Delay and discretion with the anti-suit injunction.

 

The anti-suit injunction is a discretionary remedy. Even when the foreign proceedings are clearly in breach of a High Court jurisdiction clause or a London arbitration clause, you may not get your remedy. The principle reason for the court not issuing the ASI is delay in applying for the remedy and allowing the foreign proceedings to become advanced. Issues of justice and comity coincide here, but what length of delay will incline the court not to grant you the ASI you have set your heart on?

This was the issue in the recent Commercial Court decision of Henshaw J in Daiichi Chuo Kisen Kaisha v Chubb Seguros Brasil SA [2020] EWHC 1223 (Comm) (15 May 2020). A cargo claim arose out of a collision, brought by cargo insurers, Chubb. In March 2016 Chubb started arbitration in London against the owners Fair Wind under the owners’ bill which incorporated a London arbitration clause. In November Chubb commenced proceedings in Brazil against Mizuho the vessel managers, Daiichi, the time charterer, and Noble Resources, an associated company of the voyage charterer, who had Resources used vessel to perform a shipment under a COA with CSN Handel, claiming US$2.7m.

In August 2017 owners and Mizuho issued an arbitration claim form in the Commercial Court seeking an ASI against Chubb in respect of the Brazilian proceedings against Mizuho, and in October Knowles J granted the ASI Mizuho in Brazil. A month later Daiichi’s obtained from Chubb an undertaking mirroring the order of Knowles J. On 26 June 2019 the Brazilian Superior Court of Justice finally rejected Chubb’s amendment claim.

Time charterers, Daiichi, and Chubb then jointly requested a stay of Brazilian proceedings for six months, “ without prejudice to any of their rights (including, in relation to the defendants, the right to challenge the Brazilian court’s jurisdiction, in view of the arbitration clause contained in the Bills of Lading and Charter Party”. In March 2020 Chubb filed substantive defences to the defence and jurisdiction challenges of Noble Resources and then of Daiichi, claiming that the bill of lading arbitration clauses did not apply to them as the subrogated insurer. This was a clear breach of the undertakings previously given to Noble Resources and to Daiichi.  A Court order in Brazil of 23 April 2020 gave Daiichi and Noble Resources until 25 May 2020 to respond to Chubb’s latest submissions.

The principles relevant to delay were set out by Bryan J in Qingdao Huiquan Shipping Co v Shanghai Dong He Xin Industry Group Co Ltd [2018] EWHC 3009 (Comm); [2019] 1 Lloyd’s Rep. 520.

“(1) There is no rule as to what will constitute excessive delay in absolute terms. The court will need to assess all the facts of the particular case: see Essar Shipping Ltd v Bank of China Ltd (The Kishore) [2016] 1 Lloyd’s Rep 427 at paras 51 to 52 per Walker J.

(2) The question of delay and the question of comity are linked. The touchstone is likely to be the extent to which delay in applying for anti-suit relief has materially increased the perceived interference with the process of the foreign court or led to a waste of its time or resources: see Ecobank Transnational Inc v Tanoh [2016] 1 Lloyd’s Rep 360 at paras 129 to 135 per Christopher Clarke LJ; The Kishore at para 43; and see also Sea Powerful II Special Maritime Enterprises (ENE) v Bank of China Ltd [2017] 1 HKC 153 at para 21 per Kwan JA.

(3) When considering whether there has been unacceptable delay a relevant consideration is the time at which the applicant’s legal rights had become sufficiently clear to justify applying for anti-suit relief: see, for example, Sabbagh v Khoury [2018] EWHC 1330 (Comm) at paras 33 to 36 per Robin Knowles J.”[29]

Here the relevant period of delay did not start until Chubb’s change of tack in the Brazilian proceedings. Chubb was, from June 2019 until March 2020 actively co-operating with Daiichi to defer any further substantive proceedings in Brazil, and thus could reasonably be regarded by Daiichi as neither breaching nor threatening to breach the Undertaking. Daiichi and Noble Resources were not, in any substantive sense, actively engaging in the proceedings in Brazilian but rather, with Chubb’s express and active support, seeking to defer them. Such positive steps as were taken were taken only out of necessity or on a precautionary basis. It must have been clear to Chubb at all material times that such steps did not indicate that Daiichi or Noble Resources were content to allow the Brazilian court to decide the jurisdiction issues and, if relevant, the merits. Any legal expenses incurred by Chubb in this period would have been limited. This case was not one where a party who simply allows foreign proceedings to take their course, subject to making a jurisdiction challenge, when faced with a claim brought in breach of a jurisdiction or arbitration agreement. There had been no material delay by Daiichi following the revival of Chubb’s position in the Brazilian proceedings.

Nor did considerations of comity towards the Brazilian court weigh against the grant of such relief. Chubb argued that proceedings were now at an advanced stage, with a risk of judgment on the merits very soon, so to grant an anti-suit injunction would in effect be to ‘snatch the pen’ from the Brazilian judge’s hand. However, since June 2019 the only step taken in relation to the substantive merits has been the precautionary filing of Noble Resources’ defence in September 2019 and Chubb’s reply of 2 March 2020. The Brazilian court had not yet assumed jurisdiction over any of the defendants and it could not be said that it was poised to pass judgment on the merits. Although time which elapses during a jurisdiction challenge in the foreign court is still relevant when considering delay, it did not follow, however, that the mere making of a jurisdiction challenge in the foreign court made any subsequent anti-suit injunction inconsistent with considerations of comity. This was not a case of the ‘two bites of the cherry’ strategy of awaiting the foreign court’s outcome before seeking an anti-suit injunction.

A mandatory injunction was ordered as it was necessary to require Chubb to discontinue otherwise there would now be a real risk that the Brazilian court would proceed to judgment on the merits at some stage after 25 May. Daiichi, to whom the undertaking had been given, wished the injunction to extend to proceedings against Noble Resources, because it feared that otherwise Noble Resources would seek to pass any liability ‘up the line’ to Daiichi. Daiichi had shown a sufficient interest in enforcing the injunction as regards claims against Noble Resources. It was not unlikely that some form of contractual arrangement existed under which Noble Resources could pass up to Noble Chartering, and hence to Daiichi, any liabilities which as between owners and charterers would fall on owners.

 

 

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