In an ex tempore judgment given on 8 March 2022, Mr Justice Calver sitting remotely in the Commercial Court granted an interim negative anti-suit injunction (‘ASI’ for short) to enforce the claimant’s arbitration rights as a matter of English law in the context of civil proceedings commenced by the defendant against the claimant (named as co-defendant/respondent) in the Bamako Commercial Court, Republic of Mali.
The underlying dispute concerns a fuel supply agreement for a mining project/facility located in Mali. The parties’ written agreement included (a) an express choice of English law, (b) a standard-worded ICC arbitration agreement stipulating Paris seat, (c) an unlimited non-exclusive jurisdiction clause in favour of the English Court (‘NEJC’ for short) and (d) a provision preserving the parties’ freedom to seek “injunctive or urgent declaratory relief” in court. Calver J 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 – in particular:
- 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];
- the NEJC, including in the context of the provision preserving the parties’ freedom to seek urgent relief from court, confers a secondary or supportive albeit non-seat curial/supervisory jurisdiction upon the English Court, including the power to grant ASI relief pursuant to section 37 of the Senior Courts Act 1981 to enforce an arbitral bargain governed by English law in an appropriate case; and
- no other forum is (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.
Stephen Houseman QC acts for the injunction claimant, instructed by Kate Davies McGill (who will be appointed silk on 21 March 2022) of Allen & Overy LLP.
