UK Supreme Court makes landmark decision on anti-suit injunctions in support of foreign arbitration

In a landmark decision, the Supreme Court has held that the English courts have jurisdiction to grant anti-suit injunctions in support of foreign-seated arbitration proceedings in circumstances where the agreements to arbitrate were found to be governed by English law.

Anti-suit injunction application 

In UniCredit Bank GmbH v RusChemAlliance LLC [2024], UniCredit had agreed to act as guarantor under a contract between RusChemAlliance and another party – the contractor. The contract contained an arbitration agreement providing for Paris-seated arbitration. The contract was governed by English law but there was no clause specifically setting out the governing law of the agreement to arbitrate. 

The contractor defaulted under the contract and RusChemAlliance pursued UniCredit under its guarantee. This led to RusChemAlliance issuing proceedings in the Russian courts in breach of the arbitration agreement. UniCredit applied to the English courts for an anti-suit injunction to restrain the Russian proceedings in circumstances where the French court would not have been able to grant a similar injunction. 

The court was required to decide whether the English courts have jurisdiction to grant an anti-suit injunction in support of an arbitration which is "seated" outside of the jurisdiction. 

Jurisdiction issue 

It is well-established that the English courts will uphold exclusive jurisdiction clauses in favour of the English courts or arbitration agreements that provide for London-seated arbitration and issue injunctions to restrain the pursuit of proceedings that breach those agreements. 

However there had been conflicting authority on whether the English court could restrain foreign proceedings where the parties had agreed to arbitration in a foreign seat. In particular, there would have been no basis for the court to assert jurisdiction over RusChemAlliance unless it could be established that the dispute related to a contract (in this case the arbitration agreement) governed by English law. 

Supreme Court decision 

The Supreme Court unanimously held that the English governing law clause extended to the agreement to arbitrate and that, accordingly, the English court had jurisdiction to grant an injunction in support of the foreign-seated arbitration. 

In doing so the court held that the grant of an anti-suit injunction was not a matter of "supervisory jurisdiction" of the courts of the seat (in this case France). It also noted that anti-suit injunctions granted for the purpose of enforcing an arbitration agreement are always granted by a court which is neither the natural nor the agreed forum, as no court should be resolving the substantive dispute between the parties. Accordingly, the forum non-conveniens test does not apply in determining whether to grant an anti-suit injunction in this context. 

Osborne Clarke comment 

This was a case where the courts of the place of the seat of the arbitration (France) could not have granted an anti-suit injunction. However, there was a seemingly good argument that the governing law of the arbitration clause would be French law (being the place of the seat) and this would have prevented a finding that the English court had jurisdiction. 

The Supreme Court's unanimous decision that the governing law of the arbitration agreement was English law would have been unexpected to many in the arbitration community. But this judgment bolsters the English courts' jurisdiction to issue anti-suit injunctions in support of arbitrations, wherever they may be seated where the respondent can be properly served (as in this case, on the basis that the agreement to arbitrate was governed by English law). It is also generally illustrative of the English courts' pro-arbitration approach and the importance placed on the enforcement of contractual obligations. 

Meanwhile, the recently enacted Arbitration Act 2025 (which is not yet in force), will enact a default rule that, unless the parties expressly agree otherwise, the law governing the arbitration agreement will be the law of the seat. Applying this new rule to Unicredit would have meant that French not English law applied to the arbitration agreement, removing the "gateway" under which the anti-suit injunction application was served on RusChemAlliance. This may reduce the ongoing effect of the decision in UniCredit.