G2 Ocean AS v Tokio Marine Brasil Seguradora SA

An anti-suit injunction enforcing an arbitration agreement should ordinarily be granted where incorporation and contractual scope are established to a high degree of probability, unless strong countervailing reasons exist. A subrogated insurer takes the insured’s rights subject to the same arbitration obligations. Delay matters principally where foreign proceedings have advanced sufficiently to raise comity concerns. A jurisdiction challenge does not ordinarily constitute submission to the foreign jurisdiction. For a without-notice injunction, a foreign claimant’s cross-undertaking may require fortification, and service by alternative means may be ordered where exceptional urgency makes Convention service unsuitable.

The claimant, disponent owner of the MV Tanchou Arrow, sought without-notice contractual anti-suit relief against a Brazilian insurer pursuing cargo proceedings in Brazil. The bills of lading incorporated the terms of booking notes, including a London arbitration clause governed by English law. The defendant’s claim was advanced by subrogation to the consignee’s rights.

The court considered whether the arbitration agreement had been incorporated, whether the Brazilian claim fell within its scope, whether delay, limitation or comity justified refusing relief, and what consequential directions should be made concerning fortification, service out and alternative service.

1. Anti-suit relief granted. The claimant established to the required high degree of probability that the booking notes, although not conventional charterparties, were the documents incorporated into the bills of lading. The matching cargo, quantities and date supported that conclusion. The arbitration clause was in exceptionally wide terms and covered the Brazilian proceedings. The court therefore granted an injunction unless strong countervailing reasons justified refusal.
2. Derived rights. A subrogated insurer takes the insured’s rights subject to the qualifications attaching to those rights. Accordingly, where the insured’s claim is subject to London arbitration, the insurer must pursue the subrogated claim by arbitration: The Jay Bola [1997] 2 Lloyd's Reports 279 at 286.
3. Delay, prejudice and comity. The relevant concern is whether delay has allowed the foreign proceedings to reach an advanced stage so that an injunction may create comity difficulties. Here the Brazilian proceedings had progressed only to an unresolved jurisdiction challenge. The claimant’s participation in that challenge, undertaken on Brazilian legal advice, was not submission to the Brazilian jurisdiction. The expiry of contractual limitation periods was not a strong reason to refuse relief because the defendant could reasonably have known of the arbitration agreement. The approach in Angelic Grace [1995] 1 Lloyd's Reports 87 was applied, and the relationship between delay and comity identified in Qingdao Huiquan Shipping v Shanghai Dong He Xin Industry Group [2018] EWHC 3009 (Comm), [2019] 1 Lloyd's Reports 520 was applied.
4. Consequential orders. The cross-undertaking in damages was fortified by an acceptable letter of undertaking from the London office of the claimant’s P&I Club. Security was fixed at US$85,000, subject to review at the first return date. Permission was granted for service out of the jurisdiction and for service by email. Although Brazil is a Hague Service Convention state, exceptional reasons justified alternative service because the injunction was granted without notice and the return date was likely to be short.