Summary

The principal issue in this appeal is whether proceedings in Moscow to levy execution against property mortgaged under a Mortgage Agreement, which was subject to Russian law and jurisdiction, were brought in breach of the arbitration clause in a separate Facility Agreement, which was governed by English law and provided for arbitration in Vienna. The appellant's case is that before levying execution, the respondent banks were obliged to obtain an award from an arbitral tribunal in Vienna declaring that an Event of Default had occurred and that their failure to do so was a breach of the arbitration clause in the Facility Agreement.

It is not easy to see why this issue has anything to do with English law or the English court. Neither the Russian bank which is the claimant in the Moscow proceedings, nor the Cypriot company which is the defendant there, has any presence or conducts any business in this jurisdiction. The proceedings in Moscow are brought pursuant to a Russian law Mortgage Agreement which sets out the circumstances in which the lender is entitled to levy execution and provides that this may only be done in a judicial procedure in the Moscow court. The property in question is in Russia.

Whether the bank is entitled to levy execution without first obtaining an award in Vienna appears to me to be an issue for the Moscow court to determine, just as it would determine any other defence to the process of execution. It is an issue which depends upon interpreting what the Mortgage Agreement has to say about the circumstances in which the security may be enforced and about the jurisdiction of the Moscow court, both of which are matters of Russian law.

Moreover, the proceedings here are brought to enforce an arbitration agreement which is governed by Austrian and not English law. So (in contrast with the position in UniCredit Bank GmbH v RusChemAlliance LLC [2024] UKSC 30, [2025] AC 1177, where the arbitration clause was governed by English law) any interest of the English court in enforcing the Austrian law arbitration clause can only be derived from the fact that the underlying Facility Agreement, but not the arbitration clause with which the proceedings are concerned, is governed by English law. But that seems a shaky foundation for the grant of a remedy as serious as an anti-suit injunction.

However, the parties argued the issue before Mr Justice Henshaw, and in this court, as one to be determined applying English law principles of contract interpretation, perhaps on the basis that the applicable Russian and Austrian principles could be deemed to be the same as the equivalent English law principles. On that basis the judge concluded that the bringing of proceedings in Moscow was not a breach of the arbitration clause in the Facility Agreement. I agree with that conclusion, which means that the appeal must be dismissed. As a result it will not be necessary to decide the other issues discussed in submissions.