FH Holding Moscow Limited v AO Unicredit Bank & Anor

Where related agreements contain competing arbitration and jurisdiction clauses, the court should adopt a broad, purposive and commercially minded construction, read the agreements as a whole, and presume that each clause governs its own subject matter if the language permits. Clear wording may nevertheless show that both clauses apply.

Where a security agreement permits immediate judicial enforcement after an Event of Default, the enforcement court may determine disputes about the default and entitlement to security without a prior arbitral award, unless the contract makes arbitration a condition precedent. A separate arbitration clause remains effective for disputes outside the security-enforcement context. Fresh evidence may be refused where it could have been obtained at trial or would not materially affect the result.

FH Holding Moscow Limited appealed from the decision of Henshaw J in the Commercial Court, reported at [2025] EWHC 3111 (Comm). The judge set aside permission to serve AO Unicredit Bank out of the jurisdiction, held that the English court lacked jurisdiction over AO, and dismissed the claim for an anti-suit injunction against Unicredit S.p.A.

AO had commenced Moscow proceedings to enforce security under a Russian-law Mortgage Agreement. The underlying Facility Agreement was governed by English law and contained a Vienna arbitration clause. FHM argued that AO was required first to obtain a Vienna arbitral award confirming an Event of Default. The appeal concerned the construction of the competing dispute-resolution clauses, jurisdiction over AO, the anti-suit injunction, and fresh evidence concerning the meaning of arbitration court.

Appeal dismissed. Males LJ agreed with Henshaw J’s comprehensive analysis. Lewison and Popplewell LJJ agreed. The Moscow proceedings were not shown to breach the arbitration clause.

1. Competing dispute-resolution clauses in related agreements must be construed broadly, purposively and commercially, having regard to the transaction as a whole. The starting presumption is that each clause deals exclusively with its own subject matter where the language and circumstances permit, but both clauses may apply where that is the clear result: BNP Paribas SA v Trattamento Rifiuti Metropolitani SpA [2019] EWCA Civ 768.
2. The Mortgage Agreement imported the Facility Agreement’s definition of Event of Default, but its clause 9 created a specific enforcement regime. Clauses 9.1.1 to 9.1.3 permitted execution immediately after an Event of Default had occurred, by judicial procedure and subject to the Mortgage Agreement’s Moscow jurisdiction clause. Disputes about whether a default had occurred and the amount due could therefore be resolved in the Moscow enforcement proceedings. A prior Vienna arbitration was not a condition precedent. Clause 9.1.5 supported that construction but was not critical to it.
3. This construction avoided artificial duplication and preserved the operation of the Facility Agreement arbitration clause for disputes arising outside mortgage enforcement. The court had applied English-law principles at the parties’ invitation, although the relevance of that approach was doubtful given the Russian governing law of the Mortgage Agreement and the Austrian governing law of the arbitration clause. Section 6A of the Arbitration Act 1996, inserted by the Arbitration Act 2025, made the Vienna arbitration clause subject to Austrian law.
4. The fresh evidence application was refused. The proposed evidence could have been obtained for the first-instance hearing and would not have had an important influence on the result. It was also unfair to permit the appellant to change its position at the appeal hearing. The criteria in Ladd v Marshall [1954] 1 WLR 1489 were not satisfied. Witness statements were not expert evidence of the meaning of contractual words, although they could be relevant to the parties’ reasonable understanding: Vizcaya Partners Ltd v Picord [2016] UKPC 5.
5. Grounds concerning jurisdiction, the anti-suit injunction discretion and the respondent’s notice were unnecessary to decide. The court nevertheless observed obiter that the words in respect of are generally very wide and may connect a claim with more than one contract. It also noted the force of the argument that CPR 62.5 is the exclusive route for service out of an arbitration claim form, while recognising that AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] UKSC 35 and UniCredit Bank GmbH v RusChemAlliance LLC [2024] UKSC 30 had proceeded on the basis that Practice Direction 6B gateways were available. The issue was left for possible consideration by the Rules Committee.

• Court of Appeal (Civil Division): appeal dismissed. [2026] EWCA Civ 468.
• High Court, Commercial Court: Henshaw J set aside permission to serve AO Unicredit Bank out of the jurisdiction and dismissed the anti-suit injunction claim against Unicredit S.p.A. [2025] EWHC 3111 (Comm).