Arbitration Law Monthly

The English courts will, by anti-suit injunction, readily restrain a party to an arbitration clause from commencing or maintaining judicial proceedings elsewhere. The question in Ecobank Transnational Inc v Tanoh [2015] EWCA Civ 1309 was whether an injunction should be granted to restrain the enforcement of judgments obtained in overseas proceedings brought in contravention of an arbitration clause. The Court of Appeal recognised that the necessary jurisdiction existed, although it was likely to be in limited situations only.

ADM Asia-Pacific Trading Pte Ltd v PT Budi Semesta Satria [2016] EWHC 1427 (Comm), a decision of Phillips J, is a further illustration of the point that the court may refuse to grant an anti-suit injunction to a party who delays unnecessarily in seeking relief. That is the case even where there is a good tactical reason for the delay: international comity is a key consideration here.

The State Immunity Act 1978 confers immunity from the English courts upon a sovereign state. The most important exception is contained in section 9, which removes immunity where the issue relates to proceedings relating to an arbitration agreement. There is additional immunity under section 13 in respect of state property unless it is being used for “commercial purposes”. L R Avionics Technologies Ltd v The Federal Republic of Nigeria and Another [2016] EWHC 1761 (Comm), a decision of Males J, raised questions as to the proper interpretation of each of these provisions.

Section 72 of the Arbitration Act 1996 provides a specific mechanism for a person to challenge an arbitration award against him where that person was not a party to the arbitration. In Sino Channel Asia Ltd v Dana Shipping and Trading Pte Singapore and Another [2016] EWHC 1118 (Comm) the procedural issue was whether section 72 could be relied upon after the award had been issued, or whether it was necessary for a challenge to be brought under the usual mechanism for contesting an award allegedly made without jurisdiction, section 67 of the 1996 Act. The substantive issue was whether the applicant had in fact been a party to the arbitration proceedings