the Mortgaged Property immediately after the occurrence of the Event of Default in accordance with the terms and conditions of this Agreement and subject to Clause 21 (Dispute Resolution). 9.1.3: The Mortgagee may levy execution under this Agreement only in a judicial procedure. 9.1.4 The Parties agree that the provisions of this Clause 9 represent a condition for judicial enforcement for the purposes of Chapter IX of the Mortgage Law, as follows: the Mortgagee may levy execution on the Mortgaged Property under this Agreement in a judicial procedure, in which case execution will be levied by sale of the Mortgaged Property at a public auction as a single lot (provided that the starting sale price of the Mortgaged Property at such public auction shall be equal to the Starting Price). 9.1.5: The Mortgagee shall not be obliged before exercising its right to levy execution on the Mortgaged Property in a judicial procedure to:(a) take any action or obtain a decision of any court, arbitration court or state authority against the Mortgagor;(b) file any claim or produce evidence that it has rights of claim in liquidation or insolvency proceedings against the Mortgagor; or(c) levy or attempt to levy execution on any other Security received in respect of the Secured Obligations. …” (a) take any action or obtain a decision of any court, arbitration court or state authority against the Mortgagor; (b) file any claim or produce evidence that it has rights of claim in liquidation or insolvency proceedings against the Mortgagor; or (c) levy or attempt to levy execution on any other Security received in respect of the Secured Obligations.[18]The Mortgage Agreement is governed by Russian law, and contains the following jurisdiction clause:- “21.1 Any dispute arising out of or in connection with this Agreement (including a dispute regarding the entry into, validity, interpretation, breach or termination of this Agreement or the consequences of its nullity) (the Dispute), shall be referred to and finally settled by the Commercial Court of Moscow (the Court) in accordance with the laws of the Russian Federation. 21.2 For the purposes of Article 4 of the Arbitration Procedure Code of the Russian Federation, if any Dispute arises, a Party shall, before recourse to the Court, send its written claim to the other Party specifying its demands, the circumstances on which such demands are based, and any other information required to settle such a Dispute. 21.3 A claim shall be sent as provided by and to the address set out in, Clause 13 (Notices). 21.4 If there is no response to the claim or the Parties cannot resolve their Dispute within 15 (fifteen) calendar days after the day when the claim is deemed received in accordance with Clause 13 (Notices), the claiming Party may refer the dispute to the Court in accordance with Clause 21.1.”[19]The Claimant’s position is that there has never been an Event of Default under the Facility Agreement, and the Claimant has at all material times acted in good faith to discharge its payment obligations under the Facility Agreement. In summary, the Claimant says that:- i) it made payments in full until the start of the war in Ukraine, and into 2022 when Russian counter-sanctions made it unlawful for it to pay the EUR debt to SPA; ii) however, the Claimant continued to service the EUR debt to AO by paying the equivalent in roubles, and that tranche was fully repaid in December 2023; iii) the debt was re-scheduled in June 2023, and again in July 2024 (this is disputed). The Claimant relies on an exchange of emails in July 2024. On 15 July 2024, the managing director of L&W, Patrick Van Den Bossche, wrote to Stefano Carosi of AO saying:- “First of all, we would like to thank you for having extended our loan to FHM for another year. The documentation may not have been finalised yet, but in reality the extension has taken place and the parties are honouring their commitments. However, we have heard from you that Unicredit is looking to further reduce its exposure to the Russian market. First and foremost, Unicredit Milan wishes to terminate its loan facility to FHM. Secondly, Unicredit Moscow. We have therefore contacted a number of companies and individuals and have found an investor willing to invest an amount of €12.3 million in our outlet centres, which is already much better than the initial offer of €10.0 million we obtained and told you about. We propose to use these funds to refinance the three outstanding loans in the following way, although we may discuss a different split of the RUB loan between FHM and FHP, increasing the amount for FHM and decreasing it for FHP, to bring it more in line with their revenues: - to Unicredit Milano, for FHM, the amount of € 6,100,000; - to Unicredit Moscow, for FHM, the amount of RUB 301,571,000; - to Unicredit Moscow, for FHP, in the amount of RUB 316 818 000. Although this is certainly not the way we would have liked to end our business together in the Russian market, we sincerely hope that this proposal can be accepted by your Board, given the circumstances in which we all find ourselves and of which we are all victims. As previously mentioned, we would be delighted to have a meeting at the Milan head office for a more in-depth discussion of this proposal. …” to which Mr Carosi replied on 16 July 2024:- “It is a good news indeed. Please tell me, the investor would buy out our loans at discount, this is the transaction they have in mind? At the same time, since the sale of the loan might take time (we need to go to Credit committee for approval and follow internal rules), we need to proceed anyway with the signing of the loan restructuring. Thank you” (I interpolate, at this point, that I would not necessarily interpret the “good news” as acceptance that the loans had been rescheduled, as opposed to welcoming the news of a new potential investor. Further, the subsequent paragraph, about signing the restructuring, would seem to suggest the contrary); and:- Thank you” and:- iv) the Claimant continued to pay, or attempt payment, after July 2024.

and:-

[20]On 24 March 2025, AO filed a claim in the Arbitrazh Court of the Moscow Region seeking foreclosure of the Assets. It is common ground that that is a “judicial procedure” of the kind contemplated by clauses 9.1.3 and 9.1.5 of the Mortgage Agreement. The claim relies on there having been failure to pay and an Event of Default under the Facility Agreement, and the Claimant’s Petition in response puts this in dispute and contends that the Event of Default issue is subject to VIAC arbitration.[21]Subsequently, the Claimant joined SPA to the Moscow proceedings as a third party, pursuant to an application made on 28 May 2025. In Russian procedure, a ‘third party’ is a person whose interests might be affected by the court judgment, but who is not a claimant or a respondent.[22]In the Moscow proceedings, AO claims that there has been an Event of Default under the Facility Agreement, which it relies on as the basis for enforcing against the Assets under the Mortgage Agreement. The debt in respect of which it seeks enforcement is the total of the outstanding EUR and RUB loan facilities, namely about € 18.4m of principal and € 3.85m of interest, and about RUB 845 million of principal and RUB 56 million of interest.[23]The Claimant denies there has been an Event of Default, contending, in summary, that:- i) repayment of the EUR loan extended by SPA (required to be made in Russia and through AO as Security Agent) is presently unlawful under Russian law due to Russian counter-sanctions, with the effect that the Claimant’s payment obligation in that regard is suspended; and ii) repayment of the RUB loan was re-scheduled at the meeting of July 2024; the Claimant relied on that agreement to continue to make rouble payments until February 2025, when AO, at SPA’s direction, refused to accept the same; that refusal amounted to a breach of contract (as varied), alternatively AO is estopped from resiling from the agreement reached in July 2024.[24]Thus AO’s claim in the Moscow proceedings raises disputes over whether:(i) there has been an Event of Default under the Facility Agreement, and(ii) the amount of any outstanding debt (if the RUB loan is deemed to be due but the EUR loan is not (or vice-versa)), which goes to scope of the Assets against which enforcement would be permissible (the “Disputed Issues”).[25]On 28 April 2025, the Claimant filed an application challenging the jurisdiction of the Moscow court over the Disputed Issues, on the basis that they fall within the Arbitration Agreement and, therefore, can only be determined by a VIAC Tribunal.[26]On 7 August 2025, the Claimant issued its ASI Application. Following a without notice hearing on 11 August 2025, HHJ Pelling KC granted permission to serve the ASI Application out of the jurisdiction on AO on the following grounds:- i) pursuant to CPR PD6B, para. 3.1(3), on the basis that AO is a necessary and proper party to the ASI claim against SPA, over which the court has jurisdiction because SPA has a branch in London; ii) pursuant to CPR PD6B, para. 3.1(6)(c), on the basis that the ASI claim is made in respect of a contract (the Facility Agreement) governed by English law; and iii) pursuant to CPR PD6B, para. 3.1(6)(c), on the basis that the ASI claim is made in respect of a contract (the Arbitration Agreement) governed by English law.

(C) PRINCIPLES (1) Interpretation of related contracts

[27]Under English law rules of contractual interpretation, contracts forming part of a suite of documents entered into as part of one commercial transaction (such as the Facility Agreement and the Mortgage Agreement in the present case must be interpreted together, i.e. consistently: see, e.g., Re Sigma Finance Corp (In Administration) [2009] UKSC 2 at [13]). It is common ground that the agreements also stand to be interpreted together under Russian law, which governs the Mortgage Agreement.[28]Although the Mortgage Agreement is governed by Russian law, neither side submitted that any different rules of interpretation applied, or adduced any expert evidence on that topic. (2) Interpretation of potentially competing jurisdiction clauses[29]The Court of Appeal considered how to interpret potentially competing dispute resolution clauses in BNP Paribas SA v Trattamento Rifiuti Metropolitani SPA [2019] EWCA Civ 768. The parties there had concluded both a financing agreement in respect of a project, subject to Italian law and jurisdiction, and (as part of the strategy implemented pursuant to that agreement) swap transactions under an ISDA Master Agreement subject to English law and jurisdiction. BNP sued in England seeking declarations that TRM’s obligations under the swap were valid and binding, that TRM had not relied on any advice or recommendation from BNP to enter the transaction, that BNP had not acted as TRM’s adviser or fiduciary, that TRM had full capacity to enter into the transaction, and that it had done so for hedging and not speculative purposes. The Court of Appeal cited various authorities, including Lord Collins’ statement in UBS AG v HSH Nordbank AG [2009] EWCA Civ 585 at [84] that where agreements are all connected and part of one package, "sensible businesspeople would not have intended that a dispute of this kind would have been within the scope of two inconsistent jurisdiction agreements". The Court of Appeal summarised the principles as follows:- “[68](1) Where the parties’ overall contractual arrangements contain two competing jurisdiction clauses, the starting point is that a jurisdiction clause in one contract was probably not intended to capture disputes more naturally seen as arising under a related contract ….(2) A broad, purposive and commercially-minded approach is to be followed ….(3) Where the jurisdiction clauses are part of a series of agreements they should be interpreted in the light of the transaction as a whole, taking into account the overall scheme of the agreements and reading sentences and phrases in the context of that overall scheme ….(4) It is recognised that sensible business people are unlikely to intend that similar claims should be the subject of inconsistent jurisdiction clauses ….(5) The starting presumption will therefore be that competing jurisdiction clauses are to be interpreted on the basis that each deals exclusively with its own subject matter and they are not overlapping, provided the language and surrounding circumstances so allow ….(6) The language and surrounding circumstances may, however, make it clear that a dispute falls within the ambit of both clauses. In that event the result may be that either clause can apply rather than one clause to the exclusion of the other …”. The court concluded on this issue:- “75. The natural interpretation of the IJC and the EJC in this context is that the IJC was to govern claims relating to the overarching or background FA, whilst the EJC was to govern claims relating to the specific interest rate Swap entered into pursuant to the FA. Each was to apply to claims relating to the separate contracts in which they were contained and was to be mutually exclusive. 76. This conclusion is further borne out by the implausibility of sensible business people agreeing inconsistent jurisdiction clauses and the presumption of mutual exclusivity. As discussed further below, there is no clear language displacing that presumption.”[30]It is not always realistic or possible to conclude that two jurisdiction clauses are mutually exclusive. As the Court of Appeal said in Deutsche Bank v Savona Bank [2018] EWCA Civ 1740:- “30. It is, of course, desirable that potentially conflicting jurisdiction clauses should be given a mutually exclusive construction as indicated by the authorities to which I have referred at the beginning of this judgment. If the demarcation I have described in paragraph 21 above is correct, the two clauses in this case do have a mutually exclusive construction and no more needs to be said. 31. But as I also indicated it may be unrealistic if not impossible, always to ensure a mutually exclusive construction. If necessary the court should not shrink from recognising that situation and should certainly not adopt a convoluted construction merely to ensure that the two clauses are mutually exclusive. As Popplewell J said in Monde Petroleum , one stop adjudication is only a presumption (though generally an important presumption) and Mr Davies-Jones, in my judgment, put the position too high by saying that there must invariably be a mutually exclusive construction of conflicting jurisdiction clauses.”[31]The Claimant also cites RTI Ltd v MUR Shipping BV [2025] A.C. 675 at [43]-[46], referring to the presumption of contractual interpretation that parties are unlikely to forego valuable rights without clear words. The issue there was whether a party was obliged to accept non-contractual performance in the form of payment in a different currency: something which it was held would have required clear words.[32]In Sebastian Holdings Inc v Deutsche Bank [2011] 1 Lloyd’s Rep 106, Thomas LJ stated at [62-63] that “… the question as to whether a claim falls within the jurisdiction clause is an issue that has to be determined at the time the proceedings are issued …Businessmen agreeing to different jurisdiction clauses in a series of related contracts cannot have been taken to have intended that the entitlement to bring that claim in the chosen forum in respect of one contract should depend on whether a defence had been raised prior to the bringing of the claim and that the defence to that claim might place the centre of gravity of the dispute as being related to a different contract with a different jurisdiction clause”. Hamblen LJ quoted that statement with approval in BNP Paribas (at [60]) and continued at [61]:
“The answer to this question cannot change by reason of subsequent events, such as a defence raised or a subsequent set of proceedings”. (3) Jurisdiction over claims “in respect of a contract”
[33]In order to justify permission to serve proceedings out of the jurisdiction, the applicant must(i) have a “good arguable case” that the court has jurisdiction under the gateways at CPR r.6.36 PD6B (VTB Capital plc v Nutritek International Corp [2013] UKSC 5 at [164]), and(ii) show that the claim (here for an ASI) has a real, as opposed to a fanciful, prospect of success (ibid. at [164]). Under limb (i), “good arguable case” connotes more than a serious issue to be tried or a real prospect of success, but not as much as balance of probabilities (see Carvill America Inc v Camperdown UK Ltd [2005] 1 CLC 845 (CA) per Clarke LJ at [45]). It requires a claimant to establish a plausible basis for the application of the relevant gateway (see Brownlie v Four Seasons Holdings Inc [2017] UKSC 80, per Lord Sumption at [7] and Kaefer Aislamientos v AMS Drilling Mexico [2019] 1 WLR 3514).[34]The gateway in CPR PD6B, para. 3.1(6)(c) provides that a claimant may serve a claim form out of the jurisdiction with the permission of the court where “[a] claim is made in respect of a contract where the contract … is governed by the law of England & Wales”.[35]The Court of Appeal in Alliance Bank JSC v Aquanta Corporation [2012] EWCA Civ 1588 said, at [63]:- “[63] In the present formulation, under the CPR, the formula of “under a contract” is likewise avoided, but the language of the gateway is simple as well as broad, viz that “a claim is made in respect of a contract” which has the necessary connection with England such as being governed by English law”. The new formulation is undoubtedly more broad than its predecessor. There is as yet little authority which assists as to its meaning and effect” … [67] Next, Mr Toledano relied upon the decision of Hamblen J in Cecil v Bayat [2010] EWHC 641 (Comm). Two of the claimants brought claims under contracts which did not have an English connection but argued that, since those contractual claims were related to contracts which did fall within the relevant criteria, that was sufficient. This was therefore, suggested Mr Toledano, the first “two contract” case. The claimants also brought claims for conspiracy, deceit and constructive trust. Hamblen J held, at paragraph 49, that, at least in respect of the contractual claims, some relevant legal connection is required between the claim and the contract said to fall within the jurisdictional gateway. He continued “. . . if that contract needs to be referred to and relied upon in order to assert the relevant cause of action then that requirement is likely to be satisfied since it will be a necessary part of the cause of action. However, a mere factual connection between the two contracts is not enough”.” The court also referred, at [65], to Greene Wood & McLean v Templeton Insurance [2009] 1 WLR 2013, where the Court of Appeal concluded that the gateway was not confined to claims in respect of a contract between the intended claimant and the intended defendant, though that was the paradigm case.[36]In the earlier case Albon Motors v Naza Motors [2007] EWHC 9 (Ch), Lightman J stated that the formula “in respect of” (tested by reference to English law) is wider than “under a contract” ([26]) and “does not require that the claim arises under a contract: it requires only that the claim relates to or is connected with the contract” ([27]). The judge concluded that the gateway was not limited to contractual claims and covered a restitution claim for overpayments made under a contract. In a later judgment in the same proceedings, he said:- “In my first judgment I had to consider the ambit of CPR 6.20(5) which provides that a claim form may be served out of the jurisdiction with the permission of the court if a claim is made “in respect of a contract” where the contract is governed by English law, and I held that this required only that the claim relates to or is connected with such a contract. The issue now before me is whether the grant of an anti-suit injunction in connection with a contract governed by English law is a claim made in respect of the latter contract. Some guidance is provided by the judgment of Aikens J in Youell v. Kara Mara Shipping [2000] 2 Lloyd's Rep 102 at paragraph 50 where he held that such a claim was a claim which (in the language of RSC Order ) 11(1)(d)(iii) “affects” such a contract. If the claim is one which affects such a contract, there can be no doubt that it is a claim which is made “in respect of” such a contract.” ([2007] EWHC 1879 (Ch) at [20])[37]Lightman J in Albon Naza did not need to consider the position where the law governing an arbitration agreement differs from the law governing the main contract. The point did arise in UniCredit Bank v RusChemAlliance [2024] UKSC 30, where the main contract was governed by English law, the seat of the arbitration was Paris, and there was an issue about whether the arbitration agreement was governed by English or French law. As to the impact of that on the court’s jurisdiction to grant an ASI, Teare J at first instance ([2023] EWHC 2365 (Comm)) said:- “7. The defendants have challenged the jurisdiction of this court. It is common ground that there must be a jurisdictional gateway. The gateway relied upon is that the claim is made:
"In respect of a contract, where the contract is governed by the law of England and Wales." 8. Thus the question is whether the arbitration agreement is governed by English law. The claimant says that it is; the defendant says that it is not.” The Court of Appeal said at [2024] EWCA Civ 64 § [40]:- “The gateway on which the bank relies is that set out in paragraph 3.1(6)(c) of Practice Direction 6B, that the claim is in respect of a contract governed by English law. Because of the principle of separability (see e.g. section 7 of the Arbitration Act 1996 ), the contracts on which the bank relies are not the bonds, which are expressly governed by English law, but the arbitration agreements contained within them. The issue, therefore, is as to the governing law of those arbitration agreements.” In the Supreme Court, it was suggested (for the first time) that the in CPR PD6B, para. 3.1(6)(c) gateway applied because the claim for an ASI was made “in respect of” the main contract. The court said:- “19. UniCredit argues that the arbitration agreements are governed by English law because the choice of English law in clause 11 as the governing law applies to clause 12 (the arbitration clause) as well as all the other clauses of the contract. In the courts below this was the only argument that UniCredit advanced on the governing law issue. On this appeal UniCredit raised a suggestion in its written case that, even if the arbitration agreements in clause 12 are governed by French law, UniCredit's claim still falls within the contract gateway because English law on any view governs the rest of the bond contracts and it can be said that UniCredit's claim is made in respect of those contracts. If this argument were thought to have any merit, there is no reason why it could not have been made in the courts below. As it is, UniCredit gave no notice that it might seek to raise this new point until after RusChem had filed its written case for this appeal. At the hearing I did not understand counsel for UniCredit to be asking the court to allow UniCredit to rely on this new argument; but if permission to do so had been sought, I would not have thought it right to give it.” "
In respect of a contract, where the contract is governed by the law of England and Wales."[38]Guidance may, however, be obtained from cases on the correct approach to this gateway where more than one contract is potentially involved. Dicey notes at § 11-148 that the gateway “does not apply to a claim where there are two contracts and the claim is made under contract A which is collateral to another, contract B, when there is no arguable case for the existence of contract A, even if there is for contract B and that contract fulfils one of the three conditions of clause (6)”, referring to Global 5000 Ltd v Wadhawan [2012] EWCA Civ 13, [2012] 1 Lloyd’s Rep 239. In that case, Rix LJ (with whom the other members of the Court of Appeal agreed) said:- “61. … The question arises, in a two contract case, of just which contract is the contract “in respect of” which the claim is made: is it contract A or contract B? If in truth the claim is made under or pursuant to contract A, which is plainly also a claim being made “in respect of” contract A, and indeed the paradigm example of such a claim, can the claimant choose to say, without being gainsaid, that the claim is instead being made “in respect of” another contract, contract B, just because it suits him to do so where contract B both exists and meets a contractual jurisdictional gateway but contract A very arguably does neither? In my judgment, no. The rule is admittedly expressed in terms of “in respect of” and not “under”, and is thus intended to embrace both the standard case of claims being made under a contract and other cases of claims which are not under a contract but in respect of one. The question nevertheless arises as to which contract, A or B, the claim is made “in respect of” in the exceptional case where the claimant wishes to bring a claim under contract A but does not wish to apply for permission to serve out in respect of that contract, but in respect of another contract, B.62. In such a situation, the rationale of the rule, and of the whole of the regime originating in CPR Part 6.37 , provides the answer that the relevant contract “in respect of” which the claim is made is contract A, the contract under or pursuant to which the claim is made. It is a matter of legal categorisation. As Hamblen J said in Cecil v. Bayat, “They are claims in respect of the Grinling contract, not some other contract” (at [103]); and “They are claims in respect of the Lehmkuhl contract, not some other contract” (at [110]). Whether or not he intended this to be a separate rationale of his decision, distinct from his pleading test, in my judgment it is the correct rationale.63. If it were otherwise, then an application to serve out which could not succeed if reliance were placed on the real contract which founds the claim might be able to succeed if some merely collateral contract were relied on. That would make no sense at all. Such a case is wholly different from the cases of restitution and contribution found in Albon and Greene Wood . There the claims arose, and arose directly, out of a single contract, even if they were not themselves contractual claims. The question never had to be asked whether those claims were in respect of some other contract from the one relied upon as giving the jurisdictional link over the defendant.” Lewison LJ, in addition to agreeing with Rix LJ, added:- “68. … The essential difference between the parties seems to me to be as follows. Mr Hapgood starts with a contract over which this court has jurisdiction; and then seeks to bolt a claim onto it. Mr Lawson starts with the claim in fact made; and asks: in respect of what contract is it made? Since the focus of CPR 6.39 (1) and paragraph 3.1 of the Practice Direction is on claims, the claim seems to me to be the right place to begin. Once that is acknowledged to be the right starting point then for the reasons given by Lord Justice Rix, it is plain that the contract “in respect of” which the claim is made is the alleged contract of guarantee.” (4) Jurisdiction over claims against a ‘necessary and proper party’[39]The court can give permission to serve a claim out of the jurisdiction under CPR PD6B, para. 3.1(6)(c) where :- “A claim is made against a person (“the defendant”) on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and—(a) there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and(b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim.”[40]Lord Collins, giving the opinion of the Privy Council in AK Investment v Kyrgyz Mobil [2012] 1 WLR 180 PC, said that:- “The better view … is that the fact that D1 is sued only for the purpose of bringing in the foreign defendants is a factor in the exercise of the discretion and not an element in the question whether the action is “properly brought” against D1, provided that there is a viable claim against D1.” [79][41]Note GHJ.7 to the White Book states:- “In applying para.3.1(3)(a) the court has to examine the nature of the claim which arises against D1 in isolation; that is to say on the assumption that there will be no additional joinder of D2, and has to be satisfied that not only is there “a real issue” between C and D1, but also that it is an issue “which it is reasonable for the court to try” (Erste Group Bank AG (London) v JSC (VMZ Red October) [2015] EWCA Civ 379; [2015] 1 C.L.C. 706, CA at [38]). In Erste Group, the Court of Appeal concluded that, notwithstanding an agreement between the claimant bank (C) and the anchor defendants (D1) as to English jurisdiction (an exclusive jurisdiction clause that applied to the contractual relations between C and D1), on a proper analysis of the facts of the case there was no real issue between those parties. The substance of the claim was between C and the foreign (Russian) defendants (D2) and C had issued proceedings against D1 in order to sue D2 and execute a judgment against their assets wherever located. The case was overwhelmingly a Russian case and had no connection whatsoever with England other than the exclusive jurisdiction clause.” Gloster LJ, giving the judgment of the court in Erste Group,added at [150]:- “Further, in the exercise of his general discretion the judge did not give any consideration to the fact that in reality the only commercial driver behind the Bank's issue of proceedings in England against D1 and D2 was to enable a claim to be brought against D3 and D5 and to attempt to execute against their assets, whether in Russia or elsewhere. Whilst taken on its own this particular factor did not predicate that permission to serve out should be refused, it was, in the circumstances of this case, clearly an important factor that should have been taken into account.” (5) Anti-suit injunctions[42]The principles relating to the grant of ASIs were recently summarised by the Court of Appeal in Renaissance Securities (Cyprus) Limited v ILLC Chlodwig Enterprises [2025] EWCA Civ 369 (“Chlodwig”) at [19]-[25] as follows:- i) The power to grant an ASI restraining foreign proceedings arises from the court’s discretionary power under section 37 SCA 1981 to “by order (whether interlocutory or final) grant an injunction … in all cases in which it appears to the court to be just and convenient to do so”. ii) An ASI will be granted only where the ends of justice so require, but there are two main grounds: first, the contractual basis – that the foreign proceedings are in breach of an agreement, in which case an ASI will be granted unless there are strong reasons not to do so; secondly, the non-contractual basis – that the foreign proceedings are otherwise vexatious or oppressive.[43]There is need for caution when considering whether to grant an ASI on vexation grounds, but no requirement for diffidence in breach of contract cases (see, e.g., UniCredit Bank GmbH at [71]).[44]In an application made on the contractual basis, the applicant must show a “high degree of probability” (sometimes referred to as a “high degree of assurance”) that the foreign proceedings are in breach of contract (Marsh Ltd v Greensill Bank AG [2024] EWHC 3068 (Comm), at [46]-[55]).[45]Foxton J conveniently summarised the principles for the granting of an ASI on the grounds of vexation and oppression in JP Morgan Securities plc v VTB Bank PJSC [2025] EWHC 1368 (Comm) at [144], by reference to Males LJ’s judgment in SAS Institute Inc v World Programming Ltd [2020] EWCA Civ 599 at [90-91], [103] and [108], as follows:- “i) The basic principle is that the jurisdiction is to be exercised "when the ends of justice require it". ii) Established categories of case where an injunction may be appropriate (which may overlap) include cases where an injunction is necessary to protect the jurisdiction of the English court and cases where the pursuit of foreign proceedings is regarded as vexatious or oppressive, but the jurisdiction is not confined to these categories and must be applied flexibly. iii) Great caution must be exercised before such an injunction is granted, at any rate in cases where the injunction is not sought in order to enforce an arbitration or exclusive jurisdiction clause, because of the requirements of comity. iv) When an anti-suit injunction is sought on grounds which do not involve a breach of contract, comity, telling against interference with the process of a foreign court, will always require careful consideration. v) Comity requires that in order for an anti-suit injunction to be granted, the English court must have "a sufficient interest" in the matter in question. Often that sufficient interest will exist by reason of the fact that the English court is the natural forum for the determination of the parties' dispute. In a case where the injunction is sought in order to protect the jurisdiction or process of the English courts, the existence of a sufficient interest will generally be self-evident.”[46]As to the appropriateness of the English court as a forum in ASI cases, Dicey, Morris & Collins, “The Conflict of Laws” (16th ed.) at [12-127] states that “The stronger the connection of the foreign court with the parties and the subject matter of the dispute, the stronger the argument against intervention”, bearing in mind that different judges operating under different legal systems with different rules may legitimately arrive at different answers, without occasioning a breach of customary international law or manifest injustice, and that in such circumstances it is not for an English court to arrogate to itself the decision how a foreign court should determine the matter (citing Deutsche Bank AG v Highland Crusader Offshore Partners LP [2009] EWCA Civ 725 at [50]). Dicey § 12-134 states:- “It was also indicated in Aérospatiale [[Soc Nat Ind Aérospatiale v Lee Kui Jak [1987] A.C. 871 (PC)]] that before the English court was justified in granting an injunction to restrain vexatious or oppressive conduct, it was generally required that the court conclude that it provides the natural forum for the action. This was reiterated in Airbus Industrie GIE v Patel [[1999] 1 A.C. 119] where it was said that this requirement—which was elevated to the status of a general rule requiring to be satisfied before the court may act—was necessary in order to respect the limits placed by comity upon the power of an English court to grant orders in relation to proceedings in foreign courts. In the absence of such a connection with England it will be a rare case in which the English court would be justified in granting an injunction against a defendant whose conduct was oppressive or vexatious. In that case French aircraft manufacturers were refused an injunction restraining English defendants from pursuing proceedings in Texas arising out of an aircraft accident in India. Although the English court had in personam jurisdiction over the defendants, it was contrary to comity to restrain the Texas proceedings because the English forum did not have a sufficient interest in, or connection with, the matter.” (footnotes omitted) The key statement in Airbus Industrie was:- “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. …” ([1999] 1 AC 119, 138G-H))[47]The Supreme Court in UniCredit decided that it was appropriate to grant an ASI in support of a foreign (French) seated arbitration, noting that:- i) while the courts of the seat of arbitration have primary responsibility for supporting the arbitration process ([96]), they are not the only courts that can prevent a party breaking his contract to arbitrate ([98]); ii) the Model Law (Articles 17(2)(b) and 17J) recognise that ASIs may in principle be exercised by courts other than the courts of the seat of the arbitration ([99]); iii) the fact that the parties had chosen the French courts to be the supervisory jurisdiction did not mean that the English court could not or should not grant an ASI to prevent a breach of their arbitration agreement ([100]); iv) the French court was not seised of the matter because no arbitration had been commenced at that point, which meant that the exercise by the English court of its power to grant an ASI would not give rise to any issue of comity ([101]); v) even if the French court was an available forum, that did not make it inappropriate for an English court to restrain a breach of the arbitration agreement by granting an ASI, and the fact that the seat of an arbitration was France did not amount to such a reason ([104]); vi) the possibility of obtaining an ASI from a tribunal that was not yet in existence (as was the position in that case) or from an emergency arbitrator was illusory because it could not be enforced in Russia; and it would have no coercive effect because it was not fortified by contempt of court powers ([105]-[108]); and vii) in those circumstances, England was the proper place in which to seek an ASI.[48]Further, Lord Leggatt observed at [68] that “Where the contractually agreed forum is arbitration, the policy of securing compliance with the parties’ contractual bargain is further reinforced by the strong international policy of giving effect to agreements to arbitrate disputes”. (6) Sanctions[49]EU Regulation 269/2014, Art. 15a provides that “Natural and legal persons, entities and bodies shall undertake their best efforts to ensure that any legal person, entity or body established outside the Union that they own or control does not participate in activities that undermine the restrictive measures provided for in this Regulation”. Those measures include a freeze on the assets of sanctioned persons, as set out in Article 2:- “Article 2 1. All funds and economic resources belonging to, owned, held or controlled by any natural or legal persons, entities or bodies listed in Annex 1 shall be frozen. 2. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies listed in Annex 1.” Article 9.1 provides that:- “It shall be prohibited to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent the prohibition set out in this Regulation, including by participating in such activities without deliberately seeking that object or effect but being aware that the participation may have that object or effect and accepting that possibility.”[50]In LLC EuroChem North-West-2 v Societe Generale SA [2025] EWHC 1938 (Comm), Bright J stated at [469], in the context of considering a public policy objection to enforcement of certain bonds:- “Given that this point was raised only as an alternative argument, I can deal with it briefly, but I have no doubt that the Banks are right. Regulation 269 and Regulation 833 are an important part of EU legislation and of French and Italian domestic law. They were enacted as part of an EU-wide strategy, at the behest of the heads of state and governments of all the member states. Their purpose is as grave as any imaginable. It is evident from the exchanges with the DGT and the CSF that the Regulations are applied and enforced with extreme care and strictness. The punishments available are severe. Moreover, I consider that the Banks are right to suggest that the fact that UK/English public policy on this point is precisely aligned with that of the EU is an important pointer to the very great significance that should be attached to comity, on the facts of this case”.[51]In JP Morgan Securities plc v VTB Bank PJSC, one of the reasons Foxton J gave for concluding that the commencement and pursuit of a claim in Russia was vexatious and oppressive, was that it was “intended to circumvent the rules of English law which apply to claims under the [relevant agreement] and to obtain an illegitimate juridical advantage (namely avoiding the UK sanctions regime), and undermine the efficacy of that regime” (§ 155(iv)). (7) Full and frank disclosure[52]The applicant must place before the court all matters which are or might be relevant to the application, whether of fact or law or procedure, including any matters which are or may be adverse to the application: see e.g. MRG (Japan) Limited v Engelhard Metals Japan Limited [2003] EWHC 3148 (Comm) at [24] and [29]; and Libyan Investment Authority v JP Morgan Markets Ltd [2019] EWHC 1452 (Comm) at [92-98] and [120-123]. If the duty is not complied with, the Court can set aside the order for service out on that ground alone: Libyan Investment Authority at [119]. (D). APPLICATION (1) Breach of the Arbitration Agreement?[53]The Claimant contends that the Moscow proceedings are brought in breach of the Arbitration Agreement as they are predicated on and raise the Disputed Issues, which are required by the Arbitration Agreement to be resolved in a VIAC arbitration. Its submissions in support of that proposition may be summarised as follows. i) Under clause9.1.1 of the Mortgage Agreement, AO’s entitlement to levy execution on the mortgaged assets is expressly predicated on “the occurrence of any Event of Default”. ii) The Mortgage Agreement does not define, or identify distinctly, an “Event of Default ... giving rise to [AO’s] right to entitlement to levy execution on the Mortgage Property”, as referred to in clause 9.1.1. Rather, it adopts and incorporates the terms and definitions in the Facility Agreement. That is logical, as the Mortgage Agreement provides security to the lenders for the Claimant’s payment obligations under the Facility Agreement (i.e. the “Secured Obligations”) and, therefore, is supplemental to the Facility Agreement. It is in the Facility Agreement that the Events of Default are set out. iii) It is common ground that there is a dispute as to(a) whether the Claimant has failed to pay an amount due under the Facility Agreement, and(b) if there has been any default, the amount thereof (which goes to the scope of the assets which would be enforced against). iv) Those disputes (i.e. the Disputed Issues) fall within the Arbitration Agreement, since:- a) the first of them is a dispute about whether an Event of Default within the meaning of clause 23.1 of the Facility Agreement has occurred, which itself turns on the interpretation of the payment obligations therein; and b) the second is a dispute about the amount of any outstanding debt from the Claimant under the Facility Agreement. v) Both disputes arise out of or in connection with the Facility Agreement within the meaning of the Arbitration Agreement, and therefore are subject to the exclusive jurisdiction of a VIAC tribunal. That tribunal must determine them before any enforcement under the Mortgage Agreement based on an Event of Default can occur. vi) Clause 9 does not assist the Respondents. Clause 9.1.1 makes clear that an Event of Default must have “occurred” before enforcement under Clauses9.1.2 to 9.16 can be effected. Similarly, clause 9.1.2 indicates that the Mortgagee can levy execution only “immediately after the occurrence of the Event of Default …”. vii) Clause 9.1.5 too is predicated on the Mortgagee having acquired “its right to levy execution”, and hence on an Event of Default having occurred. Clause 9.1.5, the Claimant submits, “does not apply to issues that precede the coming into existence of the right to levy execution, including a dispute as to whether an Event of Default has occurred”. viii) On the Respondents’ approach, the Mortgage Agreement jurisdiction clause would negate the Arbitration Agreement (i.e. deprive the parties of their rights under the latter) in relation to disputes about an Event of Default, which is one of the most important areas of application of the Arbitration Agreement. ix) Since the Arbitration Agreement in substance provides for exclusive jurisdiction over the matters it covers, the Disputed Issues cannot also be regarded as falling within the Mortgage Agreement jurisdiction clause. Thus this is not a case of the kind contemplated by BNP Paribas § [68(6)] where a dispute falls within the ambit of both clauses. x) Rather, the Disputed Issues are most naturally regarded as arising under a related contract, namely the Arbitration Agreement. Events of Default are the subject matter of the Facility Agreement and not the Mortgage Agreement:- a) It is the Facility Agreement that identifies Events of Default, in considerable detail, whereas the Mortgage Agreement does no more than adopt what is set out in the Facility Agreement about Events of Default. b) Events of Default are defaults that arise under the Facility Agreement, not the Mortgage Agreement. c) The relevant Event of Default here – clause 23.1 (Non-Payment) – relates to breaches of the payment obligations under the Facility Agreement, not the Mortgage Agreement. xi) The right to VIAC arbitration is a valuable right, as is evident from its importance in the present case. It is wholly unrealistic to suppose, in the absence of clear words, that the parties intended the Mortgage Agreement jurisdiction clause to take away their rights under the Arbitration Agreement.[54]I am unable to accept those submissions.[55]In my view, the dispute about whether an Event of Default has occurred falls within the scope of the Mortgage Agreement jurisdiction clause, as well as the Facility Agreement Arbitration Agreement. The fact that the Mortgage Agreement imports definitions and terms from the Facility Agreement does not undermine that point: rather, it is consistent with the view that some disputes under the Facility Agreement may also be disputes under the Mortgage Agreement. The questions of whether an Event of Default has occurred, and (if so) what amount is due to the lenders, are questions that may arise under the Mortgage Agreement as well as under the Facility Agreement. The answer to the Claimant’s exclusivity point is that the parties have legislated for the position, as I note below.[56]Further, it cannot be said that the dispute falls more naturally within the Facility Agreement Arbitration Agreement than the Mortgage Agreement jurisdiction clause. The Mortgage Agreement operates in a specific subset of circumstances where there is a dispute over an alleged Event of Default. Moreover, the parties have legislated for the position in clause 9 of the Mortgage Agreement .[57]Thus, clause9.1.1 provides that execution can be levied, by a judicial procedure, as soon an Event of Default has in fact occurred, as distinct from after a separate arbitral process has confirmed that to be the case. Clause9.1.2 then, emphatically, provides that execution can be levied “immediately after the occurrence of the Event of Default”, though “subject to Clause 21 (Dispute Resolution)” i.e. subject to the dispute resolution procedure in the Mortgage Agreement itself. That is, in my view, consistent with an intention that clause 9 should apply not only in cases where there is no dispute between the parties, but also where there is such a dispute, which may well include whether there has been an Event of Default or not; and makes provision for such disputes. Read as a whole, clause 9.1.2 indicates that the lenders can commence the execution procedure immediately, with any dispute about entitlement being resolved, under clause 21, by the Moscow Commercial Court in which those proceedings are commenced, rather than by a two-stage procedure requiring an arbitration followed by proceedings in the Moscow Commercial Court.[58]That approach is also consistent with clause 9.1.3, which provides that execution can be levied only in a judicial proceeding. The requirement for such judicial approval, including resolution of any dispute, provides a safeguard for the borrower just as the Arbitration Agreement in the Facility Agreement does. There is thus no real question of a valuable right being removed: but, even if there were, I consider the wording of clause 9 to be clear. At the same time, the requirement to levy execution exclusively by way of a judicial proceeding makes it less likely that parties intended that some types of dispute – e.g. about whether or not an Event of Default has occurred – must be resolved by arbitration followed by further proceedings in the Moscow court.[59]The same view is also bolstered by clause 9.1.5. At the hearing, the Claimant suggested for first time that the words “arbitration court” in the phrase “any court, arbitration court or state authority” in clause 9.1.5 may refer to the Russian Arbitrazh Courts (sometimes translated as ‘arbitration courts’) and do not include an arbitral tribunal under the Facility Agreement Arbitration Agreement. There was no expert evidence on this point. The parties had exchanged witness statements which proceeded on the basis that this phrase did cover an arbitral tribunal: see Trusova 1st witness statement §§ 36 and 37, concluding that in the light of clause 9.1.5 “AO UniCredit was entitled to proceed to levy execution on the Mortgaged Property without first obtaining a decision from an arbitral tribunal”; and Lim 2nd witness statement § 14-35, taking issue with that proposition as a matter of construction of the transaction documents as a whole but not on the basis that the words of clause 9.1.5 do not cover an arbitral tribunal. Those witness statements are not admissible as expert evidence of the meaning of the words used in clause 9.1.5 (cf. Vizcaya Partners Ltd v Picord [2016] UKPC 5 at [60]), but they are relevant in showing what the parties reasonably believed to be in dispute between them. It would not be fair, in my view, for the Claimant to be permitted now, at the hearing, to change tack on this point. Further, if the words “arbitration court” were confined to arbitrazh courts, then(a) they would appear to duplicate the immediately preceding reference to courts, and(b) the specific exclusion of arbitrazh courts would seem particularly odd given that the execution proceedings are themselves required by clause 21 of the Mortgage Agreement to be commenced in the Moscow Commercial Court, which is (the action heading indicates) itself an arbitrazh court.[60]In any event, regardless of the potential controversy referred to in the preceding paragraph, the presence of clause 9.1.5 still lends support to what can in any event be deduced from clauses 9.1.1 to 9.1.3, namely that the parties intended that execution proceedings could be started immediately, with any disputes being resolved as part of those proceedings rather than extraneously to them. Moreover, it is unclear on the Claimant’s approach what purpose clause 9.1.5 would really serve, and Ms Trusova’s evidence on behalf of the Respondents was that she is unaware of any relevant permission that might be needed from another Russian court.[61]I do not agree that this construction of the documents renders the Facility Agreement Arbitration Agreement substantially nugatory. Disputes over the facilities could very well arise outside the context of mortgage enforcement, and (for example) the lenders might, separately from their security over the Russian assets, seek an arbitration award that could be enforced against the Claimant. I also disagree with the Claimant’s suggestion that this approach is belied by the fact that the Arbitration Agreement does not itself state that it is subject to clause 9 of the Mortgage Agreement: it would not necessarily be expected to, in circumstances where the documents are (as both parties contend) to be interpreted together.[62]For these reasons, I am not persuaded that there is a high probability, or a high degree of assurance, that the Moscow proceedings are in breach of the Arbitration Agreement. (2) Vexatious and oppressive basis for ASI[63]The Claimant alternatively argues that an ASI should be granted on a non-contractual basis as(i) the Moscow proceedings are vexatious and/or oppressive because were AO successful there is a real risk that the Claimant may be ordered by the Moscow court to take steps that would breach EU sanctions law, which it could not lawfully do;(ii) for similar reasons, it is in the interests of UK public policy, and(iii) it is in the interest of justice more generally. In support of those arguments, the Claimant makes the following points (in summary):- i) Were AO successful in the Moscow proceedings, there would be a blind auction. Given the extent of EU sanctions, specifically EU Regulation 269/2014 referred to earlier, including in relation to Russian banks, this raises a real risk that the Assets would be sold to a party sanctioned by the EU, and/or that such a sale would be financed by such a party. The Claimant’s evidence exhibited a summary indicating among other things that eight of the twenty major Russian banks are sanctioned entities. The Claimant’s own purchase of the assets was, of course, itself financed by a major Russian bank. ii) Were this risk to eventuate, it would put the Claimant, a Cyprus company bound by EU sanctions law, in an impossible position of being required to co-operate with such a sale in breach of EU sanctions law, which lawfully it cannot do. iii) Even if, as the Respondents’ evidence suggests, the Claimant’s involvement in a sale of the Assets in a public auction would only be limited, that would not address the risk under EU sanctions law, which contains no de minimis defence. The Mortgage Agreement requires the Claimant to assist in a sale of the Assets in various ways, including by the provision of documents, signature of any necessary documents, settlement of legal claims in relation to the assets and paying all documented expenses incurred as a result of the levying of execution. iv) SPA too risks breaching the circumvention prohibition in the EU Russia sanctions regime, since the regime covers intentional participation in activities being aware that an action “may have” the effect of circumventing the relevant sanctions prohibition. SPA risks breach of the circumvention prohibition because, whilst AO would not itself sell the Assets in the public auction, AO, directed by SPA, will have effected the sale through the Moscow proceedings. Further, AO as Security Agent, under clause 27.1.2, holds the Security Property, including its proceeds, on trust for the Secured Parties, including SPA. v) Granting an ASI on the non-contractual ground would also serve the interests of justice, in that it is UK public policy to support the EU Russia sanctions regime, which mirrors the UK’s Russia sanctions regime. An ASI would mitigate the risk of a breach of the EU Russia sanctions regime were a public auction to result in a sale to, or financed by, a person sanctioned by the EU. vi) Further, it is in the interests of justice to grant an ASI on the non-contractual ground since (a) damages are not an adequate remedy for the Claimant as it would go bankrupt were there a forced sale of the Assets, while (b) the Respondents’ contention that the limitation period has expired, such that AO could not bring a fresh action, is flawed since the limitation period does not expire until November 2026, and in any case the Moscow proceedings could be stayed rather than discontinued.[64]It should be noted that this ground for seeking an ASI arises independently of the Claimant’s contention, on the contractual ground, that no proceedings in Moscow can be brought until an arbitral tribunal has determined that an Event of Default has occurred. By the same token, though, it follows from the logic of the Claimant’s arguments that an ASI would need to be granted on the vexatious and oppressive ground, thus preventing the Respondents from enforcing their Russian security at all, even if an arbitral tribunal had so determined.[65]The claim for an ASI on this ground arises on the hypothesis that the claim on the contractual ground has failed because the Moscow proceedings are not in breach of the Arbitration Agreement. This is not, therefore, a case where (as is often the case) an injunction is sought on the vexation/oppression ground in order to prevent indirect circumvention of an English jurisdiction clause or an arbitration clause, and hence to protect the jurisdiction of the English court or the arbitral tribunal. The court accordingly must proceed with great caution, given the requirements of comity, and give careful consideration to whether it is justifiable to interfere in the way proposed with the foreign court’s processes (see the summary in JP Morgan Securities quoted earlier). In order to contemplate doing so, the English court must have a sufficient interest in the matter (ibid.).[66]I am not persuaded either that the English court has sufficient interest in the matter, or that the injunction sought would be consistent with the requirements of comity. On the hypothesis on which the question arises, the only links with England are that the Facility Agreement is governed by English law, though subject to VIAC arbitration, and SPA has a branch in England. However, the execution proceedings are brought under the Mortgage Agreement rather than the Facility Agreement, and have no demonstrated link with SPA’s English branch. The injunction would be to prevent AO, a Russian company, from pursuing foreclosure proceedings in respect of Russian real property, owned by a Cypriot company tax resident and only operating in Russia, properly brought before the Russian court pursuant to a Russian law contract with a Russian jurisdiction clause. The connection with the Russian court is thus very strong, whereas the English court’s legitimate interest in the matter is tenuous. Moreover, the Respondents’ evidence is that:- “The auction process does not take place automatically after the judgment comes into effect … Instead, the successful mortgagee would then have three years to apply for a writ of execution from the date the judgment comes into effect. It is open to the mortgagee to not apply for the writ of execution if it does not wish the auction process to proceed. Assuming it does apply for the writ of execution, then once that writ of execution has been obtained, the mortgagee is entitled (but not required) to take the further step of submitting it to the local bailiff along with an application to commence the executory process.” (Trusova 1st witness statement § 44(b)) Thus two further stages would remain even after the conclusion of the current Moscow proceedings before any auction took place. The Claimant responds that the Respondents have indicated their intention to follow the process through to its conclusion. However, that does not to my mind justify the serious interference in the Russian court’s process that would arise from the grant of an injunction preventing the Respondents even from pursuing the current first stage of the execution proceedings. Equally, UK public policy considerations in support of the EU sanctions regime cannot in my view create a ‘sufficient interest’ for the English court in circumstances where no sufficient link with this jurisdiction exists, still less for intervention at this stage of the Russian proceedings. Finally, the risks to the Claimant’s business plainly cannot themselves justify an intervention that would otherwise be inconsistent with comity and unjustifiable in terms of the English court’s interest in the matter.[67]For these reasons, I do not consider that it would be just and convenient to grant an ASI on the vexatious/oppressive ground. (3) The claim against SPA[68]SPA is not a claimant in the Moscow proceedings: it was joined by the Claimant itself, as a third party.[69]The Respondents’ undisputed evidence is that if AO were restrained by injunction from continuing the Moscow proceedings, SPA could not itself continue them as it is a third party without independent claims. That procedural position in a sense also reflects the substantive position, since AO acts as Security Agent in relation to both the loans, and clause 27.2.2 of the Facility Agreement (quoted earlier) creates a parallel debt to Security Agent as an independent and separate creditor: which enables it to enforce the security on behalf of both itself and SPA.[70]The Claimant’s response is that SPA is directing and controlling the litigation in Moscow. It relies on evidence of SPA playing a leading role in relation to the lending transaction itself, contending as follows:- i) Negotiations on behalf of the Respondents were being directed by a “credit committee” within SPA; while L&W’s managing director, who led on negotiations on behalf of the Claimant, corresponded both with senior managers from AO and SPA, key figures from AO identified the need to get approval from this credit committee. ii) Following the (alleged) agreement to re-schedule the loans in early July 2024, the loans were further discussed in a meeting at SPA’s offices in Milan on 30 July 2024, where (on the Claimant’s case) it was agreed that the Claimant would continue to make payments while the Respondents tried to find a new buyer for the loans iii) From July 2024 until February 2025, AO acted on the basis agreed at the meeting in Milan by accepting rouble payments from the Claimant in repayment of the EUR Facility. The first such payment was made and accepted on 26 September 2024. iv) On 10 February 2025, AO sent the Claimant a pre-action letter, which asserted that the Claimant was in default as of 29 November 2023 (contrary, the Claimant says, to the agreement to reschedule), and threatened enforcement proceedings. The email enclosing the pre-action letter, which was sent by a manager at AO to the Claimant, was copied to inter alia three representatives of SPA. v) A further payment made by the Claimant on 18 February 2025 was initially accepted by AO; on 10 March 2025, AO confirmed that it would apply that payment against the rouble debt, and that “we will debit [the funds] within a week as soon as we agree with UC Spa”. This was followed up by an email from AO to the Claimant on 20 March 2025 saying that:
“We are currently coordinating the write-off from UC Spa of the repayment of the loan in roubles only. For information, each FHM repayment requires a separate approval of UC Spa”
. Thus, AO was being required by SPA to approve the repayment of the rouble debt, even though AO was the only lender of that debt. vi) By a claim form dated 21 March 2025, AO issued the Moscow proceedings. It can (the Claimant says) reasonably be inferred from this chronology that AO asked SPA for approval to apply the Claimant’s payment against the rouble debt on 20 March 2025, that SPA refused and that SPA directed that AO issue the Moscow proceedings.[71]Further, the Claimant says that:- i) in the Moscow proceedings, AO acts a Security Agent not only on behalf of itself as lender of the RUB debt but also on behalf of UC SPA as lender of the EUR debt. Therefore, SPA is involved in the sense that SPA acts on its behalf in the Moscow proceedings in respect of the EUR debt; and ii) the Claimant’s solicitor in his witness statement repeatedly asserts his belief from the evidence that AO and SPA are co-ordinating the Moscow proceedings, and that it is likely that SPA is directing the Moscow proceedings, but that is not denied in any of the Respondents’ evidence.[72]Accordingly, the Claimant submits, SPA, which is a party to the Arbitration Agreement in the Facility Agreement, is independently in breach of it by directing and controlling the Moscow proceedings. It also seeks an ASI against SPA on the vexation/oppression ground.[73]I am unable to accept those submissions.[74]First, as set out in section (D)(1) above, I am unpersuaded that the pursuit of the Moscow proceedings involves a breach of the Arbitration Agreement at all.[75]Secondly, as set out in section (D)(2) above, I am also unpersuaded that any ASI should be granted on the vexatious and oppressive ground.[76]Thirdly, and in any event, AO, whilst a subsidiary of SPA, has its own board of directors, and as Security Agent has its own direct claim against the Claimant in respect of both facilities (see above). Only AO, as the Agent, is contractually entitled to pursue the Moscow proceedings (see clause 27.4 of the Facility Agreement), and, as already noted, SPA as third party would have no procedural standing as a third party to continue the current proceedings itself. There is no reason to believe that, if AO is restrained from pursuing the Moscow proceedings, SPA would attempt to pursue them itself. Nor is there any reason to believe that AO, if restrained by an ASI, would nonetheless pursue the proceedings in breach of the injunction if so instructed by SPA under clause 27.5 of the Facility Agreement. In reality, it seems likely that the claim against SPA is brought essentially in order to find an ‘anchor defendant’. Even aside from that latter point, it would in my view, in all the circumstances, not be just and convenient to grant an ASI against SPA in any event, whether on the contractual basis or on the vexation and oppression basis.[77]For all these reasons, SPA’s application for summary judgment should in my view succeed. (4) Jurisdiction against AO[78]Insofar as the Claimant relies on the ‘necessary and proper party’ gateway in order to establish jurisdiction as against AO, there is in my view no real issue between the Claimant and SPA which it is reasonable for the court to try. That is so in the light of both(i) the merits of the contractual and vexation grounds for seeking ASI relief against SPA, and(ii) the fact that it would not be just and convenient to grant relief against SPA in any event: see § 76 above. As to (ii), this is, like Erste Group, an overwhelmingly Russian case where, even if a ‘real issue’ existed between the Claimant and SPA, it is not one “which it is reasonable for the court to try”.[79]Further, there is no other basis for the exercise of jurisdiction over AO. The Claimant relies on gateway 3.1(6)(c) (claim in respect of contract governed by English law). Until the hearing last week, the Claimant contended that the Arbitration Agreement in the Facility Agreement was governed by English law, as being the law governing the contract as a whole, on the basis that section 1 of the Arbitration Act 2025 (introducing the new governing law presumption in new section 6A for the 1996 Act) does not apply on a correct reading of transitional provisions. However, that point has been abandoned. I therefore proceed on the basis that the parties accept that the Arbitration Agreement is governed by the law of Austria.[80]The Claimant nonetheless submits that its claim is “in respect of” the Facility Agreement itself, as well as the Arbitration Agreement which it contains, on basis that the dispute concerns whether Event of Default occurred under the Facility Agreement. I do not accept that submission. The authorities proceed on the basis that, in a claim for an ASI, the relevant law is that governing the arbitration agreement, as distinct from the law governing the main or ‘matrix’ contract. That is, for example, the way in which the lower courts in UniCredit v RusChem expressly proceeded: see § 37 above. The Supreme Court left the point open, though not in particularly encouraging terms (ibid.).[81]In principle, the dispute in an ASI claim is about where the proceedings should take place. That claim is based on the Arbitration Agreement itself. It is true that referring (in evidence and submissions) to an arbitration agreement in practice also involves referring to the main contract of which it forms part, and in that limited sense the main contract needs to be “referred to and relied upon” (cf the quotation in § 35 above citing Hamblen J’s statement in Cecil v Byatt). However, the separability of arbitration agreements is an established principle, and, it seems to me, should cut both ways. It appears to me incorrect in principle to assert jurisdiction to enforce an arbitration agreement governed by Austrian law on the basis that it sits within a main contract governed by English law. Further, I consider that view to be supported by the ‘two contracts’ analysis in Global 5000 v Wadhawan¸ quoted in § 38 above. The real contract under which the ASI claim is brought is the Arbitration Agreement, as opposed to the main contract. I therefore do not consider the English court to have jurisdiction over AO under this gateway.[82]Finally, in oral submissions at least, the Claimant suggested that its ASI claim was brought “in respect of a contract” governed by English law, namely the Facility Agreement, because it is founded on clause 21.16 of the Facility Agreement, which for ease of reference I quote again here:- “Sanctions The Borrower will not, directly or indirectly, use the proceeds of any Loan, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or any other person,(i) to fund any activities or business of or with any person, or in any country or territory, that, at the time of such funding, is, a Sanctioned Person or Sanctioned Country,(ii) or in any other manner, that would result in a violation of Sanctions by any person (including any person participating in the loan hereunder, whether as lender, agent or otherwise).”[83]I do not accept that argument. The ASI claim is not a claim for breach of clause 21.16, which is a substantive obligation imposed on the Borrower (i.e. the Claimant) relating to its own use of the monies it borrows. Moreover, even if one could assume that(a) the mortgaged assets were bought with the loan proceeds and(b) the ultimate auction process might in that sense carry the risk of the assets being made available to a sanctioned person, it would remain the case that (i) the real contract under which an ASI is sought, on the contractual basis, is the Arbitration Agreement, rather than the Facility Agreement, and (ii) on the vexation/oppression basis, the ASI is sought not pursuant to clause 21.16 but on the basis of the alleged risk of contravention, in a later stage of the enforcement process, of sanctions laws.[84]In addition to the above considerations, I would set aside permission to serve out on the further grounds that the Claimant has shown no serious issue to be tried on the merits of the claim, for the reasons given earlier.[85]It is unnecessary in these circumstances to go on to consider the appropriateness of England as a forum, which might have involved addressing a controversy about whether VIAC tribunals can and do grant interim ASIs. (5) Full and frank disclosure[86]I have some concerns about the way in which the Claimant’s application was presented to HHJ Pelling KC at the without notice hearing, in particular the absence of any reference to clause 9.1.5 of the Mortgage Agreement, even though it seems that the Respondents had not relied on that provision in the correspondence leading up to the application or in their reply in the Moscow proceedings. In the light of my conclusions on the merits, it is not necessary to consider these matters further; and, bearing in mind the need to produce this judgment in short order, I refrain from doing so.

(E) CONCLUSIONS

[87]For these reasons, I conclude that the anti-suit injunction should be refused, that summary judgment should be granted in favour of SPA, and that AO’s jurisdiction challenge succeeds.[88]I am grateful to all counsel for their clear and cogent written and oral submissions.