UniCredit Bank GmbH (Respondent) v RusChemAlliance LLC (Appellant), UKSC 2024/0015
Do English courts have jurisdiction to issue anti-suit injunctions in support of arbitrations seated outside the United Kingdom?
On 23 April 2024, the Supreme Court of the United Kingdom (“the Supreme Court”) ruled on this issue in a case between a Russian company (RusChemAliance or “RCA”) and a European bank (UniCredit) which had entered into an arbitration agreement providing for a seat in France (note: Teynier Pic intervened in this case before the English courts as an expert in French law).
The dispute concerned UniCredit’s failure to perform its obligations under a first demand guarantee governed by English law, to which the arbitration agreement related. RCA brought proceedings against UniCredit before the Russian courts. UniCredit responded by applying to the English courts for an ex parte anti-suit injunction. The Court of Appeal of England and Wales granted the application and the Supreme Court upheld the decision, finding that the two conditions necessary for the English court to have jurisdiction were satisfied.
First, the arbitration agreement had to be governed by English law. As the arbitration agreement did not specify the law applicable to the agreement, the Supreme Court ruled that the law chosen for the underlying contract applied, as it reflected an implicit choice by the parties. The Supreme Court held that the choice of France as the seat of the arbitration did not prevent the application of this conflict of laws rule because, in principle, the choice of another country as the seat of the arbitration is not in itself sufficient to override the law implicitly chosen by the parties. Furthermore, the Supreme Court held that there was no rule in French law imposing the law of the seat as the law applicable to the arbitration agreement in the absence of an express choice by the parties.
Second, the English courts had to be the most appropriate forum to hear the case in the interests of the parties and of justice. The Supreme Court found that UniCredit had the possibility of obtaining an arbitral award similar in content to that of an anti-suit injunction, but noted that such an award would be obtained too late and could not be enforced in Russia. It therefore considered that the English courts were the most appropriate forum for UniCredit’s claims.
The Supreme Court gave its decision orally from the bench and a written judgement will follow.
