Deutsche Trustee Company Ltd v (Bangkok Land (Cayman Islands) Ltd & Anor

A jurisdiction clause may be exclusive even though it does not use the word “exclusive”. The question is whether, on its true construction, the clause obliges the relevant party to resort to the chosen jurisdiction. Particular weight may be given to an express reservation permitting one party to sue elsewhere, where the corresponding option is deliberately absent for the other party.

Commencing duplicative foreign proceedings in breach of an exclusive jurisdiction clause may justify an anti-suit injunction. Such proceedings may also be vexatious and an abuse of process where the relevant issues have already been voluntarily pleaded in existing proceedings.

The claimant trustee sought continuation until trial of an interim anti-suit injunction granted by Teare J. The injunction concerned threatened proceedings in Thailand relating to shares pledged under a trust deed securing bond obligations.

The trust deed contained a jurisdiction clause submitting disputes connected with the trust deed, bonds and exchange property to the jurisdiction of the High Court of England. The defendants had already raised substantially the same issues concerning the shares in their defence and counterclaim in the English proceedings. The central issues were whether the clause was exclusive and whether threatened Thai proceedings should be restrained.

1. Exclusive jurisdiction. The court continued the anti-suit injunction until trial. Clause 23(B) of the trust deed conferred exclusive jurisdiction on the courts of England and Wales for disputes brought against the trustee arising in connection with the shares.
2. The construction of a jurisdiction clause does not depend on use of the word “exclusive”. The relevant question is whether, properly construed, the clause obliges the parties, or the party in question, to resort to the specified jurisdiction. The court also asks whether the parties intended to permit duplicative parallel proceedings in a non-contractual jurisdiction.
3. The clause was materially similar to the clause considered in Dana Gas Sukuk Ltd [2018] EWHC 277 (Comm), and the reasoning concerning exclusivity in Continental Bank v Aeakos Compania Naviera SA [1994] 1 WLR 588 supported that conclusion. The reservation of a right to sue elsewhere for one party, coupled with its absence for the defendants, indicated that the defendants were required to submit disputes to the English courts.
4. The threatened Thai proceedings would breach clause 23(B). The court had seen no strong reason not to enforce the clause. In addition, because the defendants had voluntarily pleaded their case concerning the shares in their English counterclaim, commencing the threatened proceedings would be vexatious and an abuse of process.
5. The injunction was continued until trial, subject to a variation concerning service of the order and supporting documents.

The judgment was a first-instance decision on an application to continue an interim anti-suit injunction granted by Teare J on 13 July 2017. No appellate decision is stated.