Summary
On an interim application for an anti-suit injunction, the claimant must establish to a high degree of probability that a valid arbitration agreement governs the dispute. If it does, and the application is prompt and the foreign proceedings have not materially advanced, an injunction will ordinarily be granted unless strong reasons against it are shown.
The court gives little or no weight to forum-convenience factors which the parties are taken to have considered when choosing London arbitration. Delay is assessed by reference to progress, prejudice and interference with the foreign court, rather than by elapsed time alone. A contractual time bar ordinarily provides no reason to refuse relief where it resulted from the defendant’s own failure to arbitrate.
Factual background
The owners sought an interim and final anti-suit injunction restraining SQO from pursuing Vietnamese proceedings concerning cargo damage under a bill of lading. They also sought permission for service out of the jurisdiction and alternative service.
The bill of lading incorporated the terms of a sub-charter, including a London arbitration clause. SQO had commenced the Vietnamese action after the vessel was released from arrest. The Vietnamese court had enrolled and accepted the case, but had not finally determined jurisdiction or heard the merits. The central issues were whether the arbitration clause bound SQO, whether the application was sufficiently prompt, and whether strong reasons justified refusing relief.
Held
- Arbitration agreement. The owners established to a high degree of probability that the sub-charter’s arbitration clause was incorporated into the Congenbill bill of lading. The reference on the bill’s face to the charter dated 18 April 2019 identified the relevant sub-charter. English law governed incorporation. SQO was bound under section 3 of the Carriage of Goods by Sea Act 1992 because it had taken delivery and made a claim under the contract of carriage. Its Vietnamese claim fell within the broad arbitration clause.
- Promptness and progress. The application was made promptly enough. The Vietnamese proceedings had progressed very little on the merits, the jurisdictional challenge remained live, and SQO suffered no material prejudice. Delay is assessed by its effect on foreign-court resources, comity and prejudice, not by elapsed time alone.
- Strong reasons. Enrolment and acceptance of the Vietnamese case did not establish final jurisdiction. Even a foreign court’s assumption of jurisdiction would not necessarily bar relief. The owners had not submitted to that jurisdiction. The expiry of the Hague Rules one-year time bar was attributable to SQO’s decision not to arbitrate in time and was no reason to refuse relief; SQO could apply for an extension under section 12 of the Arbitration Act. The commencement of London arbitration was likewise no bar.
- Orders. An interim anti-suit injunction was granted, including a mandatory requirement that SQO use best endeavours to procure a stay of the Vietnamese action. A return date was directed. Permission was granted for service out under CPR 62.5(1)(c), alternatively CPR 6.36 and Practice Direction 6B paragraph 3.1(6)(c), and for alternative service by email under CPR 6.15, 6.27 and 6.37(5)(b)(1).
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Key cases cited
15 authorities cited.
- Premium Nafta Products Limited (20th Defendant) and others (Respondents) v. Fili Shipping Company Limited (14th Claimant) and others (Appellants) [2007] UKHL 40
- Ecobank Transnational Incorporated v Tanoh [2015] EWCA Civ 1309
- Welex A.G. v Rosa Maritime Ltd. [2003] EWCA Civ 938
- Specialised Vessel Services Ltd v MOP Marine Nigeria Ltd [2021] EWHC 333 (Comm)
- Times Trade Incorporation v National Bank of Fujairah (Dubai Branch) [2020] EWHC 1078
- Catlin Syndicate v Amec Foster Wheeler USA Corp [2020] EWHC 2530
- Bulk Poland [2020] EWHC 3343
- A v B [2020] EWHC 3657
- The Joker [2019] EWHC 3451
- Nori Holdings v PJSC Bank Otkritie Financial Corporation [2018] EWHC 1343
- National Westminster Bank v Rabobank Nederland [2007] EWHC 1742
- THE “DELOS” [2001] 1 Lloyd's Rep 703
- The Pioneer Container (The KH Enterprise) [1994] 2 AC 324
- Continental Bank NA v Aeakos Cia Naviera SA [1994] 1 WLR 588
- Qingdao v Shanghai Ding
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Cases citing this case
1 later case · 1 positive
Most senior citing decisions:
- Renaissance Securities (Cyprus) Limited v ILLC Chlodwig Enterprises & Ors [2024] EWHC 1827 (Comm) followed
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