Ecobank Transnational Incorporated v Tanoh

An anti-enforcement injunction to uphold an arbitration agreement remains an equitable and exceptional remedy. A party must seek relief with appropriate despatch. Delay is material even where that party has consistently challenged the foreign court’s jurisdiction and the respondent knew of the arbitration agreement.

The court must consider wasted costs and effort, finality, the interests of third parties and foreign courts, and comity between legal systems. Proof that the respondent detrimentally relied on an assumption that no injunction would be sought is relevant but not a precondition to refusal. The high-probability threshold for showing that an arbitration agreement governs the dispute applies equally to anti-suit and anti-enforcement relief.

Ecobank Transnational Incorporated employed Mr Tanoh under an English-law executive employment agreement containing a London arbitration clause. After his dismissal, Mr Tanoh obtained employment and defamation judgments in Togo and Côte d’Ivoire. Ecobank had challenged jurisdiction in each forum, but did not seek English injunctive relief until after both judgments had been given.

Simon J initially restrained enforcement. Knowles J later discharged the order: [2015] EWHC 1874 (Comm). Ecobank appealed, contending that the claims were within the arbitration agreement, that it had not submitted to the foreign courts, and that its delay should not prevent an anti-enforcement injunction.

The central issue was whether the delay and the requirements of comity made it inappropriate to restrain enforcement of foreign judgments said to have been obtained in breach of an arbitration agreement.

1. Appeal dismissed. The judge was entitled to refuse an anti-enforcement injunction. Ecobank waited until months after judgments had been entered in both foreign proceedings, despite knowing of the arbitration clause and being able to seek English relief from the outset.

2. The employment dispute fell within the broad arbitration clause. The agreement, including the clause, was governed wholly by English law. On the court’s construction of the relevant Togolese materials, the Ordinance gave priority to Ecobank’s Articles of Association, so that the directors’ selection of English law and London arbitration was intended to have practical legal effect.

3. The Ivorian defamation claim also had a sufficiently close connection with the employment agreement. The alleged defamatory statements concerned Mr Tanoh’s performance as managing director and their truth would overlap with issues arising from his dismissal. There was therefore a high probability that the claim fell within the clause.

4. Under Civil Jurisdiction and Judgments Act 1982, section 33, a party does not submit to a foreign jurisdiction merely by contesting it or seeking referral to arbitration. A merits plea required by the foreign court, while the jurisdictional objection is maintained, is not a submission. Ecobank had not submitted in either Togo or Côte d’Ivoire.

5. The same high-probability threshold applies to an anti-enforcement injunction as to an anti-suit injunction. The fact that the foreign proceedings have already produced a judgment does not justify a lower threshold.

6. However, injunctions are discretionary and equitable. Delay is relevant beyond detrimental reliance by the respondent. It includes avoidable expenditure, waste of judicial and party resources, finality, and comity. Comity has a reduced role where an arbitration agreement is engaged, but it remains significant where an injunction is sought only after a foreign court has conducted proceedings and delivered judgment.

7. There was no sufficiently late-emerging or oppressive feature to justify intervention. The judge’s exercise of discretion was open to him, and no appellate basis for interference was established.

• Court of Appeal (Civil Division): dismissed Ecobank’s appeal and upheld the refusal of an anti-enforcement injunction: [2015] EWCA Civ 1309.
• High Court (Commercial Court): Knowles J discharged an interim worldwide injunction restraining enforcement of the Togolese and Ivorian judgments: [2015] EWHC 1874 (Comm).