A jurisdictional battle of the ASIs: Can you unring a bell?

In UniCredit Bank GmbH v RusChemAlliance LLC [2025] EWCA Civ 99 and Bayerische Landesbank and others v RusChemAlliance LLC [2025] EWHC 924 (Comm), the claimants sought to revoke anti-suit injunctions and declarations granted in their favour by the English courts.

The background

Both cases concerned bonds issued by the banks to RusChemAlliance (“RCA”). When the banks refused to pay on the bonds due to international sanctions, RCA initiated proceedings in Russia despite the bonds providing for arbitration in Paris. The English court, having decided it had jurisdiction to do so, ordered final anti-suit injunctions (“ASIs”) to restrain RCA from pursuing claims alleged to be breaches of the arbitration agreements. Further background on UniCredit is in our earlier posts.

Subsequently, RCA obtained anti-ASIs from the Russian Arbitrazh (Commercial) Court which ordered the banks to take all measures within their control to cancel the effect of the ASIs, providing for “very significant financial penalties" if the banks did not comply.

The banks applied to the English courts to revoke the ASIs due to changed circumstances. The Court of Appeal (“CoA”) varied (rather than revoked) its previous order in UniCredit and the High Court (Foxton J) in Bayerische Landesbank largely followed the precedent set in UniCredit. The ASI granted in the Deutsche Bank case discussed in a previous post had previously been revoked.

The decisions in UniCredit and Bayerische Landesbank

In UniCredit, the CoA considered the following central issues :

• Was the bank at risk of being forced to pay a penalty if the court did not revoke the ASIs? Yes, since the Russian courts may deem this to be due to the banks’ non-compliance with the anti-ASI. However, this could not be conclusive in the English court’s decision-making.

• Does the court have the power to revoke or vary a final ASI? Yes, under CPR 3.1(7). Despite the finality principle under both CPRs 3.1(7) and 52.30, the courts should be able to discharge final ASIs in circumstances of “jurisdictional battles” where competing orders are made in different jurisdictions, and in private litigation between commercial parties where there are “changed circumstances” following an ASI.

• Was the bank coerced into seeking to revoke or vary the ASIs? Yes, as an ASI by nature is a coercive remedy “wherever it is granted”. However, this was not a weighty factor in the court’s reasoning because UniCredit was a major bank capable of making its own commercial decisions which the court was not in a position to second-guess.

• Were there any English public policy reasons for refusing to revoke or vary the ASIs? Yes, but these did not militate strongly enough in favour of refusing the applications. This issue was broken down into four concerns:

• Were the Russian courts pressuring the English courts? No. The judgment was made against, and intended to operate against, UniCredit – not the English courts.
• Was the penalty imposed by the Russian judgment contrary to Russia’s international obligations under Article II(3) the New York Convention? No. UniCredit seemed to have waived its right to arbitration and therefore Article II(3) was not breached. Additionally, the anti-ASI was deemed to be the Russian courts enforcing their own jurisdictional laws and the English courts were not in a position to resolve questions to the contrary. Even if the two approaches conflicted, this did not amount to a strong public policy reason to refuse UniCredit’s application.
• Would the revocation/variation of the ASIs violate UK sanctions against Russia? No, based on the current UK sanctions regime.
• Should the English court consider RCA’s contempt of court by refusing to comply with the ASIs? Yes, but this did not militate in favour of refusing the application. This seemed to be because contempt of court in one jurisdiction was common in a jurisdiction battle, and it was relevant that RCA was in a “factually better position” since it had no assets in England but UniCredit had assets in Russia.

• Should the ASIs be revoked or varied? Yes. This was a discretionary balancing exercise, and the CoA concluded that it would be unjust and unfair to force UniCredit to risk massive penalties in Russia that could be avoided.

Whilst the CoA agreed to discharge the injunctive parts of the ASI order, it refused to revoke the decisions on jurisdiction to grant the ASIs since the English courts determined they did have jurisdiction under English law.

In Bayerische Landesbank, Foxton J’s approach was consistent with the CoA and revoked the ASIs (and costs orders) with the additional reasoning that such orders were “forward-looking” and subsequent events could materially change the circumstances in which those orders were granted, such that a revocation order was appropriate.

Foxton J followed the CoA’s reasoning regarding jurisdiction and held that the declarations on jurisdiction could not “be revoked any more than a bell can be unrung" and were not forward-looking in the same way as the ASIs. Those declarations were a statement of the court’s position as a matter of English law and revoking them could create a misleading impression that the English court had originally acted without jurisdiction.

Comments and conclusions

These judgments confirm the English court’s power to discharge final ASIs and their willingness to do so in light of changed circumstances. In particular, the courts are willing to take a pragmatic approach to “jurisdictional battles” and not look behind a foreign court’s authority to make orders as to its own jurisdiction even where this may conflict with the English court’s. Of similar importance is the appreciation that private parties (such as large banks) are capable of making their own commercial decisions which the English court should not second-guess.

The counterpart to such flexibility as regards private parties is the English court’s robust approach to protecting the jurisdiction of the parties’ chosen forum. While the English courts stand firm on the position under English law, the utility of this to a commercial party when faced with significant penalties in a foreign jurisdiction (as a result of a foreign counterparty not respecting the jurisdiction of the chosen forum), could be questionable.

A further consideration arising is to what extent parties making similar applications will be considered to have waived their counterpart’s obligation to arbitrate. Although mentioned briefly in the judgments, it is an area where deeper exploration would be of interest for private parties and for arbitration practitioners alike.