Vitol Bahrain EC v Nasdec General Trading Llc & Ors

An anti-suit injunction will not ordinarily be granted merely because foreign proceedings are vexatious, oppressive, weak or involve concurrent litigation. The English court must identify an interest of its own, typically that England is the natural forum or that an exclusive jurisdiction or arbitration agreement requires protection. Where the real dispute concerns parties and evidence located abroad, and the foreign court is the natural forum, the fact that related English proceedings continue is insufficient. A foreign claim will be treated as hopeless only exceptionally. Its apparent weakness is generally evidence of bad faith or unconscionable conduct, rather than an independent ground for intervention.

Vitol sought continuation of an anti-suit injunction restraining Fal Oil from pursuing proceedings in Fujairah, UAE, or from joining Vitol to them. The UAE proceedings concerned Fal Oil’s asserted title to two oil cargoes sold by Nasdec to Vitol and stored at a Fujairah terminal. Vitol’s English action sought declarations concerning Nasdec’s title and alternatively damages for breach of warranties of title governed by English law.

Vitol alleged that Fal Oil’s late application to join it in Fujairah was vexatious and oppressive because it created parallel proceedings, was made in bad faith and was bound to fail. The central issue was whether the English court had a sufficient interest to restrain the foreign proceedings.

1. The injunction was not continued. The court held that the question of title as between Vitol and Fal Oil was most suitably determined in Fujairah. Both parties were connected with the UAE, most relevant evidence and witnesses were there, and the alleged misappropriation was unlikely to involve English law. The English connection was limited to Vitol’s warranties with Nasdec, between whom there was no dispute. [2013] EWHC 3359 (Comm) at [37]-[41].
2. The principles described by Rix LJ in Star Reefers Pool Inc v JFC Group Ltd required either an exclusive jurisdiction or arbitration agreement, or that England be the natural forum and the foreign conduct unconscionable. The first category did not apply, and the second was not established.
3. The chronology and changing formulations of Fal Oil’s case did not justify a finding of bad faith, in light of unchallenged evidence that the joinder procedure accorded with local UAE practice. Any objection based on abuse of that procedure was better determined by the Fujairah court. [42]-[45].
4. Concurrent proceedings are generally undesirable because they may produce conflicting judgments or an unattractive race to judgment. That consideration forms part of the overall assessment. It does not determine the result independently. Here the Fujairah proceedings would continue in any event, making that court the appropriate forum for determining title. [46]-[48].
5. The weakness of a foreign claim can support a finding of bad faith or unconscionable conduct, but it is not generally a standalone basis for an injunction. A conclusion that foreign proceedings are hopeless is exceptional and requires a demanding standard. The evidence here fell short, and the merits were principally for the Fujairah court. [49]-[59].
6. The injunction granted without notice by Cooke J therefore lapsed. It was unnecessary to resolve how Vitol had been joined in the Fujairah proceedings. [60].