PT Services Malta Limited v Tecnologia En Entretenimiento Caliplay S De Rl De Cv

An anti-suit injunction may be granted under Senior Courts Act 1981, section 37, to restrain proceedings brought in breach of an exclusive jurisdiction or arbitration agreement. Urgency and the ability of an arbitral tribunal to act are relevant discretionary factors under section 37, but are not statutory conditions.

Relief in aid of arbitration under section 44 of the Arbitration Act 1996 is subject to the statutory requirements of urgency, or party or tribunal agreement, and inability of the tribunal or institution to act effectively. The court must distinguish an injunction enforcing the negative promise to arbitrate from relief enforcing substantive contractual obligations. Where related contracts contain distinct dispute-resolution clauses directed to distinct subject-matter, each clause should generally be applied according to its own terms.

PT Services Malta Limited sought interim injunctive relief in two related actions. The applications arose after Caliplay and Viena obtained interim measures from Mexican courts affecting the parties’ Framework Agreement and Software License and Services Agreement.

The Framework Agreement provided for Mexican law and London ICC arbitration. The Software License and Services Agreement provided for English law and the exclusive jurisdiction of the courts of London. Caliplay’s Mexican proceedings challenged the effectiveness of both agreements and sought consequential relief. Viena sought Mexican interim relief in support of an intended arbitration, but had not commenced that arbitration.

The court had to determine the proper contractual forum for the disputes, the scope of its jurisdiction under sections 37 and 44, and whether injunctive relief should be granted against Caliplay, Viena and the other defendants.

1. Relief against Caliplay under the Software License and Services Agreement. The dispute concerning the effectiveness of that agreement fell within its English exclusive jurisdiction clause. The related Memorandum of Understanding did not displace that clause. An interim anti-suit injunction was therefore granted under section 37 of the Senior Courts Act 1981, restraining Caliplay from pursuing Mexican proceedings concerning the Software License and Services Agreement and requiring their immediate termination as against PT Services Malta Limited.
2. Distinct contractual dispute-resolution clauses. Although it can be useful to read related agreements together, the clauses in the Memorandum of Understanding, Framework Agreement and Software License and Services Agreement addressed distinct subject-matter. The fact that Caliplay’s Mexican claim covered more than one agreement did not alter the parties’ contractual allocation of disputes.
3. Relief concerning the Framework Agreement. Even on the strict approach to arbitration agreements said to arise under Mexican law, clause 27 was sufficiently clear. The London seat subjected the arbitration to the Arbitration Act 1996, including section 30, and the ICC Rules separately empowered the tribunal to determine jurisdiction notwithstanding an allegation that the contract was void or non-existent. The ICC tribunal therefore had jurisdiction to determine the validity of the Framework Agreement.
4. An anti-suit injunction under section 37 could restrain Caliplay’s Mexican proceedings concerning the Framework Agreement. An order directed to compliance with substantive Framework Agreement obligations would instead enter the territory of section 44 of the Arbitration Act 1996. The statutory conditions, including those in section 44(5), had not been established, so that additional relief was refused.
5. Viena’s original application for Mexican interim relief was legitimate in principle. Its unexplained failure to commence arbitration and later failure to disclose the Mexican challenge were vexatious and oppressive. The court ordered Viena to act as if the relevant Mexican order had not been suspended. A prospective injunction was otherwise avoided by requiring 21 days’ notice before further Mexican steps, allowing recourse to emergency arbitral procedures.
6. No substantive payment order was made concerning monies paid into the Intercam account. Costs were reserved or deferred as stated in the judgment.