Trafigura Beheer BV v Kookmin Bank Co

An anti-suit injunction may be granted where foreign proceedings are vexatious, oppressive or unconscionable and the English court has a sufficient legitimate interest in protecting its proceedings. International comity requires a clear need for protection. It is unjust to permit a party to pursue foreign claims which contradict the final determination of the English court on the governing law and construction of the relevant contracts.

Under a documentary credit, a provision permitting payment where required documents are unavailable applies where conforming documents are unavailable, including where non-conforming documents exist. Presentation of an indemnity in those circumstances does not, without more, represent that no bills of lading exist. Contractual rights and obligations cannot be circumvented by recasting the same complaint as a tort claim under another law.

Trafigura sought a post-trial anti-suit injunction restraining proceedings brought by Kookmin in the Seoul Central District Court. The Korean claims concerned payment under a documentary credit, delivery of cargo against a letter of indemnity, and the exchange and transmission of bills of lading.

Cooke J had held that English law governed the documentary credit and that most claims were hopeless, but had left open a possible Korean-law tort claim. Kookmin then submitted to the English jurisdiction. Aikens J subsequently held that the remaining security claims were issues relating to tort governed by English law under section 9(1) of the Private International Law (Miscellaneous Provisions) Act 1995, and Kookmin conceded Trafigura’s non-liability.

The issue was whether the changed procedural and substantive position justified restraining the Korean proceedings and threatened amendments.

1. Anti-suit principles. The court gratefully adopted the principles stated by Cooke J. An injunction may restrain foreign proceedings where their pursuit is unconscionable, including where they are vexatious or oppressive. The court must have a sufficient legitimate interest in protecting English proceedings. International comity requires a clear need for protection, and relief should not deprive a foreign claimant of an advantage which it would be unjust to remove.
2. Presentation claim. The claim was inconsistent with the proper construction of Field 47A(M) of the documentary credit. “Documents required” meant documents conforming to the credit and triggering payment. The provision therefore applied where conforming documents were unavailable, even though non-conforming bills of lading were available. Presentation of the letter of indemnity did not imply that Trafigura possessed no bills of lading. The Presentation Claim was hopeless and its continuation in Korea was vexatious.
3. Security claim. The pleaded Korean claims depended on obligations said to arise under the documentary credit. Whether framed in contract or tort, they could not create rights inconsistent with the credit, the letter of indemnity or the sale contract. Aikens J had finally determined that the claims were governed by English law, and Kookmin had submitted to that jurisdiction. Trafigura was not obliged to provide Kookmin with bills of lading or to preserve security which the credit did not confer.
4. There was a real risk that Kookmin would amend its Korean pleadings to advance a claim based on the matters described in paragraph 4.2 of its Statement of Principles. Such a claim was thoroughly unmeritorious and its prosecution would be fundamentally unjust. The injunction therefore restrained both the existing Korean proceedings and any claim arising from the exchange and transmission of the new claused bills of lading.
5. Trafigura was granted a declaration in the terms proposed. The legal basis of the declaration did not need to be included in the declaration itself, since it appeared in the public judgment.

This was a first-instance post-trial application. The judgment records earlier decisions in the same proceedings by Cooke J and Aikens J, but no appeal from this decision is stated.