England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (COMMERCIAL COURT)
Mr Justice Knowles
[2015] EWHC 1874 (Comm)

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/12/2015

LORD JUSTICE CHRISTOPHER CLARKE:

1. The issue in this appeal is whether Knowles J was wrong to refuse to grant Ecobank Transnational Incorporated ("Ecobank"), an injunction restraining Mr Thierry Tanoh ("Mr Tanoh") from enforcing two judgments which he had obtained in Togo and Côte d'Ivoire.

The history

2. Ecobank is a major African bank and the holding company in a group carrying on business in 36 African countries. Its headquarters are in Togo. Mr Tanoh was a successful banker who on 15 December 2011 entered into an Executive Employment Agreement ("the EEA") under which he was to be employed in Togo as Chief Executive Officer and Group Managing Director (initially Designate, but later confirmed).
3. The EEA included the following terms:

"26 Arbitration

Any and all disputes, controversies or claims arising under or in connection with [the EEA], including without limitation, fraud in inducement of [the EEA], or the general validity or enforceability of [the EEA] shall be submitted to binding arbitration before one arbitrator to be selected by mutual agreement of the parties or failing mutual agreement to be appointed by the President of the International Chambers of Commerce in Paris, France. The arbitration shall be conducted in London, England under the UNCITRAL Rules and the award of the arbitrator is to be final and enforceable in the courts of England. Irrespective of the outcome of the arbitration, it is hereby agreed that the parties shall each bear their own costs.

27 Compliance with Local Law

The Company warrants that the terms of this Agreement do not breach any law, regulation or regulatory requirement in Togo.

28 Governing Law and Jurisdiction

This Agreement shall be governed by the laws of England and subject to clause 26 above, the parties hereby submit to the exclusive jurisdiction of the English Courts".

4. The Public Investment Corporation ("PIC") is a South African Government corporation. It manages the shareholding in Ecobank of the Government Employee Pension Fund of South Africa. PIC is one of Ecobank's largest shareholders. In 2013 Ecobank was, in the words of Mr Samuel Ayim, Ecobank's Group General Counsel, plunged into a governance crisis. In October 2013 the Chairman was forced to resign and there were calls in some quarters for Mr Tanoh to step down.
5. On 1 March 2014 Dr Daniel Matjila, a director of PIC and its Chief Executive officer and PIC's representative on the board of Ecobank, wrote a long letter, on a PIC letterhead, to the Acting Chairman and the directors of Ecobank's board. This letter was in excoriating terms and accused Mr Tanoh of incompetence and dishonesty. It was leaked to the Financial Times and Bloomberg.
6. On 11 March 2014 Mr Tanoh received a letter from Ecobank terminating his employment with effect from 12 March 2014 pursuant to Article 16.3 (b) of the EEA. He was offered 3 months' pay, as required by that Article, and Ecobank was ready to pay the additional lump sum for which the Article called. The reason for the termination was said to be that he had had taken a number of actions which were inconsistent with the governance and practice of Ecobank, which had paralysed its operations and seriously affected its reputation internationally.

The Togo proceedings

7. On 4 April 2014 Mr Tanoh commenced proceedings before the Labour Court of Lomé in Togo, pursuant to the Togo Labour Code ("the Code"). He claimed that the termination of his employment was in breach of the Code and unfair. Ecobank challenged the jurisdiction of the Court, relying, inter alia, on the arbitration clause in the EEA.
8. In Togo civil procedure a defendant must raise challenges to the jurisdiction in limine litis – as Ecobank did. The court may require a defendant to plead both to the jurisdiction and to the merits. If the court does so and the defendant pleads only as to jurisdiction the judge can rule that he accepts the merits as pleaded by the claimant. Arguments on the merits that have not been raised at first instance cannot be raised on appeal. The defendant who pleads to the merits is not thereby waiving his right to argue that the dispute in question must be submitted to arbitration pursuant to an arbitration agreement between the parties.
9. On 7 October 2014 the Labour Court ordered Ecobank to plead to the merits as well as making its challenge to the jurisdiction. This is what Mr Tanoh had asked the court to do.
10. By a letter dated 17 November 2014 Ecobank sought an extension of time in order to file a submission on the merits. The court granted an adjournment, "accompanied by note of its final nature"^[1] to 6 January 2015. In the end, however, Ecobank did not enter a plea on the merits, having decided to run the risk of losing if its challenge to the jurisdiction failed.
11. On 6 January 2015 a hearing took place in Lomé.
12. On 3 February 2015 the Togo Labour Court held that Articles 5, 230, and 231 of the Labour Code of Togo permitted Mr Tanoh to make a claim in the Labour Court, if he wished to do so, and that the arbitration agreement was no bar to his doing so. It held that, in the light of Mr Tanoh's referring the matter to the Court, "the arbitral procedure instigated by [Ecobank] cannot be enforced on [Mr Tanoh] as this referral nullified Article 26 of [the EEA]". The arbitration agreement was, in those circumstances, unenforceable against him. The Court also found in his favour on the merits, holding that his dismissal was unfair and that Ecobank had "implicitly admitted the grounds of the action directed against it" and awarded him $ 11,547,572 or 5,773,786,000 CFA francs. 50% was payable immediately notwithstanding any application to appeal.
13. On 3 February 2015 Ecobank appealed. On 6 February 2015 the Lomé Court of Appeal ordered a provisional stay. On 24 July 2015 that provisional stay was continued.

Côte d'Ivoire proceedings

14. On 12 May 2014 Mr Tanoh began proceedings before the Abidjan Commercial Court against (i) Dr Matjila; (ii) PIC; and (iii) Ecobank for defamation in respect of the letter of 1 March. The case against Ecobank was based on the tort of inaction arising from its failure to disapprove the defamatory statements made by Dr Matjila.
15. The rules of Ivorian civil procedure as to pleading to the jurisdiction, joinder of pleas to the jurisdiction and to the merits by judicial order, and the consequences of not pleading to the merits if required to do so, are the same as in Togo.
16. On 17 July 2014, at the first hearing, the judge tried to get the parties to settle their dispute amicably. Ecobank took part in a conciliation process during the course of which, on 25 September 2014, it offered Mr Tanoh $ 1 million. No settlement was reached and the judge ordered Ecobank to plead both as to the jurisdiction and the merits.
17. In October 2014 Ecobank objected to the jurisdiction. It submitted a motion in limine litis that the courts of the Côte d'Ivoire lacked jurisdiction for a number of stated reasons relating to Ivorian law. One of the contentions was that certain Articles of an Ivorian Act would not assign jurisdiction to the Abidjan Commercial Court but to the court of Lomé. It relied on Article 26 and, in addition, Article 28 and requested the Court to declare itself "incompetent in favour of the Togolese or English Courts or of the arbitration court designated by the [EEA]". In the alternative it pleaded to the merits. On the evidence before him Knowles J found that under the law of the Côte d'Ivoire a plea to the merits in those circumstances is not a waiver of the right to argue that the dispute must be referred to arbitration.
18. On 18 December 2014 the judge ordered the defendants to argue their respective case on jurisdiction and merits orally. He rejected a request by Ecobank's counsel to rule on the jurisdiction before proceeding to a hearing in the merits, stating that he would issue only one judgment. The defendants then made submissions on jurisdiction and immediately thereafter made submissions on the merits. In respect of jurisdiction the defendants asserted that the arbitration clause required Mr Tanoh to submit the claims to arbitration and that the Commercial Court did not have jurisdiction.
19. On 15 January 2015 the Ivorian Court gave judgment in favour of Mr Tanoh against all three defendants for 7.5 billion CFA Francs, being at the time approximately
    $ 15 million. In respect of Ecobank the court held that it was jointly and severally liable for the conduct of Dr Matjila as he was acting in the capacity of director of Ecobank and in its interests and Ecobank failed to distance itself from the content of the letter but, rather, sought to justify it. Provisional execution was ordered. The court also ordered publication of its decision in all of the media that received or reported on the letter and, in the event of delay in publication, a fine of 200,000,000 CFA francs per day starting from the date of notification of the judgment.
20. On 11 February 2015 Ecobank filed a notice of appeal in which it appealed the Court's decision on jurisdiction, merits and quantum. The primary ground of the appeal was that, in the event that the arbitration clause did not apply, which was denied, the courts with jurisdiction were the Courts of Togo where Ecobank has its head office. The merits were appealed because, if the Court of Appeal holds that the Ivorian Courts have jurisdiction, the defendants will be deemed to accept the merits unless they contest them on appeal.
21. On 17 February 2015 the Court of Appeal denied Ecobank a stay. On 22 May 2015 the Appeal Court in Abidjan dismissed the appeal. Ecobank stated that it intended to appeal further to the Court of the Organisation pour l'Harmonisation en Afrique du Droit des Affaires.
22. Between 27 January and 1 April 2015 Mr Tanoh made several attempts to enforce the judgment in the Côte d'Ivoire.

The arbitration and the injunctive orders

23. On 22 December 2014, i.e. 6 or 7 months after the commencement of the Togolese and Côte d'Ivoire proceedings, Ecobank served a notice of arbitration on Mr Tanoh in respect of the termination of his employment. On 26 December 2014 Ecobank requested the President of the ICC in Paris to appoint an arbitrator. At the time of the hearing before Knowles J no notice had been served in respect of the subject matter of the defamation proceedings. The judge was told that it was Ecobank's intention to claim in the arbitration all the losses that it had suffered in consequence of the Ivorian and Togolese proceedings.
24. On 10 April 2015 Ecobank issued proceedings in London in which it claimed an interim worldwide injunction, pursuant to section 37 of the Senior Courts Act 1981, preventing Mr Tanoh from taking any action to secure recognition or enforcement either the judgment of the Togolese or the Ivorian Court. On 17 April 2015 Simon J, as he then was, made an ex parte order restraining enforcement of either the Togolese or the Ivorian judgment until a return date. That order was continued until 3 July 2015 when Knowles J discharged it. In essence he decided that Ecobank had left it far too late.
25. The arguments in this appeal have focused on four issues namely:

i) Were the claims in Togo and Côte d'Ivoire within the scope of the arbitration clause?

ii) If so, had Ecobank lost its right to object to the jurisdiction in either country because it entered a plea to the merits in the Ivorian proceedings and asked for an extension of time to do so in the Togolese proceedings?

iii) Does it matter that the party seeking an injunction does not apply for injunctive relief before or at an early stage in the foreign proceedings or at any rate before judgment is given, if that party has always made plain that it disputes the jurisdiction of the foreign court and relies on the arbitration clause?

iv) What role does the notion of "comity" have in determining the approach of the court to an application for an anti-enforcement injunction?

Were the claims within the arbitration clause?

26. Ecobank is not an ordinary bank. By Ordinance No 85-16 ("the Ordinance") the President of the Republic of Togo, with the agreement of the Council of Ministers, established – by Article 1 – "a financial institution called [Ecobank]". By Article 4 Ecobank was to be governed by:

" … The present ordinance

… Its Articles of Association

… And secondarily, laws in force in the Republic of Togo where they are not derogated by the present ordinance or the headquarters agreement".

27. Article 5 provided:

"The conditions for carrying out the activities of ECOBANK TRANSNATIONAL INCORPORATED shall be determined in a headquarters agreement between the Republic of Togo and ECOBANK TRANSNATIONAL INCORPORATED".

28. The Ordinance thus establishes a hierarchy of measures applicable to Ecobank.
29. The Headquarters Agreement contained a number of important provisions by which Ecobank was to enjoy various privileges of which the following are examples. By Article 2 the Headquarters were to be inviolable. By Article 3 Togolese officials were only to enter the Headquarters with the consent of the President of Ecobank. By Article 7 Ecobank was to enjoy, for its official communications, treatment as favourable as that accorded to diplomatic missions. By Article 8.1 communications addressed to Ecobank, its President, Vice-President and any other official of the Headquarters were not to be subject to "censure, intercepted nor hindered in any way whatsoever".
30. By Article 12 "the immunities and privileges of international financial institutions are granted to [Ecobank] on the territory of the Republic of Togo, but not to any commercial banking subsidiary". However, by Article 12.1 Ecobank was to be exempted "in all judiciary procedure" from any requirement to make a security payment. By Article 12.2 its assets were protected from any form of seizure before a final judgement was given against them. It does not, therefore, seem that Ecobank enjoys an absolute immunity from suit.
31. By Article 14 members of the Board of Directors were to enjoy, in Togo in the exercise of their functions "immunities, exemptions and privileges which the Government grants by virtue of International Law, to non-resident diplomatic staff of comparable rank". By Article 15 officials of Ecobank were to enjoy in Togo immunities against jurisdiction for acts accomplished by them in their official capacity and that immunity was to continue after they had stopped being officials of Ecobank. By Article 19 the President, after consulting the Board, if he deemed that expedient, was to be responsible for lifting the immunity of any persons concerned, in "case he feels this immunity would impede legal action and could be lifted without prejudice to the interests of [Ecobank]". However, this Article applied to the immunities recognized in Articles 15 and 17. The immunity of a director was governed by Article 14, which did not, contain any express provision for its protection to continue after the person concerned ceased to be a director.
32. The Articles of Association of Ecobank provided by Article 31, headed "Management", as follows:

"3 The Board of Directors shall determine the duration, terms and conditions of the Chief Executive Officer and the Management of the Company including, but not limited to, their positions, job descriptions and the law that will govern their appointment".

The Labour Code of Togo

33. Article 5 of the Labour Code of Togo provides that "the provisions of this Code prevail over the clauses of the contracts or agreements, except where these are more favourable to the worker". Articles 230 and 231 of the Code provide that the labour tribunals hear individual disputes that may arise at the time of performance of the employment contract between workers and their employers and that the court with territorial jurisdiction is that of the workplace. On the basis of these articles the Labour Court held that it had jurisdiction to hear Mr Tanoh's claim and that Article 26 of the EEA was inapplicable. Mr Tanoh, it held, could only submit to the provisions of Article 26 if he had deemed that they were favourable to him. That was not the case and so the arbitration agreement was not enforceable against him.
34. Mr Vernon Flynn QC for Mr Tanoh submits that Mr Tanoh was not bound to submit his dispute about the termination of his employment to arbitration. Not only did the Labour Court have jurisdiction, as it, itself, decided; but also by Article 27 Ecobank warranted "that the terms of this Agreement do not breach any law, regulation or regulatory requirement in Togo". It would breach the laws of Togo to require Mr Tanoh to arbitrate his dispute because, under those laws, he had a right, if he thought the Labour Court would be a more favourable forum, to proceed there. Accordingly the arbitration agreement must be construed so as not to require arbitration in those circumstances.
35. Mr Matthew Coleman for Ecobank submits that there is a logically anterior question, namely whether or not the Articles, which provide for the Board to determine the terms and conditions of the Chief Executive Officer, take precedence over the provisions of the Labour Code on the basis that they are to have primacy over the laws in force in Togo.
36. The Togo Court recited but does not appear to have dealt with this argument. Nor did the judge^[2]. What the judge said was this:

"26 As regards the Togolese Proceedings, there was an important question whether the dispute was one that Togolese law required, and required for reasons of policy of the employment law of the Republic, where Mr Tanoh was employed, to be decided by a Labour Tribunal rather than by arbitration.

27 Ecobank did not commence the Arbitration so as to enable consideration of the question within the Arbitration. Ecobank argued the question before the Labour Tribunal. The Labour Tribunal was against its argument. This Court is not bound by the decision of the Labour Tribunal (see section 32(3) of the Civil Jurisdiction and Judgments Act 1982), but is required to make an evaluative judgment as to whether the decision should be recognised (see AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2011] EWCA Civ 647; [2012] 1 WLR 920 at [149(iii)], [150] and [165] per Rix LJ).

28 That employment law should require particular disputes to be allocated to particular tribunals is neither unknown nor objectionable. The question was not a question to which Togolese Law was irrelevant even under the EEA, given the terms of Clause 27 of that agreement. Examination of the decision of the Labour Tribunal shows, in my judgment, that forum to have reached a decision on the question without difficulty and on a straightforward application of the Labour Code. I do not think a different decision is to be preferred. And given the decision, I do not find, in the present case, expert evidence filed by the parties to be of material assistance."

37. There are three questions which that analysis does not address. The first is as to the law which governs Article 26 of the EEA. The second is whether, as matter of construction of that Article, the dispute between Mr Tanoh and Ecobank about the termination of his employment fell to be determined in arbitration. The third is whether the provisions of the Articles take precedence over the Labour Code because of the provisions of the Ordinance. I call this the "primacy question".
38. As to the first question, the law of the EEA, including Article 26, is that of England. As to the second, the Labour Court appears to have thought that the dispute did fall within Article 26 of the EEA. I agree that it does. A dispute about the invalidity of the termination of Mr Tanoh's employment is a paradigm example of the type of dispute which that Article must have been designed to cover.
39. The third question - the primacy question – was not addressed by the Labour Court in the operative part of its decision. In respect of that question it seems to me that Mr Coleman's submission is well founded. By virtue of the Ordinance, the Articles of Association were intended to take precedence over any laws of Togo which might be inconsistent with them. Those Articles provided for the directors to determine the terms of Mr Tanoh's employment and the directors determined that one of its terms should be Article 26 of the EEA, providing for arbitration in London, and another should be Article 28 providing for English and not Togolese law to govern the relationship between the parties.
40. A decision that the dispute, if Mr Tanoh wanted it, fell to be heard in the Labour Court even if Ecobank sought arbitration would mean that the Board of Directors would not, in this respect, have effectively determined the terms and conditions of Mr Tanoh's appointment. Article 26 would, at Mr Tanoh's option, be without effect, and English law would not apply. When the Articles of Association referred to the Directors having the power to determine Mr Tanoh's conditions and the Ordinance gave those Articles a legal priority, all concerned must have intended that the determination would be legally and practically effective. If there was no Ordinance Article 5 of the Labour Code would take effect in accordance with its terms. But the Ordinance makes a difference.
41. I am fortified in these conclusions by a consideration of the context in which Article 26 appears. Ecobank was a special sort of company. If it could be sued in Togo, that suit would be subject to the restrictions in Article 12 and, possibly, also Article 8. If Ecobank sued Mr Tanoh he would, at any rate if still a director, enjoy immunity from suit and might do so when no longer a director in respect of acts carried out when he was one. The same might apply if he sued Ecobank in respect of any counterclaim (unless by commencing suit he was deemed to have waived it). Against that background one can see the sense of removing the resolution of disputes between Ecobank and its Managing Director arising out of or in connection with his employment from the Courts and subjecting them to the arbitral process in London and of an Ordinance that permitted that to be done.

The Civil Jurisdiction and Judgments Act 1982 ("The Act")

42. Section 32 of the Act provides as follows:

"Overseas judgments given in proceedings brought in breach of agreement for settlement of disputes.

(1) Subject to the following provisions of this section, a judgment given by a court of an overseas country in any proceedings shall not be recognised or enforced in the United Kingdom if—

(a) the bringing of those proceedings in that court was contrary to an agreement under which the dispute in question was to be settled otherwise than by proceedings in the courts of that country; and

(b) those proceedings were not brought in that court by, or with the agreement of, the person against whom the judgment was given; and

(c) that person did not counterclaim in the proceedings or otherwise submit to the jurisdiction of that court.

(2) Subsection (1) does not apply where the agreement referred to in paragraph (a) of that subsection was illegal, void or unenforceable or was incapable of being performed for reasons not attributable to the fault of the party bringing the proceedings in which the judgment was given.

(3) In determining whether a judgment given by a court of an overseas country should be recognised or enforced in the United Kingdom, a court in the United Kingdom shall not be bound by any decision of the overseas court relating to any of the matters mentioned in subsection (1) or (2)."

43. The operation of section 32 of the Act is not without difficulty. It was carefully addressed by Rix LJ in his judgment in AES Ust-Kamenogorsk LLP v Ust-Kamengorsk JSC [2011] EWCA Civ 647 at [149] – [151]. Its effect is that, if section 32 (1) applies, and its application is not excluded by section 32 (2), the English Court is bound not to recognise or enforce the foreign judgment. If section 32 (1) does not apply, the English Court is not bound by the decision of the Labour Court as to whether the arbitration agreement is illegal void or unenforceable or incapable of being performed and has to make an "evaluative judgment" as to whether the foreign court decision should be recognised or enforced. The judge appears to have gone straight to the exercise of such a judgment without considering whether he was bound not to recognize the Togo judgment at all.
44. Before any question arises as to whether the English Court should recognise the Togo Labour Court's decision it is necessary to consider what exactly that court has decided and the relevance of that decision.
45. The Togolese Labour Court has not made any decision as to the primacy question, which, in my view, is to be answered in the way I have described. What it has decided is that, as a matter of the law of Togo, Mr Tanoh is entitled to bring his case before the Labour Court in Togo, if he wishes to do so, and that, if he does, Article 26 is unenforceable by Ecobank.
46. What the Labour Court has not decided is that Article 26 is illegal, void or unenforceable under English law or that it is incapable of being performed. Those matters are to be determined by the law of England & Wales, which is the governing law.
47. I see no reason to regard Article 26 as having any of those characteristics. It is not, under English law, either illegal or void. There are two possible bases upon which it might be said to be unenforceable neither of which is, in my view, applicable.
48. The first is that the Article requires the doing of that which is illegal by the place where the act is to be performed. But performance of the arbitration is to take place in London, where the arbitration will have its seat, and there is nothing illegal in having an UNCITRAL arbitration in London. That Togo was the place of performance of the EEA, which is separate from the arbitration agreement, is not material.
49. The second is that to require Mr Tanoh to arbitrate in London is contrary to the law of the place where the EEA was made. But the alleged rule that a contract would be regarded by the English Courts as invalid if it were invalid at the place at which it was made was disapproved by the Privy Council in Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 277. 291-2 and, despite some obiter support in the House of Lords in The Hollandia it is the Privy Council's view which has subsequently been followed: OT Africa at [57]-[61] and AES at [163].
50. In those circumstances the decision of the Togo Labour Court does not seem to me to affect the outcome of this appeal. If, as I hold to be the case hereafter, there has been no submission to the jurisdiction of that Court its decision is not in any event to be recognised, although that would not, I think, preclude the judge from reaching a view of his own as to what Togo Law was by reference to the material which was considered by the Togo court. That appears to be what the judge did at [28] of his decision. If, contrary to my view, there has been a submission, the court has to decide whether to recognise that decision but would not be bound to do so.
51. I would not regard it as appropriate to recognise the decision for two reasons. First the Togo Court's decision does not deal with the primacy of the Articles in respect of which the position is, in my view, as I have described.
52. Second, the illegality or non-enforceability of the arbitration agreement is to be governed by its proper law, by which it is enforceable. The proper law of the EEA was that of England and by that law the agreement to arbitrate is valid and enforceable.
53. Mr Flynn submits that, if, as he claims, section 32 (1) (c) is not applicable, then, by virtue of the Togolese judgment Ecobank is estopped from contending that Mr Tanoh was not entitled to go to the Labour Court and was bound to arbitrate. I would not, however, regard it as appropriate to recognize a decision of the Labour Court of Togo that Mr Tanoh was entitled to bring proceedings before it and that the arbitration agreement was unenforceable, when that decision is founded on the labour law of Togo and not on the construction of the arbitration agreement or any provision of English law.
54. The fact, if it be such, that under the law of Togo Mr Tanoh was entitled to bring his claim before the Labour Court may be relevant to the exercise of the discretion to grant injunctive relief but is not determinative.

Submission in Togo?

55. If Ecobank has submitted to the jurisdiction of the Togo Labour Court or to the Togo Court of Appeal, the prohibition on recognition of the Togo Court judgment would not apply; nor would the court be likely to be right to grant an injunction, since the submission would be likely to amount to a waiver of the arbitration agreement.
56. In this respect section 33 of the Act provides as follows:

"33 For the purposes of determining whether a judgment given by a court of an overseas country should be recognised or enforced in England and Wales or Northern Ireland, the person against whom the judgment was given shall not be regarded as having submitted to the jurisdiction of the court by reason only of the fact that he appeared (conditionally or otherwise) in the proceedings for all or any one or more of the following purposes, namely—

(a) to contest the jurisdiction of the court;

(b) to ask the court to dismiss or stay the proceedings on the ground that the dispute in question should be submitted to arbitration or to the determination of the courts of another country."

Whilst the section states that a person shall not be regarded as having submitted by reason only of the facts there mentioned it is silent as to what additional facts are sufficient to establish submission.

57. Whether or not there has been a submission to the jurisdiction is to be determined by reference to what English law would treat as such a submission. A test often adopted is that quoted by Lord Fraser from a judgment of the Divisional Court in Rein v Stein (1892) 66 LT 469 in the House of Lords in Williams & Glyn's Bank v Astro Dinamico Naviera S.A. [1984] WLR 438 (HL), 444, namely that a step in the proceedings only amounts to a submission when the defendant has "taken some step which is only necessary or only useful if the objection [to the jurisdiction] has been actually waived".
58. In Marc Rich & Co AG v Societa Italiana Impianti P.A (The Atlantic Emperor) (No 2) [1992] 1 Lloyd's Rep 624 Marc Rich objected to the jurisdiction of the Court in Genoa on the grounds of an English arbitration clause. It also pleaded in the alternative to the merits of the claim and, on the hypothesis that its challenge to the jurisdiction failed, counterclaimed damages. This was called its "first defence". It lost on the issue of jurisdiction and an appeal to the Corte di Cassazione also failed. That was, as Rix LJ observed in AES, the end of the road on the jurisdiction issue. It then put in a "second defence" on the merits.
59. The Court of Appeal held that section 33 should not be construed too narrowly and was prepared to assume that it did not matter that the alternative plea on the merits made in the first defence was not necessary when the primary purpose was to challenge jurisdiction. But the second defence was a plain and unequivocal submission to the jurisdiction of the Italian court to deal with the merits of the claim. It does not appear to have contained any reservation as to jurisdiction nor would it have been sensible to do so since Marc Rich's jurisdiction objection had already been overruled by Italy's Supreme Court. Accordingly Marc Rich was bound by the decision of the Italian court that the contract did not contain an arbitration agreement.
60. In Akai v People's Insurance Co Ltd [1998] 1 Lloyd's Rep 90 Thomas J, as he then was, held that a broad test was to be applied as to the purpose of the steps taken in the foreign court and held that:

"submission is not to be inferred from the fact that the defendant appeared in foreign proceedings in circumstances obviously and objectively inconsistent with a submission to that jurisdiction".

But he also regarded it as clear from the decision in the Atlantic Emperor that:

"if a party who has merely challenged the jurisdiction of a Court later takes steps that amount to a submission of the merits to the jurisdiction of that Court (without reserving the position on jurisdiction), then that submission will be a submission to the whole of the proceedings; that party cannot thereafter maintain his challenge to the jurisdiction".

61. In Harada Ltd v Turner (No 2) [2003] EWCA 1695 the Court of Appeal (Browne, Mummery and Mance LJJ) held that an employer would not have submitted to the jurisdiction of an employment tribunal if it had participated in a hearing on the merits whilst maintaining its objection to the jurisdiction. It did so in trenchant terms^[3]. The case was decided by reference to Article 18 of the Brussels Convention rather than section 33 but was regarded by Rix LJ in AES as raising essentially the same issue. Since section 33 is largely derived from that Article, that must be so.
62. In Harada reliance was placed on an obiter dictum of Lord Denning in Re Dulles' Settlement Trusts [1951] 2 All ER 69:

"I quite agree, of course, that if he fights the case, not only on the jurisdiction, but also on the merits, he must then be taken to have submitted to the jurisdiction, because he is then inviting the court to decide in his favour on the merits; and he cannot be allowed, at one and the same time, to say that he will accept the decision on the merits if it is favourable to him and will not submit to it if it is unfavourable. But when he only appears with the sole object of protesting against the jurisdiction, I do not think that he can be said to submit to the jurisdiction …"

The Court in Harada observed that Article 18 and the jurisprudence of the European Court relating to it now prevailed.

63. In AES Rix LJ cited with approval 14-066 of Dicey, Morris & Collins:

"A broad test is to be applied as to the purpose of the steps taken in the foreign court and submission is not to be inferred from the fact that the defendant appeared in foreign proceedings in circumstances obviously and objectively inconsistent with a submission to that jurisdiction."

He held that there was, in that case, at least a good arguable case that what occurred in the Kazakhstan Economic Court between 28 July and 5 August 2009 did not amount to a submission.

64. In AES the dispute was between the owner and the operator of certain hydroelectric facilities in Kazakhstan. The operator had applied to dismiss proceedings brought by the owner in the Kazakhstan Economic Court on the grounds that there was an obligation to arbitrate in London. On 28 July 2009 the Court rejected that application. The operator then sought to defend the owners' claim for further information on the merits, stating that it did so without prejudice to its contention that the court lacked jurisdiction because of the arbitration clause. By a motion dated 4 August 2009 it brought to the attention of the court the ex parte anti-suit injunction which it had obtained from Andrew Smith J in 31 July 2009 and applied to suspend the owners' proceedings. There was a hearing on 5 August 2009 at which the court rejected the motion and held that there had been improper reliance by the operator on the clause containing the arbitration agreement. The court upheld the request for information. The operator participated in the hearing.
65. In the view of Rix LJ the operator had made plain from beginning to end that it was presenting and preserving its challenge to the court's jurisdiction on the ground of the arbitration agreement, if necessary by way of appeal. There was nothing that the operator, as a Kazakhstan party, could otherwise do to distance itself from the court's jurisdiction. It was, he thought, plain from the Marc Rich case that the alternative pleading in the operator's response would not have been a submission, at any rate where there had not as yet been a decision on the effect of the arbitration clause. He also thought that the decision in the Harada case was supportive of this analysis and perhaps decisive of it. Even if he was wrong on that conclusion the Kazakhstan court's decision as to the scope and validity of the arbitration agreement was not binding on the English court and its decision was wrong.
66. In his judgment Burnton LJ said that it would be unfortunate if the principles applied by our courts on whether a litigant had submitted to the jurisdiction of a foreign court in non-EU cases were different from the principles applied by the Court of Justice, and therefore our courts, in cases under the Brussels and Lugano Conventions and now the Judgments Regulation. I would go further. The decision of the court in Harada in relation to section 33 was heavily influenced by the decision of the European Court in relation to Article 18 of the Brussels Convention. But, now that section 33 has been interpreted in the way that it has, it cannot be right that it should bear a different meaning in cases outwith the European context.
67. In the present case it seems to me that there has been no submission to the jurisdiction in Togo. At the lowest it is highly probable that that is so. Ecobank was required to plead to the merits. Pleading both to the jurisdiction and to the merits would not have been an acceptance that the Labour Court had jurisdiction and was not something which was "only necessary or only useful if the objection to the jurisdiction has been waived". It was a response to the requirement of the foreign court that jurisdiction and merits be dealt with together. Where the foreign court has such a requirement it does not seem to me appropriate to treat a party who has made it plain that he objects to the jurisdiction as having submitted to it on the footing that he could, contrary to the requirement of the foreign court, have failed to plead to the merits. The distinguishing feature of the Marc Rich case was that, after Marc Rich had lost the case on jurisdiction before the highest Italian Court it then entered a fresh plea on the merits without any reservation of its objection to the jurisdiction. (It is not necessary to decide whether an objection made when there was no court left which could make any further decision on jurisdiction would have saved the day). Here Ecobank made it plain that it objected to the jurisdiction and that objection was still an issue to be determined.

The criminal complaint

68. Mr Tanoh also contends that Ecobank submitted to the jurisdiction because on 10 June 2014 it began separate proceedings in the First Class Court of First Instance of Lomé in respect of (a) his alleged failure to hand over property belonging to Ecobank following the termination of his employment; (b) his alleged misappropriation of such property; and (c) the alleged deletion by him of the hard drives of the computers with which Ecobank had provided him. The complaint referred to Article 17, paragraph 1, of the EEA which required him to return various documents and material belonging to Ecobank at the end of his contract. It is plain, however, that what Ecobank was complaining of was that Mr Tanoh had committed the offences of theft and breach of trust provided for in the Penal Code; and it sought "the appropriate response to such offences of which it is victim" and claimed damages for the loss suffered.
69. I do not regard a complaint of this nature as an acceptance that the Togo Labour Court had jurisdiction, or an abandonment of Ecobank's objection to that Court assuming jurisdiction, or a waiver of its rights under Article 26. As the witness statement of Mr Ayim makes clear the legal basis for the complaint was the Togolese Criminal Code and the claim for damages was in respect of and based on the criminal acts said to have been committed by Mr Tanoh. The submission to the jurisdiction to which section 32 (1) (c) refers is a submission to the jurisdiction of the court in which the judgment, enforcement of which is sought to be restrained, was given.

Construction of Article 26 in the light of Article 27

70. If the primacy question is not to be decided in Ecobank's favour it would be necessary to consider Mr Flynn's submission that Article 26 should be interpreted so as to mean that all disputes etc. are to be submitted to binding arbitration save insofar as they are required by the law of Togo to go to the local Togo court. Such an implication arises, he submitted, because of Ecobank's warranty in Article 27 that "the terms of this Agreement do not breach any law, regulation or regulatory requirement in Togo".
71. As to that it does not seem to me that Article 27 can be used to qualify the clear and express words of Article 26. Article 27 does not purport to qualify or amend the terms but to make a promise about their character. Moreover an agreement to arbitrate does not per se breach the law of Togo. In certain circumstances it may be unenforceable in Togo. But that is a different question.
72. In his skeleton argument Mr Flynn had contended that the effect of Articles 26 and 27 properly construed was that the parties chose for the EEA to be governed by English law subject to mandatory Togolese law, pursuant to which Article 26 is unenforceable insofar as it does not permit Mr Tanoh to make his claim in the Labour Court. I disagree. It is in my view plain that the whole of the EEA, including the Arbitration Agreement in Article 26, is, by the agreement of the parties and without exception, to be governed by the laws of England.
73. The fact that Article 26 is not, under English law, "illegal, void or unenforceable or … incapable of being performed" does not, however, mean that injunctive relief will be granted by the English Courts – a topic to which I will return.

The Ivorian proceedings

74. The judge did not regard it as arguable that the claim for defamation fell within the arbitration clause, let alone that there was a high probability that it did, as, following earlier first instance authority, I had held to be necessary in Transfield Shipping Inc v Chiping Xinfa Huaya Alumina Co Ltd [2009] EWHC 3629. He referred to the observations of Lord Hoffman in Fiona Trust and Holding Corpn and others v Privalov and others [2007] UKHL 40 [13] that the construction of the arbitration agreement should:

"start from the assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of the relationship into which they have entered or purported to enter to be decided by the same tribunal. The clause should be construed in accordance with this presumption unless the language makes it clear that certain questions were intended to be excluded from the arbitrator's jurisdiction".

But even applying that assumption he did not consider it realistic to treat a claim for defamation in the Ivorian Proceedings as a claim arising "under or in connection with" the EEA.

75. I am, with respect, of a different opinion. I accept that a claim in defamation is at first blush an unusual claim to be the subject of an arbitration under an employment contract. But the defamation in the present case was of a very particular character. The letter was written by Dr Matjila, in his capacity as representative of a major shareholder and a director of Ecobank, to the Acting Chairman of Ecobank's board and the directors of the board with a view to securing Mr Tanoh's dismissal. Ecobank's liability arose because he was so acting. The defamatory material contained in the letter relates to Mr Tanoh's acts and omissions as a Group Managing Director of Ecobank, all of which were carried out in performance or misperformance of his functions under the EEA. Any justification of the defamation would depend on an examination of that performance. The defamation claim has, in those circumstances, a very close connection with the EEA. This link is reflected in the fact that the judge accepted the "technical" correctness of the fact that Mr Tanoh could have relied on the defamatory statements as a breach of the implied duty of an employer not to do that which causes a breakdown of trust and confidence. I accept that the two types of action are different, although not as different as they might at first sight appear given that the foundation of the "defamation" action was the general provision of Article 1382 of the Civil Code that "any act of man whatsoever that causes damage to another person obliges the person by whose fault said act has occurred to compensate for the damage". I do not regard the fact that the claim against Ecobank was based on its failure to distance itself from Dr Matjila's statements or that the other two defendants could not be required to arbitrate as severing that connection.
76. The disadvantage of not having the defamation claim addressed in the arbitration is manifest. Mr Tanoh's dismissal is within the arbitration agreement. If he abided by that agreement the arbitrator would have to determine the truth of whichever of Dr Matjila's allegations were relied on in support of his dismissal. These allegations would themselves be likely to be a central part of the defamation proceedings. To have the allegations addressed both in the arbitration and in court would greatly increase cost, and potentially lead to diametrically opposite conclusions in relation to the same matters.
77. Accordingly there is, in my view, a high probability that the defamation claim falls within the clause.
78. Mr Tanoh contends that Ecobank has submitted to the jurisdiction in Abidjan. It challenged the jurisdiction in a way which included a suggestion that the courts of Togo or England might be appropriate and filed a defence on the merits. It also participated in a court conciliation process in which it made a written offer to settle the Ivorian Defamation proceedings, the Togo Employment proceedings and the Togo Criminal Complaint. It also appealed on both the question of jurisdiction and the merits.
79. In the light of Harada and AES it seems to me that Ecobank has not submitted to the jurisdiction; at the least it is highly probable that it has not.

Injunction or not?

80. The judge, perhaps surprisingly, addressed this question before turning to the applicability of the arbitration agreement to the claims.
81. If a party to an arbitration agreement seeks to litigate a dispute to which the agreement relates in a court outside England and Wales his opposing party may seek an injunction to restrain him from bringing or continuing that suit. If that party obtains a judgment his opponent may seek an injunction precluding him from enforcing it. Although such injunctions have different labels ("anti-suit" and "anti-enforcement") they are both based on the fact that the person enjoined is seeking to pursue a suit, or enforce a judgment obtained in it, when he had agreed that the dispute would be resolved by a different method.
82. The attitude of the English courts to the grant of injunctive relief has developed over the years. Initially there was some reluctance to grant an anti-suit injunction on one or more of the following grounds (i) it would have the appearance of interfering, at least indirectly, with the proceedings of the foreign court; (ii) it would be inconsistent with the comity that ought to exist between courts; or (iii) it would be offensive to their judiciary.
83. Such reluctance, at any rate in the case of anti-suit injunctions, almost evaporated with an appreciation of the fact that, when the Court grants an injunction, it does not direct the foreign court to do, or restrain from doing, anything – something which it has no power to do. It acts in personam, enjoining the party who seeks to litigate elsewhere from doing so, in order to enforce the contractual undertaking that that party has given. In acting in this way it does not presume to tell a foreign court what it must or must not do. It seeks to give effect to the bargain that the parties have made. That this is so was, in fact, apparent from the nineteenth century – see Lord Brougham in Lord Portarlington v Soulby [1834] 3 My & K 104, 107.

Anti-suit injunctions

84. As a result anti-suit injunctions have become relatively commonplace when the basis on which they are sought is that the parties have agreed to arbitrate the dispute or have agreed that the English court shall have exclusive jurisdiction.
85. It has, however, been a theme of the jurisprudence in this field that a litigant who seeks to enjoin his opponent must act promptly. Thus in The Angelic Grace [1995] 1 Lloyd's Rep 87 Millett LJ, as he then was, observed that an English court should feel no diffidence in granting an injunction "provided that it was sought promptly and before the foreign proceedings were too far advanced".
86. In Toepfer v Molino Boschi [1996] 1 Lloyd's Rep 510, 515 Mance J, as he then was, observed that it had:

"never been the law that a foreign defendant could with complete impunity allow foreign proceedings to continue practically to judgment and then seek at the last minute relief in England which would halt or undermine".

He referred to the observations of Millett LJ in The Angelic Grace and refused relief on the ground that "if Toepfer wished to enjoin or take other steps in England affecting the present Italian proceedings, this was something that they could and should have investigated and pursued through English lawyers long ago". In that case the application for an injunction had been made seven years after the commencement of proceedings in Venice and when they were not far from conclusion. In those circumstances Mance J concluded that this was not a case where "this court should at this very late stage contemplate" issuing an anti-suit injunction.

87. That was, of course, a first instance decision^[4] but the approach has been followed many times, including by Teare J in The Skier Star [2008] 1 Lloyd's Rep 652. In that case he refused an anti-suit injunction where the owners, who sought it, knew in January/February 2005 that proceedings were being taken in Antwerp against them but waited until October 2007 before applying to the English court, even though the time for challenging the jurisdiction in Antwerp had not yet passed. In that case there was also a risk of injustice to a third party – the Belgian Federal Agency for Food Safety - which the owners had joined in Antwerp and which could not be made party to the arbitration. Mr Coleman points out that in that case the respondents had not been aware, prior to the application, that the jurisdiction was being challenged.
88. In Transfield I held that, once the appellant became aware of the proceedings brought in alleged breach of an arbitration agreement, it behoved it promptly to seek relief, and not, as was the case there, a few days before 22 December 2009 when the trial was due to take place on 28 December 2009.

Threshold test

89. In Midgulf International Ltd v Groupe Chimiche Tunisien [2009] EWHC 963 (Comm) Teare J held, following Bankers Trust v Jakarta International Hotels and Development [1999] 1 Lloyd's Rep. 910 at p.913, which itself followed Colman J in Bankers Trust Co. v. PT Mayora Indah (20 January 1999, unreported) and American International Speciality Lines Insurance v Abbott Laboratories [2003] 1 Lloyd's Rep 267 at p.275, that an applicant for an anti-suit injunction had to show a high degree of probability that there was an arbitration agreement that governed the dispute in question. In Transfield Shipping I followed this line of authority.
90. Mr Coleman submits that the rationale for requiring a high probability test is that if an injunction is granted it is likely to be final because, in practice, it will end the foreign proceedings for at least sufficient time to enable the arbitration to take place before any judgment is granted in those proceedings. By comparison in the present case the judgments have been granted. The effect of any order will be to restrain enforcement pending further order of the court or the arbitration tribunal. If the arbitration tribunal decides that the African proceedings do not breach the arbitration agreement, Mr Tanoh will be free to enforce those judgments.
91. I do not regard it as appropriate to adopt a lower test in the case of an application for an anti-enforcement injunction. In both cases the injunction will preclude the enjoined party from carrying on either with the trial or with attempts to secure the fruits of a judgment obtained at the trial. In both cases the English court is interfering, albeit indirectly, with the working or output of a foreign court. In both cases it could be said that if the arbitral tribunal concludes that the arbitration agreement does not apply the respondent will be able to continue with the trial or the enforcement. Further, as Mr Flynn points out, there was in fact no pending claim for a final injunction. The injunction sought was not subject to any specified term.

A sea change?

92. Mr Coleman draws attention to a number of recent decisions of this court which, he submits, show that there has been a sea change. The modern approach, he submits, is to recognize that what the court is doing in granting injunctive relief is to give practical effect to the contractual rights of the innocent party. Since that is the foundation of the court's approach it is no bar to injunctive relief that the applicant has not sought an injunction until the suit is well advanced or until after judgment has been obtained, provided that the opposing party has been made aware that reliance is placed on the arbitration agreement. If the person sought to be injuncted has been made aware of that reliance, and that objection is taken to the exercise by the foreign court of jurisdiction in respect of the dispute, he cannot claim to be prejudiced by the fact that an application is not made at an early stage. If, in those circumstances, he chooses to continue breaking his contract by continuing with the foreign proceedings, that is his fault. The position would, or might, be otherwise if no objection was taken to his proceeding in the foreign suit. But that is not the case here.
93. Further, Mr Coleman submits, any time during which an objection to the foreign proceedings is on foot does not fall to be regarded as delay on the part of the objector which should militate against, or preclude, the grant of injunctive relief if those objections prove fruitless. This is because there is no prejudice to the respondent in these circumstances. Alternatively there is a justification for any delay which negates any application of laches.
94. So far as any question of comity is concerned, the true role of comity, he submits, is to ensure that the agreement of the parties (here as to arbitration) is respected. Delay is no bar to injunctive relief unless there has been detrimental reliance by the party sought to be enjoined. That might arise if the respondent had continued with the foreign suit without objection from his opponent but not if that objection had been apparent from the start.
95. Mr Coleman points out that many of the earlier decisions are first instance decisions in which no submissions were made on the true significance of comity as explained in the case to which I am about to refer.

OT Africa Line Ltd

96. In OT Africa Line Ltd v Magic Sportswear Corp [2005] EWCA Civ 710 OT Africa was a shipowner with offices in Toronto. It issued bills of lading for the shipment of goods to Monrovia, Liberia. The first defendant was the shipper, the second defendant was the receiver, and the remaining defendants were the Canadian insurers of the cargo. At the instigation of the insurers the shipper and receiver instituted proceedings in Toronto claiming short delivery. The bills of lading contained an exclusive jurisdiction clause in favour of England. The proceedings in Toronto were begun in reliance on the Canadian Marine Liability Act 2001 which provided that, if a contract for the carriage of goods by water to which the Hague Rules did not apply provided for the adjudication of any dispute arising under the contract in a place other than Canada, a claimant could institute proceedings in Canada where the person against whom the claim was made had a place of business in Canada or where the contract was made in Canada. The owners issued proceedings in England and obtained an injunction against the shipper and receiver and their insurers precluding suit in Canada, which the Court of Appeal upheld.
97. In the course of his judgment Longmore LJ, with whom Laws and Rix LJJ, agreed said this:

"31 As a broad proposition of law, an anti-suit injunction may be granted where it is oppressive or vexatious for a defendant to bring proceedings in a foreign jurisdiction but Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 emphasised that the mere fact that the English court refused a stay of English proceedings on the grounds of forum non conveniens did not itself justify the grant of an injunction to restrain foreign proceedings. The doctrine of comity requires restraint since (a) another jurisdiction may take the view that the courts of that jurisdiction are an equally (or even more) appropriate forum than the English court and (b) any anti-suit injunction can be perceived as an, at least indirect, interference with such foreign court. Even so an anti-suit injunction may be granted if the defendant's conduct in launching or continuing the foreign proceedings is, in fact, oppressive or vexatious as the defendant's conduct was held to be in the Aerospatiale case itself.

32 In the case of exclusive jurisdiction clauses, however, comity has a smaller role. It goes without saying that any court should pay respect to another (foreign) court but, if the parties have actually agreed that a foreign court is to have sole jurisdiction over any dispute, the true role of comity is to ensure that the parties' agreement is respected. Whatever country it is to the courts of which the parties have agreed to submit their disputes is the country to which comity is due. It is not a matter of an English court seeking to uphold and enforce references to its own courts; an English court will uphold and enforce references to the courts of whichever country the parties agree for the resolution of their disputes. This is to uphold party autonomy not to uphold the courts of any particular country.

33 The corollary of this is that a party who initiates proceedings in a court other than the court, which has been agreed with the other party as the court for resolution of any dispute, is acting in breach of contract. The normal remedy for this breach of contract is the grant of an injunction to restrain the continuance of proceedings unless it can be shown that damages are an adequate remedy; but damages will not usually be an adequate remedy in fact, since damages will not be easily calculable and can indeed only be calculated by comparing the advantages and disadvantages of the respective fora. This is likely to involve an even graver breach of comity than the granting of an anti-suit injunction."

98. Longmore LJ also said this:

"35 One submission of cargo interests was that to grant an injunction would inevitably be regarded in Canada as a breach of comity because the Canadian courts, by reason of section 41 of the 2001 Act, had no other option than to exercise the jurisdiction vested in them by the statute. This is, however, only a correct statement of the position once the cargo interests have decided to invoke the court's jurisdiction. The Canadian court does not become involved unless the cargo interests choose to involve it; it is the exercise of that choice, contrary to the cargo interests' contractual obligations, which the English court restrains by granting an injunction. Once one appreciates this, one can see that the injunction granted by the judge is not in any way an attack on the legislature or the courts of Canada or a breach of international comity; it is merely restraining a party to a contract from doing something which he has promised not to do

….

43 Conclusion

It is to be hoped that the Canadian courts will not see this decision as an interference of any kind even if the cargo-insurers or their lawyers were to choose to categorise it that way. Freedom of contract is usually much valued in all common law systems; of course if England were to enact the Hamburg Rules or the equivalent of their jurisdictional provisions, there would be no problem. But until that time comes, the maintenance of the principle that parties should be free to choose the courts where their disputes are to be resolved must be of paramount importance and cannot be reduced to a mere legal aspiration."

This approach was subsequently endorsed by the Court of Appeal in AES.

99. Building on these dicta Mr Coleman submits that the only role of comity in the present case is to ensure that the parties' agreement to arbitration is respected.
100. It is, however, important to note the context in which Longmore LJ said what he did. The application in that case was not for an anti-enforcement injunction. Nor was it a claim where the applicants had been dilatory. The proceedings in Toronto were issued on 1 August 2003. The Owners issued proceedings in England claiming an injunction on 2 September 2003. The Court was not concerned with the impact of delay. I do not accept that the Court regarded comity as having no bearing on whether an anti-suit injunction should be granted or on the course to be taken when an anti-enforcement injunction was sought after judgment was obtained from a foreign court.

Ingosstrakh-Investments v BNP Paribas SA

101. In Joint Stock Asset Management Company Ingosstrakh-Investments v BNP Paribas SA [2012] EWCA Civ 644 this court dismissed an appeal against the grant of an anti-suit injunction, in favour of a bank, in relation to a guarantee which contained a London arbitration clause. D1 was the guarantor and D2 was a company related to D1. D2, and not D1, was the appellant. One of the issues was whether the judge should have refused relief on the grounds of the bank's delay.
102. The arbitration got under way in December 2010. The rival suit was commenced by D2 in the Moscow Arbitrazh court on 27 December 2010. In it D2 sought the invalidation of the guarantee under Russian joint stock company law. D1 was a party to those proceedings which were served on the bank on 13 January 2011. On 8 April 2011 the bank issued a motion in the Moscow court to dismiss the proceedings on the basis of a lack of jurisdiction by reference to the arbitration. On 11 April 2011 the bank requested the arbitrator's permission for the purpose of section 44 (4) of the Arbitration Act 1996 which was granted on 4 May 2011. On 27 May 2011 the bank applied to the Commercial Court for permission to serve D2. This application was made on the basis that the bank could serve D1 in the jurisdiction pursuant to the original provision for service in the guarantee. In fact that clause had, by an oversight, been "repealed" by an amendment to the arbitration agreement which provided for a Professor, rather than a QC, to be the arbitrator. Permission was granted on 8 June 2011. After intervening developments in the arbitration and in the Moscow court proceedings the bank issued its application for an interim injunction on 28 October 2011. After a hearing on 7 and 8 November 2011 Blair J granted an interim anti-suit injunction against both defendants.
103. In the Moscow suit the Arbitrazh court had during August 2011 dismissed D1's claim on limitation grounds. On 30 November 2011 the Appellate Court in Moscow had dismissed D1's appeal (which had been promoted by its 99% shareholder since D1 was subject to the injunction granted by Blair J).
104. On the question of delay Burnton LJ, with whom Sir Mark Potter and Lloyd LJ agreed, thought that the facts of the case might well be "at the outer edge of the acceptable" so far as delay was concerned, but agreed with the judge's conclusion that, in circumstances where the bank's case against D2 was not straightforward, the delay was not such as to disentitle the bank to the protection of the court. In the course of his judgment he said this:

"64 In the present case, it is not suggested that the judge made any error in relation to the primary facts. The Appellant contends, first, that the judge failed to take into account the fact that the Bank's delay in seeking injunctive relief led to its incurring costs in the Russian Proceedings that would have been avoided if the Bank had acted earlier. I reject this criticism. If, as the Bank contends, the Appellant acted in concert with D1 with a view to subverting the arbitration or the enforcement of any arbitration award, its Russian costs were incurred by reason of its own wrongful conduct."

105. Burnton LJ also considered the question of comity. As to that he said this:

"66 The question of delay and that of comity are linked. It is a strong thing to preclude a defendant from pursuing proceedings in its foreign court when that court is already seised of the defendant's claim; it is an even stronger thing to do so if, as a result of delay on the part of the claimant in the English proceedings the foreign court has made a decision on the defendant's claim; and it is an even stronger thing to do so if the foreign court has found in favour of the defendant. In the present case, the demands of comity are mitigated by the fact that the Russian courts have found in favour of the Bank.

67 The importance of comity in the context of alternative forum anti-suit injunctions was discussed by Toulson LJ in Deutsche Bank AG v Highland Crusader Offshore Partners LP [2009] EWCA Civ 725 [2009] 2 Lloyd's Rep 617, in a judgment with which Goldring and Carnwath LJJ agreed, at paragraph 50:

"An anti-suit injunction always requires caution because by definition it involves interference with the process or potential process of a foreign court. An injunction to enforce an exclusive jurisdiction clause governed by English law is not regarded as a breach of comity, because it merely requires a party to honour his contract. In other cases, the principle of comity requires the court to recognise that, in deciding questions of weight to be attached to different factors, different judges operating under different legal systems with different legal policies may legitimately arrive at different answers, without occasioning a breach of customary international law or manifest injustice, and that in such circumstances it is not for an English Court to arrogate to itself the decision how a foreign court should determine the matter. The stronger the connection of the foreign court with the parties and the subject matter of the dispute, the stronger the argument against intervention."

68 In that case, the English claimant relied on a contract governed by English law with a non-exclusive English jurisdiction clause where there was little else to connect the dispute with England. In the present case, we have an exclusive jurisdiction clause, i.e., the arbitration agreement in the Guarantee, and if the Bank's case is well-founded, the Appellant has acted in concert with the contracting party in an attempt to subvert the recognition and enforcement of the arbitration award. I pay tribute to the evident care and impartiality with which the issues in the Russian Proceedings have been considered in the judgments of the Russian court that we have seen. However, the arbitration agreement was included in the Guarantee because the parties to it agreed that, subject to the Bank's option to bring proceedings in the courts of England, issues as to its validity should be determined by arbitration in England. If the Bank's case is well founded, the Appellant has been a party to the breach of the arbitration agreement by D1. The Bank is entitled to be protected from that breach, and in such a case, considerations of comity are of reduced importance. In my judgment, comity does not preclude the right of the Bank to an anti-suit injunction."

106. These observations plainly support the contention that in a case where there is an exclusive jurisdiction clause or an applicable arbitration agreement (which for present purposes amounts to the same thing) considerations of comity are of reduced importance and may well not preclude the right to an anti-suit injunction. The case is not however authority that such considerations are of no importance. The context in which these observations were made was (a) that there was (by a narrow margin) no basis for refusing relief on account of delay; and (b) the Moscow Court had not given a judgment awarding the person against whom the injunction was sought damages in circumstances where no application for injunctive relief had been made until after the judgment was given.

Anti-enforcement injunction cases

107. In Ellerman Lines Ltd v Read [1928] 2 KB 146 the Court of Appeal made an anti-enforcement order where a salvor under a Lloyd's salvage form, which provided for arbitration in London, had, in breach of the terms of that form, caused the vessel to be arrested under the process of the Turkish Court in Constantinople, where judgment was given in his favour. The Court regarded the judgment as having been obtained by "a deliberate and shameless breach of contract" (per MacKinnon J), "fraud" (per Scrutton LJ), namely the false statement made by the salvor (a naturalised British subject) to the Turkish court that he had not authorised his solicitors in London to accept a guarantee by way of security from the appellants. This may have been the first time such an order was made; see Scrutton LJ ("If there is no authority for this it is time that we made one" 152). Atkin LJ gave two examples of circumstances in which an anti-enforcement injunction might be ordered, both involving unconscionable conduct by the beneficiary of the judgment after it had been made.
108. In E.D. & F Man (Sugar) Ltd v Yani Haryanto [1991] 1 Lloyd's Rep 161 the Court of Appeal upheld a refusal of Steyn J, as he then was, to make an order precluding the enforcement of an Indonesian judgment in a foreign country even though the judgment was inconsistent with a decision of the English court that a settlement agreement, which contained an enforceable arbitration agreement, was valid and binding between the parties. The judge had done so on the ground (with which the Court of Appeal agreed) that it would be "an affront to the Indonesian courts and an illegitimate interference (albeit indirectly) with the processes of courts worldwide" to grant an injunction to prevent reliance on the Indonesian judgment. It would be for the foreign courts concerned to choose whether to recognise the judgments of the English or Indonesian courts. Mann LJ referred to the respect to be afforded to decisions of foreign courts properly given within their jurisdiction and of not constraining, albeit indirectly, the ability of foreign courts to apply their local law in regard to the recognition and enforcement of judgments. Mr Coleman submits that this decision, and reliance on it by the court in Mamidoil and Masri (see [112] below), is distinguishable, because it involved no exclusive jurisdiction clause or arbitration agreement. The question was whether it would be oppressive or unconscionable for the dispute to be heard in the foreign court, in which case comity may be of importance.
109. In The "Eastern Trader" [1996] 2 Lloyd's Rep 585 Rix J refused an anti-enforcement injunction on the ground (i) that if Sinoca, the party which had obtained a judgment in Algeria, sought to enforce in England it would be met by the arguments that had been advanced before him, namely that the dispute fell to be determined by arbitration and that there had been no submission to the jurisdiction of Algeria so that the judgment could not be enforced, which would either succeed or fail; and that (ii) if it sought to enforce elsewhere the right to enforce would depend primarily upon the law of the place where enforcement was sought. Another reason was that for an English Court to injunct a party from reliance on a foreign judgment in its favour would be a far greater interference in the judicial process than occurred in the Angelic Grace where the foreign proceedings were in their infancy. Comity was plainly involved.
110. In Akai Thomas J declined to grant an anti-enforcement injunction. Akai, the claimant, was the insured and PIC, the defendant, was a Singaporean insurer. One of the grounds on which he did so was that, if the question of enforcement ever arose, it would only arise if the court in New South Wales had given a judgment in favour of Akai. In that case PIC would in effect be inviting the English court to interfere, albeit indirectly, with the process of the court in Singapore, where enforcement would be likely to take place, and the right of that court to decide whether to recognize and enforce a judgment of a foreign court. In such circumstances, as he held, a court in this country would have to act "with great caution" since there were very powerful arguments that it was more consistent with comity to leave it to the courts in Singapore to decide what course to take in the light of their own law. He referred to E.D. & F. Man and The Eastern Trader. His decision in this respect was obiter since he held that no anti-enforcement injunction was necessary because no decision on the merits had been reached by the foreign court, an anti-suit injunction had been granted and there was no suggestion that the respondent would breach it and obtain a judgment.
111. In Mamidoil-Jetoil v Okta [2003] 1 Lloyd's Rep 1 Aikens J, as he then was, declined to grant an anti-enforcement injunction on the grounds (i) that it was not needed so far as enforcement in England was concerned; (ii) enforcement in Greece would be determined by the Brussels/Lugano Convention; and (iii) in relation to enforcement elsewhere, in particular in the Former Yugoslav Republic of Macedonia, he should adopt the approach of this court in E.D. & F Man, namely to approach the use of the jurisdiction with great caution because it involved an indirect interference with existing or potential proceedings in a foreign court.
112. In Masri v Consolidated Contractors Int (UK) Ltd [2009] QB this court upheld an order preventing the continuance or commencement of proceedings by the judgment debtors against Mr Masri, the judgment creditor, in any courts other than those of England and Wales and the European Union, relating to an agreement in respect of which Mr Masri had obtained judgment in this country i.e. an anti-suit injunction. The order was varied by consent to exclude non-EU Lugano Convention States. Lawrence Collins LJ, as he then was, speaking of E.D. & F Man, observed that it was "plainly a very serious matter for the English court to grant an injunction to restrain enforcement in a foreign country of a judgment of a court of that country". Whilst accepting that it would be "a rare case" in which such an injunction would be granted, there was, he held, no general principle that no such injunction could be granted, although "[no] doubt the power will only be exercised in exceptional circumstances". This provides a strong contrast to the default position in anti-suit injunctions where relief will ordinarily be given to enforce an exclusive jurisdiction clause.
113. All these decisions in which an anti-enforcement induction has been refused, must, Mr Coleman submits, be looked at in the light of the case to which I am about to refer.

Bank St Petersburg

114. In Bank St Petersburg OJSC v Arkhangelsky [2014] EWHC 593 the claimants had obtained judgments in Russia against the defendants which they sought to enforce in France and Bulgaria. After that the parties agreed that the English courts should have exclusive jurisdiction to hear "the substantive dispute" between them including the dispute which had led to the judgments in Russia. Both the claimants and the defendants brought actions in England in furtherance of the dispute. The judge refused the defendants' application for an interim injunction restraining the claimants from enforcing the Russian judgments anywhere in the world, holding, inter alia, that such an injunction was not justified by the exclusive jurisdiction agreement and would constitute an unjustified interference with the process of foreign courts.
115. This court allowed the appeal. It held that the exclusive agreement did not countenance the continuance of proceedings attempting to enforce the Russian judgments; and that it would be contrary to both the terms and the spirit of the agreement for the enforcement of the Russian judgments to continue even after the English court had pronounced judgment, in which case attempts at such enforcement should be restrained pending judgment.
116. Lord Justice Longmore took the view that to grant an interim injunction was not in reality an unwarranted interference in the process of either the French or the Bulgarian court; the order affected the respondents and not the foreign court. He referred to Ellerman Lines and Masri. He added:

"38 Mr Marshall was correct to say that Ellerman Lines v Read was a stronger case but only to the extent there that the English trial had already taken place so that there was a finding that the Turkish judgment had been procured by fraud. Here the trial has not yet taken place and the allegations of fraud are only allegations. But an interim injunction had been granted in Ellerman's case to protect the position pending trial (see pages 146-7). So here it seems to me that an injunction against continuing existing enforcement proceedings or initiating new enforcement proceedings should be granted."

117. Bank St Petersburg embodies some special features. First, the parties had reached an agreement after the relevant judgments had been obtained, that they would not be enforced and that their dispute would be tried here. That fact alone provided strong grounds for restraining enforcement. Second there was no suggestion that relief should be refused on the grounds of delay. Further the anti-enforcement injunction served, in that case, a very similar role to that of an anti-suit injunction.
118. In short, the cases in which the English Courts have granted anti-enforcement injunctions are few and far between. Of the two examples to which we were referred, one was based on the fraud of the respondent and the other involved an attempt to execute a judgment when, after it had been obtained, the respondent had promised not to do so. Knowles J suggested another circumstance where an injunction might be granted, namely where the judgment was obtained too quickly or too secretly to enable an anti-suit injunction to be obtained, a circumstance far removed from this case. No example has been cited to us of a case where an anti-enforcement injunction has been granted simply on the basis that the proceedings sought to be restrained were commenced in breach of an exclusive jurisdiction or arbitration clause.
119. This dearth of examples is not surprising. If, as has heretofore been thought to be the case, an applicant for anti-suit relief needs to have acted promptly, an applicant who does not apply for an injunction until after judgment is given in the foreign proceedings is not likely to succeed. But he may succeed if, for instance, the respondent has acted fraudulently, or if he could not have sought relief before the judgment was given either because the relevant agreement was reached post judgment or because he had no means of knowing that the judgment was being sought until it was served on him. That is not this case.

Delay and comity

120. As Burnton LJ observed in BNP Paribas, delay and comity are related. Mr Coleman submits that they are not. Where there is an exclusive jurisdiction clause or an arbitration agreement, delay, he submits, is not relevant to comity and is only relevant at all to the question whether relief should be granted insofar as it involves prejudice to the person against whom the injunction is sought. In this context delay, he submits, is subject to the same principles as are applicable in any claim for equitable relief. If an applicant is to be debarred from equitable relief it is "usually essential" for there to be some act of detrimental reliance by the defendant during the period of delay, which results in a "balance of justice justifying the refusal of relief": Fisher v Brooker and another [2009] UKHL 41. There must be strong reason not to give effect to an exclusive jurisdiction provision (see Donohue v Armco), and delay will only constitute such reasons if there had been detrimental reliance, which there has not.
121. Mr Coleman placed reliance on the case of Advent Capital Plc v G.N.Ellinas Importers Ltd & Anor [2003] EWHC 3330. In that case there was a dispute between insureds and their insurers where the insurance was subject to the exclusive jurisdiction of the English court. The insured started proceedings in Cyprus in May 2002. There was a challenge to the jurisdiction which was decided adversely to the insurers on 27 May 2003. Proceedings seeking an anti-suit injection were begun in England on 12 September 2003. Morison J decided that there was no culpable delay on the part of the insurers between the time when the proceedings in Cyprus started and the judgment of the Cypriot court on 27 May 2003. The only relevant delay was between 27 May 2003 and 12 September 2003, which was not such as to disentitle the insurers to an anti-suit injunction.

Discussion

122. I do not accept that delay was wholly irrelevant because (i) Mr Tanoh was aware from an early stage that Ecobank claimed that the disputes should be submitted to arbitration and (ii) Ecobank objected to the jurisdiction of the Togolese and Ivorian courts on that ground. An injunction is an equitable remedy. Before granting it the court must consider whether it is appropriate to do so having regard to all relevant considerations, which will include the extent to which the respondent has incurred expense prior to any application being made, the interests of third parties, including, in particular, the foreign court, and the effect of making such an order in relation to what has happened before it was made.
123. A relevant consideration, particularly in relation to interlocutory relief, as was sought in the present case, is whether the party seeking an injunction has acted with appropriate speed. The longer a respondent continues doing that which the applicant seeks to prevent him from doing, the greater the amount of labour and cost that he will have expended which could have been avoided. There is, I accept, some force in Mr Coleman's submission that Mr Tanoh ought not to be able to pray in aid the expenditure he was incurring in advancing both sets of proceedings, when he was no doubt calculating that he would do better in the local courts than before the international arbitral tribunal to which he had agreed. It could also be said that, in the light of the objections made to the jurisdiction of the Togolese and Ivorian courts, Mr Tanoh was running the risk that his expenditure on the proceedings would turn out to be in vain (if the objections were upheld) anyway. At the same time, if Ecobank was going to bring a claim for an anti-enforcement injunction if it failed in Togo and Côte d'Ivoire, there was no good reason for it to delay seeking anti-suit relief in England, whose law governed the EEA and to whose jurisdiction the parties had submitted.
124. Nor do I think it right to say that the prejudice to Mr Tanoh arising from Ecobank's failure to seek relief before judgment is to be disregarded in the light of the fact that Ecobank was challenging jurisdiction. Whilst Mr Tanoh knew of Ecobank's objection, it was not apparent that Ecobank was ever going to seek injunctive relief until it did so (nor, as these proceedings indicate, was its entitlement to such relief self-evident) and the expenditure and effort which would have been wasted if an injunction was granted (and obeyed) increased as time went by. That is a relevant form of prejudice which continued even after the judgments were entered until 10 April 2015. During that time Ecobank commenced appeal proceedings and applied for provisional stays of execution.
125. The judge was, therefore, right [22], in my view, not to accept that any time during which the foreign jurisdiction is challenged is to be left out of account when considering whether to grant an anti-enforcement order or that Advent Capital Plc is to be taken as a decision to that effect. That case involved a claim to an anti-suit injunction. The Cypriot court had never given any judgment on the merits and does not appear to have been anywhere close to doing so. Morison J held in terms that there had been "no advancement of the substantive case" and therefore no prejudice to the insureds by granting the injunction. He was plainly concerned to consider whether the application for an injunction "had been sought promptly overall and before the foreign proceedings were too far advanced" [44].
126. Moreover the prejudice or detriment which would be involved in Ecobank allowing the proceedings to continue without seeking injunctive relief and then securing an injunction would not have been limited to Mr Tanoh. It extends to third parties involved in the litigation and, most importantly, the foreign courts which, in the present case, have held hearings and produced judgments of considerable length which are obviously the product of much labour.
127. I agree with the judge [24] that it is not a precondition to the refusal of an injunction that the respondent should establish detrimental reliance, if by that is meant that he must show (a) that he believed that no application for an injunction would be made or (b) that he believed that and, if he had realised that an application would or might be made, he would have abandoned the foreign proceedings. The existence or otherwise of such reliance is relevant but not determinative. The relevance of delay is wider than that. The need to avoid it arises for a variety of reasons including the avoidance of prejudice, detriment, and waste of resources; the need for finality; and considerations of comity.
128. It is, thus, not, in my view, a complete answer for Ecobank to say that someone in the position of Mr Tanoh has only himself to blame because it is his breach which will have caused the waste. The court is, in an appropriate case, entitled to be reluctant to use its coercive powers to restrain that which the applicant has in fact allowed to continue without any application for relief for some time. This is especially so if, as appears to me to be the case here, little useful purpose is likely to be served by the party who claims to be entitled to an injunction holding back from claiming it. In some cases, an objection to the jurisdiction can be dealt with first before the substantive merits, so that there may be something to be said for pursuing that objection in the foreign court. But that was not the case here.
129. Further the tenor of modern authorities is that an applicant should act promptly and claim injunctive relief at an early stage; and should not adopt an attitude of waiting to see what the foreign court decides. In The Angelic Grace Leggatt LJ said that it would be patronising and the reverse of comity for the English court to decline to grant injunctive relief until it was apparent whether the foreign court was going to uphold the objection to its exercising jurisdiction and only do so if and when it failed to do so. Whilst those observations related to the approach of the court it seems to me that they are a guide to what should be the approach of a would-be applicant for anti-suit or anti-enforcement relief.
130. The proposition that delay in this field is immaterial in the absence of prejudice and that there is necessarily no prejudice if the respondent is aware of the challenge to the jurisdiction of the foreign court which is being pursued there would have curious consequences. Firstly it would revolutionise the approach that has previously been taken in respect of the need for applicants to act promptly. Secondly it would mean that applicants could have two bites at the cherry. They could, without seeking or threatening any injunctive relief in this country, resist the foreign proceedings on the ground that the issue should be arbitrated and, provided they had not submitted to the jurisdiction, they could then, if the challenge failed, seek an anti-enforcement injunction. The impunity which Mance J had thought "never [to have] been the law" or something very like it would have arrived.
131. Mr Coleman submitted that, in the light of the fact that in the St Petersburg case Longmore LJ relied on the decision of the Supreme Court in AES (an anti-suit injunction case) the Court of Appeal has accepted that the principles that apply to anti-suit injunctions apply to anti-enforcement cases. However, the passages from the judgment of Lord Mance JSC cited by Longmore LJ, namely [25] – [27], were to the effect that courts ought not to feel diffident at granting anti-suit injunctions "if sought promptly" because without them the claimant would be deprived of its contractual rights in a situation where damages would be a manifestly inadequate remedy. I do not accept that there can be no distinction between an anti-suit and an anti-enforcement case, not least because an anti-enforcement injunction may well not have been sought with the promptitude to which Lord Mance was referring. Nor do I accept that, in a case such as this, comity has no place other than to give effect to the rights of the parties to have the dispute determined by arbitration.
132. Comity has a warm ring. It is important to analyse what it means. We are not here concerned with judicial amour propre but with the operation of systems of law. Courts around the free world endeavour to do justice between citizens in accordance with applicable laws as expeditiously as they can with the resources available to them. This is an exercise in the fulfilment of which judges ought to be comrades in arms. The burdens imposed on courts are well known: long lists, size of cases, shortages of judges, expanding waiting times, and competing demands on resources. The administration of justice and the interests of litigants and of courts is usually prejudiced by late attempts to change course or to terminate the voyage. If successful they often mean that time, effort, and expense, often considerable, will have been wasted both by the parties and the courts and others. Comity between courts, and indeed considerations of public policy, require, where possible, the avoidance of such waste.
133. Injunctive relief may be sought (a) before any foreign proceedings have begun; (b) once they have begun; (c) within a relatively short time afterwards; (d) when the pleadings are complete; (e) thereafter but before the trial starts; (f) in the course of the trial; (g) after judgment. The fact that at some stage the foreign court has ruled in favour of its own jurisdiction is not per se a bar to an anti-suit injunction: see AES. But, as each stage is reached more will have been wasted by the abandonment of proceedings which compliance with an anti-suit injunction would bring about. That being so, the longer an action continues without any attempt to restrain it the less likely a court is to grant an injunction and considerations of comity have greater force.
134. Whilst a desire to avoid offence to a foreign court, or to appear to interfere with it, is no longer as powerful a consideration as it may previously have been, it is not a consideration without relevance. A foreign court may justifiably take objection to an approach under which an injunction, which will (if obeyed) frustrate all that has gone before, may be granted however late an application is made (provided the person enjoined knew from an early stage that objection was taken to the proceedings). Such an objection is not based on the need to avoid offense to individual judges (who are made of sterner stuff) but on the sound basis that to allow such an approach is not a sensible method of conducting curial business.
135. Mr Coleman submitted that "comity has no role to play in the timing of the application for, or the grant of, an anti-enforcement injunction". I disagree. Timing is of considerable significance. The grant of an interlocutory injunction to prevent the commencement or continuance of a duplicate set of proceedings may well be a sound step which (a) gives effect to contractual rights and (b) avoids the cost and waste of rival proceedings operating in tandem and the risk of inconsistent judgments – results which considerations of comity would favour^[5]. In the case of an anti-enforcement injunction the application will, by definition, be made after the rival proceedings have run to judgment. The grant of an injunction will mean that the cost of those proceedings and the resources of the rival court will (unless the injunction is discharged) have been wasted. It will not avoid the risk of inconsistent decisions although it will preclude the respondent from enforcing the existing potentially inconsistent decision.
136. In the case of anti-enforcement injunctions there are further considerations which underpin the need for caution expressed in the cases. First, an order precluding enforcement in countries outside England & Wales or those States which are subject to the Brussels/Lugano regime will, if obeyed, in effect preclude the consideration by the Courts of those countries as to whether they should recognise or enforce the judgement in question. That is a matter which it is, intrinsically, for the relevant court to decide according to its applicable law. Moreover, insofar as the order prevents enforcement in the country of the court which gave the judgment it is, indirectly, an interference with the execution in its own country of the judgment which the court has given and can expect to be obeyed.
137. In short, both general discretionary considerations and the need for comity mean that an applicant for anti-suit relief needs to act with appropriate despatch. In Transfield Shipping at [78] I observed that "...comity, which involves respect for the operation of different legal systems, calls for challenges … to be made promptly in whatever is the appropriate court"^[6]. Whilst recognising that delay is not necessarily a bar to relief, and the importance of upholding the rights of those who are the beneficiaries of exclusive jurisdiction agreements, I do not regard the cases subsequently decided by this court as rendering that statement inaccurate.
138. The judge held that in the light of the delay injunctive relief fell to be refused. As Burnton LJ observed in Ingosstrakh [63]:

"unless the judge's finding of the primary facts is shown to have been mistaken, this Court will interfere with the conclusion of the judge at first instance only if it is shown that he erred in law, or that he ignored a relevant factor or took into account an irrelevant factor, or if his conclusion was one that he could not reasonably or sensibly have come to".

139. Mr Coleman submitted that the judge had wrongly taken into account, in exercising his discretion, the following matters in respect of the Togolese proceedings: (a) that Ecobank had sought an extension of time to make submissions on the merits; (b) that Ecobank's appeal against the Togolese judgment was outstanding; (c) that Ecobank currently has the benefit of a provisional stay of execution; and (d) that Ecobank had taken 8 months after the Togolese proceeding were instigated to commence its arbitration; and in respect of the Ivorian proceedings that Ecobank had not at the time of the judgment sought to refer the subject matter of those proceedings to arbitration.
140. The matters referred to in the previous paragraph are referred to in paragraphs 29 and 31 of the judgment. These paragraphs are in that part of his judgment which follows his decision as to the exercise of discretion. It is not wholly clear to me that any of these matters formed part of the grounds of his discretion, which, by paragraph 25 the judge had decided to exercise adversely to Ecobank. If they were they would seem to me to be relevant only to the extent that there had been delay in seeking relief in this country whilst the proceedings in Togo and Côte d'Ivoire continued. The fact that Ecobank had taken procedural steps in Togo does not, of itself, appear to me to be significant. The fact that there had been no reference of the dismissal dispute to arbitration until December 2014 or of the "defamation" dispute to arbitration at all was not per se a bar to an injunction given that the right to arbitration includes a negative right not to be proceeded against in some other forum, which may be invoked whether or not arbitration has been commenced.
141. But even if these matters did inform the exercise by the judge of his discretion, their inclusion does not, in my judgment, invalidate his decision to refuse relief in circumstances where no application for relief was made until months after judgments were entered in the two actions. Ecobank was well aware of the terms of the EEA at all times. It could have applied for an injunction as soon as the proceedings were commenced. Instead it participated in both sets of proceedings until judgment was given (and beyond). Meanwhile Mr Tanoh incurred the cost of seeking and obtaining the relevant judgments and responding to the submissions made by Ecobank. The judge's decision was not out of tune with authority, including the most recent, nor was he in error in any of the respects referred to by Burnton LJ. The decision which he reached was one that was open to him.
142. Ecobank submitted to us, but not to the judge, that an anti-enforcement injunction should be granted in respect of the Ivorian proceedings because it would be oppressive or vexatious of the Respondent to enforce the provision of the judgment which imposes what is in effect a fine if the defendants fail to procure the publication of the defamation judgment. I do not regard it as appropriate to do so. It is not apparent why the defendants have not done so. Publication would appear to be a key element of the relief granted. No suggestion had been made, we were told, that to do so would be problematic for the defendants in the defamation proceedings nor, we were told, had Mr Tanoh taken any steps to enforce this decision including serving the ruling of the Abidjan court on Ecobank. In those circumstances I do not regard this belated case of oppression as made out.
143. For these reasons I would dismiss the appeal.

Lord Justice Patten

144. I agree.

The Chancellor (Sir Terence Etherton)

145. I agree.

Note 1   As recorded in the Court’s judgment of 3 February 2015.    [Back]

Note 2   Probably because it is buried very deep in paragraph 22 of Ecobank’s skeleton argument which in turn refers to various rather dense pages of the Togolese judgment which state the argument.    [Back]

Note 3   “[38]Harada submits there is no clear authority to the effect that a party can participate in a full trial on the merits and still maintain his objection to the court's jurisdiction. Following Elefanten Schuh GmbH v Jacquain [1981] ECR 1671 I find that unsurprising: it is surely obvious. If authority be needed, however, let this be it”: per Simon Brown LJ.    [Back]

Note 4   However, in AES in the Supreme Court Lord Mance JSC referred to the need to act promptly: see [131] below.    [Back]

Note 5   In a few cases, e.g. where third parties who are not bound by any agreement as to where to litigate are involved or the dispute extends to issues that are not within the scope of the agreement as to jurisdiction, there may be a strong reason for the court not to grant anti-suit relief because it is much more appropriate for the dispute to be determined in the foreign court: Donohue v Armco Inc [2001] UKHL 64.    [Back]

Note 6   As is apparent from the facts and outcome of that case I was not suggesting that an applicant could delay seeking anti-suit relief until shortly before the trial.    [Back]