English High Court Grants An Anti-Suit Injunction And Confirms That The Choice Of Arbitral Seat Is 'Analogous To An Exclusive Jurisdiction Clause'

In Atlas Power v National Transmission and Despatch Company Ltd [2018] EWHC 1052 the English High Court granted a final anti-suit injunction to permanently restrain a national grid company owned by the Government of Pakistan ("NTDC") from challenging an LCIA Partial Final Award in Pakistan (or anywhere other than England and Wales).

The injunction was granted on the "entirely straightforward" basis that the seat of the arbitration was London. Phillips J rejected NTDC's arguments that the courts of Pakistan had concurrent jurisdiction or that the seat of the arbitration was Lahore, Pakistan, and confirmed that an agreement on the seat of the arbitration is also an agreement on the forum for any challenges to an award.

Background

The underlying dispute concerned sums owed by NTDC to nine independent power producers registered in Pakistan ("Claimants") who supplied energy exclusively to NTDC under individual Power Purchasing Agreements ("PPAs").

The PPAs all contained a similar dispute resolution clause ("DR Clause"). The DR Clause contained carve outs for "mutual discussions" and expert determination, with all remaining disputes (including those left unresolved by other methods) to be "settled by arbitration in accordance with the London Court of International Arbitration".

The DR Clause further stated that "the arbitration shall be conducted in Lahore, Pakistan" provided that if (among others) the amount in dispute exceeded $4 million "either Party may [...], require that the arbitration be conducted in London [...]."

Expert determination process

Initially the dispute was referred to expert determination. The expert found that NTDC had unlawfully withheld various sums owed to the Claimants under the PPAs ("Determination").

The Claimants sought payment of the sums specified in the Determination. However, the Government of Pakistan sought a declaration from the courts of Pakistan that the Determination was null, void and illegal, and obtained an injunction preventing the Claimants and NTDC from acting upon the Determination until further order.

Arbitration proceedings

Each of the Claimants had commenced separate LCIA arbitration proceedings and stayed them pending the outcome of the expert determination process.

Following the injunction, in November 2015, the Claimants wrote to the LCIA asking for: (i) the arbitrations to be resumed on the basis that the Determination was final and binding; and (ii) declaratory relief as to the validity of the...