Tyson International Company Limited v GIC Re, India, Corporate Member Limited

For anti-suit relief, the applicant must show to a high degree of probability that the foreign proceedings breach a binding jurisdiction or arbitration agreement. The court must identify which competing dispute-resolution clause governs by construing the contractual documents as a whole. A later agreement will ordinarily vary or replace an earlier one where the documents and contractual process show that intention, but an express hierarchy clause may preserve the earlier clause where the later documents create confusion or inconsistency. Where the competing clauses cannot sensibly be reconciled, the hierarchy clause must be given effect. If the governing clause is sufficiently clear on the evidence, the court may determine the issue at the interlocutory stage; otherwise, it should give case-management directions for a prompt determination. In the absence of strong reasons against relief, an anti-suit injunction should continue, but its duration may properly be limited pending a jurisdiction challenge or further evidence.

The claimant, a Bermuda captive insurer, reinsured property risks with the defendant under two sets of documents. The earlier Slip Policies or Market Reform Contracts contained an exclusive English law and jurisdiction clause. Later Facultative Certificates contained a New York arbitration agreement, New York governing-law provisions and a hierarchy clause stating that the reinsurance slip prevailed in case of confusion.

After a dispute concerning alleged misrepresentation and avoidance of the reinsurance, the defendant commenced or threatened proceedings and arbitration in New York. Foxton J granted an interim anti-suit injunction. The defendant applied to set it aside. The claimant applied to make the injunction final, or alternatively to continue it pending any jurisdiction challenge. The central issue was which of the competing dispute-resolution clauses governed the parties’ dispute.

1. Interim relief. The claimant had to establish to a high degree of probability that the relevant binding jurisdiction clause existed. The court’s approach reflected the authorities summarised in Times Trading and applied to exclusive jurisdiction clauses in Catlin. The higher threshold was justified because an anti-suit injunction may in practice be final.
2. Construction. The Slip Policy or MRC was a binding contract when issued and contained an exclusive English jurisdiction clause. The Facultative Certificate was a later agreement which, absent the hierarchy clause, would be expected to vary or replace the earlier agreement. However, the natural meaning of the hierarchy clause was that the earlier agreement took precedence where the two documents created confusion. The English jurisdiction provisions therefore prevailed over the later arbitration provisions.
3. Alternative arguments. The Scott v Avery condition precedent in the Facultative Certificate was inapplicable because the arbitration provisions were themselves displaced. The proposed construction under which the English clause became merely supervisory was not sensibly arguable. The cases concerning arbitration and jurisdiction clauses in the same agreement did not govern a case involving an express hierarchy clause between successive contractual documents.
4. Market evidence. Market practice could potentially assist contractual construction, but the opposing expert evidence was irreconcilable and untested. The judge therefore placed no weight on it at this stage.
5. Order. No final injunction was granted. The anti-suit injunction was continued until determination of any challenge by GIC to the English court’s jurisdiction, including any application under s 9 of the Arbitration Act 1996. The parties were encouraged to agree a timetable for that challenge and any further evidence.

This was a first-instance decision. The judgment records that Foxton J had granted interim anti-suit relief on 23 October 2023. The present court continued that relief for a limited period and did not make it final.