Aapico Investment PTE Ltd v Aapico Hitech Public Company Ltd

An interim anti-suit injunction may be granted where the claimant establishes a serious issue to be tried concerning proceedings brought abroad in breach of an English jurisdiction bargain. The court may also consider a higher threshold if the interim hearing could become dispositive, although that issue need not be finally determined at the interim stage. The court assesses delay, prejudice and the balance of convenience, giving substantial weight to preserving the parties’ agreed forum. Alleged regulatory or penal consequences abroad will not necessarily amount to legitimate prejudice where the underlying security appears valid under English law. Relief is directed against the parties, not the foreign court, and may be framed to hold the position pending the substantive hearing.

The claimants, shareholders in an English joint venture structure, sought an interim anti-suit injunction against proceedings brought in India by the first defendant. Those proceedings challenged an English-law share charge granted by the second defendant, an English company, and sought relief connected with Indian exchange-control requirements. The first defendant had joined the second defendant to the Indian proceedings. The claimants alleged collusion between parent and subsidiary to circumvent the English jurisdiction clause. The court also had to consider a related jurisdiction challenge and the appropriate interim arrangements pending a composite summary judgment and jurisdiction hearing.

1. Interim threshold. The court held that the claimants had amply established a serious issue to be tried. Even if a higher threshold of high probability were appropriate because the hearing might become dispositive, that threshold was presently satisfied. The court did not finally determine the issue for the later full hearing.
2. Jurisdiction and collusion. The claimants had a properly arguable case that the second defendant, being an English company, was within the jurisdiction and that the first defendant was a necessary and proper party in circumstances where collusion between the defendants was alleged. The court considered the approach in Mace (Russia) Ltd v Retansel Enterprises Ltd and SPB Renovation LLC [2016] EWHC 1209 (Comm) and the jurisdiction reasoning in Joint Stock Asset Management Company Ingosstrakh Investments v BNP Paribas SA [2011] EWHC 308 (Comm); [2011] 2 CLC 942.
3. Discretionary factors. Delay was not excessive or insufficiently explained, particularly because no substantial progress had occurred in India and an important stage there was imminent. The central prejudice to the claimants was loss of their agreed bargain to litigate before the English court. The asserted risk of penal consequences in India was not impressive on the material available. Preventing interim relief in India was not legitimate prejudice where the security appeared valid under English law. The balance of convenience did not favour the defendants.
4. Relief. The court preferred the claimants’ proposed wording and held that the defendants were entitled to offer undertakings in those terms. Otherwise, an injunction would restrain the defendants, rather than the Indian court, from pursuing the Indian proceedings until further order or reconsideration at the subsequent hearing.