Manta Penyez Shipping Inc. & Anor v Zuhoor Alsaeed Foodstuff Company

Contractual anti-suit relief may enforce both express jurisdiction clauses and the jurisdictional promise necessarily implicit in an exclusive arbitration or court agreement. The claimant must establish breach to a high probability or with a high degree of assurance. Once that threshold is met, the burden shifts to the defendant to justify withholding coercive relief. American Cyanamid is not the applicable interim test.

An interim mandatory anti-suit injunction is available where necessary in the interests of justice. The court assesses practical prejudice and the balance of injustice rather than treating the distinction between mandatory and prohibitory relief as decisive. Legal costs incurred in obtaining anti-suit relief may be addressed by indemnity costs, which operate as a proxy for damages vindicating the jurisdictional bargain.

The claimants sought the return date of interim anti-suit relief previously granted against proceedings commenced by the defendant in Yemen. They sought prohibitory and mandatory relief concerning arrest proceedings and substantive proceedings in the First Instance Commercial Court in Al Hudaydah and the Sana’a Commercial Court.

The court considered whether the Yemeni proceedings breached an express covenant in a guarantee and a London-seat LMAA arbitration agreement in a charterparty. It also considered whether interim mandatory relief should require withdrawal or discontinuance of the foreign proceedings and whether the claimants should receive indemnity costs.

1. The court was satisfied to the requisite standard that all three sets of Yemeni proceedings involved breaches of contractual jurisdictional covenants. The arrest proceedings breached an express covenant in the guarantee. The substantive proceedings breached the London-seat LMAA arbitration agreement, notwithstanding that the second claimant had mistakenly been named as defendant in one Yemeni action.
2. English law supports injunctive relief to uphold jurisdictional promises, whether express or necessarily implicit in an exclusive forum agreement. Damages are not an adequate remedy, although damages may remain available for proximate loss.
3. The applicable interim approach is the three-stage test associated with The Angelic Grace, rather than the American Cyanamid test. Proof of breach requires a high probability of success or a high degree of assurance. If that threshold is met, the burden shifts to the defendant to justify why the promise should not be enforced coercively.
4. There is no absolute bar on an interim mandatory anti-suit injunction. Such relief may require withdrawal or discontinuance of foreign proceedings where necessary in the interests of justice. The court must assess the practical effect of the order, possible prejudice, local procedural consequences and the balance of injustice. The usual cross-undertaking in damages may protect the defendant against additional costs of stopping and restarting proceedings.
5. Mandatory relief was justified because the defendant had not participated, had commenced fresh Yemeni proceedings despite the earlier prohibitory order, and the breach case had a high probability of success. The claimants’ undertaking mitigated any possible prejudice.
6. Indemnity costs were appropriate. Legal expenditure incurred in seeking anti-suit relief is recoverable through costs rather than a damages claim to top up any shortfall. The indemnity award reflects the importance of jurisdictional bargains and operates as a proxy for the promissory interest vindicated, following Havila Krystruten.