“West Tankers” continues to apply under the Brussels Regulation Recast

06/06/18

In Nori Holdings Ltd v PJSC Bank Otkritie [2018] EWHC 1343 (Comm) a dispute arose between a Russian bank and three entities (two Cypriot and one BVI) who had pledged shares to the bank as security for lending to third parties. The dispute concerned the circumstances in which the pledge agreements were allegedly terminated. The pledge agreements contained arbitration agreements providing for any disputes in connection with them to be determined by LCIA arbitration in London.

The bank commenced court proceedings in Russia and in Cyprus claiming that the termination of the pledge agreements had been procured by fraud. The pledgors deny any fraud, and commenced arbitration proceedings in London seeking a declaration that the pledge agreements had been validly terminated.

The pledgors also commenced an arbitration claim in the Commercial Court seeking (a) antisuit injunctions against the Russian and Cypriot proceedings and (b) if antisuit relief was not available, an indemnity against any costs or liability arising in those proceedings on the basis that they were commenced in breach of the arbitration agreements.

In a reserved judgment, Males J (a) granted an antisuit injunction in respect of the Russian proceedings, rejecting an argument that because the Russian proceedings had been commenced under a Russian insolvency statute the dispute there was non-arbitrable; (b) declined to grant an antisuit injunction in respect of the Cypriot proceedings on the basis that the CJEU’s decision in West Tankers preventing the courts of an EU member state from granting antisuit injunctions preventing a party from bringing proceedings in the courts of another member state continues to apply under the Brussels Regulation Recast and (c) deferred the claim for an indemnity on the basis that the arbitration tribunal might itself grant an antisuit injunction in relation to the Cypriot proceedings, which the court could potentially then enforce in accordance with the CJEU’s decision in Gazprom.

The judgment is here.