BVI Commercial Court refuses global anti-suit injunction

15/06/20

Mr Viktor Vekselberg and various companies in the Renova Group have been locked in litigation in the British Virgin Islands with former Russian government minister Mr Mikhail Abyzov, and companies he controls or controlled, for a number of years (Mr Vekselberg having been joined to the proceedings in 2014).  On 20 March 2020, Mr Abyzov and Emmerson International Corporation made an application for an anti-suit injunction against Mr Vekselberg, seeking to stop certain proceedings in Russia and to prevent Mr Vekselberg’s pursuit anywhere in the world (outside the BVI) of proceedings against them related to the BVI litigation.  Before the hearing of the application, the Russian proceedings had come to an end and Mr Vekselberg had undertaken not to pursue them further.

In a judgment given on 2 June 2020, Wallbank J refused the injunction in its entirety. The main part of the ruling concerns the application for a global anti-suit injunction. 

The Judge canvassed a number of the relevant English authorities including Emmott v Michael Wilson & Partners Ltd and Deutsche Bank AG v Highland Crusader Offshore Partners LLP, the Privy Council decision in Société Nationale Industrielle Aerospatiale v Lee Kui Jak, as well as the Eastern Caribbean Court of Appeal judgments in Adamovsky v Malitskiy and In re Fairfield Sentry Limited.  He emphasised the need for caution, given the exceptional nature of the remedy, and confirmed that in the absence of an exclusive jurisdiction agreement an applicant would generally have to show that foreign proceedings would be unconscionable.

The Judge held there was no clear or sufficient case of bad faith or unconscionability against Mr Vekselberg such as to warrant a global anti-suit injunction and that there was generally no basis in law for the sort of wide and general anti-suit injunction sought, which did not identify particular foreign proceedings (although recognising that there may conceivably be instances where particular circumstances do justify one). The Judge agreed with Mr Vekselberg that the Court should not arrogate to itself the power to decide what steps a litigant may or may not take in a different country before any such proceedings were even yet proposed, and went on to say that “would generally be monstrous hubris”.

Particular attention was given to the English Court of Appeal’s decision in Masri v Consolidated Contractors International (UK) Ltd [2008] EWCA Civ 625, where a worldwide injunction had been issued. Wallbank J decided that the facts of the present case were distinguishable. In particular, he held that there was no patent vexation and oppression on the part of Mr Vekselberg.

The Applicants had sought to mitigate the far-reaching effect of the order they sought by introducing into it a liberty for Mr Vekselberg to apply to the BVI court for permission to commence foreign proceedings. The Judge held that did not save the application. The burden was on the applicants to show vexatious or oppressive conduct, and should not be on the respondent to prove in a future application why he should be permitted to bring proceedings abroad.

The judgment is here.