On 15 November 2023, Mr Justice Butcher handed down judgment in RSM Production Corpn v Gaz du Cameroun SA [2023] EWHC 2820 (Comm), continuing an anti-suit injunction granted at a without-notice hearing by HHJ Pelling KC.
The anti-suit injunction restrained the defendant (‘GdC’) from pursuing proceedings in Cameroon by which it had frozen about $18 million of funds belonging to the claimant (‘RSM’) there, in support of a claim on the merits GdC had subsequently filed before the Cameroonian courts for payment of around $48m from RSM.
RSM’s claim was founded on an arbitration agreement contained in a settlement agreement. That agreement had compromised, as part of a broader settlement, earlier arbitration proceedings under the UNCITRAL Rules brought under a ‘participation agreement’ between the parties. The parties had also been engaged in arbitration proceedings under the ICC Rules, arising out of a ‘joint operating agreement’ between them.
The arbitration agreement provided:
… the dispute resolution provisions of Article 16 of the [participation agreement] shall apply to all disputes arising out of the Settlement Agreement, provided, however, that the parties agree that disputes shall be submitted under the UNCITRAL Arbitration Rules and provided further that the parties agree that any dispute under this Settlement Agreement may be consolidated with any dispute that arises under the [joint operating agreement] and/or the [participation agreement] in a single arbitration under the UNCITRAL Arbitration Rules (or, where applicable, the ICSID).
GdC’s primary argument was that its claim in Cameroon concerned the joint operating agreement rather than the settlement agreement. But at [31] Butcher J accepted RSM’s submission that, where RSM said that the settlement agreement had compromised the claim now brought by GdC, “the issue of whether GdC has … a claim which has been settled is a dispute arising out of” the settlement agreement; it was, therefore, within the scope of the arbitration agreement.
In any event, Butcher J held that the arbitration agreement gave the parties an option (of the sort discussed in Foxton J’s recent judgment in Aiteo Eastern E&P Co. Ltd v Shell Western Supply and Trading Ltd [2022] EWHC 2912 (Comm)) to consolidate disputes arising under the joint operating agreement and the settlement agreement in a single arbitration. Butcher J held at [34] that it had been enough to exercise the option that RSM had indicated its intention to do so in the witness statement filed on its behalf in support of its claim for anti-suit relief.
The judgment was also notable for its rejection of the argument by GdC that the Cameroonian proceedings had only ever been in support of arbitral proceedings that it had intended to commence. It was uncontroversial that, if that had been the case, GdC would have been entitled to bring the Cameroonian proceedings. But at [37]–[38] Butcher J concluded that GdC’s case was not consistent with the evidence.
Over all, Butcher J was satisfied that the anti-suit injunction should be continued, that GdC should be ordered positively to discontinue its substantive claim in Cameroon, and that the injunctive relief so granted should be final and not merely interim.
Read the full judgment here.
Iain Quirk KC and Stephen Donnelly appeared for RSM, instructed by Alejandro Escobar, Duncan Saunders and Jack Biggs of Baker Botts LLP.
