Dell Emerging Markets (EMEA) Ltd & Anor v IB Maroc.Com SA (A Body Corporate)

An exclusive jurisdiction clause may extend beyond claims between its named parties where the contract, read as a whole, expressly contemplates claims against an affiliate. A claim pleaded as contractual and arising from the underlying agreement falls within such a clause. A party who denies being bound by the contract may nevertheless invoke its jurisdiction clause to restrain a contractual claim brought under that contract. Allowing the claimant to enforce the contractual right while ignoring the clause may be inequitable, oppressive and vexatious. Where foreign proceedings breach the clause, an anti-suit injunction should be granted unless strong reasons justify withholding it.

Dell UK and Dell Maroc sought continuation of an anti-suit injunction granted by Knowles J on 30 June 2017. The injunction restrained IB Maroc from pursuing proceedings in the Commercial Court of Casablanca.

IB Maroc had contracted with Dell UK under a distribution agreement containing an exclusive English jurisdiction clause. Dell Maroc was an affiliate but was not a party to the agreement. IB Maroc’s Casablanca claim was brought against both companies and alleged contractual or quasi-contractual liability. The issues were whether the jurisdiction clause covered the claim against Dell Maroc and whether Dell Maroc could invoke the clause despite denying that it was bound by the agreement.

1. Contractual basis. Clause 31 was construed in the context of the agreement as a whole. Clause 27 expressly contemplated claims by IB Maroc against Dell UK’s affiliates and imposed a limitation period for them. The phrase arising out of or in connection with this contract therefore covered claims against an affiliate which arose from the agreement. The earlier authorities relied on by the parties, including Donohue v Armco ([2002] 1 Lloyd's Law Reports 425), Winnetka Trading Corporation v Julius Baer International ([2009] Bus LR 1006), Credit Suisse First Boston v MLC (Bermuda) Limited ([1999] 1 Lloyd's Reports 767) and Morgan Stanley v China Haisheng Juice Holdings ([2010] 1 Lloyd's Reports 265), concerned differently worded contracts.
2. Characterisation and contractual injunction. The Casablanca claim, considered by reference to the Rejoinder and the evidence, sought to enforce obligations arising under the agreement and was therefore within clause 31. Its pursuit in Casablanca breached that clause. Dell UK had a sufficient interest to enforce the clause because the claim against Dell Maroc arose from the same facts as the claim against Dell UK. Under The Angelic Grace ([1995] 1 Lloyd's Reports 87), an anti-suit injunction should be granted unless there were strong reasons not to do so. None was shown.
3. Quasi-contractual basis. Dell Maroc could invoke clause 31 despite denying that it was a party to the agreement. It would be inequitable, oppressive and vexatious for IB Maroc to enforce a contractual claim under the agreement while ignoring the jurisdiction clause. The court applied the reasoning in Sea Premium v Sea Consortium (11 April 2001 (unreported)) and the obiter dictum in The MD Gemini ([2012] 2 Lloyd's reports 672). The Hornbay ([2006] 2 Lloyd's Reports 44) and The Yusuf Cepnioglu ([2016] 1 Lloyd's Reports 641) involved materially different contractual positions and required caution.
4. Order. The claims of both Dell UK and Dell Maroc were sound. The anti-suit injunction was continued.

The judgment records that Knowles J granted the anti-suit injunction on 30 June 2017. This judgment continued the injunction.