SAB Miller Africa & Anor v East African Breweries

Where an application for an interim injunction is made and determined under section 44 of the Arbitration Act 1996, section 44(7) prevents the Court of Appeal from granting permission to appeal. The statutory restriction applies because of the power actually exercised below. Contractual clauses preserving access to the court do not alter that result in the absence of an exclusion of section 44.

Tanzania Breweries Ltd and SAB Miller Africa obtained an interim injunction in the Commercial Court restraining East African Breweries Ltd from competing or implementing alternative brewing and distribution arrangements. The underlying dispute concerning the parties’ brewing and distribution agreement was to be resolved by ICC arbitration.

East African Breweries applied for permission to appeal. It contended that provisions in the brewing and distribution agreement and shareholders’ agreement gave the court a wider power to grant injunctions than section 44 of the Arbitration Act 1996, so that the appellate restriction in section 44(7) did not apply. The threshold issue was whether the Court of Appeal had jurisdiction to entertain the application.

1. Application refused. Both judges held that the Court of Appeal lacked power to grant permission to appeal. The application below had expressly been made under section 44 of the Arbitration Act 1996, and Christopher Clarke J had expressly made the injunction under that provision. It was therefore a decision under section 44 for the purposes of section 44(7).

2. Laws LJ held that the contractual clauses relied upon did not confer an additional section 37 jurisdiction. Properly construed, they preserved the parties’ ability to seek the court relief already available despite their agreement to arbitrate. Clear and specific language would be required to exclude the statutory conditions governing section 44 relief, particularly those preserving the arbitral tribunal’s effective control of the dispute.

3. Laws LJ further held that, even if the parties had introduced wider section 37 powers by agreement, section 44 would still govern an order falling within its terms unless it had been excluded. The injunction could have been made under section 44 and was in fact so made. He noted that an order made under section 44 may have final dispositive effect while remaining interim in form, as recognised in [2005] 2 Lloyd's Rep 494.

4. Sir David Keene agreed in the result on the narrower ground. Since neither party had sought a determination under section 37 and the judge had exercised section 44, section 44(7) applied. He did not express a concluded view on the contractual construction or on whether parties could confer wider powers by agreement.

• Court of Appeal (Civil Division) — [2009] EWCA Civ 1564. The application for permission to appeal was refused because section 44(7) of the Arbitration Act 1996 deprived the Court of Appeal of power to grant it.

• Commercial Court, Queen’s Bench Division — On 18 August 2009 Christopher Clarke J granted an interim injunction under section 44 of the Arbitration Act 1996. The citation of that decision was not stated in the judgment.