Parallel proceedings key case law Flashcards
(25 cards)
The Abidin Daver
(PARALLEL PROCEEDINGS AND ANTI-SUIT INJUNCTIONS - PARALLEL PROCEEDINGS UNDER THE COMMON LAW - General approach)
Facts: a collision occurred between the applicant’s Cuban ship and the respondent’s Turkish ship. R commenced proceedings in Turkish court, and A then brought an action in England against R. R obtained a stay of the English proceedings, which was then revoked by the Court of Appeal. R appealed.
Law: the HoL restored the stay. The court found that parallel proceedings could only be justified if the would-be plaintiff could establish objectively by cogent evidence that there was some personal or judicial advantage that would be available to him only in the English action that was of such importance that it would cause injustice to him to deprive him of it. A had not provided such evidence. The focus is on the consequences for the parties, rather than comity.
De Dampierre v De Dampierre
(PARALLEL PROCEEDINGS AND ANTI-SUIT INJUNCTIONS - PARALLEL PROCEEDINGS UNDER THE COMMON LAW - General approach)
Facts: A French married couple started divorce proceedings in France and England, respectively. The husband applied to stay the wife’s English divorce proceedings. The first-instance court refused the stay on the ground that under the French proceedings the wife might receive a favourable financial position. The CoA upheld this decision.
Law: the HoL reversed this decision, holding that the court should not be deterred from granting a stay merely because the plaintiff in this country would be deprived of a legitimate advantage, provided that substantial justice would be done in the overseas forum.
Municipio De Mariana v BHP Group (UK) Ltd
(PARALLEL PROCEEDINGS AND ANTI-SUIT INJUNCTIONS - PARALLEL PROCEEDINGS UNDER THE COMMON LAW - General approach)
Facts: a dam in Brazil owned by a company half owned by BHP Brazil collapsed, killing 19 people and destroying entire villages. Some 202,600 Brazilian claimants sought compensation from BHP England and BHP Australia. In the meantime, around 3/4 of the claimants were involved in a compensation scheme in Brazil. The defendants applied to strike out/stay the English claims on the basis of the ongoing Brazilian mechanisms. The trial judge granted the stay, finding that the risk of irreconcilable judgments was great and that the English claims were futile and wasteful since the Claimants could not expect to receive any more compensation.
Law: the CoA reversed this decision. It found that although complexities might arise from the ongoing proceedings in Brazil, this did not make the English claim an abuse of process.
The Vishva Abha
(PARALLEL PROCEEDINGS AND ANTI-SUIT INJUNCTIONS - PARALLEL PROCEEDINGS UNDER THE COMMON LAW - Need to consider the relative appropriateness of the possible fora)
Facts: the owner of the cargo on a ship (P) brought proceedings in England against the owner of another ship (D) when the two collided. D had already brought proceedings against the owner of the ship holding P’s cargo in South Africa. The question was whether South Africa was more appropriate that England.
Law: a significant factor was that there was a substantially higher cap on liability under shipping Conventions in England than SA i.e., higher limits on how much could be recovered. The evidence was that in SA, the claimant would only recover £350k whereas in England they could recover £1.5m. The court held that it would be a grave injustice to deprive the claimants of their right to litigate in England, even though related proceedings were ongoing in SA. The court considered delay but it wasn’t significant enough to affect the quality of justice.
Deutsche Bank v Highland Crusader
(PARALLEL PROCEEDINGS AND ANTI-SUIT INJUNCTIONS - PARALLEL PROCEEDINGS UNDER THE COMMON LAW - Does a non-exclusive jurisdiction agreement allow for parallel proceedings?)
Facts: not important
Law: where there is a non-exclusive JA, there is no presumption that parallel proceedings are vexatious or oppressive. It will be difficult to obtain an anti-suit injunction in such circumstances, unless there are exceptional circumstances.
Philip Alexander Securities Ltd v Bamberger
(PARALLEL PROCEEDINGS AND ANTI-SUIT INJUNCTIONS - ANTI-SUIT INJUNCTIONS UNDER THE COMMON LAW - Effect of an anti-suit injunction)
Facts: not important.
Law: old case, the German courts refused to serve an English ASI because they considered it to interfere with their sovereignty.
OT Africa Line v Hijazy ‘The Kribi’ (No.1)
(PARALLEL PROCEEDINGS AND ANTI-SUIT INJUNCTIONS - ANTI-SUIT INJUNCTIONS UNDER THE COMMON LAW - Effect of an anti-suit injunction)
Facts: OT, an English company, sought an anti-suit injunction restraining H from continuing Belgian proceedings against it, since there was an exclusive jurisdiction clause in favour of the English High Court. H argued that an anti-suit injunction violated the ECHR Art 6.
Law: the court rejected this argument, finding that Article 6 did not give parties the right to choose where to pursue or defend their civil rights.
SAS Institute v World Programming Ltd
(PARALLEL PROCEEDINGS AND ANTI-SUIT INJUNCTIONS - ANTI-SUIT INJUNCTIONS UNDER THE COMMON LAW - Effect of an anti-suit injunction)
Facts: SAS obtained a US judgment and applied to the California courts for two enforcement orders. SAS then applied in England to set aside an anti-suit injunction restraining the seeking of those orders in the US courts, which was originally obtained by W. The North Carolina court issued an order prohibiting the claw back of money, and restraining W from getting US customers. The US court criticised the English court for maintaining a claim designed to frustrate a US judgment.
Law: the English court set aside the injunction in part. The court distinguished between US orders concerning debts to be paid in England and elsewhere, and approved the grant of the anti-suit injunction only in relation to English based customers and banks. In other words, the English courts stepped back in the interests of comity.
Ecom Agroindustrial Corp v Mosharaf Composite Textile Mill
(PARALLEL PROCEEDINGS AND ANTI-SUIT INJUNCTIONS - ANTI-SUIT INJUNCTIONS UNDER THE COMMON LAW - Anti-anti-(etc.) suit injunctions)
Facts: the parties contracted for the sale of cotton, and the contract contained an exclusive London arbitration clause. The defendant (M) commenced proceedings in Bangladesh. The Bangladesh court took jurisdiction and granted an anti-suit injunction to restrain English proceedings. The question was whether the English court would grant an anti-anti-suit injunction to protect the London arbitration clause.
Law: M submitted that comity required the English court to refrain from doing so, but this was strongly rejected. The judge said “it is an egregious breach of contract for the claimant not only to commence proceedings in a non-contractual jurisdiction but to obtain an injunction from that forum to prevent the claimant from vindicating his rights under the arbitration clause”. It issued the anti-ASI.
The Angelic Grace
(PARALLEL PROCEEDINGS AND ANTI-SUIT INJUNCTIONS - ANTI-SUIT INJUNCTIONS UNDER THE COMMON LAW - Conditions for granting an anti-suit injunction)
Facts: The parties chartered a vessel through a contract including an arbitration clause in favour of London. There was a collision and one party commenced arbitration proceedings in London and the other started tortious proceedings in Italy. The first party sought an anti-suit injunction to restrain the Italian proceedings.
Law: an anti-suit injunction should be granted on the clear and simple ground that the defendant promised not to bring the proceedings. There is no difference between an arbitration clause and an exclusive jurisdiction clause in this respect - an anti-suit injunction should be granted so long as it is sought promptly and before the foreign proceedings are too far advanced.
Donohue v Armco Inc
(PARALLEL PROCEEDINGS AND ANTI-SUIT INJUNCTIONS - ANTI-SUIT INJUNCTIONS UNDER THE COMMON LAW - Conditions for granting an anti-suit injunction)
Facts: conspiracy case. Exclusive jurisdiction clause in favour of the English courts in respect of one defendant. Jurisdiction had been founded in NY against other defendants who were not subject to the JA.
Law: exceptionally, an anti-suit injunction was refused on the basis that this was a conspiracy claim and it was therefore inconceivable that it would succeed against some of the defendants and fail against others. The interests of justice would be served by a single trial in New York.
Sabah Shipyard (Pakistan) Limited v Pakistan
(PARALLEL PROCEEDINGS AND ANTI-SUIT INJUNCTIONS - ANTI-SUIT INJUNCTIONS UNDER THE COMMON LAW - Conditions for granting an anti-suit injunction)
Facts: there was a forum conveniens waiver clause (in between an exclusive and non-exclusive JA) providing that the parties would not argue that England is not the forum conveniens.
Law: the English courts issued an injunction restraining the government of Pakistan (P) from continuing with legal proceedings commenced in Pakistan against S, since there was a forum conveniens waiver clause in favour of England and P had waived its sovereign immunity. As proceedings had commenced in England as an agreed forum, it was vexatious for P to have commenced proceedings in Pakistan.
AIG Europe SA v John Wood Group
(PARALLEL PROCEEDINGS AND ANTI-SUIT INJUNCTIONS - ANTI-SUIT INJUNCTIONS UNDER THE COMMON LAW - Conditions for granting an anti-suit injunction)
Facts: not important
Law: comity does not only mean deference to the foreign court – it can also require the courts to uphold agreement between the parties through issuing an ASI
Ust-Kamenogorsk Hydropower Plant JSC v AES Ust-Kamenogorsk Hydropower Plant LLP
(PARALLEL PROCEEDINGS AND ANTI-SUIT INJUNCTIONS - ANTI-SUIT INJUNCTIONS UNDER THE COMMON LAW - Conditions for granting an anti-suit injunction)
Facts: not important
Law: even if an arbitration clause just provides for arbitration in London and not for the exclusion of foreign litigation, it operates the same as an exclusive JA and can give rise to an ASI
Enka v Chubb
(PARALLEL PROCEEDINGS AND ANTI-SUIT INJUNCTIONS - ANTI-SUIT INJUNCTIONS UNDER THE COMMON LAW - Conditions for granting an anti-suit injunction)
Facts: the appellant, a Russian insurance company (C), appealed against a decision that English law governed an arbitration agreement in a contract with the respondent, a Turkish contractor (E), and against the grant of an anti-suit injunction restraining C from continuing Russian proceedings. The arbitration agreement provided for disputes to be referred to English arbitration but did not contain a choice of law clause.
Law: the principles governing the grant of an ASI in support of an arbitration agreement in favour of England do not differ according to whether the agreement is governed by foreign or English law. The court rejected the argument that the applicable law is the law of the seat in the absence of choice.
UniCredit Bank GmbH v RusChemAlliance LLC
(PARALLEL PROCEEDINGS AND ANTI-SUIT INJUNCTIONS - ANTI-SUIT INJUNCTIONS UNDER THE COMMON LAW - Conditions for granting an anti-suit injunction)
Facts: the appellant, a Russian company (R), appealed against a decision that the English court had jurisdiction to grant an ASI to restrain R from pursuing Russian proceedings against the respondent bank (U). The contract between the parties contained a governing law clause in favour of English law and a Paris arbitration clause.
Law: the court can issue an ASI to restrain foreign proceedings and protect an arbitration agreement in favour of another country, since arbitration is not tied to the courts of a specific country. This decision stretched the meaning of the requirement of a connection with England.
RBS v Hicks and Gillett
(PARALLEL PROCEEDINGS AND ANTI-SUIT INJUNCTIONS - ANTI-SUIT INJUNCTIONS UNDER THE COMMON LAW - Conditions for granting an anti-suit injunction)
Facts: Texan proceedings brought part way through English proceedings.
Law: Texan proceedings were brought unconscionably for 3 reasons: 1) the case had no real connection with Texas, 2) the commencement and prosecution of the texan proceedings was an attempt to deprive the other party of the fruits of their success to far in the litigation and 3) the respondent had deliberate omitted to tell the US judge that they had asked for and been refused injunctive relief in England (misrepresentation of the position) - these factors together meant the Texan proceedings were oppressive or vexatious.
Societe Nationale Industrielle Aerospatiale v Lee Kui Jak
(PARALLEL PROCEEDINGS AND ANTI-SUIT INJUNCTIONS - ANTI-SUIT INJUNCTIONS UNDER THE COMMON LAW - Conditions for granting an anti-suit injunction)
Privy Council for Brunei case.
Facts: a helicopter crashed in Brunei and a Brunei businessman was killed. Proceedings were commenced by the widow against the helicopter manufacturer in Texas. The question was whether these proceedings were vexatious or oppressive such that they could be restrained.
Law: the Privy Council held that the mere fact that Brunei was the natural forum was not of its self sufficient to make the Texan proceedings vexatious or oppressive. What was significant in this case was that in Texas the defendant would not have been able to bring in the Malaysian operator of the helicopter to seek an indemnity or contribution. This was the key factor which made the Texas proceedings vexatious or oppressive. There would be serious injustice in the helicopter manufacturer being unable to seek indemnity or contribution.
Airbus Industrie GIE v Patel
(PARALLEL PROCEEDINGS AND ANTI-SUIT INJUNCTIONS - ANTI-SUIT INJUNCTIONS UNDER THE COMMON LAW - Conditions for granting an anti-suit injunction)
Facts: in relation to an aircraft crash, the Indian courts granted an ASI to restrain foreign proceedings, but that Indian ASI was ineffective because the respondent did not have assets in India, but it did have assets in England. The Claimant applied to the English courts to ask them to grant the ASI to clothe the Indian ASI.
Law: the court said no, because the English courts did not have a sufficient interest to grant an English ASI. “The English courts should not be acting as the world’s policemen”. There must be a sufficient connection between the English forum and the subject matter of the dispute before the court will be justified in restraining foreign proceedings.
Masri v Consolidated Contractors International Company Sal
(PARALLEL PROCEEDINGS AND ANTI-SUIT INJUNCTIONS - ANTI-SUIT INJUNCTIONS UNDER THE COMMON LAW - Conditions for granting an anti-suit injunction)
Facts: there was an existing claim which the respondent counterclaimed. Question was whether there was sufficient submission in relation to the ASI.
Law: submission is always a ground for jurisdiction, such that if by bringing the counterclaim the respondent had submitted to the jurisdiction for the purpose of that claim, there was a relevant English claim which could be protected by grant of an ASI.
Glencore International AG v Metro Trading International Inc (No.3)
(PARALLEL PROCEEDINGS AND ANTI-SUIT INJUNCTIONS - ANTI-SUIT INJUNCTIONS UNDER THE COMMON LAW - Conditions for granting an anti-suit injunction)
Facts: the shipowners (ES) carried oil to and from a facility owned by Metro. Metro collapsed and owed money to oil traders including Glencore (G). ES had a claim in England against Metro for unpaid hire and bunker charges. G intervened in those proceedings. G arrested four of ES’s ships, claiming the oil cargo. ES defended this and brought counterclaims against G. Proceedings commenced in Singapore because 3 of the ships were there. Part way through proceedings, ES commenced proceedings against G in Georgia, alleging wrongful arrest of the ships. All of the various proceedings were managed together. G applied for an ASI to retrain these proceedings. ES served notice of discontinuance in their English proceedings, arguing that their claim against G in Georgia was separate to the proceedings between them and G in England. The High Court issued an ASI and ES appealed this.
Law: the CoA upheld the ASI, finding that by claiming in England against Metro and counterclaiming against G, ES had submitted to the jurisdiction. It was impossible to say that the Georgian proceedings were in some way distinct from the English proceedings. There was need to protect the English proceedings because England was the appropriate forum - no legitimate reason was shown for pursuing proceedings in Georgia.
British Airways v Laker Airways
(PARALLEL PROCEEDINGS AND ANTI-SUIT INJUNCTIONS - ANTI-SUIT INJUNCTIONS UNDER THE COMMON LAW - Discretionary reasons to refuse injunction)
Facts: LA obtained permission to operate “skytrain”, a low-cost transatlantic flight service. They then went into liquidation. They claimed against BA and other defendant airlines, alleging that their liquidation was caused by a conspiracy between them to restrain and monopolise air transport between the US and UK, in breach of US anti-trust law. BA and BC brought actions against LA in England for a declaration of non liability and applied for an ASI to restrain LA in the US.
Law: the HoL allowed LA’s appeal, removing the ASI, on the basis that LA’s claim in the US disclosed no cause of action justiciable in England, meaning that there was just one competent jurisdiction to determine LA’s claim (the US).
Donohue v Armco Inc
(PARALLEL PROCEEDINGS AND ANTI-SUIT INJUNCTIONS - ANTI-SUIT INJUNCTIONS UNDER THE COMMON LAW - Discretionary reasons to refuse injunction)
Law: delay – if a party delays for too long it won’t be able to get an injunction
Midland Bank v Laker Airways
(PARALLEL PROCEEDINGS AND ANTI-SUIT INJUNCTIONS - ANTI-SUIT INJUNCTIONS UNDER THE COMMON LAW - Discretionary reasons to refuse injunction)
Legitimate advantage for foreign claimant
