Foreign-Seated Arbitration Agreement

22 September, 2023

In an ex tempore judgment given on 31 August 2023, Mr Justice Bryan sitting remotely in the Commercial Court granted an interim negative anti-suit injunction (‘ASI’ for short) under section 37 of the Senior Courts Act 1981 to enforce the applicant’s foreign-seat arbitration rights in the context of civil proceedings commenced by the defendant against the claimant in the Arbitrazh Court of St. Petersburg and Leningrad Oblast, Russian Federation. In doing so, Mr Justice Bryan:

  • came to a different conclusion on materially the same facts to Mr Justice Bright in the decision of SQD v QYP [2023] EWHC 2145 (Comm), which was handed down 10 days prior and has since been successfully appealed. Paul Key KC acted on behalf of the injunction claimant in the appeal: see link here.
  • came to the same conclusion as Mr Justice Robin Knowles CBE on materially the same facts in a case in which Stephen Houseman KC and Stuart Cribb represent the injunction claimant: see link here.

The underlying dispute concerns a project overseas. The agreement has a choice of law that expressly provides that English law applies. It also has a dispute resolution clause that expressly provides for ICC arbitration in Paris.

Mr Justice Bryan was satisfied inter alia that the claimant’s claim for ASI relief had at least high probability of success as a matter of contractual and jurisdictional analysis and – in particular:

  1. the separable arbitration agreement in the parties’ written supply contract is governed by English law according to the lex fori principles set out in Enka v. Chubb [2020] 1 WLR 4117 at [170];
  2. as such, the English Court had personal jurisdiction over the respondent and England & Wales was the proper forum for the dispute;
  3. the proceedings brought by the respondent in the Arbitrazh Court of St. Petersburg and Leningrad Oblast, Russian Federation were in breach of the arbitration agreement;
  4. no other forum was (readily) available to provide any effective coercive protection for the claimant’s arbitration rights; such relief is not available in court in France and no arbitral tribunal has been or may be constituted in respect of the parties’ dispute in time to provide relief.

Paul McGrath KC and Matthieu Grégoire act for the injunction claimant, instructed by Andy McGregor and James Freeman of Allen & Overy LLP.