From Russia with Love: varying a final anti-suit injunction
Introduction
The recent Court of Appeal judgment in UniCredit Bank GmbH v RusChemAlliance LLC [2025] EWCA Civ 99 marks a further twist in an ongoing legal battle which last year saw the UK Supreme Court uphold an anti-suit injunction in favour of UniCredit Bank GmbH (UniCredit). In a turn of events, the Court of Appeal has – at UniCredit’s request – discharged the final anti-suit injunction. This decision provides a rare example of a court revoking a final determination and demonstrates the court’s willingness to support the decisions of commercial parties.
Background
The background to these proceedings are discussed in our previous article here. On 23 April 2024, the Supreme Court upheld a final anti-suit injunction against RusChemAlliance LLC (RCA), restraining it from pursuing claims in any Russian court under performance bonds issued by UniCredit (the ASI Order).
However, in contempt of the ASI Order, RCA then applied for and obtained a ruling from the Arbitrazh Court of Saint Petersburg and Leningrad on 28 December 2024 (the Russian Ruling) which:
- prohibited UniCredit from initiating arbitrations or court proceedings outside of Russia in respect of the performance bonds; and
- obliged UniCredit to “take all measures within its control (including applying to cancel and others) aimed at cancelling the effect of [the ASI Order]” within two weeks of the Russian Ruling coming into effect.
Crucially, the Russian Ruling also provided that, if UniCredit failed to comply with its orders, it would have to pay RCA €250 million by way of a court-imposed penalty.
In light of this threat, UniCredit applied to revoke or vary the ASI Order initially granted to it by the Court of Appeal.
Key Issues
The central legal issue was whether the court could use its powers of management under CPR 3.1(7) to “vary or revoke the order”. In this respect, CPR 52.30 provides that final determinations of the Court (i.e. the ASI Order) can only be re-opened if:
- it is necessary to do so in order to avoid real injustice;
- the circumstances are exceptional and make it appropriate to reopen the appeal; and
- there is no alternative effective remedy.
UniCredit made its application to revoke or vary the ASI Order on the ground of changes of circumstances, namely: (i) RCA’s refusal to respect the ASI Order, and (ii) unprecedented changes in Russian law that led to the Russian Ruling.
Alongside these legal issues, the court also asked itself whether UniCredit was coerced into making the application and whether there were public policy reasons for refusing to accede to the application.
When Can the Court Revoke or Vary a Final Injunction?
The Court of Appeal considered several authorities to answer the question of whether it has the power to revoke a final order under CPR 3.1(7). In the case of Terry v. BCS Corporate Acceptances [2018] EWCA Civ 2422, it was said that the circumstances in which CPR 3.1(7) can be relied upon to vary or revoke a final order are “likely to be very rare given the importance of finality.” The principle of finality was further explored in AIC Ltd v. Federal Airports Authority of Nigeria [2022] UKSC 16 (“AIC”), with Lord Briggs providing a means to test it:
““[t]he question is whether the factors favouring re-opening the order are, in combination, sufficient to overcome the deadweight of the finality principle on the other side of the scales”.
On this basis, the Court of Appeal engaged in a balancing exercise, and found that it had the power to vary the ASI Order at the behest of UniCredit and with the agreement of RCA. In particular, it considered various the factors which would make it appropriate to reopen the appeal.
First, the court noted that the order in this case was only made as a final order because the High Court ordered a speedy trial of UniCredit's Part 8 Claim. Had there been no speedy trial, the Court of Appeal would presumably have made an interim, rather than final, anti-suit injunction. Regardless, the court also questioned whether there was much logic in treating interim and final orders differently (it is well established that interim orders can be discharged by obtaining permission of the court).
Second, the court put a lot of weight on the fact that this was a private litigation between commercial parties. It commented that it would be “strange” if a party that had obtained an injunction, could never return to the court to ask that, in changed circumstances, it wanted it discharged.
Third, the court highlighted the “special situation” of an anti-suit injunction, noting that it is common for competing orders to be made against the parties in different jurisdictions. Eventually, one party “wins” the jurisdiction battle (arguably, RCA here due to the location of its assets in Russia), and the parties are constrained to accept that the litigation will take place in the party’s chosen jurisdiction. It would again be strange, the court said, if the party obtaining the “losing” anti-suit injunction could not return to ask for it to be discharged.
For these reasons, the Court of Appeal concluded that there is power in the court, in an appropriate case, to discharge or vary a final anti-suit injunction.
Coercion
One of the important issues considered by the court was whether UniCredit had been coerced into making the application and, if so, what weight should be given to that. The court found that UniCredit has “undoubtedly been coerced into making this application." However, in the unusual circumstances of this particular case, it was not deemed to be a weighty factor to place in the balance against the application. This is partly due to the nature of anti-suit injunctions, which are always inherently coercive remedies designed to compel a party to litigate in a specific jurisdiction. Additionally, the court recognised that UniCredit, as a commercial entity, made the application because its board had determined it was in the bank's best commercial interests. Although UniCredit had been financially coerced into this decision, the court could not “second guess” it and found that it was not a weighty factor against the application.
Public Policy Considerations
The court also considered whether there were any public policy reasons for refusing to accede to UniCredit's application. These included potential violations of the New York Convention and UK sanctions imposed on Russia.
The New York Convention mandates that courts of contracting states refer parties to arbitration if there is a valid arbitration agreement. Following the ASI Order, failure by the Russian courts to refer RCA to arbitration amounted to a breach of Russia’s obligations under the New York Convention. However, the Court of Appeal also noted that UniCredit may be taken to have waived its right to arbitration by applying to vary the ASI Order. Furthermore, it was uncertain whether the UK courts should use their discretionary powers to ensure treaty compliance by foreign states.
The court also considered the impact of the latest EU sanctions against Russia, but found that these are no longer applicable to the UK.
Overall the court concluded that, while there were some public policy reasons for refusing the application, they did not strongly favour refusal. Instead, the court emphasised the importance of considering the broader commercial context and the need to avoid imposing unjust penalties on UniCredit.
Comment
The Court of Appeal's decision to vary the ASI Order in UniCredit v RCA highlights its willingness to consider exceptional circumstances and the commercial realities faced by parties. Although UniCredit’s application was made under coercion by RCA and in contempt of the UK courts on the part of the Russian courts, the Court of Appeal accepted that UniCredit made the application in its own commercial interests.
The decision also provides a framework for parties seeking to vary or revoke final orders in exceptional circumstances under CPR 3.1(7) and CPR 52.30. However, the court did comment that an applicant invoking CPR 3.1(7) would not necessarily have to meet the requirements of CPR 52.30 and that there was scope to bring other arguments. For example, different factors may arise in a future case where one party seeks to re-open a final order of the court against the interests of the other party (here, RCA had agreed with varying the Order).
Finally, the court's approach to public policy considerations offers valuable insights for parties navigating complex international disputes involving competing jurisdictional claims. In particular, the decision serves as a reminder to consider the impact of the location of assets in cross-border litigation. The reason why UniCredit chose to apply to vary the ASI Order was that it thought contempt proceedings against RCA would not have any practical effect. RCA has no assets outside Russia and its officers do not travel outside Russia. Therefore, although UniCredit “won” the jurisdiction challenge in court by obtaining an ASI Order in England, it lost in practice because it would not be able to take any action against RCA outside of Russia. On the other hand, UniCredit has assets in Russia and is at the behest of the Russian courts.
This article was prepared with the assistance of Magnus Chisholm, trainee at CMS London
