Royal Bank of Canada v Cooperative Centrale Raiffeisen-Boorenleenbank Binding Authority

An injunction restraining foreign proceedings requires more than concurrent litigation and the fact that England is an appropriate forum. The applicant must show that England is the natural or more appropriate forum and that justice does not require the foreign proceedings to continue, including because the respondent would lose a legitimate juridical advantage.

A non-exclusive English jurisdiction clause may lighten that burden. It may make the English court more willing to decide the appropriate forum and may support closer scrutiny of the alleged advantages of foreign proceedings. It does not, however, make England the exclusive or necessarily primary forum where the clause contemplates proceedings elsewhere. The risk of conflicting judgments and issue estoppel is insufficient by itself. Comity requires caution, and the injunction will be refused where restraint would not be just.

Royal Bank of Canada sought an injunction under section 37 of the Supreme Court Act 1981 restraining Cooperatieve Centrale Raiffeisen-Boerenleenbank BA from pursuing New York proceedings beyond factual discovery. The New York proceedings and the English proceedings concerned the same parties, transaction and issues.

The parties’ Master Agreement was governed by English law and contained a non-exclusive English jurisdiction clause which expressly permitted proceedings in other jurisdictions, including concurrent proceedings. An earlier application to stay the English proceedings had been refused. The central issue was whether the subsequent progress of the New York proceedings, including a proposed summary judgment application and trial before the English trial, made their continuation vexatious, oppressive or an abuse of process.

1. Application dismissed. Although concurrent trials and the possibility of conflicting judgments or issue estoppel created serious case-management difficulties, it was not just to restrain the New York proceedings.
2. Under section 37 of the Supreme Court Act 1981, foreign proceedings may be restrained where their pursuit is vexatious or oppressive, interferes with the due process of the English court, or is otherwise unconscionable. Concurrent proceedings do not, without more, establish that condition.
3. The relevant inquiry was whether England was the more natural or appropriate forum and whether justice nevertheless required the New York action to continue. The court had to consider any legitimate juridical advantage which Rabobank would lose if restrained. Rabobank’s wish to have issues determined under New York law and according to New York private international law constituted a real juridical advantage.
4. The non-exclusive jurisdiction clause did not require Rabobank to justify every foreign proceeding or prevent parallel litigation. It did, however, mean that Rabobank could not object to the English court’s jurisdiction, made the English court less inhibited by comity in determining the appropriate forum, and lightened the burden of establishing oppressive conduct. It did not relieve RBC of proving the substantive requirements for an injunction.
5. The timing of the summary judgment application, the steps taken to secure a New York trial date, the parties’ expenditure, and the prospect of an ugly rush to judgment did not establish vexatious or oppressive conduct. The foreign court was entitled to manage its proceedings, while the English court could manage its own trial and address any estoppel arguments if they arose.