ADM Asia-Pacific Trading PTE Ltd v Toepfer International Asia PTE Ltd & Anor

An anti-suit injunction is an equitable and discretionary remedy. Even where foreign proceedings appear to breach a London arbitration agreement, the court may refuse relief if the applicant has not acted promptly and the foreign proceedings have substantially progressed. Delay is relevant independently of detrimental reliance or prejudice. A challenge to the foreign court’s jurisdiction does not automatically suspend the need to seek relief in England. The court may also consider wasted resources, the stage reached in the foreign proceedings, parallel litigation and judicial comity.

ADM applied for a final anti-suit injunction restraining BSS from continuing proceedings in Indonesia. ADM relied on a FOSFA arbitration clause in the parties’ contract of sale. BSS relied principally on ADM’s delay.

ADM knew of the Indonesian proceedings from June 2013, was served in May 2014, challenged jurisdiction, filed a substantive defence, and participated in hearings. The Indonesian District Court initially declined jurisdiction, but the Indonesian High Court later allowed BSS’s appeal and remitted the matter for determination. ADM then commenced these proceedings in September 2015 while pursuing an appeal to the Indonesian Supreme Court.

The court assumed, without deciding, that the Indonesian proceedings breached the arbitration agreement. The central issue was whether ADM’s delay and participation made it inappropriate to grant an injunction.

1. The application was refused. The court assumed, without deciding, that BSS’s Indonesian proceedings breached the FOSFA arbitration agreement. It was unnecessary to determine that issue because the injunction was refused in the exercise of discretion.

2. Where foreign proceedings breach a London arbitration agreement, an anti-suit injunction will ordinarily be granted unless there are strong reasons for allowing the foreign proceedings to continue. That principle remains subject to the equitable and discretionary nature of the remedy. The requirement that relief be sought promptly is not confined within the concept of “strong reasons” for suing abroad.

3. Following The Angelic Grace [1995] 1 Lloyd’s Rep 87 and the reasoning confirmed in Ecobank Transnational Incorporated v Tanoh [2015] EWCA Civ 1309, delay may justify refusal even without proof that the respondent relied detrimentally on the delay. Relevant considerations include expenditure, wasted resources, the interests of third parties and the foreign court, finality, and comity.

4. An applicant is not entitled to postpone an English injunction application merely because it is first challenging the foreign court’s jurisdiction. The court must assess whether the application was made with appropriate despatch and how far the foreign proceedings have advanced. Waiting to see what the foreign court decides is generally inappropriate where no useful purpose is served by doing so.

5. ADM knew of the proceedings and the alleged breach by June 2013, and could have applied shortly after service in May 2014. Instead, it engaged in both the jurisdictional and substantive issues, incurred and claimed the resulting costs, and allowed the Indonesian proceedings to progress through several judicial stages. Intervention at that stage would not be a sensible method of conducting curial business and would insufficiently respect the Indonesian courts’ seisin of the dispute.