“The Agreement and your relationship with YouTube under the Agreement are governed by English law. To resolve disputes, the parties may apply to the courts of England and Wales. If, under any mandatory law of your country, the dispute cannot be resolved in a court in England or Wales and in accordance with the norms of English law, the case may be referred for consideration to a local court and the issue may be resolved as guided by local legislation.”
“The Agreement is governed by English law and the parties submit to the exclusive jurisdiction of the English courts in relation to any dispute (contractual or non-contractual) concerning the Agreement save that either party may apply to any court for an injunction or other relief to protect its intellectual property rights.”
“101 The largest astreintes I identified were awarded to secure an obligation to demolish structures built in violation of applicable construction rules and standards. One example included a 1,000,000 rubles (approximately£8,800 ) one-off payment and 180,000 rubles (approximately£1,600 ) for each additional month of non-compliance. A further example was a 200,000 rubles (approximately£1,750 ) one-off payment and 100,000 rubles (approximately£880 ) for each additional month. Finally, one court awarded 100,000 rubles (approximately£880 ) for each month of non-compliance. In other contexts, the courts have again imposed moderate penalties in connection with orders for specific performance. For example, the courts awarded an astreinte to secure an obligation to (i) return rented property upon the termination of the rental period in the amount of 16,000 rubles (approximately£140 ) per day; and (ii) refute defamatory statements, in amounts ranging from 10,000 rubles (approximately£90 ) daily to a one-off payment of 150,000 rubles (approximately£1,300 ). According to one study, the most typical amount of an astreinte awarded in cases unrelated to foreign sanctions is 1,000 rubles (approximately£9 ) accruable on a daily basis. 102 In cases brought under Law No. 171-FZ, however, the amounts of the astreintes imposed by the Russian Courts have been on an entirely different scale. There have been two different categories of cases. In the first, the amounts have been much higher and have grown at a higher rate, often without any limit or cap. Examples include astreintes in the following amounts: (i) 200,000 rubles (approximately£1,760 ) per day; (ii) 10,071,716.70 rubles (approximately£88,600 ) per day; and (iii) 36,714,132 rubles (approximately£323,000 ) per day. The second category of astreintes on a much higher scale includes the cases filed by the Defendants in these proceedings against Google. In the case initiated by Tsargrad against Google and its affiliates, the court imposed a then-unprecedented astreinte in the amount of 100,000 rubles (approximately£880 ) for each day of non-execution, starting from the sixth day from the date of entry into force of the judicial act, and until its actual execution, subject to a weekly doubling of the amount of the daily accrued astreinte. The Court of Appeal introduced a cap of 1,000,000,000 rubles (approximately£8,800,000 ) with respect to the first nine months of accrual, after which the astreinte has accrued on an uncapped basis. 103 Available information suggests that the amount of the astreinte imposed in the Tsargrad case was unprecedented at the time and has since been followed in other cases involving Russian Sanctioned Parties, including in the cases initiated by TV-Novosti and NFPT against the Google Entities. I have not identified any case with an astreinte that is similar in size outside the context of a Russian Sanctioned Party suing a foreign company under Law No. 171-FZ. 104 To sum up, the astreinte may be imposed in various forms, as a one-off payment or as a periodic payment accruable on a fixed or progressive scale. There is a significant difference in the amounts of court penalties imposed in cases brought under Law No. 171-FZ, such as the unprecedented case against Google and its affiliates, in which courts imposed, for the first time, court penalties of 100,000 rubles (approximately£880 ) per day subject to a doubling on a weekly basis and without a cap.”
“If the trial court dismisses an application to leave the claim without consideration, the proceedings continue, and the court will proceed to decide the case on the merits. The trial court’s refusal to leave the claim without consideration can be appealed only as part of an appeal against the judgment on the merits. It cannot be appealed separately [citing APC Articles 149(2) and 188(1)(-(2)). As a matter of Russian law, participation in Russian proceedings subject to objections to jurisdiction raised in the form of an application to leave the claim without consideration preserves the party’s jurisdictional objections. In other words, the participation of a foreign person in proceedings before a Russian state arbitrazh court may be considered as an acceptance of the jurisdiction of a Russian Court only if that person does not object to the existence of jurisdiction during such proceedings in the manner required by law.”
“… according to Part 4 of this article [248.1 of the APC], the exclusive competence of arbitrazh courts in the Russian Federation also includes cases if such an agreement is unenforceable due to the application of restrictive measures in relation to one of the persons participating in the dispute by a foreign public legal entity creating such barriers to access to justice. Within the meaning of this norm, the very use of restrictive measures already creates obstacles for the Russian side in access to justice, due to which, in order to transfer the dispute to the jurisdiction of Russian arbitrazh courts, its unilateral expression of will, expressed in a procedural form, is sufficient.”
“43. TV-Novosti’s claim was modelled on an earlier dispute brought by the same defendant as appears in the claim filed simultaneously by the Google Entities against NAO Tsargrad Media (“Tsargrad”). Tsargrad had sued the Google Entities and Google Russia in Russia in August 2020, prior to Russia’s invasion of Ukraine. The Google Entities appeared in that case subject to jurisdictional objections. It was reasonable for them to do so there because they had strong legal arguments pursuant to the relevant contracts, which selected England as the forum for the resolution of disputes. However, the Russian Courts exceeded their jurisdiction, took the case, and ruled against the Google Entities and Google Russia at every turn, including disregarding that Google Russia – which had identifiable assets in the jurisdiction – was a distinct legal entity and was brought into the case without any basis. 44. The Russian Arbitrazh Court proceeded to the merits of Tsargrad’s claim, and the Google Entities and Google Russia were forced to litigate the case to judgment, without waiving their jurisdictional objections, in an effort to mitigate damages, because the Google Entities conducted a large amount of business in Russia at the time. 45. The Russian Arbitrazh Court, however, issued an unprecedented decision in the Tsargrad case and imposed a compounding Astreinte – the first of its size and kind – that is nearly identical to the one later sought by TV-Novosti. In March 2022, Tsargrad initiated proceedings to enforce its judgment in Russia against Google Russia. In enforcing the Tsargrad judgment, the Russian Federal Bailiff Service, an instrumentality of the Russian government, seized the liquid assets (the “Seizure”) of Google Russia, which Tsargrad has asserted was a “factual representative” of Google. As a result of the Seizure, Google Russia became insolvent and is now in liquidation. Google’s parent company, Alphabet Inc., has made relevant disclosures in its regulatory filings in the US. 46. The Tsargrad case confirmed that any effort to obtain an anti-suit injunction with respect to proceedings in Russia relating to the termination or blocking of YouTube accounts operated by Russian parties affected by sanctions would be futile. This was particularly the case because the Russian Courts had already explicitly disregarded the English Jurisdiction Clauses and English Arbitration Clause under Article 248.1 of the APC, which was specifically passed to allow them to do so. (As I understand from the Kryvoi Report at Question 7, seeking an anti-suit injunction in the agreed-upon jurisdictions likely would have been futile, such that appearing subject to jurisdictional objections was reasonable.) Moreover, by the time TV-Novosti issued its Russian Complaint, the situation had deteriorated further. Russia had invaded Ukraine, in the wake of which the UK, EU and US imposed sweeping sanctions on Russian parties, to which Russia strongly objected; and the Russian Courts had demonstrated that they would take an aggressive approach to interpreting Article 248.1. In addition, the Google Entities had ceased the vast majority of their commercial operations in Russia. It is therefore reasonable that the Google Entities, in light of the limited options available to them, and given that the litigation at that time was confined to Russia and related to the blocking of YouTube accounts, appeared in the TV-Novosti case to try to mitigate damages. 47. The Google Entities’ exposure to risk was at first contained to Russia, including with respect to TV-Novosti’s claim and the Google Russia bankruptcy proceedings. Under those circumstances, an anti-suit injunction would have been futile, as discussed in the Kryvoi Report. When TV-Novosti issued the Russian Complaint, therefore, it was reasonable for the Google Entities to appear before the Russian Arbitrazh Court to raise jurisdictional objections and demonstrate on the record that they had validly objected to TV-Novosti’s claims, given the paucity of options available to them. 48. However, new enforcement proceedings in various foreign jurisdictions initiated by TV-Novosti and the Russian defendants in the Proceedings have created a real risk of spillage outside Russia. These enforcement efforts now trigger the risk of enforcement of the Astreinte penalty again. …” (footnotes omitted) “92. TV-Novosti may seek to argue that the Injunction Application is made after the event because it is sought not only after the underlying Russian Judgments have been handed down, but also after enforcement proceedings have begun in the enforcement jurisdictions. TV-Novosti might seek to argue that comity requires that the English Court decline to order the AEI and the AASI in those circumstances. In response, the Google Entities would draw the following matters to the Court’s attention: 92.1 The Google Entities challenged the jurisdiction of the Russian Courts during the Russian Proceedings in a good faith attempt to resolve the dispute in their favour, given that the dispute should properly have been brought before the English Courts or via LCIA Arbitration under the English Jurisdiction Clauses and English Arbitration Clause, respectively. Following the Russian Judgments, it would have been futile to engage the English Courts for an anti-suit injunction as explained further in this witness statement at paragraph 47 above. 92.2 The circumstances of this case are far from typical, given the compounding nature of the Astreinte over time, TV-Novosti’s breach of the English Jurisdiction Clauses and English Arbitration Clause and TV-Novosti’s recent enforcement efforts outside Russia, in further breach of the English Jurisdiction Clauses and English Arbitration Clause (see IV above). 92.3 The enforcement efforts are in their earliest stages against the Google Entities. The Turkish Proceedings, as set out in further detail at paragraphs 52to 54, are subject to a number of challenges and a hearing is scheduled for21 November 2024 during which the Turkish Court will determine a number of procedural issues.” 92.1 The Google Entities challenged the jurisdiction of the Russian Courts during the Russian Proceedings in a good faith attempt to resolve the dispute in their favour, given that the dispute should properly have been brought before the English Courts or via LCIA Arbitration under the English Jurisdiction Clauses and English Arbitration Clause, respectively. Following the Russian Judgments, it would have been futile to engage the English Courts for an anti-suit injunction as explained further in this witness statement at paragraph 47 above. 92.2 The circumstances of this case are far from typical, given the compounding nature of the Astreinte over time, TV-Novosti’s breach of the English Jurisdiction Clauses and English Arbitration Clause and TV-Novosti’s recent enforcement efforts outside Russia, in further breach of the English Jurisdiction Clauses and English Arbitration Clause (see IV above). 92.3 The enforcement efforts are in their earliest stages against the Google Entities. The Turkish Proceedings, as set out in further detail at paragraphs 52to 54, are subject to a number of challenges and a hearing is scheduled for21 November 2024 during which the Turkish Court will determine a number of procedural issues.”
“49. … On the Defendants’ own case, the enforcement proceedings are not very advanced and in certain cases (e.g. Hungary, Serbia, and Vietnam) not even yet served on the Claimants. In relation to those enforcement proceedings in which the Defendants have purported to effect service, all substantive steps have occurred since June 2024: 49.1 In Algeria, TV-Novosti appears to have served Google with court papers on10 September 2024 and Google Ireland on22 August 2024 . 49.2 In Algeria, Tsargrad appears to have served Google with papers on6 September 2024 . Google Ireland has not been served. 49.3 In Egypt, Tsargrad appears to have applied to the Court Bailiffs to initiate service via diplomatic channels on Google Ireland as of3 April 2024 . At present, Google Ireland has not yet been served. In addition, Google has not been served. 49.4 In South Africa, NFPT appears to have served Google with papers on6 June 2024 . (Google Ireland is not a party to that action.) 49.5 In Turkey, Tsargrad appears to have served Google with its enforcement action on2 August 2024 and the interim seizure application on25 September 2024 . Google Ireland has not been served in either the enforcement action or the interim seizure application. 49.6 In Turkey, for TV-Novosti’s enforcement action, neither Google nor Google Ireland has been served, and at present, the Turkish court has not determined, on the basis of a court-appointed Expert Panel, whether under Turkish law, service on the local affiliate Google Turkey amounts to service on Google or Google Ireland. 50. The Claimants further disagree with the Defendants’ submission that the Claimants became aware of the enforcement proceedings in March 2022 following the publication of a media article on Tsargrad’s website. Firstly, it is unreasonable to expect the Claimants to conclude that a threat in a media article will result in a definite outcome of foreign enforcement proceedings. Secondly, the Defendants’ argument presumes that the English Courts would grant anti-enforcement relief at a juncture where there are no enforcement proceedings and the only indication that there could be (at some non-specific time in the future, within a non-specified foreign jurisdiction) is from two media articles published by the Defendant itself. As set out at paragraph 46.2, the Claimants were served with enforcement proceedings initiated by Tsargrad in August 2024. 51. The Claimants also disagree with the Defendants’ assertion that in any event, “the Claimants became aware of the first Enforcement Proceedings on11 March 2023 , when Tsargrad commenced action in Turkey against the Claimants and Google Russia”
“The principle upon which an English Court acts in granting injunctions is not that it seeks to assume jurisdiction over the foreign Court, or that it arrogates to itself some superiority which entitles it to dictate to the foreign Court, or that it seeks to criticize the foreign Court or its procedure; the English Court has regard to the personal attitude of the person who has obtained the foreign judgment. If the English Court finds that a person subject to its jurisdiction has committed a breach of covenant, or has acted in breach of some fiduciary duty or has in any way violated the principles of equity and conscience, and that it would be inequitable on his part to seek to enforce a judgment obtained in breach of such obligations, it will restrain him, not by issuing an edict to the foreign Court, but by saying that he is in conscience bound not to enforce that judgment. … In the interests of justice in this case it is essential that an injunction should be granted restraining the defendants from reaping any advantage from the judgment obtained in Turkey, first in breach of an express contract and secondly by a gross fraud.”
“The position in Indonesia also is clear. In my view it would be wrong for this Court to grant an injunction which is designed to take effect inside Indonesia and which would interfere or purport to interfere with the judgment of a court of competent jurisdiction inside that country.” (p437 rhc) As regards deployment of the Indonesian judgment elsewhere, Neill LJ concluded that it would be wrong to prevent reliance on the Indonesian judgment as a defence. As to whether to restrain the institution of enforcement/recognition proceedings in third countries, he said: “One can see the force of the argument that Man, having obtained declarations in England, should be entitled to ancillary relief to give teeth to the declarations and to reduce the risk of a multiplicity of proceedings. In the end, however, I have come to the conclusion that it would not be right on the facts of this case to grant any injunction which would have an extraterritorial effect on proceedings abroad. Mr Justice Steyn listed the special features of this case which distinguish it from earlier cases in this field. In the main I agree with his analysis.” (pp437-438) The “special features” to which Steyn J referred were these: “Features which in combination distinguish this case from other cases involving extraterritorial injunctions which have come before the English courts are the following: There is already in existence an Indonesian judgment. It was given in proceedings begun by Man. It was unsuccessfully appealed by Man. The Indonesian court was a court of competent jurisdiction. The procedure adopted is not criticised. The correctness of the Indonesian judgment as a matter of Indonesian law cannot be questioned. Reliance on that judgment was only defeated on the ground of English principles of res judicata and English public policy.”
“An injunction in regard to the institution or conduct of foreign legal proceedings can be granted against a person amenable to the jurisdiction in two situations. The situations are to be found in the speech of Lord Brandon in South Carolina Insurance Co. v. Assurantie Maatschappij “De Zeven Provincien”
“The jurisdiction with which the court is concerned is not asserted against foreign courts but is asserted against a person (see eg Lord Portarlington v. Soulby [1834] 3 Myl & K 104, 107. However, that being said, the courts have always exercised the jurisdiction with caution (see Ellerman Lines Ltd. v. Read (supra) at 158; Castanho v. Brown & Root (UK) Ltd. (supra) at 573; also Tracomin SA v. Sudan Oil Seeds Co. Ltd.[1983] 1 WLR 1026 , 1035B ). The reason for caution is that an exercise of jurisdiction does involve an indirect interference with extant or future proceedings before a foreign court (see the South Carolina Insurance Co. case (supra) at 40D and the Societe Nationale Industrielle Aerospatiale case at 892E). The learned judge dismissed the claim for an injunction as a matter of his discretion. In my view he adopted the right approach by looking first at the respective interests of Man and of Mr. Haryanto and then at considerations of comity. He balanced the interests and the considerations and then said this: “In all the circumstances it seems to me that it would be an affront to the Indonesian courts, and an illegitimate interference (albeit indirectly) with the processes of courts worldwide, to grant an injunction, the expressed objective of which is to prohibit Mr. Haryanto from relying on the Indonesian judgment. Balancing the competing private and public interests as best I can, I conclude that Man will have to be content with declaratory relief, leaving it to courts in foreign jurisdictions to choose (if the matter arises) whether to recognise the judgments of the English or Indonesian courts.”
“If Sinco [the respondent] seeks to enforce the judgment elsewhere [than in England], such as in the Bahamas, IMC [the applicant]’s domicile, or in Louisiana, its principal place of business, the right to enforce will depend primarily upon the law of those jurisdictions, and it is not for an English injunction to pre-empt a decision based on the local law.”
“Moreover, unlike the position in The Angelic Grace, the English Court has not yet determined, for the argument still lies in the future, whether [the relevant claims] are within the scope of the arbitration clause. Finally, for an English Court to injunct a party from reliance on its foreign judgment is a far greater interference in the judicial process than occurred in The Angelic Grace, where the foreign proceedings were only in their infancy.”
“93. It is important to note that in this case the Indonesian judgments had been given, and it is plainly a very serious matter for the English court to grant an injunction to restrain enforcement in a foreign country of a judgment of a court of that country. The decision in that case was reached as a matter of discretion, not jurisdiction. …”
“93. … the courts of the Former Yugoslav Republic of Macedonia had granted an interlocutory injunction restraining the defendants from paying any damages to the claimant in the English proceedings. Aikens J applied ED & F Man (Sugar) Ltd v Yani Haryanto (No 2) and refused as matter of discretion to grant an injunction restraining the defendants from relying on any judgment or order in Macedonia which prevented them from paying any damages adjudged due from them by the English court: paras 201–208. Aikens J considered that an injunction would be contrary to comity. It was for the foreign court to decide whether to recognise the English judgment, and an injunction would put the officers of the defendants in an impossible position since there was already an injunction in Macedonia preventing the defendant from paying any damages. That too was a decision on discretion, and there too the foreign court had made orders which the English court was being asked, in effect, to defy. 94. These decisions show that it will be a rare case in which an injunction will be granted by the English court to prevent reliance abroad on, or compliance with, a foreign judgment, or an injunction which will indirectly have that effect. But there is no general principle that even in such a case no injunction will be granted. In Ellerman Lines Ltd v Read[1928] 2 KB 144 (a case to which this court was not referred in argument) the Court of Appeal specifically rejected an argument that, while the English court could grant an injunction restraining the institution or continuance of proceedings in a foreign court, there was no power, after the foreign court had given judgment, to grant an injunction restraining the person who had obtained it from reaping its fruits: pp 152, 155 and 158, per Scrutton LJ, Atkin LJ and Eve J. No doubt the power will only be exercised in exceptional circumstances, as they were in that case, where the party enjoined was a British subject who had obtained the judgment by fraud.”
“35. It does not seem to me that to grant an interim injunction in support of the English proceedings is, in reality, an unwarranted interference in the process of either the French or Bulgarian court. It is the Bank and Mr Savelyev who will be required (temporarily) to cease continuation of enforcement proceedings and not to initiate new ones. That is an order that affects them, not the foreign courts.”
“37. The principle so laid down was restated in Masri v Consolidated Constructors International (UK) Ltd (No 3)[2009] QB 503 , para 94, per Lawrence Collins LJ albeit in the context of enjoining Yemeni proceedings inconsistent with an English judgment in proceedings in which the defendant had submitted to the jurisdiction. 38. Mr Marshall was correct to say that Ellerman Lines Ltd v Read[1928] 2 KB 144 was a stronger case but only to the extent there that the English trial had already taken place so that there was a finding that the Turkish judgment had been procured by fraud. Here the trial has not yet taken place and the allegations of fraud are only allegations. But an interim injunction had been granted in Ellerman's case to protect the position pending trial: see pp 146–147. So here it seems to me that an injunction against continuing existing enforcement proceedings or initiating new enforcement proceedings should be granted.”
“118. In short, the cases in which the English Courts have granted anti-enforcement injunctions are few and far between. Of the two examples to which we were referred, one was based on the fraud of the respondent and the other involved an attempt to execute a judgment when, after it had been obtained, the respondent had promised not to do so. Knowles J suggested another circumstance where an injunction might be granted, namely where the judgment was obtained too quickly or too secretly to enable an anti-suit injunction to be obtained, a circumstance far removed from this case. No example has been cited to us of a case where an anti-enforcement injunction has been granted simply on the basis that the proceedings sought to be restrained were commenced in breach of an exclusive jurisdiction or arbitration clause.”
“119. This dearth of examples is not surprising. If, as has heretofore been thought to be the case, an applicant for anti-suit relief needs to have acted promptly, an applicant who does not apply for an injunction until after judgment is given in the foreign proceedings is not likely to succeed. But he may succeed if, for instance, the respondent has acted fraudulently, or if he could not have sought relief before the judgment was given either because the relevant agreement was reached post judgment or because he had no means of knowing that the judgment was being sought until it was served on him. That is not this case.”
“122. … An injunction is an equitable remedy. Before granting it the court must consider whether it is appropriate to do so having regard to all relevant considerations, which will include the extent to which the respondent has incurred expense prior to any application being made, the interests of third parties, including, in particular, the foreign court, and the effect of making such an order in relation to what has happened before it was made. 123. A relevant consideration, particularly in relation to interlocutory relief, as was sought in the present case, is whether the party seeking an injunction has acted with appropriate speed. The longer a respondent continues doing that which the applicant seeks to prevent him from doing, the greater the amount of labour and cost that he will have expended which could have been avoided. There is, I accept, some force in Mr Coleman's submission that Mr Tanoh ought not to be able to pray in aid the expenditure he was incurring in advancing both sets of proceedings, when he was no doubt calculating that he would do better in the local courts than before the international arbitral tribunal to which he had agreed. It could also be said that, in the light of the objections made to the jurisdiction of the Togolese and Ivorian courts, Mr Tanoh was running the risk that his expenditure on the proceedings would turn out to be in vain (if the objections were upheld) anyway. At the same time, if Ecobank was going to bring a claim for an anti-enforcement injunction if it failed in Togo and Côte d'Ivoire, there was no good reason for it to delay seeking anti-suit relief in England, whose law governed the EEA and to whose jurisdiction the parties had submitted. 124. Nor do I think it right to say that the prejudice to Mr Tanoh arising from Ecobank's failure to seek relief before judgment is to be disregarded in the light of the fact that Ecobank was challenging jurisdiction. Whilst Mr Tanoh knew of Ecobank's objection, it was not apparent that Ecobank was ever going to seek injunctive relief until it did so (nor, as these proceedings indicate, was its entitlement to such relief self-evident) and the expenditure and effort which would have been wasted if an injunction was granted (and obeyed) increased as time went by. That is a relevant form of prejudice which continued even after the judgments were entered until10 April 2015 . During that time Ecobank commenced appeal proceedings and applied for provisional stays of execution. 125. The judge was, therefore, right [22], in my view, not to accept that any time during which the foreign jurisdiction is challenged is to be left out of account when considering whether to grant an anti-enforcement order or that Advent Capital Plc is to be taken as a decision to that effect. That case involved a claim to an anti-suit injunction. The Cypriot court had never given any judgment on the merits and does not appear to have been anywhere close to doing so. Morison J held in terms that there had been “no advancement of the substantive case” and therefore no prejudice to the insureds by granting the injunction. He was plainly concerned to consider whether the application for an injunction “had been sought promptly overall and before the foreign proceedings were too far advanced” [44]. 126. Moreover the prejudice or detriment which would be involved in Ecobank allowing the proceedings to continue without seeking injunctive relief and then securing an injunction would not have been limited to Mr Tanoh. It extends to third parties involved in the litigation and, most importantly, the foreign courts which, in the present case, have held hearings and produced judgments of considerable length which are obviously the product of much labour. 127. I agree with the judge [24] that it is not a precondition to the refusal of an injunction that the respondent should establish detrimental reliance, if by that is meant that he must show (a) that he believed that no application for an injunction would be made or (b) that he believed that and, if he had realised that an application would or might be made, he would have abandoned the foreign proceedings. The existence or otherwise of such reliance is relevant but not determinative. The relevance of delay is wider than that. The need to avoid it arises for a variety of reasons including the avoidance of prejudice, detriment, and waste of resources; the need for finality; and considerations of comity. 128. It is, thus, not, in my view, a complete answer for Ecobank to say that someone in the position of Mr Tanoh has only himself to blame because it his breach which will have caused the waste. The court is, in an appropriate case, entitled to be reluctant to use its coercive powers to restrain that which the applicant has in fact allowed to continue without any application for relief for some time. This is especially so if, as appears to me to be the case here, little useful purpose is likely to be served by the party who claims to be entitled to an injunction holding back from claiming it. In some cases, an objection to the jurisdiction can be dealt with first before the substantive merits, so that there may be something to be said for pursuing that objection in the foreign court. But that was not the case here. 129. Further the tenor of modern authorities is that an applicant should act promptly and claim injunctive relief at an early stage; and should not adopt an attitude of waiting to see what the foreign court decides. In The Angelic Grace Leggatt LJ said that it would be patronising and the reverse of comity for the English court to decline to grant injunctive relief until it was apparent whether the foreign court was going to uphold the objection to its exercising jurisdiction and only do so if and when it failed to do so. Whilst those observations related to the approach of the court it seems to me that they are a guide to what should be the approach of a would-be applicant for anti-suit or anti-enforcement relief. 130. The proposition that delay in this field is immaterial in the absence of prejudice and that there is necessarily no prejudice if the respondent is aware of the challenge to the jurisdiction of the foreign court which is being pursued there would have curious consequences. Firstly it would revolutionise the approach that has previously been taken in respect of the need for applicants to act promptly. Secondly it would mean that applicants could have two bites at the cherry. They could, without seeking or threatening any injunctive relief in this country, resist the foreign proceedings on the ground that the issue should be arbitrated and, provided they had not submitted to the jurisdiction, they could then, if the challenge failed, seek an anti-enforcement injunction. The impunity which Mance J had thought “never [to have] been the law” or something very like it would have arrived. 131. Mr Coleman submitted that, in the light of the fact that in the St Petersburg case Longmore LJ relied on the decision of the Supreme Court in AES (an anti-suit injunction case) the Court of Appeal has accepted that the principles that apply to anti-suit injunctions apply to anti-enforcement cases. However, the passages from the judgment of Lord Mance JSC cited by Longmore LJ, namely [25] – [27], were to the effect that courts ought not to feel diffident at granting anti-suit injunctions “if sought promptly” because without them the claimant would be deprived of its contractual rights in a situation where damages would be a manifestly inadequate remedy. I do not accept that there can be no distinction between an anti-suit and an anti-enforcement case, not least because an anti-enforcement injunction may well not have been sought with the promptitude to which Lord Mance was referring. Nor do I accept that, in a case such as this, comity has no place other than to give effect to the rights of the parties to have the dispute determined by arbitration. 132. …The burdens imposed on courts are well known: long lists, size of cases, shortages of judges, expanding waiting times, and competing demands on resources. The administration of justice and the interests of litigants and of courts is usually prejudiced by late attempts to change course or to terminate the voyage. If successful they often mean that time, effort, and expense, often considerable, will have been wasted both by the parties and the courts and others. Comity between courts, and indeed considerations of public policy, require, where possible, the avoidance of such waste. 133. Injunctive relief may be sought (a) before any foreign proceedings have begun; (b) once they have begun; (c) within a relatively short time afterwards; (d) when the pleadings are complete; (e) thereafter but before the trial starts; (f) in the course of the trial; (g) after judgment. The fact that at some stage the foreign court has ruled in favour of its own jurisdiction is not per se a bar to an anti-suit injunction: see AES. But, as each stage is reached more will have been wasted by the abandonment of proceedings which compliance with an anti-suit injunction would bring about. That being so, the longer an action continues without any attempt to restrain it the less likely a court is to grant an injunction and considerations of comity have greater force. 134. Whilst a desire to avoid offence to a foreign court, or to appear to interfere with it, is no longer as powerful a consideration as it may previously have been, it is not a consideration without relevance. A foreign court may justifiably take objection to an approach under which an injunction, which will (if obeyed) frustrate all that has gone before, may be granted however late an application is made (provided the person enjoined knew from an early stage that objection was taken to the proceedings). Such an objection is not based on the need to avoid offense to individual judges (who are made of sterner stuff) but on the sound basis that to allow such an approach is not a sensible method of conducting curial business. 135. Mr Coleman submitted that “comity has no role to play in the timing of the application for, or the grant of, an anti-enforcement injunction”
“49. The present application is, therefore, an anti-enforcement injunction designed to stop that order from being implemented, although the drafting of the order which is sought goes somewhat further, and requires Delta to take steps positively to reverse orders which have been made. In my judgment, this is not appropriate for an anti-suit injunction, or indeed, any injunction at all. The question of anti-enforcement injunctions is dealt with in some detail in the book by Thomas Raphael QC, The Anti-Suit Injunction 2nd Edition, paragraphs 5.65 to 5.72. In my view, he quite rightly points to two matters which are contrary to the idea that such an injunction should be granted. 50. The first is that, in practice, such injunctions are not granted. Secondly, the reason why such injunctions [are not granted] is that they would give rise to very serious comity considerations. In the present case, the Benin court has applied its mind in contested proceedings – to which there were many parties, including E-Star itself (albeit apparently not served) – to the question of what is to happen to cargo within its jurisdiction. It has reached conclusions on that question, and issued a detailed reasoned judgment. I do not consider that it is for this court, now, in effect, to tell the Benin court that it has come to the wrong decision, or to do so by the grant of anti-suit relief. It follows that the present application has come far too late. If a party does genuinely seek anti-suit relief, it must generally do so well before the foreign court has continued with its proceedings, and indeed, come to a decision. 51. That brings me to the third related point as to why no anti-suit or anti-enforcement injunction should be granted, and that is the question of delay. It is well established, in the context of anti-suit injunctions, that parties must act reasonably promptly and before the foreign proceedings are too far advanced. In the present case, as will be apparent from what I have already said, the foreign proceedings have advanced to the stage where judgment has actually been given. That is in the context of a case where, in my view, there is no satisfactory evidence which explains why, or excuses the fact that, E-Star did not act whilst those proceedings were underway.”
“10. The second head of relief sought is an anti-enforcement injunction. That, at one stage, was a relatively rare beast in English civil procedure, although it is fair to say reports of sightings have significantly increased against the background of ongoing events arising from the Russian/Ukraine conflict. It is possible to find cases, and Ms. Hutton KC has very properly drawn them to my attention, stressing that the grant of an anti-enforcement injunction (i.e. one that would prevent a judgment creditor, who has obtained a judgment in proceedings brought abroad from taking steps to enforce that judgment) would be an exceptional measure. 11. More recent cases, and in particular I am referring to SAS Institute Inc v World Programming Ltd[2020] EWCA Civ 599 , have made it clear that there is no separate jurisdictional requirement of "exceptionality" over and above the reasons for granting anti-suit injunctive relief, but, in practice, it is likely to be a rare case in which it will be possible to persuade a court to grant such an injunction. 12. In this case I am satisfied that the anti-enforcement relief sought is appropriate. First, the facts of this case appear to be full square with those in the Deutsche Bank v RusChemAlliance LLC[2023] EWCA Civ 114 …. Although the anti-enforcement injunction application was dealt with briefly in the Court of Appeal's judgment at paragraph 43, the court made it clear that it was appropriate to grant the AEI because the effect of the evidence in that case was that even if the respondent to the anti-suit injunction had sought to discontinue the Russian proceedings, the approval of the court would be required, that the approval might not be granted, and that judgment might be entered regardless. I have expert evidence to exactly the same effect in this case. 13. In addition, as Ms. Hutton KC points out, the anti-enforcement injunction is being sought in this case in advance of the obtaining of any judgment before the Russian court, and therefore the court is not in the position considered in to Masri v Consolidated Contractors (No. 3)[2009] QB 503 , Mamidoil-Jetoil Greek Petroleum Company SA & Anor v Okta Crude Oil Refinery AD [2003] 1 Lloyd's Rep. 1 and, ED & F Man (Sugar) Ltd v Yani Haryanto (No. 2) [1991] 1 Lloyd's Rep.161 and 429, in which proceedings in the foreign court had run their full course, resulting in a judgment, and then an injunction was sought from the English court seeking to restrain enforcement of the judgment at that stage. Whilst it can be said that the teeth granted in the anti-enforcement injunction sought will inevitably bite if, and only if, a judgment is entered, I am persuaded that there is a material distinction between applications made at an early stage pre-judgment and those made post-judgment, because the comity considerations in acting now are less intrusive than when the foreign court has already given judgment, the period of time and legal process that will elapse before a judgment is entered will usually involve delay and the incurring of expense by the respondent and also because obtaining a judgment in some sense vests a property right in the judgment creditor, which an anti-enforcement injunction would interfere with. Against that background, it seems to me an injunction given in advance of that position is inherently less intrusive. 14. In any event, however, on the basis of the SAS case and RusChemAlliance decision [sc. the Court of Appeal’s decision in that case], where an anti-suit injunction has been sought at an early stage, but the concern is that that, of itself, will not be effective, either because it will not be complied with or because, even if it is complied with, a judgment may be entered in the foreign proceedings in any event, it does seem to me that the requirement for obtaining an anti-enforcement injunction will readily be satisfied, and I am persuaded they are satisfied in this case.”
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“1. The parties to an agreement may, when concluding an agreement or subsequently, choose by agreement among themselves the law that is subject to application to their rights and obligations under this agreement.”
“12. Thus, Article 248.1 of the APC RF is an example of exclusive jurisdiction of Russian arbitrazh courts, which cannot be changed by the parties’ agreement. 13. This article was introduced by Federal Law No. 171-FZ dated 08.06.2020 in order to provide protection of rights and legitimate interests of certain categories of Russian citizens and legal entities against whom "unfriendly countries" introduced restrictive measures. As a result of sanctions, such citizens and legal entities were deprived of their right to judicial protection on the territory of these foreign countries, not only in state courts, but also in arbitration institutions. 14. Accordingly, when a Russian arbitrazh court resolves the issue of its jurisdiction to consider a dispute, it is obliged to apply procedural rules on the exclusive jurisdiction of Russian courts, including Article 248.1 of the APC RF, which establishes that disputes involving sanctioned persons are subject to consideration by Russian arbitrazh courts at the location or residence of such persons.”
“23. Thus, taking into account the prevailing approach of the courts to the interpretation of Article 248.1 of the APC RF, for its application, it is sufficient for the claimant to prove that his claim arose in connection with the application of foreign restrictive measures and that he expresses his will to consider the dispute in a Russian court. 24. It seems that despite the fact that Part 1 of Article 248.1 of the APC RF includes a provision on inapplicability of the article in case there exists an agreement between the parties, which provides for the jurisdiction of a foreign court or international commercial arbitration, the widespread nature of restrictions actually applied to Russian persons impels Russian courts to treat such agreements as void and to find such disputes within their jurisdiction (in order to protect Russian persons’ right to access to justice).”
“If Ecobank has submitted to the jurisdiction of the Togo Labour Court or to the Togo Court of Appeal, the prohibition on recognition of the Togo Court judgment would not apply; nor would the court be likely to be right to grant an injunction, since the submission would be likely to amount to a waiver of the arbitration agreement.”
“… I quite agree, of course, that if he fights the case, not only on the jurisdiction, but also on the merits, he must then be taken to have submitted to the jurisdiction, because he is then inviting the court to decide in his favour on the merits; and he cannot be allowed, at one and the same time, to say that he will accept the decision on the merits if it is favourable to him and will not submit to it if it is unfavourable. But when he only appears with the sole object of protesting against the jurisdiction, I do not think that he can be said to submit to the jurisdiction. …”