FH Holding Moscow Ltd (a company incorporated in the Republic of Cyprus) v AO Unicredit Bank (a company incorporated in the Russian Federation)

Hearing date: 13 November 2025 Draft judgment circulated to parties: 21 November 2025

Approved Judgment

(A) INTRODUCTION

This judgment follows a hearing on 13 November 2025 of:-

i) the Claimant's application under section 37 of the Senior Courts Act 1981 (“ SCA 1981”) dated 5 August 2025 for an anti-suit injunction (“ ASI”) restraining the First and Second Defendants/Respondents (to whom I shall refer as “ AO” and “ SPA” respectively) from:-

a) pursuing the proceedings in Moscow referred to below, and/or

b) commencing any other proceedings, except in arbitration under the rules of the Vienna International Arbitral Centre (“ VIAC”), in relation to the disputed issues, at least until: (1) they have been determined in VIAC arbitration under the arbitration agreement referred to below, or (2) further order of the court (“FHM's ASI Application”);

ii) AO's application dated 10 September 2025 for a declaration pursuant to CPR Part 11 that the English court has no jurisdiction to hear the claim against it, alternatively that it should not exercise any jurisdiction that it may have (“ AO's Jurisdiction Application”); and iii) SPA's application dated 10 September 2025 for an order pursuant to CPR Part 24 that the claim against it be summarily dismissed (“ SPA's Summary Judgment Application”).

It has been necessary to produce this judgment at short notice, in the light of a hearing in the Moscow proceedings listed for 26 November 2025.

For the reasons set out below, I have concluded that:-

i) I am not persuaded that there is a high probability, or a high degree of assurance, that the Moscow proceedings are in breach of the Arbitration Agreement;

ii) it would be inappropriate for an ASI to be granted on the basis of the Moscow proceedings being vexatious and oppressive;

iii) SPA's summary judgment should be granted, on the basis that the claim against it has no realistic prospect of success; and

iv) the English court lacks jurisdiction over AO, whose jurisdiction challenge must succeed.

(B) FACTS

The Claimant is a Cyprus company whose business operations are solely in Russia; it is tax resident in Russia. It is part of a group of companies – the “ Fashion House Group” which also operates in Poland, Romania, Belgium, and Luxembourg. The main operating company of the group, and the Claimant's indirect parent, is L&W Development Limited, a Cyprus company, whose managing director is an EU national.

AO, a Russian bank, is a wholly owned subsidiary of SPA, a major Italian bank.

The Claimant is the borrower under a term loan dated 2 November 2018 ( the “Facility Agreement”). The loan originally comprised:-

i) a Euro facility consisting of

a) €4,300,000 lent by AO, and (b)

b) € 21,600,000 lent by SPA

(together, the “ EUR Facility”); and

ii) a Russian rouble loan facility of RUB 1,260,000,000 lent by AO (the “ RUB

Facility ”).

SPA entered into the Facility Agreement as lender. AO entered into it as lender, but also as (facility) agent for the other Finance Parties (defined as an Arranger, Agent, Security Agent, Hedge Counterparty or Lender), as Security Agent and as Original Hedge Counterparty. Clause 21.16 of the Facility Agreement provides:

“Sanctions

The Borrower will not, directly or indirectly, use the proceeds of any Loan, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or any other person, (i) to fund any activities or business of or with any person, or in any country or territory, that, at the time of such funding, is, a Sanctioned Person or Sanctioned Country, (ii) or in any other manner, that would result in a violation of Sanctions by any person (including any person participating in the loan hereunder, whether as lender, agent or otherwise).”

Clause 23 of the Facility Agreement sets out, over four pages, the events or circumstances constituting an Event of Default, including clause 23.1 as follows:-

“Non-payment

A Transaction Obligor does not pay on the due date any amount payable pursuant to a Finance Document at the place and in the currency in which it is expressed to be payable unless:

23.1.1 its failure to pay is caused by:

(a) administrative or technical error; or

(b) a Disruption Event; and

23.1.2 payment is made within three Business Days of its due date.”

One of the consequences of an Event of Default is that under clause 23.23 the Agent may, and shall if so directed by the Majority Lenders, take various steps including acceleration of all or part of the loans so that they become immediately due and payable.

Clause 27 of the Facility Agreement deals with the role of the Agent, the Security Agent, the Arrangers and the Reference Banks. It includes these provisions:-

“27.2.2 Each Transaction Obligor must pay the Security Agent, as an independent and separate creditor, an amount equal to each Finance Party Claim on its due date (each a “Security Agent Claim”). For the purposes of Russian law, the Security Agent is the joint and several creditor with each other Finance Party in respect of each Finance Party Claim, having an independent right to demand and enforce payment of each Security Agent Claim on the terms set out in Clauses 27.2.5 to 27.2.12.”

“27.4 Enforcement through Security Agent only

The Secured Parties shall not have any independent power to enforce, or have recourse to, any of the Transaction Security or to exercise any right, power, authority or discretion arising under the Security Documents except through the Security Agent.

27.5 Instructions

27.5.1 Each of the Agent and the Security Agent shall:

(a) unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent or Security Agent (as applicable) in accordance with any instructions given to it by:

(i) all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and

(ii) in all other cases, the Majority Lenders; and

(b) not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (a) above (or, if this Agreement stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties).”

The Facility Agreement is governed by English law and contains an arbitration agreement (“the Arbitration Agreement”) which provides as follows:

“42.1 Any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a “Dispute”) shall be referred to and finally resolved by arbitration under the Rules of Arbitration (Vienna Rules) of the Vienna International Arbitral Centre (VIAC) of the Austrian Federal Economic Chamber (the “Rules”).

…

42.2.2 The seat of arbitration shall be Vienna, Austria”.

The Facility Agreement was entered into alongside a suite of associated Finance Documents and Security Documents.

These include a Mortgage Agreement executed on 6 November 2018 between the Claimant as mortgagor and AO as mortgagee, by which various real estate assets in or near Moscow, all of which are fashion retail outlets (the “ Assets”) owned by the Claimant were provided as security for the loans provided under the EUR and RUB Facilities. The total value of the Assets as at 31 December 2024 is said to be about € 42 million.

Recitals (A) and (B) to the Mortgage Agreement record that:-

“(A) The Mortgagee acting in its capacity as Arranger, Original Lender, Facility Agent and Security Agent, under the term loan facilities agreement dated 2 November 2018 (the “Facility Agreement”) and made between, among others, the Mortgagee and the Mortgagor as Borrower (the “Borrower”), has agreed to make available a facility on the terms and conditions of the Facility Agreement.

(B) The Mortgagor has agreed to create the Mortgage (as defined below) to secure the fulfilment by the Borrower of its obligations to the Mortgagee assumed under the Facility Agreement, and to secure the repayment by the Borrower of the total received amount upon the Mortgagee's demand if the Facility Agreement is invalidated or recognised as non-existent.”

Clause 1.1 of the Mortgage Agreement provides that:-

“In this Agreement (including the Background above) all...