Times Trading Corporation v National Bank of Fujairah (Dubai Branch)

An interim anti-suit injunction may be granted on contractual principles, or by analogy where the contractual counterparty is disputed, if the applicant shows a high degree of probability that the dispute falls within an arbitration clause. The court should ordinarily restrain foreign proceedings brought in breach of that obligation unless strong reasons justify refusal. A reasonably missed time bar may be relevant prejudice, but it is not automatically a strong reason. The question is fact-sensitive. A foreign court’s different approach to a stay is not itself a strong reason, although delay and other discretionary factors remain relevant. Where those factors make unconditional relief unjust but do not defeat the jurisdictional basis, the injunction may be granted on terms. Here relief was conditional on an undertaking not to rely on the time bar in the London arbitration.

Times sought an interim anti-suit injunction restraining National Bank of Fujairah from continuing proceedings in the High Court of the Republic of Singapore concerning alleged misdelivery of cargo discharged against letters of indemnity. The Bills of Lading contained a London arbitration clause and a 12-month time bar under Article III Rule 6. The Singapore proceedings were brought against the vessel owner and/or demise charterers and were later pursued against Times.

The parties disputed whether Times was the genuine bareboat charterer and contractual carrier. NBF had commenced London arbitration against the owner within the time limit and later sought an extension under section 12 of the Arbitration Act 1996 to commence arbitration against Times. The issues were whether anti-suit relief could be granted without finally deciding the carrier issue, whether the time bar created a strong reason against relief, and how delay and other discretionary considerations affected the order.

1. Jurisdiction and governing approach. The court held that section 37(1) of the Senior Courts Act 1981 supplied jurisdiction to restrain foreign proceedings where the applicant had a contractual or equivalent equitable right to arbitrate. The touchstone was the ends of justice. The The Angelic Grace approach required the applicant to show a high degree of probability that a relevant arbitration agreement governed the dispute. Relief would ordinarily follow unless the defendant established strong reasons for refusing it. The jurisdiction had to be exercised with caution and circumspection.
2. Quasi-contractual basis. The established authorities concerned derived contractual rights and inconsistent contractual claims. They shared a benefit-and-burden rationale: a party invoking a contract as the basis of a foreign claim should respect the forum provision forming part of that contract. The present case did not fall squarely within either category, but NBF had asserted the disputed Times contract in the Singapore proceedings. It was therefore appropriate to apply the The Angelic Grace approach by analogy rather than require a separate case based only on frivolity or vexation. The threshold was also met on the available evidence without finally determining whether the bareboat charter was genuine.
3. Strong reasons and time bar. Possible prejudice from a time bar could be relevant, but the authorities did not establish that a time bar missed reasonably or not unreasonably was necessarily a strong reason. The issue was fact-sensitive. The pending application under section 12 of the Arbitration Act 1996 meant that no established time bar yet existed. NBF therefore had not shown a strong reason against relief. The possibility that the Singapore court might approach a stay differently was not itself a strong reason.
4. Discretion. Strong reasons did not subsume delay or other discretionary considerations. Times had not acted entirely promptly, and the delay had caused waste of time and resources in Singapore. The delay and limited unclean-hands considerations militated against unconditional relief, but did not justify refusing an injunction altogether.
5. Order. Under section 37(2) of the Senior Courts Act 1981, justice and convenience were best served by granting the anti-suit injunction on terms. Times was required to undertake not to rely on any time-bar argument in the London arbitration. The approach was supported by Tracomin v Sudan Oil Seeds [1983] 1 WLR 1037.

This was a first-instance decision. The judgment records that Andrew Baker J adjourned an earlier without-notice application for an on-notice hearing and granted permission to serve out of the jurisdiction.