Investcom Global Limited v PLC Investments Limited & Ors

The High Court’s anti-suit jurisdiction depends on personal jurisdiction over the defendant and, where relief concerns an arbitration, a good arguable case that the arbitration is or will be seated in England and Wales. An agreement to ICC arbitration accepts the ICC Court’s power under Article 18(1) of the ICC Rules to fix the seat unless all relevant parties have agreed it. The court cannot treat a later indication that some parties will not participate as altering the parties or requiring the seat to be reconsidered. Relief may remain justified after foreign proceedings are discontinued where there is a real risk of refiling or substantially similar proceedings. The court maintained relief concerning proceedings that threatened the London-seated MA arbitration, but discharged relief concerning proceedings aimed at the SHA arbitration, whose seat had been fixed as Toronto.

Investcom sought continuation of interim anti-suit and anti-enforcement injunctions granted by Foxton J in relation to proceedings brought in Liberia. The Second Liberian Proceedings sought to restrain an ICC arbitration commenced under the Shareholders Agreement. The Third Liberian Proceedings sought an account concerning MTN Liberia’s alleged liabilities to Investcom and were said to circumvent the arbitration agreement in a Management and Technical Support Contract.

After the interim order, the ICC Court fixed Toronto as the seat of the arbitration, while the Third Liberian Proceedings were discontinued without prejudice and with a reservation of the right to re-file. The defendants sought discharge of both sets of relief and dismissal of the claim. The central issues were whether the English court had jurisdiction and whether the injunction concerning the discontinued proceedings continued to serve a proper purpose.

1. Third Liberian Proceedings. There was a good arguable case that D1 was bound by, or was vexatiously seeking to circumvent, the arbitration agreement in the Management and Technical Support Contract, which provided for ICC arbitration in London. The English court therefore had jurisdiction under CPR 62.5(2A).
2. Discontinuance did not make the injunction pointless. The proceedings had been discontinued only after the Foxton Order, without undertakings and with an express reservation of the right to re-file. In the light of the defendants’ wider strategy, there was good reason to believe that discharge would lead to refiling or substantially similar proceedings. The relief remained necessary and justifiable pending trial.
3. Second Liberian Proceedings. The SHA arbitration agreement provided for ICC arbitration but did not itself designate London as the seat. By accepting ICC arbitration, the parties accepted Article 18(1) of the ICC Rules, under which the ICC Court fixes the seat unless the parties have agreed it.
4. The expression “the parties” in Article 18(1) referred, at least prima facie, to the persons validly named as claimants or respondents because they were signatories to, or were alleged on tenable grounds to be bound by, the arbitration agreement. That included MTN Liberia and Momo Liberia. Their limited intended participation did not alter their status or require the seat to be reconsidered.
5. The ICC Court had acted within its powers in fixing Toronto as the seat. There was no good arguable case, and no high degree of probability, that the tribunal or an English court would be required to substitute London. The alleged agreement in the Brodies letter did not create a separate arbitration agreement or displace Article 18(1).
6. The English court therefore lacked jurisdiction to maintain relief concerning the Second Liberian Proceedings. Those parts of the Foxton Order were discharged. The relief concerning the Third Liberian Proceedings continued pending trial, with the precise form of order to be determined after submissions.