Conditional Anti-suit Injunction Granted Where Existence Of Contract With London Arbitration Clause In Dispute

• Published date: 11 August 2020
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Contracts and Commercial Law, Arbitration & Dispute Resolution
• Law Firm: Quadrant Chambers
• Author: Ms Saira Paruk

OVERVIEW

Times Trading Corp v National Bank of Fujairah (Dubai Branch)

A person who brings a claim abroad in flagrant breach of an arbitration or jurisdiction agreement will be subject to an anti-suit injunction almost automatically (The Angelic Grace [1995] 1 Lloyd's Rep 87). Should this approach be applied if the existence of the direct contract between the two parties is in dispute? Mrs Justice Cockerill held, somewhat creatively, that the test in The Angelic Grace applied by analogy, such that an (albeit conditional) anti-suit injunction should be granted.

What are the practical implications of this case?

Cockerill J granted an anti-suit injunction to the claimant ("Times") despite the fact that the existence of the contract which contained the arbitration agreement was in dispute. The case did not fit either of the paradigm quasi-contractual categories for the grant of an anti-suit injunction but the Judge applied The Angelic Grace test by analogy. Adopting a principled approach, Cockerill J found that the core principle underpinning the granting of quasi-contractual anti-suit injunctions in earlier authorities - that a party may not claim under a substantive contract without also assuming the burden of that contract - equally applied here. As the defendant ("NBF") had asserted the existence of a contract in Singapore, NBF should be required to bring a claim consistent with that contract, even if the existence of that contract was in dispute.

Cockerill J's judgment contains a clear examination of the different categories of application for anti-suit injunctions and the applicable rules and principles. Of most interest, however, is the creativity shown by Cockerill J, which finds expression in two facets of the Judgment.

First, reliance on broad underlying principle to extend by analogy the ambit of quasi-contractual anti-suit injunctions to situations which do not fall neatly within specific existing categories. Practitioners should note that the fact that a client's case does not fit neatly within well-established existing categories should not, without more, be a reason not to apply for an anti-suit injunction.

Second, by making the grant of the anti-suit injunction subject to a (rigorous) condition, the Judgment demonstrates the flexibility of the tools the Court can employ in this context. In future, if there is an element which may militate against the grant of an injunction, it may pay to temper an application (perhaps by proactively suggesting...