In a judgment handed down on 3 October 2024, Mr Justice Henshaw determined a jurisdiction challenge to an anti-suit action involving multiple sets of proceedings in Liberia: see Investcom Global Ltd. v. PLC Investments Ltd. & others [2024] EWHC 2505 (Comm). The Court found that it has jurisdiction over all three defendants.
As regards the first defendant (PLC), jurisdiction exists under CPR 6.25(2A) in respect of the claim to stop existing or future engagement by it of the Liberian courts in a manner inconsistent with a London-seat arbitration agreement contained in a management services contract dated 11 December 2001 between the claimant (IGL) and a co-owned telecoms provider (MTN) based in Liberia. The impetus for this anti-suit claim was an action commenced by PLC against IGL and MTN in Liberia in late June 2024 amounting (in effect) to a derivative action based upon the relevant contract and hence subject to the arbitration agreement within it. Although such action had been withdrawn since the grant of interim anti-suit relief by the English Court, there remained a risk that it could be revived or a similar claim brought in Liberia: see [82-[86]
As regards the second and third defendants, who together indirectly co-own PLC, jurisdiction exists under CPR 6.36/6.37 & 6BPD 3.1(3) in so far as they are necessary or proper parties to the anchor claim against PLC outlined above. In the circumstances of multiple proceedings in Liberia, it was sufficiently arguable that the behaviour of these two individuals – including by procuring PLC to start its own proceedings – was or would involve an unconscionable “outflanking” of the relevant arbitration agreement: see [110]. In this context, Henshaw J clarified that the standard of proof for interim anti-suit relief on a non-contractual basis is the American Cyanamid threshold (‘serious issue to be tried’ / ‘real prospect of success’) as distinct from the raised threshold (‘high probability of success’) applicable to interim relief on a contractual basis: see [81].
There was, however, no jurisdictional basis for a claim against any of the defendants by reference to the arbitration agreement contained in a shareholders’ agreement dated 3 June 2000. IGL’s contention that these four parties had reached agreement as to London seat, following its commencement against them and others of a reference to arbitration under the ICC Rules, was rejected in light of the decision of the ICC Court in the meantime to fix the seat of the pending reference as Toronto. This meant there was no good arguable case that the arbitration was London-seated or any ad hoc arbitration agreement arose which specified London seat whereby it could be said that the English Court had (exclusive) curial or supervisory jurisdiction over any arbitral process: [90]-[108].
Judgment [90]-[104] contains an analysis of Article 18 of the ICC Rules which may be of interest to international arbitration practitioners.
A link to the judgment can be found here.
Stephen Houseman KC and Matthieu Gregoire represent the claimant, instructed by Kate Davies KC, Peter Beaumont and David Hu at Skadden, Arps, Slate, Meagher & Flom (UK) LLP.
