On 5 December 2023, judgment was handed down in The Shell Petroleum Development Company of Nigeria Ltd v Sunlink Energies and Resources Ltd [2023] EWHC 3135 (Comm). The Court heard and determined a claim for a final anti-suit injunction (ASI) and declaratory relief, in accordance with a direction by Mr Justice Calver at the ex parte hearing in September 2023 that the final claim be determined at the return date (thereby avoiding a further hearing).
The basis for the ASI was an arbitration agreement providing for an ICC arbitration to be “conducted … in London”. The Defendant initially challenged the English court’s jurisdiction on the basis that the seat of the arbitration was in Nigeria, but the challenge was withdrawn shortly before the return date. Mr Justice Andrew Baker granted a final ASI, including a mandatory order requiring the discontinuance of proceedings in Nigeria brought in breach of the arbitration agreement, in which the Defendant was seeking c. US$1 billion in damages. The Court concluded, at [22]:
“In line with the approach adopted in this court, recently expressed by way of example by Butcher J in [R]SM Production Corp v Gaz du Cameroun SA [2023] EWHC 2820 (Comm) at [53], but which I have also expressed myself in earlier cases, the final anti-suit injunction will now include elements of relief that are mandatory in form, requiring the defendant to take steps necessary to discontinue or withdraw proceedings in Nigeria … To that extent, though mandatory in form, the order will do no more in substance than express what is expected and required to occur in order for the defendant, in prohibitory language, no longer to be pursuing, continuing, prosecuting, or taking further steps in its Nigerian proceedings.”
The Court also made declarations that (inter alia) the arbitration agreement was valid and binding, and designated London as the seat of arbitration; that the claims made by the Defendant in Nigeria were within its scope; and that the Defendant breached it by commencing and/or pursuing the Nigerian proceedings.
The judgment is available here.
Ben Juratowitch KC and Anton Dudnikov represented the Claimant, instructed by Marie Berard, Emma Marshall and Robert Shu of Clifford Chance.
