In the recent case of Limited Liability Company “Eurochem North-West-2” v. Tecnimont S.P.A, the Bombay High Court declined, at a pre-trial stage, to grant an interim injunction for an asset freeze in support of the enforcement of a US$2 billion judgment of the Moscow Commercial Court. The judgment had been obtained by Russian company, Eurochem North-West-2 (“Eurochem”) against Italian engineering company, Tecnimont S.p.A. (“Tecnimont”), and Eurochem sought to enforce it against Tecnimont’s assets in India. The Court refused to recognise the Moscow Commercial Court’s judgment due to:
(i) its doubts regarding the Moscow Court’s competence, given the parties’ arbitration agreement and Eurochem’s participation in the arbitration proceedings; and
(ii) its concerns regarding procedural fairness.
This decision highlights the limits of attempts to bypass agreed arbitration mechanisms and could affect parties’ strategies around forum selection and how to resist enforcement in cross-border disputes.
Background
In 2020, Eurochem entered a series of engineering contracts with Tecnimont and its Russian subsidiary, MT Russia (“MTR”), for the construction of a fertiliser complex in Russia (the “K2 Project”). The dispute arose due to the Russia-Ukraine conflict and resulting EU sanctions which impacted the parties’ contract, with Tecnimont and MTR suspending performance in mid-2022.
While the contracts provided for ICC arbitration seated in London under English law, Eurochem invoked Article 248.1 of the Russian Commercial Procedure Code (commonly referred to as the Lugovoy Law) to file proceedings before the Moscow Commercial Court, seeking recovery of utilised advance payments, interest and damages incurred in entering into substitute agreements. In essence, the Lugovoy Law grants Russian courts exclusive jurisdiction over disputes involving sanctioned Russian parties, even if parties have agreed on a dispute resolution mechanism (such as arbitration), if the agreed foreign forum is deemed “unavailable” or “unenforceable” because sanctions impede the sanctioned party’s access to justice.
Despite an anti-suit injunction and a series of procedural orders directing Eurochem to withdraw the Russian proceedings, issued by both the ICC and the English High Court, a judgment was issued in Eurochem’s favour by the Moscow Commercial Court.
Eurochem subsequently sought to enforce the judgment in India, filing proceedings before the Bombay High Court under Section 13 of the Code of Civil Procedure 1908 (“CPC”).
The decision: the Bombay High Court’s approach
The key question before the Bombay High Court was whether the Russian judgment could be regarded as sufficiently conclusive and enforceable under Indian law, notwithstanding the parties’ agreement to arbitrate and the ongoing ICC proceedings.
Under Section 14 of the CPC, Indian courts ordinarily presume that a foreign court was competent where a certified copy of a foreign judgment is produced. However, this presumption is rebuttable. Section 13 further provides that a foreign judgment will not be treated as conclusive where one of the six statutory exceptions under Section 13 (a) to (f) applies (these being if the judgment is: (a) not issued by a court of competent jurisdiction, (b) is not on the merits of the case, (c) is based on an incorrect view of international law, (d) opposed to natural justice, (e) obtained by fraud or (f) in breach of Indian law). [10, 34]
Two aspects of the Russian proceedings were considered significant in this case:
- Natural justice concerns: Eurochem filed over 20,000 pages of new materials just 10-14 days before the final Moscow hearing, and no independent expert was appointed for Tecnimont. [20, 35]
- Non-disclosure of material facts: Eurochem failed to disclose in its Indian injunction application the ICC Tribunal’s anti-suit orders, the English High Court’s anti-suit injunction, or the fact that the English Court of Appeal had dismissed its appeal against the injunction. [35]
The Court concluded that, in view of the arbitration agreements between the parties, Eurochem’s participation in the ongoing international arbitration and the natural justice concerns, the presumption of competence of the Moscow Court under Sections 13-14 of the CPC was “doubtful” and could not be applied at this pre-trial stage. The Court found that the conclusiveness of the Russian judgment would need to be tested in a trial, and therefore, at this stage, the Russian judgment could not be accepted as proof of evidence to support Eurochem’s debt claim against Tecnimont. [19, 35]
Looking ahead
As we have previously reported, international parties contracting with Russian counterparties increasingly face the prospect of parallel proceedings in jurisdictions outside those contemplated within their agreements.
The decision highlights the growing procedural complexity confronting parties and the risk of a dispute spanning across multiple jurisdictions: in this case, proceedings were commenced before courts in England, Russia and India, with Eurochem also pursuing enforcement measures and freezing relief before the Malaysian High Court. This issue of complex and often, contradictory judgments from various jurisdictions is likely to become increasingly significant following the EU’s recent announcement of its proposed 21st package of sanctions against Russia, which may further intensify tensions between contractual dispute resolution mechanisms and domestic measures designed to counter the effects of sanctions.
What is clear, however, is that while this case turned heavily on its specific facts, parties would be well-advised to take early and careful legal advice to ensure that the correct procedural steps are taken, including adherence to principles of natural justice, disclosure of material facts and timing of objections to proceedings, in navigating this increasingly complex landscape.
For further information, please contact:
Ben Carroll, Partner, Linklaters
ben.carroll@linklaters.com
