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FH Holding Moscow Ltd v AO UniCredit Bank & Anor
Anonymized Summary of Court of Appeal Judgment
Factual and Procedural Background
Company A (the Appellant), a Cyprus-incorporated company operating solely in Russia, borrowed under a Facility Agreement dated 2 November 2018 from Company B and Company C. Company B (a Russian bank) acted also as Security Agent. The Facility Agreement was governed by English law and contained an arbitration clause providing for VIAC arbitration in Vienna; the arbitration clause was held to be governed by Austrian law by virtue of section 6A of the Arbitration Act 1996 (as amended). A separate Mortgage Agreement, governed by Russian law, created security over real estate in or near Moscow and provided for enforcement in the Moscow Commercial Court. Company B commenced foreclosure proceedings in Moscow in March 2025 alleging an Event of Default; Company A contended those proceedings were in breach of the Vienna arbitration clause and applied in England for an anti-suit injunction. The High Court (Judge Henshaw) refused relief: he held there was not a high probability the Moscow proceedings breached the arbitration clause, set aside permission for service out on Company B and granted summary judgment for Company C. Company A appealed. The Court of Appeal heard the appeal after the Moscow court had given judgment dismissing Company B's claim for procedural reasons but finding that an Event of Default had occurred.
Legal Issues Presented
- Whether the Moscow judicial proceedings to levy execution under the Mortgage Agreement were brought in breach of the arbitration clause in the Facility Agreement (governed by Austrian law) requiring disputes to be resolved by VIAC arbitration in Vienna.
- Whether the English court had jurisdiction over Company B for the purpose of granting an anti-suit injunction, founded on the Facility Agreement being governed by English law or on Company B being a necessary and proper party to a claim against Company C.
- Whether it was just and convenient to grant an anti-suit injunction in the circumstances.
- Whether fresh evidence about the translation/meaning of the phrase "arbitration court" in the Mortgage Agreement should be admitted on appeal.
Arguments of the Parties
Appellant's Arguments
- The Moscow enforcement proceedings could only be brought after a Vienna arbitral award declared an Event of Default; commencing execution without such an award breached the arbitration clause in the Facility Agreement.
- The English court had jurisdiction over Company B because the anti-suit claim related to the Facility Agreement governed by English law (and/or Company B was a necessary and proper party to the claim against Company C).
- The Mortgage Agreement should be construed so that clause 9 required an arbitral determination before enforcement; the words "arbitration court" in clause 9.1.5 refer to arbitrazh courts and the point raised on appeal warranted fresh expert evidence on translation.
Respondents' Arguments
- The Mortgage Agreement (governed by Russian law) and clause 9 permit immediate commencement of judicial enforcement in Moscow upon occurrence of an Event of Default, with the Moscow court resolving any dispute as to entitlement; thus the Moscow proceedings were not in breach of the Vienna arbitration clause.
- The gateways relied on to serve Company B out of the jurisdiction were not available because CPR 62.5 provides the exclusive route for arbitration claim forms served out of the jurisdiction.
- If fresh evidence on the translation was admitted, the respondents should be permitted to lead their own evidence; in any event the Ladd v Marshall criteria for admitting new evidence were not satisfied.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| UniCredit Bank GmbH v RusChemAlliance LLC [2024] UKSC 30, [2025] AC 1177 | Example where arbitration clause was governed by English law; contrasting facts. | Used to contrast present case where the arbitration clause is governed by Austrian law; not directly applied but illustrates different jurisdictional posture. |
| Enka Insaat ve Sanayi AS v OOO Insurance Company Chubb [2020] UKSC 38, [2020] 1 WLR 417 | Previous default rule on law applicable to arbitration agreements (reversed by statute). | Noted that section 6A of the Arbitration Act 1996 (as amended) reverses Enka such that the law of the seat governs the arbitration clause. |
| UniCredit v RusChemAlliance [2024] EWCA Civ 64 | Discussion of whether claim is 'in respect of' underlying contract for jurisdictional gateways. | Referenced when discussing potential scope of the contract gateway and issues about founding jurisdiction where arbitration clause is governed by a foreign law. |
| BNP Paribas SA v Trattamento Rifiuti Metropolitani SpA [2019] EWCA Civ 768, [2020] 1 All ER 762 | Principles for interpreting competing jurisdiction clauses in related contracts. | Adopted and applied by the judge to determine whether the Moscow proceedings fell within the Mortgage Agreement jurisdiction clause as well as the Facility Agreement arbitration clause. |
| Neumans LLP v Andronikou [2013] EWCA Civ 916, [2013] Bus LR 1152 | Authority for not repeating a lower court's detailed analysis in full when adopting it. | Cited to explain why the Court of Appeal did not repeat the trial judge's comprehensive reasoning in full. |
| Ladd v Marshall [1954] 1 WLR 1489 | Test for admitting fresh evidence on appeal. | Applied to refuse admission of new expert translation evidence; court held criteria not satisfied. |
| Vizcaya Partners Ltd v Picord [2016] UKPC 5 | On inadmissibility of partisan witness evidence as expert evidence on meaning of foreign law provisions. | Referenced to note witness statements were not admissible as expert evidence on the meaning of clause 9.1.5 words. |
| AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] UKSC 35, [2013] 1 WLR 1889 | Procedure and service issues relevant to arbitration claims served out of jurisdiction. | Referenced in discussing whether Part 6 gateways can be used for service out of arbitration claim forms. |
| Renaissance Securities (Cyprus) Ltd v ILLC Chlodwig Enterprises [2025] EWCA Civ 369, [2025] 1 Lloyd's Rep 518 | Principle that anti-suit injunctions are granted where foreign proceedings breach contract unless strong reasons not to grant them. | Cited as the established principle; the judge considered but concluded it did not warrant injunction here because there was not a high probability of breach. |
| Shipowners' Mutual Protection and Indemnity Association (Luxembourg) v Containerships Denizcilik Nakliyat ve Ticaret AS [2015] EWHC 258 (Comm) | Commentary on deference to Supreme Court observations. | Referred to when discussing whether it would be appropriate for lower courts to depart from Supreme Court observations on service/gateway issues. |
Court's Reasoning and Analysis
The Court of Appeal (Judge Males, with Judges Popplewell and Lewison agreeing) addressed primarily whether the Moscow enforcement proceedings breached the Vienna arbitration clause.
- The court acknowledged the Facility Agreement arbitration clause is governed by Austrian law (seat law) pursuant to section 6A of the Arbitration Act 1996 (as amended).
- Applying English principles for competing dispute-resolution clauses (BNP Paribas), the court accepted the High Court's approach of a broad, commercial interpretation applied to the suite of related documents.
- The court agreed with the High Court that the Mortgage Agreement and clause 9 in particular were drafted so that judicial enforcement in Moscow could proceed "immediately after the occurrence of the Event of Default" and that clause 21 entrusted disputes as to entitlement to the Moscow Commercial Court. That construction permits the Moscow court to determine disputes about whether an Event of Default has occurred as part of enforcement proceedings.
- The court rejected the exclusivity argument that the Facility Agreement arbitration must be the sole forum for disputes about Events of Default, noting the parties had legislated for the position within clause 9 and clause 21 and that it was not unnatural for enforcement-related disputes to be decided by the Moscow court where the security and property are located.
- The court refused to admit fresh expert translation evidence on appeal (Ladd v Marshall criteria not met and unfair to permit a change of case on a point the parties had proceeded on at trial).
- The court observed that the subsequent Moscow judgment (deciding the dispute fell within clause 21, finding an Event of Default but dismissing AO's claim for lack of required permissions) reduced urgency but did not render the appeal academic, because Company B could appeal or commence fresh proceedings.
Holding and Implications
The appeal is dismissed.
Direct consequences: the Court of Appeal upheld the High Court's conclusion that the Moscow proceedings were not shown to be in breach of the Vienna arbitration clause and refused admission of fresh evidence on appeal. As a result, no anti-suit injunction was granted and it was unnecessary to decide the remaining grounds concerning jurisdictional gateways and 'necessary or proper party' status. The judgment does not purport to establish a new rule of general application beyond the application of established principles to the contractual documents before the court.
Note: All parties, counsel and localities mentioned in this summary have been anonymized consistent with the source text and the instructions provided.
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