Ecobank Transnational Incorporated v Tanoh

An anti-enforcement injunction is directed against the party seeking enforcement, not against the foreign court. It may be granted to uphold an arbitration agreement, but the court must give substantial weight to comity, particularly after the foreign court has adjudicated the dispute.

An applicant should act promptly and before foreign proceedings are too far advanced. Delay may itself justify refusing relief; detrimental reliance is relevant but is not essential. The court may recognise a foreign tribunal’s decision on whether employment law allocates a dispute to a particular tribunal. A defamation claim will not ordinarily fall within an employment arbitration clause merely because the allegations concern the employment relationship.

Ecobank sought continuation of an interim worldwide anti-enforcement injunction restraining Mr Tanoh from enforcing judgments obtained in Côte d’Ivoire and Togo. The judgments arose from disputes following termination of Mr Tanoh’s employment as Ecobank’s chief executive.

The employment agreement was governed by English law and contained an arbitration clause covering disputes arising under or in connection with the agreement. Ecobank had challenged jurisdiction in the foreign proceedings, but had delayed commencing arbitration and applying to the English court. The central issues were delay, comity, the effect of the Togolese Labour Tribunal’s jurisdictional decision, and whether the Ivorian defamation claim fell within the arbitration agreement.

1. Disposition. The court refused to continue the interim anti-enforcement injunction.
2. An anti-enforcement injunction is directed to the party and not to the foreign court or tribunal. The rarity of the remedy does not prevent its grant where necessary to uphold a contractual negative right, but comity becomes especially important once the foreign court has spent time deciding the dispute with the parties engaged.
3. An applicant for anti-suit or anti-enforcement relief should apply promptly and before the foreign proceedings are too far advanced. A period spent challenging jurisdiction in the foreign court remains relevant to delay. Detrimental reliance may be considered, but it is not an essential condition to refusing relief or declining to uphold the arbitration agreement.
4. As to the Togolese Proceedings, the court was not bound by the Labour Tribunal’s decision under section 32(3) of the Civil Jurisdiction and Judgments Act 1982, but had to make an evaluative judgment whether the decision should be recognised. The tribunal had straightforwardly applied the Labour Code in deciding that the dispute might be required, as a matter of Togolese employment-law policy, to be determined by the Labour Tribunal rather than arbitration. That decision was not displaced.
5. Ecobank’s delay, its failure promptly to commence arbitration, its request for additional time to submit merits submissions before the Labour Tribunal, and the existing stay from the Lome Court of Appeal together provided strong reasons against continuing relief.
6. As to the Ivorian Proceedings, the defamation claim did not arguably arise under or in connection with the employment agreement. The commercial assumption that disputes arising from a contractual relationship should be decided by one tribunal did not extend the clause to an independent defamation claim. The possibility of contractual or trust-and-confidence allegations, or of non-monetary remedies in arbitration, did not alter that conclusion. The presence of other alleged defendants, who were not parties to the arbitration agreement, further supported the analysis.