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Commercial Court grants "contractual" anti-suit injunction against a non-party

In Qingdao Huiquan Shipping Company v Shanghai Dong He Xin Industry Group Co Ltd [2018] EWHC 3009 (Comm) the Commercial Court reaffirmed and clarified the circumstances in which an anti-suit injunction can be granted on “Angelic Grace” grounds against a foreign litigant who is not a party to an exclusive forum agreement. The Court also granted the injunction in question notwithstanding that the foreign proceedings had been commenced and served over a year before anti-suit relief was sought. 

The dispute arose in relation to a settlement agreement between the Claimant (“the Owners”) and a third party (“Emori”). The settlement agreement was governed by English law and contained a London arbitration clause. The settlement agreement provided that Emori would pay the Owners a sum of money via the Defendant (“SDHX”) as Emori’s “authorised agent”. SDHX was not, however, a party to the settlement agreement or the arbitration clause it contained. SDHX paid the stipulated sum of money to Owners on behalf of Emori on around 23 January 2014.

Over three years later, in April 2017, SDHX commenced proceedings against the Owners in the Qingdao Shinan District Court, claiming a refund of the money it had paid to the Owners. It claimed on the basis of an alleged oral agreement between it and the Owners that gave it apparently identical rights to those of Emori under the settlement agreement, save without the burden of the arbitration agreement. The Owners challenged the jurisdiction of the Qingdao Shinan District Court. There were hearings at first instance and on appeal, with the result that on around 15 June 2018 SDHX’s claim was transferred to the Qingdao Maritime Court for determination of whether SDHX was bound by the arbitration clause in the settlement agreement. On 1 August 2018, the Owners issued an arbitration claim form in the English Commercial Court seeking an anti-suit injunction restraining the proceedings in Qingdao and an application for an interim anti-suit injunction pending a final hearing.

Giving judgment on the application for an interim anti-suit injunction, Bryan J reviewed the developing case law on the circumstances in which an anti-suit injunction based on a contractual exclusive forum clause will be granted against a litigant that is not a party to the forum clause, in particular The Yusuf Cepnioglu [2016] 1 Lloyd’s Rep 621 (CA) (in which David Lewis QC and Oliver Caplin appeared for charterers) and Dell v IB Maroc.com [2017] EWHC 2397 (in which Sara Masters QC and Andrew Feld appeared for Dell). The principle was that a claimant abroad will be not be allowed to base a claim on rights arising out of a contract without also being bound by a forum clause contained in the contract, even where there was in fact no privity of contract between the parties. The question in each case was whether, in substance, the rights asserted in the foreign proceedings are ones encumbered by the obligation to resolve disputes in England. Bryan J recognised that the facts of this case were not quite on all fours with Yusuf or Dell, in particular because SDHX was formally asserting a separate oral agreement. However, he nevertheless held that the case fell within the principle laid down in those cases because SDHX was, in substance, seeking to rely on the terms of and rights under the settlement agreement, which included a London arbitration clause.

Bryan J also considered  the question of delay in seeking anti-suit relief. He held that the period of over a year that had elapsed between service of SDHX’s claim in Qingdao and the Owners’ claim for anti-suit relief was no so excessive as to mean an injunction should be refused. First, the Qingdao courts had not yet considered the question of jurisdiction, viz whether SDHX was bound by the arbitration clause in the settlement agreement. To date, the Qingdao courts had only considered the internal question of which Qingdao court should hear that issue. This was therefore not a case in which delay gave rise to comity issues as it had on other occasions. Secondly, the Judge noted that the judgment given by the Qingdao appellate court in June 2018 had clarified the nature of SDHX’s claim and hence the Owners’ right to seek anti-suit relief.

The judgment contains a welcome and helpful summary of the emerging principles relating to the grant of “Angelic Grace” injunctions in the absence of privity of contract. It also provides an interesting analysis of the question of delay, which shows that the passing of a substantial period of time is not necessarily fatal to a claim for an anti-suit injunction.

Philip Riches and Andrew Feld acted for Qingdao Huiquan Shipping Company, instructed by Holman Fenwick Willan.

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