Law and war: anti-enforcement injunction against Russian astreinte orders

Russia’s response to sanctions imposed following its invasion of Ukraine in 2014 and 2022 has resulted in a stand-off between the Russian and English courts. As the Russian courts use statutory “exclusive jurisdiction” provisions passed in response to Western sanctions, the English courts have, with due regard to any remainders of comity, been more willing to restrain enforcement of the more egregious Russian court orders outside Russia.

Google’s closure of Russian media channels

In recent years, various Google entities (Google) closed down the YouTube channels of three Russian entities which operate pro-state media (the Spas, Tsargrad and Russia Today/RT channels) (the Russian Media Entities). Google says it did this in compliance with Western sanctions and/or its terms and conditions. The Russian Media Entities obtained Russian court decisions ordering Google to reinstate the channels (including because their closure purportedly interfered with constitutional rights to free speech), and imposing daily “astreinte” financial penalties for failure to comply. Those Russian astreinte orders are being enforced against Google’s assets around the world.

The penalties are now of astronomical proportions, since they continue to increase in geometric progression and are not subject to any cap. At the end of January 2025, they were higher than the GDP of the whole world, and they double every week.

Enforcement proceedings have been attempted in South Africa, Algeria, Egypt, Hungary, Kyrgyzstan, Serbia, Spain, Turkey, and Vietnam, and threatened elsewhere. Enforcement has already taken place in Russia – against a Google subsidiary that did not have any contractual nexus with the Russian Media Entities and was not a party to the Russian proceedings.

On 16 August 2024 Google applied to the English court for:

• An anti-enforcement injunction to prevent enforcement of the Russian orders in foreign jurisdictions; and
• An associated injunction prohibiting the Russian Media Entities from applying to the Russian court for an anti-anti-enforcement injunction (the Protective Injunction).

The High Court granted the relief sought by Google on an interim ex-parte basis on 19 August 2024 (Google LLC & Anor v NAO Tsargrad Media [2024] EWHC 2212 (Comm) (19 August 2024)).

On 22 January 2025 it continued the relief on a final basis after a full hearing (Google LLC & Anor v NAO Tsargrad Media & Ors [2025] EWHC 94 (Comm) (22 January 2025)).

Exclusive jurisdiction and arbitration clauses vs Article 248

Google says that the Russian court orders were obtained in breach of exclusive jurisdiction/arbitration clauses contained in its terms and conditions. The Russian Media Entities relied on Article 248 of the Russian Arbitrazh Procedural Code which provides for “exclusive” Russian jurisdiction over disputes involving sanctioned entities in obtaining the Russian judgments.  

Article 248 is an unusual provision, the effect of which appears to be to give Russian sanctioned entities the option of submitting their dispute to the Russian courts. On its face it applies only where there is no exclusive jurisdiction/arbitration agreement, or where such an agreement would impede access to justice for a Russian sanctioned entity. However, as explained by Google’s Russian law expert Professor Yarik Kryvoi, the Russian courts have interpreted this provision as meaning that access to justice for a Russian party is impeded in every case where it is subject to sanctions.

Anti-enforcement injunctions vs anti-suit injunctions

Anti-suit injunctions are regularly granted to support exclusive jurisdiction/arbitration agreements. However, the English courts have often hesitated to grant anti-enforcement injunctions.

It has been felt that where an order has been made abroad, an English injunction may interfere, albeit indirectly, with the jurisdiction of either the foreign court which made the order, or other foreign courts which are deciding whether or not to enforce it. However, anti-enforcement injunctions have been granted, albeit infrequently, where it was clear that the party to be restrained had behaved sufficiently unconscionably. The modern line of cases on anti-enforcement injunctions in the English courts begins with Ellerman Lines Limited v Read [1928] 2 KB 144. A significant case was the 2014 Court of Appeal decision in Bank St Petersburg OJSC v Vitaly Arkhangelsky [2014] EWCA Civ 593 (in which the author was part of the team acting for the successful applicant). Since the deterioration of international relations with Russia, in more recent years anti-enforcement injunctions have become less exotic than they once were.  

The judgment

The Hon. Mr Justice Henshaw noted that the Russian Media Entities seek to enforce orders which are for “extravagant, indeed other-worldly, sums of money” of a penal, rather than compensatory, nature. The judge regarded their enforcement as “exorbitant”, a term used of enforcement measures which infringe the jurisdiction of the place of enforcement. However, that appears to have been no more than a subsidiary reason for granting the injunctions: the principal reason was that the Russian proceedings had been brought in breach of exclusive jurisdiction/arbitration clauses.

The judge made a thorough survey of case law on anti-enforcement injunctions at paragraphs 56-81 of his judgment. Drawing together eleven relevant key principles at paragraph 82, he held, inter alia, that:

• The bringing of foreign proceedings in breach of exclusive jurisdiction/arbitration clauses can justify the “strong step” of indirectly interfering with the jurisdiction of a foreign court by issuing an anti-suit or anti-enforcement injunction;
• There is no distinct jurisdictional requirement that the case in which an anti-enforcement injunction (as opposed to an anti-suit injunction) is granted must be “exceptional”. However, anti-enforcement injunctions are rarely granted, because delay and/or comity considerations usually make it inappropriate to grant such an injunction;
• It would be particularly intrusive and inconsistent with comity to grant an injunction indirectly preventing enforcement by and in the territory of a foreign court which has already proceeded to judgment (i.e. in this case, enforcement in Russia);
• If the anti-enforcement injunction is sought before or at a very early stage of enforcement proceedings in a third country, concerns about waste of resources and time of the enforcement court should not arise;
• It is arguable that it is no more intrusive indirectly to interfere with an overseas court's enforcement of a foreign judgment than with an overseas court's adjudicative jurisdiction over a dispute;
• It is relevant to consider whether there is a good reason for the applicant not having applied sooner for injunctive relief (by way of anti-suit injunction or anti-enforcement injunction); and
• Delay is an important, and sometimes decisive, factor against the grant of an injunction, but it is not necessarily a bar to relief. Its weight will depend on all the circumstances.

Later, in paragraphs 101-112, the judge appears to accept, in addition, that if a party submits to a foreign jurisdiction, that submission will likely amount to a waiver of any exclusive jurisdiction agreement between the parties for the purposes of seeking an anti-suit or anti-enforcement injunction, which is therefore much less likely to be granted.

Applying those principles, the judge granted the anti-enforcement injunction and Protective Injunction on the basis that:

1. The Russian Media Entities had breached the exclusive jurisdiction / arbitration clauses;
2. An anti-suit injunction would have been ineffective in stopping the Russian proceedings (according to Russian-law evidence accepted by the court), and it was therefore reasonable for Google not to seek it;
3. Until overseas enforcement steps were actually taken by the Defendants, it would have been hard to anticipate that the Defendants would seek to enforce these judgments abroad, bearing in mind the general principle, broadly applied internationally, that a court will not enforce penal orders made by a foreign court;
4. Google had not delayed its application unreasonably after the Russian orders had been made;
5. Google had not submitted to the jurisdiction of the Russian courts, despite arguing the case on merits as well as jurisdiction, since it was obliged to do so under the Russian procedural rules; and
6. The injunctions sought would not interfere with enforcement within Russia.

Conclusion

This case adds to a growing body of recent English case-law about anti-suit relief and unsurprisingly, English courts continue, as they long have done, to uphold contractual terms relating to jurisdiction.

The unilateral arrogation of jurisdiction by the Russian courts over disputes involving sanctioned parties under Article 248 of the Russian Arbitrazh Procedural Code has, understandably, not been respected by the English courts where it flies in the face of an exclusive jurisdiction/arbitration agreement, and in circumstances where no impediment to access to justice outside Russia has been shown. This issue was not addressed in detail in the final judgment. However, in his judgment granting the interim injunction HHJ Pelling KC said that the Russian Media Entities could not claim that there is a legitimate juridical advantage for them in commencing proceedings in Russia, as they were not impeded by sanctions from defending, or indeed bringing, proceedings in England and Wales. That was the case because, despite sanctions, a general licence for expenditure on legal costs by sanctioned persons exists, granted by the UK Office of Financial Sanctions Implementation. At the time of the judgment, the licence permitted expenditure on legal costs of up to £500,000. That cap has since been increased to £2m (including Counsel) on 29 October 2024. Successful applications for individual licences for expenditure beyond the authorised cap have been made on a regular basis.

Enforcing English orders in Russia

In this case, Google said that it would not seek to give effect to the anti-enforcement injunction in Russia (particularly given that enforcement against at least one entity had already taken place). As set out above, that weighed in Google’s favour when the court was deciding on whether or not to grant the anti-enforcement injunction.

It is uncertain whether any English order would in any event be recognised in Russia. In relation to arbitration, the Russian Supreme Court held in July 2024 that a foreign arbitral award in a dispute between C. Thywissen GmbH and Russia’s JSC Novosibirskhlebprodukt should not be enforced in Russia. The court held that the arbitrators were presumed to be biased by reason of their nationality.

No doubt respected Russian law experts such as Professor Kryvoi will be able to advise on enforcement of foreign arbitral awards as well as court judgments in Russia by reference to Russian case law. It seems likely, however, that orders from “unfriendly” foreign courts are even less likely to be recognised in Russia than are foreign arbitral awards. If Trump makes no deal on Ukraine, that situation is likely to continue for the foreseeable future. As for Google and the Russian Media Entities – we will have to see whether any further enforcement is attempted in other jurisdictions and if so, how those other jurisdictions react to competing orders made by the Russian and English courts.