Commerzbank AG v Ruschemalliance LLC

The court may substantially abridge procedural time and expedite the final determination of an injunction claim where the defendant has had repeated opportunities to participate, the only identified defence has been finally rejected in parallel proceedings, and urgent action is needed to protect the claimant’s rights. Expedition remains subject to due process. A defective notice of change of solicitor is not necessarily a nullity. Where it fails to state a required address for service, the former solicitors may remain on the record, while effective alternative service may be ordered using identified email addresses.

Commerzbank sought to lift a stay, accelerate the return date, amend its arbitration claim form, and obtain final anti-suit, anti-enforcement and mandatory injunctive relief against RusChemAlliance. The proceedings concerned performance bonds containing English governing-law and arbitration provisions, with arbitration seated in Paris.

The stay had been imposed pending related proceedings brought by UniCredit. The jurisdictional issue in those proceedings was ultimately resolved against RusChemAlliance by the Court of Appeal and the Supreme Court. RusChemAlliance then ceased active participation in the English proceedings and appeared likely to continue the Russian proceedings. The central issue was whether the court should expedite determination and make procedural and service orders despite the absence of the defendant.

1. Procedural orders and expedition. The stay imposed on 28 September 2023 had automatically been lifted when the Supreme Court dismissed the appeal in the related UniCredit proceedings. The court was minded to expedite the substantive claim and bring forward the return date, subject to giving RusChemAlliance one final opportunity to participate.
2. It was appropriate to abridge time because the only defence ever identified was the English court’s alleged lack of jurisdiction, and that issue had been finally resolved against RusChemAlliance in the parallel proceedings. RusChemAlliance had also been given repeated opportunities to engage after the Supreme Court decision, but had not done so. The court should take reasonable steps, consistent with due process, to protect Commerzbank’s rights.
3. Notice of change and service. The notice stating that Enyo Law no longer acted was defective because it did not identify an address for service within the United Kingdom. That defect did not make the notice a nullity. However, under Civil Procedure Rules 1998, CPR 42.2 and Part 42 Practice Direction, it could be forcefully argued that Enyo Law remained on the record until the service position was regularised.
4. The identified email addresses had in fact received notice of the application and hearing, including the corrected address where one email address contained a typographical error. The court therefore ordered alternative service on the identified email addresses and on Enyo Law, and abridged time so that an effective remote hearing could take place the following morning.
5. Final anti-suit, anti-enforcement and mandatory relief was not finally granted at this hearing. The judge indicated that, if nothing changed, he would make the orders sought at the adjourned remote hearing.

This was a first-instance procedural decision. The judgment records that an earlier stay had been imposed by Mr Justice Jacobs on 28 September 2023 following an interim anti-suit injunction granted by Mr Justice Bryan. It also records the outcome of related proceedings, but those decisions were not appeals in this litigation.