Court declines to grant anti-suit injunction in relation to Moscow court proceedings

FH Moscow Holding Ltd -v- AO Unicredit Bank & another [2025] EWHC 3111

The Court has decided that Moscow Court proceedings intended to enforce against assets provided as security under a mortgage agreement governed by Russian law did not breach an arbitration provision in the related English law facility agreement.

In doing so, the Court has useful clarified its approach to potentially competing jurisdiction clauses in related contracts, particularly in relation to the consideration of anti-suit injunction applications.

The decision highlights the importance of considering differing jurisdiction clauses in a suite of related documents to ensure that they are consistent.

The background facts

The parties

The claimant, FH Moscow Holding Ltd, is a Cypriot company operating entirely in Russia and tax resident in Russia. It is part of a group of companies that operates in other jurisdictions, including in the EU.

The first defendant, AO Unicredit Bank (AO), is a Russian bank and a wholly owned subsidiary of the second defendant, Unicredit SpA (SPA), an Italian bank.

The contractual documentation

The dispute arose in relation to a Facility Agreement dated 2 November 2018 and entered into by the claimant as borrower and SPA and AO as lenders for a Euro facility (EUR Facility) and AO for a Russian rouble facility (RUB Facility). AO also entered into the Facility Agreement as Facility Agent for other Finance Parties.

Clause 21.16 of the Facility Agreement contained a Sanctions Clause prohibiting the claimant from making the proceeds of any loan available directly or indirectly to any sanctioned person or country. Clause 23 set out the Events of Default including, at clause 23.1, non-payment of the loans. One of the consequences of an Event of Default was to permit acceleration of all or part of the loans so that they became immediately due and payable.

The Facility Agreement was governed by English law and contained an arbitration agreement which provided for disputes to be resolved by arbitration under the Rules of Arbitration (Vienna Rules) of the Vienna International Arbitral Centre (VIAC) of the Austrian Federal Economic Chamber. The seat of arbitration was Vienna, Austria.

The Facility Agreement was entered into alongside a suite of associated Finance and Security Documents, including a Mortgage Agreement executed on 6 November 2018 between the claimant as mortgagor and AO as mortgagee. Pursuant to the Mortgage Agreement, the claimant provided real estate assets (Assets) in or near Moscow and worth about Euros 42 million as security for the loans provided under the EUR and RUB facilities. The Mortgage Agreement referred to the Events of Default as set out in clause 23 of the Facility Agreement.

The Mortgage Agreement was governed by Russian law and provided for disputes to be referred to and finally settled by the Commercial Court of Moscow in accordance with the laws of the Russian Federation.

Russian proceedings

The claimant’s position was that there had never been an Event of Default under the Facility Agreement and that it had at all material times acted in good faith to discharge the payment obligations under the Facility Agreement (taking into account what transpired after the war in Ukraine started and the following Russian counter-sanctions).

On 24 March 2025, AO filed a claim in the Arbitrazh Court of the Moscow Region (Moscow Court) seeking foreclosure of the Assets. The claim alleged an Event of Default in that there was non-payment by the claimant under the Facility Agreement, which it relied on as the basis for enforcing against the Assets under the Mortgage Agreement.

The claimant denied there was an Event of Default. It argued that:

1. repayment of the EUR loan extended by SPA (required to be made in Russia and through AO as Security Agent) was unlawful under Russian law due to Russian counter-sanctions, with the effect that the claimant's payment obligation in that regard was suspended; and

2. repayment of the RUB loan was re-scheduled by agreement in July 2024 and 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 was estopped from resiling from the agreement reached in July 2024.

The claimant submitted that in any event, any Event of Default issue was subject to VIAC arbitration. The claimant subsequently joined SPA as third party to the Russian proceedings.

Thus AO's claim in the Moscow proceedings raised disputes over whether: (i) there had been an Event of Default under the Facility Agreement, and (ii) the amount of any outstanding debt (if the RUB loan was deemed to be due but the EUR loan was not (or vice-versa)), which went to scope of the Assets against which enforcement would be permissible (Disputed Issues).

In April 2025, the claimant applied to challenge the jurisdiction of the Moscow Court over the Disputed Issues, on the basis that they fell within the arbitration agreement in the Facility Agreement.

Application for anti-suit injunction

The claimant argued that the Moscow Court proceedings had been brought in breach of the arbitration agreement in the Facility Agreement. In August 2025, it applied to the English Court without notice for an anti-suit injunction (ASI) and sought leave to serve the application out of the jurisdiction on AO on the grounds that:

• AO was a necessary and proper party to the ASI claim against SPA over which the English Court had jurisdiction because SPA has a branch in London;

• The ASI claim was made in respect of a contract (Facility Agreement) governed by English law; and

• The ASI claim was made in respect of the arbitration agreement that was governed by English law.

The claimant sought through its ASI claim to restrain the Moscow Court proceedings and to oblige the defendants to pursue the Disputed Issues in VIAC arbitration.

The Commercial Court decision

Potentially competing jurisdiction clauses

Pursuant to the authorities, where potentially competing jurisdiction clauses are part of a series of agreements, they should be interpreted in the light of the transaction as a whole. The Court should take into account the overall scheme of the agreements and read sentences and phrases in the context of that overall scheme. The starting presumption will 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. This is because sensible business people are unlikely to intend that similar claims should be the subject of inconsistent jurisdiction clauses.

Breach of arbitration agreement?

The Court decided that there was not a high probability that the Moscow Court proceedings breached the arbitration agreement in the Facility Agreement. The dispute about whether an Event of Default had occurred fell within the scope of the Mortgage Agreement jurisdiction clause, as well as the arbitration agreement in the Facility Agreement.

The fact that the Mortgage Agreement imported definitions and terms from the Facility Agreement relating to Events of Default did not undermine that point: rather, it was consistent with the view that some disputes under the Facility Agreement might also be disputes under the Mortgage Agreement. The questions of whether an Event of Default had occurred, and (if so) what amount was due to the lenders, were questions that might arise under the Mortgage Agreement as well as under the Facility Agreement.

It could not be said that the dispute fell more naturally within the Facility Agreement arbitration agreement than the Mortgage Agreement jurisdiction clause. The Mortgage Agreement operated in a specific subset of circumstances where there was a dispute over an alleged Event of Default.

Furthermore, the Mortgage Agreement envisaged that execution/enforcement proceedings could be started immediately by judicial proceedings, with any disputes being resolved as part of those proceedings rather than extraneously to them (e.g. by arbitration).

Vexatious and oppressive basis for ASI

The Court also thought that there was no sufficient non-contractual ground for granting the ASI against AO on the basis that the Moscow Court proceedings were vexatious and oppressive. The basic principle is that the jurisdiction of the Court is to be exercised “when the ends of justice require it” and that comity requires that in order for an ASI to be granted, the Court must have “a sufficient interest” in the matter in question.

Among other arguments, the claimant had contended that the Moscow Court might order it to do something that contravened EU sanctions against Russia and that it was in the interests of UK public policy to support the EU sanctions regime which mirrored the UK sanctions regime.

The Court did not think that it had sufficient interest in the matter or that an ASI would be consistent with the requirements of comity. The ASI 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 was thus very strong, whereas the English Court's legitimate interest in the matter was tenuous.

SPA

The Court decided that the claim against SPA should be summarily dismissed. It was not a claimant in the Moscow Court proceedings, had no independent claims in those proceedings and had been joined as a third party by the claimant. The Court dismissed arguments that SPA was controlling and directing the Moscow Court proceedings, which in any event did not breach the arbitration agreement.

Jurisdiction over AO

As there was no real issue between the claimant and SPA which it was reasonable for the Court to try, the ’necessary and proper party’ jurisdictional gateway fell away. There was no other basis for the exercise of jurisdiction over AO. The arbitration agreement was governed by Austrian law. Furthermore, the ASI claim was brought on the basis of the arbitration agreement, not the Facility Agreement, and therefore the Court did not have jurisdiction over AO under this gateway.

Therefore, permission to serve the ASI claim on AO out of the jurisdiction was set aside.

Comment

The Court has made it clear that it will not grant an ASI where there is no sufficient contractual or jurisdictional basis to do so simply because the applicant alleges that the ASI would further UK public policy in relation to sanctions against Russia. In relation to the ASI application, the Court also emphasised the obligation to place before the Court all matters which are or might be relevant to the application, including any matters which are or may be adverse to the application. If the duty is not complied with, the Court can set aside the order for service out on that ground alone.