Partner Richard Coopey explains how the English courts have responded to the increasing number of procedural jurisdictional cases as a result of the Russian invasion of Ukraine.

The English High Court has seen a number of recent cases arising out of, or effected by, the Russian invasion of Ukraine in 2022.

In particular, there have been a number of procedural jurisdictional battles, specifically those which have been prompted by the passing of Russian Federal Law No. 171-FZ, the so-called “Lugovoy Law” (now Article 248 of the Arbitrazh Procedure Code). This law gives the Russian Arbitrazh courts exclusive jurisdiction over disputes which involve both Russian citizens and legal entities subject to foreign sanctions and disputes which arise from foreign sanctions imposed on Russian citizens or legal entities.

Unsurprisingly, this legislation has led to a rise in entities who have Russian counterparties under contracts with English court jurisdiction provisions seeking to use the tools of the English courts to hold Russian parties to their contractual agreed bargain.

The English courts do have an array of judicial tools open to them to ensure that the parties’ bargain as to the jurisdiction of their disputes is respected, and have indicated that it is at least feasible that events arising out of the invasion of Ukraine do reach the level of exceptionality needed for those tools to be appropriate.

Anti-suit injunctions, well used tools of the English court commonly used to restrain breaches of jurisdiction clauses contained in commercial contracts, have often been granted in response to Russian parties making use of Article 248. In simple terms, where a contract contains provisions which confer exclusive jurisdiction on the English courts, the English courts are able to grant injunctive relief restraining the prosecution of foreign court proceedings in breach of contract.

Whilst its more familiar cousin the anti-suit injunction restrains a party from bringing proceedings in another jurisdiction or forum, the anti-enforcement injunction is focussed on what happens should such proceedings be concluded and restrains their enforcement within England and Wales. Broadly such an order is appropriate in circumstances where there is a concern that an anti-suit injunction may not be complied with by the relevant party or may be ignored by the foreign Court.

The English Courts continue to make use of these tools on a case-by-case basis, applying long established legal principles to the challenging factual situations that come before them in light of the invasion of Ukraine and the significant impact that has had on trade with Russia, much of which was conducted through contractual arrangements using English law and/or with English jurisdiction.

Whilst recent cases have been driven by events in Ukraine, other parties to contracts with English Court jurisdiction clauses should be mindful that the English courts do have tools to assist them in ensuring that disputes are resolved in the proper forum, and should take English legal advice.

Richard’s article was published in The Legal Diary, 10 January 2025.