07/05/2020

Conditional Restraint

In Times Trading Corporation v National Bank of Fujairah (Dubai Branch) [2020] EWHC 1078 (Comm), Mrs Justice Cockerill held that there would be an anti-suit injunction restraining Singaporean Court proceedings in favour of London arbitration, on condition that the applicant undertake not to rely on a time-bar argument in the London arbitration.

The judgment is of particular interest for its detailed analysis of the authorities relating to the so-called “quasi-contractual” anti-suit injunction. These illustrate the circumstances in which the Court will apply the Angelic Grace test – i.e. restrain foreign proceedings unless there are strong reasons not to do so – where there is not a straightforward, undisputed arbitration agreement (or exclusive jurisdiction clause) between applicant and respondent. The Judge notably remarked (see §54, 73) upon the underlying theme in the case-law of preventing a party from taking the benefit of a (substantive) contract without it also assuming the burden (of the arbitration/jurisdiction provision). That resonates with the reasoning of the UKSC in the recent decision of Aspen Underwriting Ltd v Credit Europe Bank NV [2020] UKSC 11, especially at §26-27.

Applying the Angelic Grace test, the Judge went on to hold that while there were not strong reasons to refuse anti-suit relief, there were nonetheless various discretionary factors, including delay in seeking the injunction, that meant it would only be just and convenient for such relief to be granted on conditional terms.

David Lewis QC appeared for the applicant, leading Hannah Glover of 3 Verulam Buildings.

Read the judgment