Commercial Court grants anti-suit injunction in context of foreign constitutional challenge

1 March, 2019

In a reserved judgment handed down on Friday 1 March 2019 in Aqaba Container Terminal (PVT) Co. v. Soletanche Bachy France SAS [2019] EWHC 471 Comm, Mr Justice Robin Knowles sitting in the Commercial Court upheld the claim by claimant (ACT) seeking declaratory and final anti-suit injunctive relief against the defendant (SB) in respect of the latter’s commencement and pursuit of proceedings before the Economic Chamber at the Amman Court of First Instance in The Hashemite Kingdom of Jordan (“Jordanian Proceedings”).

SB commenced the Jordanian Proceedings against ACT and another entity in July 2018 seeking, amongst other things, the invalidation of a construction contract between ACT (as employer) and SB (as contractor) relating to development of the Aqaba Container Terminal. The construction contract was governed by English law and contained an ICC arbitration agreement with London seat. The underlying basis for seeking invalidation as a matter of Jordanian law was the alleged unconstitutionality of a specific legislative provision by reference to the Jordanian Constitution. SB contended that its claim to invalidate the construction contract did not fall within the terms of the arbitration agreement or was otherwise non-arbitrable because it amounted to a constitutional claim as a matter of substance.

The Commercial Court held that (1) the claim to invalidate the construction contract was arbitrable and fell within the scope of the arbitration agreement, notwithstanding the fact that its underlying basis involved a constitutional challenge under Jordanian law; (2) there were no strong reasons for refusing anti-suit injunctive relief in respect of SB’s breach of the arbitration agreement, notwithstanding that without the invalidation claim SB would have no standing to pursue any constitutional challenge before the Jordanian Court; and (3) it was just for such relief to be granted in circumstances where SB had itself previously commenced and pursued arbitration proceedings against ACT claiming damages under the construction contract.

Download a copy of the judgment here.

Stephen Houseman QC and Owen Lloyd appeared for the claimant (ACT), instructed by Christopher Mainwaring-Taylor of Allen & Overy LLP.

Iain Quirk appeared for the defendant (SB), instructed by Bob Maynard and Marcus Birch of Bryan Cave Leighton Paisner LLP.