A v B

A final anti-suit injunction will ordinarily be granted to restrain foreign proceedings brought in breach of an exclusive English arbitration agreement, unless strong or good reasons justify refusal. The application must be made promptly, but delay is assessed contextually. Relevant considerations include the stage reached in the foreign proceedings, whether the applicant has participated on the merits, wasted costs and judicial resources, and comity. A foreign court’s assumption of jurisdiction is not itself a bar. Where the proceedings remain at a jurisdictional stage and the applicant has acted promptly after the jurisdiction ruling, delay may not outweigh the contractual right to arbitrate.

The claimant, owner of the vessel NV STAR MOIRA, sought a final anti-suit injunction restraining the defendant from pursuing proceedings in the Qingdao Maritime Court concerning cargo damage under two bills of lading. The bills incorporated the law and arbitration clause in a charterparty providing for English law and London arbitration.

The defendant did not participate in the English proceedings. The Chinese court had rejected the claimant’s jurisdictional objection, and an appeal remained pending. The issues were whether the bills contained a London arbitration clause, whether the defendant was bound by it as lawful holder, whether the Chinese proceedings breached it, and whether delay and comity justified refusing relief.

1. Final relief granted. The court granted a final anti-suit injunction restraining the defendant from continuing the Chinese proceedings. A mandatory order requiring discontinuance was not granted because the defendant had not been heard and the draft order sought only prohibitory relief.
2. Arbitration clause incorporated. English law governed incorporation. Clear words in the bills of lading incorporated the charterparty’s law and arbitration clause. The reference to the charterparty dated 24 May 2019 identified the relevant charterparty, and clauses 45 and 136 provided for English law and London LMAA arbitration.
3. Defendant bound. As lawful holder and receiver of the cargo, the defendant acquired rights of suit under sections 2(1) and 3(1) of the Carriage of Goods by Sea Act 1992. It was correspondingly bound by the liabilities in the contracts of carriage, including the obligation to resolve disputes in the agreed forum.
4. Breach established. Commencing proceedings in China concerning alleged cargo damage was a breach of the London arbitration agreement. The claimant therefore established the contractual basis for relief on the balance of probabilities.
5. Delay and comity. Under section 37(1) of the Senior Courts Act 1981, relief was just and convenient. The application was made within a reasonable time after the claimant learned of the proceedings and received the Chinese court’s jurisdiction ruling. The Chinese proceedings had not advanced on the merits, the jurisdictional appeal was pending, and little judicial time or expense had been incurred. Those factors outweighed the limited delay. The defendant’s refusal to engage with the English proceedings further supported granting final relief.

Not an appeal. The judgment determined the claimant’s application for a final anti-suit injunction at first instance.