Trafigura Beheer BV v Kookmin Bank Co

For service out of the jurisdiction, the claimant must show that England is clearly the appropriate forum. The court must consider the substance and overlap of the competing proceedings, including the governing law, contractual jurisdiction clauses, witnesses and available procedural mechanisms.

An anti-suit injunction is a personal remedy directed at vexatious, oppressive or unconscionable conduct. It is readily granted for proceedings brought in breach of an exclusive English jurisdiction clause, subject to comity and other recognised limits. Where a residual foreign-law claim has a real, even if limited, prospect of success, the exceptional threshold for an injunction is not met.

Trafigura sought declarations concerning its liability under a letter of credit and related letter of indemnity following proceedings brought by Kookmin in South Korea against Trafigura and other parties. Kookmin also challenged the English court’s jurisdiction under CPR 11(1)(a).

Trafigura applied for service out of the jurisdiction and for an anti-suit injunction under CPR 25.1(1)(a). The central issues were whether England was clearly the appropriate forum and whether the Korean proceedings were vexatious, oppressive or unconscionable, particularly in light of the English-law contracts and the residual claim under Korean law.

1. Jurisdiction and forum. Kookmin’s application under CPR 11(1)(a) was rejected. Trafigura had shown that England was clearly the appropriate forum for the contractual and related disputes. The letter of credit, letter of indemnity and sale contract required construction under English law. The relevant documentary and transactional evidence was principally connected with England or was available there. Kookmin could pursue its claims by Part 20 proceedings and could join other necessary and proper parties.
2. Construction of the contractual documents. Field 47A(M) of the letter of credit applied where conforming bills of lading were unavailable, including where non-conforming bills were available. Presentation of the letter of indemnity therefore did not represent that no bills of lading existed. The English-law contracts left no room for the alleged fraudulent misrepresentation, restitution claim or breach of the letter of credit based merely on the existence of discrepant bills.
3. Claims in tort. Kookmin had agreed to payment against the letter of indemnity, which required later documents to be sent to Huron rather than to Kookmin. The contractual arrangements did not give Kookmin an entitlement to the cargo, the bills of lading or security in the cargo. A tort claim directly inconsistent with performance of the contracts could not succeed. However, the court could not conclude that any failure to comply with the letter of indemnity could not, in any circumstances, constitute an unlawful act under Article 750 of the Korean Civil Code.
4. Anti-suit injunction. The principles in Turner v Grovit, Through Transport Mutual v New India Assurance Co., SNIA v Lee Kui Jack and Airbus Industrie GIE v Patel required caution, respect for international comity and a clear need to protect the English proceedings. Although most Korean claims were bound to fail, the residual Korean-law tort claim was not shown to be doomed. The application for an anti-suit injunction therefore just failed and was refused.
5. England was declared the appropriate forum for the disputes, but the Korean proceedings were not restrained. Any stay or deferral of those proceedings was left to the Korean court.

First-instance decision. No earlier appellate decision is stated in the judgment.