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Settling scores in proxy wars: anti-suit injunctions restraining claims against third parties
Settling scores in proxy wars: anti-suit injunctions restraining claims against third parties
5 August 2025
Series
Blogs
5 August 2025
Since Russia’s invasion of Ukraine, there has been a notable increase in proceedings brought in the Russian courts against western firms and their affiliates, contrary to contractual agreements to resolve disputes in another forum. In such proceedings, Russian claimants have tried to recover damages equivalent to the value of funds and economic resources that were frozen in compliance with sanctions. Many firms have sought to restrain such proceedings by obtaining an anti-suit injunction (“ASI”) in the contractually agreed forum. The English courts have considered whether an ASI based in contract can extend to restraining claimants from bringing and pursuing ‘artificial’ claims against entities who are not a party to the contract (e.g. an affiliate of the firm which is a party to the contract). As can be seen from the following cases, insofar as claims for contractual ASIs against such third parties are concerned, the answer lies in the proper construction of the contract.
The ‘starting point’ is the contractual parties. Under English law, the starting point has been articulated in several first instance decisions of the High Court, including in Clearlake Shipping Pte Ltd, Gunvor Singapore Pte Ltd v Xiang Da Marine Pte Ltd [2019] EWHC 2284 (Comm), namely that only the contracting parties are covered by the choice of forum agreement, i.e., the agreement should support an ASI to restrain claims brought outside the contractually agreed forum by one contracting party against another. However, where a claimant has alleged that a joint tort has been committed in relation to a contract by both a contractual counterparty and a third party, Andrew Burrows QC (as he then was) suggested in Clearlake that the interpretation of the forum clause will tend to include a claim against the non-party to help prevent ‘forum fragmentation’.
The court is unlikely to entertain outright ‘proxy wars’. This point arose in LLC EuroChem North-West-2 v Tecnimont [2023] EWCA Civ 688, in which the Court of Appeal held by majority that Tecnimont acted in breach of an English-seated arbitration agreement by intervening in judicial review proceedings in Italy involving an affiliate of EuroChem. The court found that Tecnimont, which had entered into a procurement contract with Eurochem, had no real dispute with the third-party affiliate and that its intervention in the Italian proceedings was nothing more than a “proxy war”.
The Court of Appeal has confirmed there is a high bar to obtaining ASIs generally. In Renaissance Securities (Cyprus) Ltd v ILLC Chlodwig Enterprises & Ors [2024] EWHC 2843 (Comm), the defendants commenced Russian court proceedings against its contractual counterparty Renaissance and later against three third party Russian affiliates of Renaissance. Judge Pelling KC granted an ASI in favour of Renaissance, but refused to extend the relief to its affiliates. The Court of Appeal ([2025] EWCA Civ 369) upheld the first instance decision. Although the court recognised that the proceedings against the affiliates may have been vexatious, Renaissance had failed to provide the court with the “fullest possible knowledge and understanding” required for the court to exercise its discretion to grant the ASI.
There remains the possibility of an implied term to prevent claims against affiliates. In a non-binding remark in the Court of Appeal’s decision in Renaissance, Males LJ suggested that where a claim against an affiliate is obviously artificial and its only purpose is to circumvent the parties' contractual bargain, it is ‘at least’ arguable that a term could be implied into the agreement to prevent such claims.
When assessing routes to relief, the Contracts (Rights of Third Parties) Act 1999 should be considered. Although not a case arising in the context of Russian sanctions, it is worth briefly mentioning Manta Penyez Shipping Inc, Uraz Shipping Inc v Zuhoor Alsaeed Foodstuff Company [2025] EWHC 353 (Comm). The High Court granted a final ASI in favour of the claimants and agreed to extend the ASI awarded in respect of Yemeni proceedings to include similar proceedings in Djibouti, on the basis that the defendant had given covenants not to sue in a guarantee. The court held that, although the claimants were not parties to the guarantee, they were entitled to enforce its terms by relying on the 1999 Act because the guarantee conferred a benefit on and expressly identified the claimants by name or as a class of persons under the guarantee.
English courts are generally supportive of granting equitable relief in support of commercial bargains, but care is required when seeking relief in relation to third parties. Recent judgments of the English courts, including those summarised above, suggest that prospective claimants who intend to seek an ASI ought to plead any relevant alternative basis for relief in relation to third parties, including (where appropriate) non-contractual grounds such as vexation and oppression (provided that, in all cases, the fullest information is put before the court to enable it to exercise its discretion to grant equitable relief). Subject to resolution of the question of whether terms may be implied into choice of forum agreements to prevent their circumvention, firms entering into contracts with a cross-border element may wish to consider including (a) express terms in choice of forum agreements to prohibit claims against certain categories of third parties, including affiliates, known as “Himalaya” clauses, or (b) covenants on which particular non-contractual third parties may rely.
Michael Munk, Managing Associate and Fazila Naeem, Trainee Solicitor in London
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The views and opinions expressed in this paper are the personal opinions of the authors and do not necessarily represent the views and opinions of Linklaters LLP.