The Shell Petroleum Development Company of Nigeria Limited v Sunlink Energies and Resources Limited

An anti-suit injunction is appropriate where a party pursues foreign proceedings in breach of a valid and effective arbitration agreement, without any colourable justification. The court may grant mandatory relief requiring steps to discontinue or withdraw the foreign proceedings where that is necessary to give practical effect to the restraint. An arbitration clause referring prospectively to institutional rules remains effective where current rules are identifiable as successors to the rules named in the agreement. A clause providing for suitably qualified arbitrators is not pathological merely because the specified qualifications are expressed by reference to another jurisdiction.

The claimant sought a final anti-suit injunction after the defendant commenced proceedings in Nigeria concerning disputes arising under a joint operating agreement. The agreement contained an ICC arbitration clause, with London specified in the arbitration provision. An interim injunction had been granted by Calver J. The defendant initially challenged jurisdiction under CPR Part 11, but withdrew that application and did not attend the final hearing.

The court considered whether it had jurisdiction, whether the arbitration agreement was valid and effective, whether the Nigerian proceedings and related contempt application breached the obligation to arbitrate, and the appropriate form of relief and costs.

1. The court had jurisdiction. The defendant had been properly served under the permissions granted by Calver J and had withdrawn its Part 11 jurisdiction application. Independently, the ICC court had designated London as the place or seat of arbitration.
2. The governing law of the arbitration agreement was Nigerian law, applying the approach identified in Enka v Chubb [2021] WLR 4117. The expert evidence on Nigerian law was accepted. Clause 25.3 specified London as the seat, and the ICC designation provided an additional basis for that conclusion.
3. The arbitration agreement was valid and effective. The reference to the historical Rules of Conciliation and Arbitration of the International Chamber of Commerce was prospective and covered the current ICC Rules of Arbitration as their identifiable successors. The requirement for arbitrators to be retired judicial figures, King's Counsel practising at the Commercial Bar, or similarly qualified solicitors did not make the agreement pathological or incapable of performance.
4. The defendant's arguments based on Nigerian public or economic policy had no evidential foundation. The dispute was a high-value commercial dispute, and the Nigerian court had itself stayed the proceedings in favour of arbitration.
5. The defendant had breached the arbitration agreement by pursuing substantive Nigerian proceedings and by seeking contempt relief against the claimant's personnel in connection with enforcement of the arbitration obligation. The breach was plain, unjustified and intended to continue. A final anti-suit injunction was therefore granted.
6. The order properly included mandatory elements requiring steps to discontinue or withdraw the Nigerian proceedings, including appeals. The existing service permissions were continued, but wider service methods and personal service on individual officers or directors were not authorised at that stage.
7. The claim succeeded. The claimant was awarded its costs generally, including the interim and withdrawn jurisdiction applications, assessed summarily on the indemnity basis at US$490,000.

This was a first-instance decision on the claimant's application for final anti-suit relief. An interim anti-suit injunction had previously been granted by Calver J on 20 September 2023. The defendant's jurisdiction application was withdrawn before the hearing.