Bayerische Landesbank v RusChemAlliance LLC

The court may revoke or vary final injunctive orders, declarations and costs orders where the procedural rules confer that power and the circumstances justify its exercise. Jurisdictional declarations concerning what the English court decided in the past should generally remain, because revocation cannot undo the historical determination and may falsely suggest that the court acted without jurisdiction. A declaration concerning continuing contractual breach may be revoked where subsequent events create a material change of circumstances. Costs orders may be discharged where the substantive relief forming their principled basis has been revoked.

Three claimants sought revocation of orders previously made against RusChemAlliance LLC. The earlier orders included anti-suit injunctions restraining alleged breaches of arbitration agreements, declarations concerning the governing law of those agreements and the English court’s jurisdiction, declarations concerning contractual breach, and costs orders.

After Russian courts made anti-suit orders requiring the claimants to seek revocation of the English orders, the claimants applied to revoke all parts of them. The central issues were whether the court had power to revoke the orders and how that power should be exercised, particularly in relation to historical jurisdictional declarations, the breach declaration and costs.

1. The court accepted that it had power under the Civil Procedure Rules 1998 to revoke or vary the final anti-suit injunctions, the jurisdictional and governing-law declarations, the breach declaration and the costs orders.

2. The court treated the Court of Appeal’s decision in the related UniCredit proceedings as guidance which should be followed absent a genuine and principled distinction. The suggested distinctions, including the stronger evidence of financial penalties and the Supreme Court’s refusal of an appeal in the related proceedings, were not principled or satisfactory.

3. The final anti-suit injunctions and orders consequential upon them could be revoked. The declarations that the arbitration agreements were governed by English law and that the English court had jurisdiction were not revoked. They recorded historical determinations made by the English court and concerned the court’s own jurisdiction, not merely the parties’ obligations. Revocation could not undo those determinations and might misleadingly suggest that the court had acted without jurisdiction. The claimants could instead give undertakings not to rely on the declarations.

4. The declaration that the Russian proceedings constituted, and continued to constitute, breaches of contract was revoked. Subsequent events created a material change of circumstances and raised possible issues concerning waiver and the continuing contractual effect of the proceedings. Unlike the jurisdictional declarations, it had a forward-looking effect.

5. The costs orders were discharged. They had continuing enforceable effect, operated for the claimants’ benefit, and their substantive basis had been revoked.

6. Permission to appeal was refused. The applicants had not shown a serious issue to be tried or another sufficient reason, such as an issue of general public importance. They could renew the application before the Court of Appeal.

First-instance applications in the High Court (Commercial Court). The judgment records earlier anti-suit injunctions and declarations made by Mr Justice Jacobs and Mr Justice Butcher, but no appeal in these proceedings.