Daiichi Chuo Kisen Kaisha v Chubb Seguros Brasil SA

An anti-suit injunction may enforce an undertaking requiring foreign proceedings to be pursued only by London arbitration. The court ordinarily grants relief unless strong or good reasons exist, but must consider justice between the parties and comity. Delay is fact-sensitive. A claimant’s participation in foreign proceedings during an agreed postponement does not necessarily show submission to the foreign court or defeat promptness, particularly where the parties used that process in lieu of an injunction. A jurisdiction challenge does not, by itself, make later relief contrary to comity. Where prohibitory relief would not make the undertaking effective, the court may order discontinuance. A party given the undertaking may have sufficient interest to enforce it in relation to related proceedings against another party where continuation creates a real risk of financial or procedural prejudice.

The claimant sought a final mandatory anti-suit injunction requiring the defendant to discontinue proceedings in Brazil against the claimant and Noble Resources International SA.

The defendant had previously undertaken not to pursue the Brazilian claim as originally formulated and not to pursue contractual claims against the claimant or Noble Resources other than by London arbitration. The parties subsequently agreed to defer substantive steps in Brazil while pursuing settlement and procedural applications. After the Brazilian courts finally rejected an attempted amendment, the defendant resumed active pursuit of the original claims.

The central issues were whether the claim was brought promptly, whether the parties’ conduct and the stage of the Brazilian proceedings made relief inconsistent with comity, and whether the claimant had sufficient interest to enforce the undertaking concerning Noble Resources.

1. Relief granted. The court granted a mandatory anti-suit injunction requiring Chubb to discontinue the Brazilian proceedings against Daiichi and Noble Resources.
2. Under section 37(1) of the Senior Courts Act 1981, the court may grant an injunction where just and convenient. The Angelic Grace principles ordinarily apply where relief enforces an exclusive London arbitration agreement or an undertaking having that effect. Strong or good reasons are required to refuse relief.
3. A mandatory order may be made where a prohibitory injunction would not be practically effective. There is no rigid distinction between mandatory and prohibitory relief where discontinuance merely gives effect to the consequence of the prohibition.
4. Promptness and comity were important, but delay had to be assessed in context. From June 2019 until March 2020 Chubb had actively participated in an agreed strategy to defer the Brazilian proceedings, in lieu of Daiichi seeking an injunction. Daiichi and Noble Resources’ jurisdiction challenges and protective filings did not demonstrate acceptance that the Brazilian court should determine jurisdiction or the merits.
5. The material breach occurred when Chubb resumed active pursuit of the claims in March 2020. Daiichi acted promptly thereafter. The Brazilian court had not assumed jurisdiction, had dealt mainly with procedural deferral, and was not shown to be poised to determine the merits. Relief was therefore not inconsistent with comity.
6. The undertaking covered Noble Resources. Daiichi had sufficient practical interest to enforce it because continuation of the Brazilian claim against Noble Resources created a real risk of downstream contractual claims or other prejudice involving Daiichi.