Partner Abigail Healey explores anti-suit injunctions in Law360



February 15, 2024

Following a recent case in which an anti-suit injunction was filed to prevent a defendant from pursuing claims in the Federal High Court of Nigeria, Partner Abigail Healey discusses the principles in granting anti-suit injunctions and exclusive jurisdiction clauses.

Abigail’s article was published in Law360, 14 February 2024, and can be found here.

On 16 January 2024, the claimant in the case of Augusta Energy SA v Top Oil and Gas Development Co Ltd, Augusta Energy SA filed an anti-suit injunction (“ASI”) to prevent the Nigerian-based defendant, Top Oil and Gas Development Co Ltd (“Top Oil”) from pursuing claims brought against Augusta and its director in the Federal High Court of Nigeria. The ASI application has been brought to restrain Top Oil from (i) continuing those proceedings against Augusta and/or its director; and (ii) commencing or continuing any proceedings against Augusta and/or its director, in breach of the exclusive English jurisdiction clause contained in the contract governing the parties’ relationship.

The case will no doubt proceed to hearing in due course and provide useful guidance for practitioners when considering the grounds on which to apply for an ASI (and conversely, to oppose such an application) in circumstances where there is an exclusive jurisdiction clause.  In the meantime, set out below is reminder of the key considerations and lessons learned from other recent decisions on the subject.

Relevant principles in granting an ASI

Before the English courts grant an ASI, it must consider the following principles as summarised by Foxton J in the August 2022 High Court (England and Wales) decision in QBE Europe SA/NV v Generali Espana de Seguros Y Reaseguros[1]:

  • The court’s power to grant an ASI is derived from section 37(1) of the Senior Courts Act 1981 and the court will exercise its power when it is just and convenient to do so;
  • The touchstone is what the ends of justice require;
  • The jurisdiction to grant an ASI should be exercised with caution;
  • The applicant must establish a “high degree of probability” that there is a jurisdiction (or arbitration) agreement which governs the dispute; and
  • The court will ordinarily exercise its discretion to restrain proceedings brought in breach of an exclusive jurisdiction clause unless there is a “strong reason” to refuse injunctive relief. The burden of proof is on the defendant to show there is a strong reason(s).

The starting point is that English courts will grant an anti-suit injunction to hold the parties to their bargain: if there is a jurisdiction agreement, the parties will be held to it[2]. As the Court of Appeal (England and Wales) held on 10 June 2022, in AIG Europe SA & Others v John Wood Group Plc & Others[3], the fact that a jurisdiction clause does not contain the word “exclusive” will not necessarily be determinative of whether or not the clause does in fact confer exclusive jurisdiction on a particular court.

In some limited circumstances, the courts have held that there are “strong reasons” to refuse injunctive relief.  However, as the analysis below demonstrates, much turns on both the facts of the case and the construction of the jurisdiction clause in question.

Impact on third parties

In considering whether to grant an ASI that may impact parties other than those bound by the jurisdiction clause, the courts may take into account any adverse impact on those third parties[4].  This may be particularly relevant in cases where the same allegations are made against multiple defendants and only one defendant is the ASI applicant.

In disputes involving parties which are affiliates of a contracting party, but are not themselves a party to the contract, the courts have both granted and refused ASI applications. In the October 2009 decision in Morgan Stanley & Co International plc v China Haisheng Juice Holdings Co Ltd,[5] the High Court (England and Wales) refused to grant an ASI on the basis that the parties had clearly intended that only the parties would benefit from the exclusive jurisdiction clause. The fact that the relevant contract had specifically addressed the extent of any third-party rights was of particular relevance in the court’s construction of the contract.

However, the position will again depend on the facts of the case and construction of the jurisdiction clause in question. In the October 2017 Commercial Court decision in Dell Emerging Markets (EMEA) Ltd and another v IB Maroc.com SA[6], the first claimant obtained an ASI restraining the defendant from pursuing foreign proceedings against the second claimant, who was an affiliate of the first claimant but was not a party to the contract between the first claimant and the defendant. The contract contained an exclusive jurisdiction clause covering “any dispute arising out of or in connection with this contract” and elsewhere made reference to the third parties. The court held the second claimant was entitled to an injunction because it would be inequitable or oppressive and vexatious for the defendant to seek to enforce a contractual claim arising out of the contract without respecting the jurisdiction clause within the contract.

Vexatious and oppressive

Moreover, third parties may seek to rely on an exclusive jurisdiction clause to obtain an ASI on the basis that the foreign proceedings are vexatious and oppressive.

In July 2019, in Clearlake Shipping Pte Ltd v Xiang Da Marine Pte[7], the Commercial Court considered whether a contracting party could rely on the jurisdiction clause to prevent a claim in tort proceeding in foreign courts, brought by the other contracting party against a third party. The court set out a three-step approach to determining the issue:

  • Does the jurisdiction clause extend to the tort proceedings as a matter of contractual interpretation;
  • If it did, the contractual basis would apply and the ASI would be granted absent any strong reasons not to do so; and
  • Applying privity of contract, only the contracting parties can enforce a jurisdiction clause.

However, whilst a non-contracting party does not have a contractual right to rely on the jurisdiction clause, the clause may be a factor in arguing the foreign proceedings are vexatious and/or oppressive.

On the facts in Clearlake, the court determined that the defendant had manipulated its third-party claims to try to circumvent the jurisdiction clause and therefore granted an ASI.  In doing so, the court emphasised that the categories of conduct which may be deemed vexatious or oppressive should not be regarded as closed: any tactics in foreign proceedings which are designed to circumvent a jurisdiction clause may give rise to an ASI.

Improper conduct of the applicant

The court may consider the conduct of the applicant, including the extent to which there has been a delay in applying for an ASI, particularly if the delay was deliberate. In the 2019 case Qingdao Huiquan Shipping Co v Shanghai Dong He Xin[8], however, the Commercial Court granted an ASI notwithstanding that there had been a delay of just over a year in making the application. At the heart of the court’s decision was the very early stage which the proceedings had reached in China at the time the claimant sought injunctive relief in England. Thus, the crucial question in deciding whether to grant an ASI despite a significant time delay is what impact the ASI would have, in substance or perception, on the foreign proceedings.

Furthermore, it is worth noting that an applicant to a without notice application owes a duty of full and frank disclosure: if the court determines that the duty has been breached, it may exercise its discretion to discharge the ASI.

Participation in foreign proceedings

In addition, the court may consider the extent to which (if any) the applicant has participated in the foreign proceedings. The mere fact that the applicant has participated has been held not to amount to a strong reason to decline relief, particularly if participation was limited and it was made clear that jurisdiction was in issue.

In the May 2020 decision in Daiichi Chuo Kisen Kaisha v Chubb Seguros Brasil SA[9], in granting an ASI, the Commercial Court considered that the steps taken by the applicant in the foreign proceedings had been protective measures and not a submission to the jurisdiction. The positive steps that had been taken in those proceedings were taken only out of necessity or on a precautionary basis.

Appropriate venue and duplication

In Ebury Partners Belgium SA/NV v Technical Touch BV[10], heard in May 2020, the Commercial Court stated that little weight will be attached to the question of which jurisdiction is more convenient. Arguing that England is the most convenient forum to resolve the dispute will not constitute a “strong reason” to refuse to grant an ASI. The parties are considered to have made that decision when agreeing the exclusive jurisdiction clause.

However, where enforcing the clause would risk duplication of proceedings and conflicting decisions, particularly where a foreign court has to resolve one or more of the issues in a dispute, the court may refuse to grant an ASI.

In the June 2016 judgment in Team Y & R, Holdings Hong Kong Ltd v Ghoussoub[11], some parts of the dispute fell within the scope of the exclusive jurisdiction clause, whilst some parts did not. Disentangling these claims to fulfil the exclusive jurisdiction clause was viewed as an undesirable outcome by the Commercial Court. Thus, whilst the defendant was found to be in breach of the jurisdiction clause, the court refused to grant an ASI on the basis of a “strong reason”: the Hong Kong court had to determine issues which were central to the dispute, and there was a clear risk of duplication of proceedings if proceedings had to be started in England.

Conclusion

The above are just some of the relevant considerations when making or resisting an application to grant an ASI in the context of an exclusive jurisdiction clause. What is clear is that successfully opposing an ASI in a case involving an exclusive jurisdiction clause is inherently fact-sensitive, and will depend not only upon the circumstances of the claim but the construction of the jurisdiction clause. Even if strong reasons can be shown, the courts retain a discretion as to whether to grant an ASI. In practice, it is rare for the English courts not to enforce an exclusive jurisdiction clause by way of granting an ASI where there has been a breach, or threatened breach, of that clause.

 

[1] QBE Europe SA/NV v Generali Espana de Seguros Y Reaseguros [2022] EWHC (Comm).

[2] Catlin Syndicate v AMEC Foster Wheeler [2020] EWHC 2530 (Comm)

[3] AIG Europe SA & Others v John Wood Group Plc & Others [2022] EWCA Civ 781

[4] Hamilton-Smith and another v CMS Cameron McKenna LLP [2016] EWHC 1115 (Ch)

[5] Morgan Stanley & Co International plc v China Haisheng Juice Holdings Co Ltd [2009] EWHC 2409.

[6] Dell Emerging Markets (EMEA) Ltd and another v IB Maroc.com SA [2017] EWHC 2397 (Comm)

[7] Clearlake Shipping Pte Ltd v Xiang Da Marine Pte [2019] EWHC 2284 (Comm)

[8] Qingdao Huiquan Shipping Co v Shanghai Dong He Xin [2019] 1 Lloyd’s Rep 520

[9] Daiichi Chuo Kisen Kaisha v Chubb Seguros Brasil SA [2020] EWHC 1223 (Comm)

[10] Ebury Partners Belgium SA/NV v Technical Touch BV [2022] EWHC 292 (Comm)

[11] Team Y & R, Holdings Hong Kong Ltd v Ghoussoub [2017] EWHC 2401 (Comm)