Anti-enforcement injunctions

Google LLC v Nao Tsargrad Media is the latest in a growing line of successful anti-enforcement injunctions (AEI) aimed at challenging international enforcement by foreign parties. This article will look at how the approach in England and Wales is diverging from that of the European member states, and what this says both about the case in question and the growing appetite for AEIs in the face of the decisions of the Arbitrazh Court.

First, to dispel the common confusion between AEIs and anti-suit injunctions (ASI), one must think of each as having a fundamental temporal difference. While ASIs seek to restrain a respondent from pursuing proceedings in another jurisdiction, AEIs are there to restrain a respondent once they have already obtained an award or judgment from such proceedings.

English courts have generally been wary of granting AEIs. Christopher Clarke LJ, in reviewing the authorities in the Court of Appeal in Ecobank Transnational Incorporated v Tanoh [2015], noted that the observations in Masri v Consolidated Contractors International Co SAL [2008] ‘provide a strong contrast to the default position in anti-suit injunctions where relief will ordinarily be given to enforce an exclusive jurisdiction clause’.

He summarised: ‘The cases in which the English courts have granted anti-enforcement injunctions are few and far between.’

EU member state courts have also generally renounced their exercise of jurisdictional power in foreign courts. In April 2024, the Regional Court of Essen (LG Essen) dismissed Spain’s request for an AEI of an investor-state arbitration award. LG Essen, in examining Spain’s request, found that AEIs violate the judicial sovereignty of states, even when only aimed at individuals.

LG Essen also asserted that a regard for the sovereignty of non-EU states forms a component of European constitutional identity reflected in articles 3(V) and 21(I) of the Treaty on the European Union, and article 216(V) of the Treaty of the Functioning of the European Union. LG Essen’s final dismissal of Spain’s application found no legal basis in Spanish, German or EU law for such a request as it made.

In Google v Nao Tsargrad, the enforcement of the award made by the Moscow Arbitrazh Court was attempted in a multitude of jurisdictions: Algeria, Egypt, Hungary, Kyrgyzstan, Serbia, South Africa, Spain, Turkey and Vietnam. These choices of jurisdiction were highly politically motivated. A media article published on Tsargrad’s website stated they would only be attempting enforcement in those jurisdictions that had not yet ‘boycotted’ Russia. Tsargrad’s most successful applications were in South Africa and Turkey where they were granted, and subsequently served, motions on Google’s presence in the jurisdiction.

With this backdrop in mind, Henshaw J’s judgment in Google v Nao Tsargrad is an important point in the development of the treatment of AEIs in English courts.

The dispute began on 20 April 2021 when the Arbitrazh Court issued its substantive judgment (the Tsargrad judgment) which condemned Google’s termination of Tsargrad and TV-Novosti’s Google and YouTube accounts in line with EU sanctions. It considered and rejected Google’s objections that the Arbitrazh Court did not have exclusive jurisdiction over the dispute and imposed a daily fine commencing at 100,000 rubles starting from the sixth day of non-compliance from the effective date of judgment and subject to weekly doubling.

Despite the Arbitrazh Court seemingly having recreated the fabled emperor’s chess board (in which a sage requested a grain of rice doubling each day as a reward and so bankrupted an empire), the Tsargrad judgment was upheld on 20 December 2021 following an appeal by Google. Further appeals to the Court of Cassation and the Supreme Court of the Russian Federation were also unsuccessful. At all stages, Google maintained its jurisdiction objections, and the appellate courts considered and rejected them.

Google sought AEI relief in England and the US in the second half of 2024, spurred by steps being taken to enforce the judgment, which by then had accumulated to a mind-boggling £1.85 octillion (or £1,850,000,000,000,000,000,000,000,000). Interim relief was granted by HHJ Pelling KC in the High Court in August 2024 and was upheld in a jurisdictional challenge overseen by Dias J in September 2024.

The full trial then took place under Henshaw J’s direction in November 2024. Henshaw J’s judgment extensively reviews the authorities dealing with AEIs, particularly focusing on the importance of delay in the applicant seeking relief. He found that Google had given a cogent account of its reasons for refraining from seeking anti-suit relief until that point and that an AEI would be granted on the basis that it would halt enforcement action outside of Russia.

Henshaw J’s judgment was much needed. As animosity continues to heighten over international sanctions, the English forum was without exacting guidance on the grounds on which an AEI might be granted. The era of AEI relief being seldom granted due to considerations of comity and delay appears to be coming to an end, as Foxton J opined in Barclays Bank Plc v PJSC Sovcombank [2024]: ‘[AEI relief] was a relatively rare beast in English civil procedure, although it is fair to say reports of sightings have significantly increased.’

Henshaw J’s judgment indicates both a departure from this prior wariness towards AEIs and a preparedness to grant protective ‘anti-anti-suit-injunctions’ to prevent meddling in the decisions of the English courts. While this preparedness was likely driven by the extremity of the punishment imposed by the Arbitrazh Court, it does tread closer to the line that Atkin LJ identified in Ellerman Lines v Read [1928]: ‘The principle upon which an English court acts in granting injunctions is not that it seeks to assume jurisdiction over the foreign court, or that it arrogates to itself some superiority which entitles it to dictate to the foreign court, or that it seeks to criticise the foreign court or its procedure; the English court has regard to the personal attitude of the person who has obtained the foreign judgment.’

It may well be, if the dissension between Russia and much of Europe climbs to headier heights, that this precept no longer holds.

Google v Nao Tsargrad demonstrates the principles that the court will apply in further AEI applications. While the penalties against Google, which Henshaw J noted is a figure ‘about 20 trillion times greater than the estimated GDP of all the economies in the world’, has grabbed headlines, this decision gives a clear insight into the future of the broiling legal battleground of Russian sanctions. It highlights the increasing reliance of Russian entities on their own forum in both launching and defending against legal actions and, where the Arbitrazh Court has imposed ‘extravagant, indeed other-worldly, sums of money of a penal nature’ (Henshaw J in Google v Nao Tsargrad), marks the battle lines for future decisions.

Dipti Hunter is a committee member of the London Solicitors Litigation Association and partner at HCR Law. Soloman Clarke is a paralegal at HCR Law