International Arbitration: English Court Of Appeal Upholds Refusal Of Anti-Suit Injunction In UniCredit Dispute

Summary

In a judgment handed down on 17 April 2026, the English Court of Appeal (CoA) upheld the Commercial Court’s decision to refuse an anti-suit injunction (ASI) preventing the defendant from pursuing foreclosure proceedings in Russia based on an alleged breach of an arbitration agreement mandating arbitration under the rules of the Vienna International Arbitration Centre (VIAC).

The CoA’s judgment strengthens the Commercial Court’s interpretation of competing dispute resolution procedures in suites of contracts and offers valuable commentary on the applicability of jurisdictional gateways in respect of claims concerning arbitration (or ‘arbitration claim forms’, as defined in CPR 62.2).

A brief case note on the CoA’s decision follows. The full judgment can be read here. Our previous case note on the Commercial Court’s decision can be read here and the full judgment can be read here.

The Facts - Reminder

Fashion House Holding Moscow Ltd (“FH”) borrowed funds from AO UniCredit Bank (“AO UniCredit”) in 2018 under a Facility Agreement governed by English law, which included an arbitration clause that provided for disputes to be resolved under VIAC rules, with the seat of arbitration in Vienna. As security, FH entered into a Mortgage Agreement with AO UniCredit, governed by Russian law and subject to the jurisdiction of the Moscow Commercial Court (MCC).

When AO UniCredit initiated foreclosure proceedings in Russia alleging an Event of Default had arisen under the Mortgage Agreement, FH argued that the dispute should first be determined by arbitration and sought an ASI from the Court to restrain the Russian proceedings.

The Commercial Court’s Decision

As covered in our previous case note, the Commercial Court gave judgment in favour of UniCredit on all points and refused the ASI, finding in short that:

1. The foreclosure proceedings did not breach the Facility Agreement because they were brought under the Russian law governed Mortgage Agreement, which provided for MCC jurisdiction.
2. The connection to England was too remote for the Court to intervene, even in light of concerns about European Union (EU) sanctions or potential harm to the claimant.
3. The Court lacked jurisdiction over AO UniCredit, as the relevant arbitration agreement itself was governed by Austrian law.
4. There was no real issue against UniCredit S.p.A. that was reasonable for the Court to try, since it was not a claimant in the Russian proceedings.

The Appeal

FHM appealed the Commercial Court’s decision on four grounds:

1. The Commercial Court interpreted the Mortgage Agreement incorrectly and wrongly held that the MCC proceedings were not in breach of the Facility Agreement.
2. The claim for an ASI was ‘in respect of’ the English law governed Facility Agreement, such that the English courts did have jurisdiction.
3. The Commercial Court was wrong to hold that it did not have jurisdiction over AO UniCredit as a ‘necessary or proper party’ to the claim against UniCredit S.p.A.
4. It was wrong for the Commercial Court to hold that it was not just and convenient to grant an ASI.

The CoA’s Decision 

The CoA unanimously dismissed the appeal and upheld the Commercial Court’s judgment. The ratio of the CoA judgment is narrow, as Males LJ (with whom Popplewell LJ and Lewison LJ agreed) found that:

1. The question of whether the MCC proceedings were in breach of the arbitration clause of the Facility Agreement was the decisive question.
2. The entire interpretation analysis of Mr Justice Henshaw in the Commercial Court was correct and cited with approval, such that his finding that the MCC proceedings did not breach the Facility Agreement was correct.
3. In addition, given the MCC itself decided on 19 March 2026 that the dispute fell within the terms of the Russian law Mortgage Agreement and that AO UniCredit did not have to obtain a VIAC decision before enforcing the security, it would be ambitious for the English courts to hold that the MCC’s interpretation of Russian law was wrong

Although the CoA could have stopped its analysis at this point, it considered it important to offer obiter comments on the ‘jurisdictional gateways’ provided for in CPR Practice Direction 6B.

FHM’s argued that AO UniCredit’s claim for an ASI was ‘in respect of’ the English law Facility Agreement, and therefore attracted jurisdiction under the jurisdictional gateways, even if the arbitration agreement in the Facility Agreement was Austrian-law governed (in accordance with section 6A of the Arbitration Act 1996, as inserted by the Arbitration Act 2025, which established that the law of the arbitration agreement trumps the governing law of the wider contract¹). UniCredit contended the jurisdictional gateways on which FHM sought to rely to establish jurisdiction were not available because CPR 62.5 is the exclusive route for service out of the jurisdiction for an arbitration claim form.

The CoA found strength in UniCredit’s argument that a claim for ASI can only be started by an arbitration claim form under CPR 62.3, and that CPR 62.5 therefore ‘makes different provision’ for service within the meaning of CPR 6.1, such that the jurisdictional gateways are in essence disapplied, but raised the concern that this argument comes up against two United Kingdom Supreme Court decisions² which proceeded on the basis that the jurisdictional gateways can be relied upon for service out of the jurisdiction of an arbitration claim form, while noting that it does not appear the contrary position was argued in either case.

Ultimately, the CoA agreed that it would be a bold step for them to disagree with the observations of the UK Supreme Court, but suggested that the issue might usefully be considered by the Rules Committee, who could answer the policy question of whether the jurisdictional gateways “should be available for service of arbitration claim forms out of the jurisdiction and in what circumstances such service should be permitted in the case of arbitrations with a foreign seat.”

This decision confirms the importance of parties aligning the dispute resolution procedures in their suites of contracts and the focus of the English courts on giving effect to the appropriate dispute resolution clause where parties have agreed apparently inconsistent clauses. The CoA’s comments also highlight the uncertainty surrounding how an arbitration claim can be served out of jurisdiction.

Footnotes

1. This reverses the previous decision by the Supreme Court in Enka Insaat v Sanayi AS v OOO Insurance Company Chubb [2020] UKSC 38, [2020] 1 WLR 417

2. AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] UKSC 35, [2013] 1 WLR 1889; and UniCredit Bank GmbH v RusChemAlliance LLC [2024] UKSC 30, [2025] AC 1177