RSM Production Corporation v Gaz du Cameroun SA

An anti-suit injunction will ordinarily be granted where the court is satisfied to a high degree of probability that an English-seated arbitration agreement governs the dispute, unless strong reasons justify withholding relief. The exception for proceedings brought solely to obtain interim security for arbitration does not apply where the foreign proceedings were substantively pursued and were not commenced solely for that purpose. A dispute about whether a claim has been settled may itself arise under the settlement agreement. Where the agreement provides for disputes under related agreements to be consolidated in one arbitration, the clause may confer an option to commence that consolidated arbitration. The injunction may be made final and accompanied by a mandatory order requiring discontinuance of the foreign proceedings.

RSM applied to continue an anti-suit injunction obtained without notice against Gaz du Cameroun SA. The injunction restrained proceedings in Cameroon concerning a claim arising from well LA-108 and an alleged liability under the parties’ Joint Operating Agreement. RSM contended that the claim had been settled by a Settlement Agreement governed by English law, whose dispute-resolution clause incorporated the arbitration provisions of a related Participation Agreement and provided for arbitration in London.

Gaz du Cameroun resisted continuation on the grounds that the dispute was outside the Settlement Agreement, that the Cameroonian proceedings sought only interim security for anticipated arbitration, that the English court lacked jurisdiction, and that RSM had failed to make a full and frank presentation.

1. Continuation and final form of relief. The anti-suit injunction was continued and made final. The court was satisfied to a high degree of probability that the Settlement Agreement contained a binding arbitration agreement governing the dispute, and found no strong reason to withhold relief.
2. Scope of the arbitration agreement. Whether Gaz du Cameroun had a valid claim under the Joint Operating Agreement, or whether that claim had been settled by the Settlement Agreement, was a dispute arising out of the Settlement Agreement. Commencing court proceedings in Cameroon in relation to that dispute breached the arbitration agreement.
3. The Settlement Agreement’s provision that a dispute under it “may” be consolidated with a dispute under the Joint Operating Agreement or Participation Agreement was not merely a provision for consolidation of separately commenced arbitrations. It gave a party an option to invoke a single arbitration under the UNCITRAL or ICSID Rules where disputes arose under both agreements. The option could be exercised by commencing the consolidated arbitration or by making an unequivocal request for arbitration or a corresponding stay.
4. Interim security exception. The ordinary principle that relief will not be granted to restrain foreign proceedings brought solely to obtain security or interim relief in support of arbitration did not assist Gaz du Cameroun. It had not commenced arbitration, the Cameroonian demand and proceedings did not state that the attachment was security for an arbitral claim, and the proceedings were not begun solely for that purpose. Its later proposal to suspend the substantive proceedings gave insufficient assurance that they would not be pursued.
5. Jurisdiction and presentation. Contractual service at the parent company’s London address was valid under CPR r. 6.11. In any event, service out without permission was available under CPR r. 62.5(2A) because the seat of the arbitration was, or would be, in England. The alleged failures in the without-notice presentation did not justify refusing relief.
6. A mandatory order requiring discontinuance of the substantive Cameroonian proceedings was appropriate. It gave proper effect to the arbitration agreement and protected against an adverse judgment in Cameroon.

The judgment concerned the return-date application following an anti-suit injunction granted without notice by HHJ Pelling KC on 4 October 2023. The injunction was varied by consent order of Jacobs J on 17 October 2023. Mr Justice Butcher continued and made the injunction final.