England and Wales High Court (Commercial Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/11/2007

Mr. Justice Teare :

1. In this Part 8 claim the Claimants seek a permanent anti-suit injunction against the Defendants and also certain declarations of non-liability. The Defendants were not represented at the hearing.

The background to the applications

2. I can summarise the background from the detailed account of it given in the written evidence of Richard Gwynne, a partner in Stephenson Harwood, the solicitors acting for the Claimants. The first claimant, Standard Bank PLC, is a London bank ("the Bank"). The second claimant, Standard Bank Group Limited, is the Bank's ultimate parent. The first defendant, Agrinvest International Inc. ("Agrinvest"), is a company incorporated in Arizona. Its principal director, Mr. Charles Chawafaty, is the second defendant ("Mr. Chawafaty"). It appears that the third defendant, Cairo Phoenix Foreign Trade Centre ("Cairo Phoenix"), is a trading name used by Mr. Chawafaty.
3. Agrinvest is a trader in emerging market debt. In May 2000 the Bank granted Agrinvest an option (contained in or evidenced by a facsimile dated 3 May 2000 and signed in London by Mr. Chawafaty on behalf of Agrinvest on 12 May 2000) to purchase US$24.213m. of promissory notes issued by the Government of Kenya. The option was exercisable until 31 July 2000 but was later extended until 14 August 2000. An option fee of US$2m. was payable by 8 May 2000.
4. There was no express choice of law (or of jurisdiction). If the option contract is to be regarded as a bilateral contract then it is the Bank's performance of its obligation to deliver the promissory notes upon the exercise of the option which is characteristic of the option to purchase contract (by analogy with a sale contract). If the option contract is to be regarded as a unilateral contract then, again, it is the Bank's performance of that same obligation which is characteristic of the option to purchase contract. In either case, since the Bank's place of business is in London, English law is the applicable law; see the Contracts (Applicable Law) Act 1990, Article 4 of the Rome Convention and Dicey, Morris and Collins on the Conflict of Laws 14^th.ed para.32-116.
5. At the same time Agrinvest entered into a Forward Sale Facility with the Bank. The terms of the facility were set out in a draft Term Sheet, later superseded (save in respect of certain interest obligations) by a Master Sale Agreement ("the MSA") dated 12 May 2000. The MSA applied to a sale by Agrinvest to the Bank of bonds issued by an Egyptian healthcare company, Lakah, and global depositary receipts representing shares in Lakah ("GDRs"). Agrinvest obtained just under US$10m. in respect of the sale and agreed to buy the bonds and GDRs back from the Bank for forward settlement in November 2000.
6. The MSA provided for English law and jurisdiction. Clause 19 provided as follows:

19.1 This Agreement and all Trade Confirmations shall be governed by and construed in accordance with the laws of England.

19.2 Each party hereto irrevocably submits to the jurisdiction of the courts in England for the purpose of any action, suit or proceeding relating to this Agreement or any Trade Confirmation and irrevocably agrees that all claims in respect of any such action, suit or proceeding may be heard and determined in any such court.

7. Agrinvest used US$2m. of the proceeds of the sale of the bonds and GDRs to pay the option fee. However, the share price of Lakah shares (and therefore of GDRs) suddenly fell in early June 2000. In consequence the forward settlement date was extended from time to time, ultimately to 10 September 2004. Also, Agrinvest did not exercise its option to purchase the promissory notes issued by the Government of Kenya.
8. Between 2000 and 2003 Agrinvest made certain payments to reduce the amount it would have to pay to repurchase the bonds and GDRs. In addition extra GDRs were provided and these, or the original GDRs or both, were sold to reduce Agrinvest's liability between December 2000 and February 2001. Agrinvest also gave the Bank charges over land in Mississippi in January 2002 and provided three promissory notes in the sum of US$5.36m. in February 2002. But after 2003 no further payments were made. Agrinvest failed to repurchase the securities and its three promissory notes were dishonoured when presented for payment.
9. The current position is therefore that the Bank has monetary claims against Agrinvest of almost US$6m. plus interest arising out of the MSA as amended and the associated agreements. These claims have been advanced in proceedings issued in this court. In February 2006 claim form 2006 Folio 59 was issued. Although a default judgment was entered the Bank later agreed to have it set aside, essentially because the claim form should have been served out of the jurisdiction and it had not been. Due to the passage of time the claim form could no longer be served out of the jurisdiction and so a fresh Part 7 claim form was issued, 2007 Folio 1180, in July 2007. Permission to serve this claim out of the jurisdiction in Arizona was granted by Christopher Clarke J. on 24 July 2007.

Mississippi

10. Meanwhile, in September 2005, the Bank had issued notices of a trustees' sale of the land in respect of which charges had been given in favour of the Bank. This was a non-judicial process and did not involve an application to the court for judicial foreclosure. However, the land had been affected by Hurricane Katrina and Agrinvest obtained an order from the Chancery Court of Harrison County, Mississippi, restraining the Bank from foreclosing. The Bank applied to discharge the order (whilst being careful not to submit its monetary claims to the Mississippi court). Agrinvest then, in February 2006, issued a motion in the Mississippi Court to amend its complaint against the Bank to set out the grounds on which it said that it was not liable to the Bank for any monetary claim and that the Bank was liable to it for alleged breaches of contract in relation to the sale of Lakah bonds and GDRs. Agrinvest alleged "unfair trading" in GDRs and that the bonds had been sold at a "concocted" and "artificial" price. However, no steps have been taken to have this motion heard.

Egypt

11. On 1 May 2007 the Bank received a document in Arabic described as a "subpoena" purportedly by way of service. When translated it appeared to be notice of a substantive claim brought against the Bank and the Second Claimant (and others) in the Court of First Instance of South Giza for the sum of US$15.8m. plus interest. The Egyptian claimants appear to be not only Agrinvest but also Cairo Phoenix and Mr. Chawafaty. The Egyptian claimants appear to be alleging that they were unable to exercise the option to purchase the Kenyan Government promissory notes because the Bank wrongfully caused the price of GDRs to fall and/or because the Bank acted wrongfully in connection with the sale of GDRs. As a result the Egyptian claimants have sustained loss. It may also be alleged, though the matter is far from clear, that the Bank "refused to implement" the option contract. Although there is a lack of clarity as to the detail of these claims there is little doubt that the claims are said to arise out of the option contract and out of the transaction governed by the MSA. That is because extensive reference is made to contractual obligations. It is further to be observed that the document assumes that Egyptian law applies because extensive reference is made to that law.

The Part 8 claim

12. The Bank and the Second Claimant decided to obtain an injunction restraining both the Mississippi proceedings (save in relation to legitimate Katrina relief protection) and the Egyptian proceedings. They also sought declarations of non-liability. These are the proceedings with which I am concerned. They were issued on 26 July 2007 and on that day Christopher Clarke J. granted permission that they be served out of the jurisdiction.
13. The application of the Bank and Second Claimant for an interim anti-suit injunction was heard before Steel J. on 31 August 2007. The Defendants did not appear at that hearing. Steel J. was satisfied that the proceedings had been properly served on the Defendants and he granted interim relief. On 15 October 2007 Andrew Smith J. ordered that the claim for final relief be heard on 5 November 2007 because a hearing was due to take place in Egypt on 10 November (now postponed until 13 November 2007). Agrinvest and Mr. Chawafaty have acknowledged service but have not filed any evidence or appeared at the hearing before me.
14. Agrinvest has however sent a "Memorandum" which is to constitute its "response". It alleges that Mr. Gwynne had failed to disclose certain documents, seeks to cast doubt on the Bank's substantive monetary claims, alleges that the funding of the option agreement to purchase the Kenyan Government promissory notes was dependent upon the sale of the Lakah bonds and GDRs, states that the Bank owes monies to Agrinvest and not vice versa and, finally, that the anti-suit injunction is abusive because it "thwarts other competent and prevailing forums and laws."
15. Two of the documents which were said not to have been disclosed have been provided by Mr. Davis of Stephenson Harwood. I am told that the first document is an annex to the MSA and that it does not appear to change any part of the legal analysis affecting the Part 8 proceedings. I am also told that the second document does not appear to be relevant to the Part 8 claim but in any event contains an English law and jurisdiction clause. The third document could not be found. Mr. Chawafaty was asked to supply a copy and he has provided an extract from a document which contains a clause providing for English law and jurisdiction. This also does not appear to change any part of the legal analysis affecting the Part 8 claim. In circumstances where the documents do not appear to affect the Part 8 claim the Bank cannot fairly be criticised for not putting them before the Court. In any event Agrinvest had the opportunity to provide them to the Court at the inter-parties hearing before Steel J. had it been thought that they were relevant. So far as the other points in the Memorandum are concerned they do not appear to advance the issues raised by the Part 8 claim. Whilst the memorandum asserts that this court has "abused its discretion to protect its jurisdiction" there is no coherent explanation as to why the grant of an anti-suit injunction is or would be an abuse.

Anti-suit relief

16. The first basis on which an anti-suit injunction is sought is that clause 19 of the MSA is an exclusive jurisdiction agreement, that is, it imposes an obligation upon the parties to submit disputes to the English Court. It is well established that:

"If contracting parties agree to give a particular court exclusive jurisdiction to rule on claims between those parties, and a claim falling within the scope of the agreement is made in proceedings in a forum other than that which the parties have agreed, the English Court will ordinarily exercise its discretion (whether by granting a stay of proceedings in England, or by restraining the prosecution of proceedings in the non-contractual forum abroad, or by such other procedural order as is appropriate in the circumstances) to secure compliance with the contractual bargain, unless the party suing in the non-contractual forum (the burden being on him) can show strong reasons for suing in that forum. …………… Whether a party can show strong reasons, sufficient to displace the other party's prima facie entitlement to enforce the contractual bargain, will depend on all the facts and circumstances of the particular case" (per Lord Bingham in Donohue v Armco Inc [2002] 1 Lloyds' Rep 425 at para.24).

17. This is not a case where the EC Judgments Regulation applies and so it is not necessary to consider how the above principle applies, if at all, in such cases; cf Through Transport Mutual v New India Assurance Co. Ltd. [2005] 1 Lloyd's Rep.67.
18. Thus it is necessary to decide whether clause 19 of the MSA is an exclusive jurisdiction agreement. I have already set out its terms.
19. The manner in which jurisdiction clauses have been construed has a long history; see Austrian Lloyd Steamship Company v Gresham Life Assurance Society Limited [1903] 1 KB 249, Sohio Supply Co. v Gatoil (USA) Inc. [1989] 1 Lloyd's Rep. 588, S&W Berisford PLC v New Hampshire Insurance Co. [1990] 1 Lloyd's Rep. 454, Continental Ban NA v Aekos Compania Naviera SA [1994] 1 Lloyd's Rep.505, British Aerospace PLC v Dee Howard Co. [1993] 1 Lloyd's Rep. 368 and Sinochem International Oil (London) Co.Ltd. v Mobil Sales and Supply Corporation [2000] 1 Lloyd's Rep. 670.
20. In the last mentioned case Rix J. summarised the essential question at para.32 as follows:

"The test which has been developed for distinguishing an exclusive from a non-exclusive jurisdiction clause is whether on its proper construction the clause obliges the parties to resort to the relevant jurisdiction, irrespective of whether the word "exclusive" is used: Dicey and Morris 13^th. ed 2000 at para.12-078. Or to put the issue in another way: is the obligation contained in the clause the intransitive one to submit to a jurisdiction if it is chosen by the other contracting party, or is it the transitive one to submit all disputes to the chosen jurisdiction ?"

21. The natural meaning of the first limb of clause 19.2 is that it imposes an intransitive obligation to submit to the jurisdiction of the English Courts. However, the second limb of clause 19.2 lends itself to a transitive construction, namely, a mutual obligation to submit all disputes relating to the MSA to the English Courts. Moreover, in the context of parties who had chosen that the MSA would be governed by English law and had submitted to the jurisdiction of the English Courts it is difficult to think of a reason why they would have agreed to the English Court having non-exclusive jurisdiction (cf Sohio v Gatoil [1989] 1 Lloyd's Rep.588 per Staughton LJ at p.591 col.2 – p.592 col.2).
22. It might be suggested that the use in the second limb of the word "may" rather than "shall" is indicative of the language of option rather than of obligation. However, this seems an unlikely intention having regard to the context and the use of the word "irrevocably" which is suggestive of obligation rather than of option. I consider that the proper construction of the second limb of clause 19.2 is that once one party has decided that a dispute was to be referred to the English Court the other party is bound (because he irrevocably agreed) to submit that dispute to the English Court. The suggestion that, despite the context and the use of the word "irrevocably", a party was intended to be free to submit disputes relating to the MSA to a court other than the English Court in circumstances where the other party insisted upon the English Court is unlikely to have been the parties' intention; cf the discussion in Lobb Partnership v Aintree Racecourse [2000] CLC 431 at pp.434-435 per Colman J. In the present case the Bank decided to have the dispute decided in England by commencing proceedings in England.
23. For these reasons I consider that clause 19.2 contains an exclusive jurisdiction clause. Agrinvest has not shown any good reason (either in its Memorandum or otherwise) why it should not be held to its agreement. It follows that this is a proper case in which to exercise the Court's discretion to grant an injunction restraining Agrinvest from prosecuting its claims against the Bank relating to the MSA either in Mississippi or in Egypt.
24. The injunction is sought not only against Agrinvest but also against Mr. Chawafaty and Cairo Phoenix because they appear to be claimants in the Egyptian proceedings. Since they are not parties to the MSA such injunction can only be granted on the basis that the proceedings in Egypt are, for some other reason, unconscionable or vexations and oppressive. Further, the Second Claimant, the parent company of the Bank, seeks an anti-suit injunction because it is a defendant to the Egyptian proceedings. Since the Second Claimant is not a party to the MSA it too must establish that the proceedings in Egypt are, for some other reason, unconscionable or vexatious and oppressive.
25. The relevant principles for the grant of an anti-suit injunction are set out in SNIA v Lui Kui Jack [1987] AC 871 and Turner v Grovitt [2002] 1 WLR 107. They have been summarised by Cooke J. in Trafigura Beheer BV v Kookmin Bank Co. [2005] EWHC 2350 (Comm) at para.42 (and adopted by Field J. in his decision in the same case [2006] EWHC 1921 (Comm) at para.44) as follows:

"(i) The Court will grant an injunction where the pursuit of the foreign proceedings is "unconscionable", as is made clear by the House of Lords in Turner v Grovit [2002] 1 WLR107 at paragraphs 22-29, per Lord Hobhouse. The injunction is a personal remedy for the wrongful conduct of another party - a fault based remedial concept, in respect of conduct which the Court may describe as "vexatious" or "oppressive", but deriving from "the basic principle of justice".

(ii) The Court will readily grant an injunction to restrain proceedings which are brought in breach of an exclusive jurisdiction clause save in circumstances where the Brussels Regulation applies – see Through Transport Mutual v New India Assurance Co. [2005] 1LLR 67 at paragraph 67 – 68. This is an example of the wider principle that an English Court will grant an injunction to prevent the pursuit of foreign proceedings which are vexatious, oppressive or unconscionable – see SNIA v Lee Kui Jack [1987] AC 871.

iii) Absent an agreement to the exclusive jurisdiction of the English Court, or some other special factor, a person has no right not to be sued in a particular forum. Where suit is brought in a foreign forum, the question whether or not that forum is an appropriate forum is a factor in assessing the conduct of the party suing there, for the purposes of considering whether to grant a restraining injunction, but if it is the only factor, it is easily overridden by other considerations (per Lord Hobhouse at para 25 of Turner (ibid)).

iv) To grant an injunction, the English Court must have a sufficient legitimate interest in the foreign proceedings, which means that if there is no contractual reason to prevent suit there, there must be proceedings in this country which require protection (per Lord Hobhouse at para 27 of Turner (ibid), by reference to the House of Lords' decision in Airbus Industries GIE v Patel [1999] 1 AC 119.

v) English law attaches a high importance to international comity and the perception of the foreign court of an interference in its proceedings, albeit indirect. There must therefore be a clear need for protection of the English proceedings (per Lord Hobhouse at para 29 of Turner (ibid) if an injunction is to be granted.

vi) An injunction should not be granted if its effect would be to deprive the claimant in the foreign action of an advantage in that forum of which it would be unjust to deprive him (Snia v Lee Kui Jak (ibid) at p 896)."

26. Thus there must be English proceedings which need to be protected. In the present case the Bank has brought a Part 7 claim against Agrinvest claiming such sums as are due to the Bank pursuant to the MSA as amended and associated agreements. Whilst Agrinvest might bring counterclaims arising out of the MSA against the Bank, Mr. Chawafaty and Cairo Phoenix cannot do so because they are not party to the MSA. Nor can they, or Agrinvest, bring counterclaims against the Second Claimant arising out of the MSA because the Second Claimant is not party to it. However, in the Egyptian proceedings Agrinvest, Mr. Chawafaty and Cairo Phoenix seek an order that nothing is due to the Bank and claim damages for breach of the MSA against not only the Bank but also the Second Claimant. The Egyptian proceedings are thus calculated to subvert or frustrate the English proceedings. There is a clear need to protect them. The Egyptian proceedings are unconscionable or vexatious or oppressive because Mr. Chawafaty and Cairo Phoenix plainly have no contractual claim against the Bank and they, together with Agrinvest, plainly have no contractual claim against the Second Claimant. In addition Agrinvest and the other claimants implicitly allege, by referring to Egyptian law, that the MSA is governed by Egyptian law. This is contrary to clause 19.1 of the MSA and is significant because, were claims for breach of contract arising out of the fall in value of Lakah bonds and GDRs in June 2000 or out of the sale of GDRs between December 2000 and February 2001 now to be brought in England, they would be time barred (because more than 6 years has elapsed since the alleged breach or breaches of contract). The reliance on Egyptian law is thus a further reason why the Egyptian proceedings are unconscionable or vexatious and oppressive.
27. For these reasons this is a proper case in which to exercise the Court's discretion to grant an injunction (a) restraining Agrinvest from prosecuting its claims relating to the MSA against the Second Claimant in Egypt and (b) restraining Mr. Chawafaty and Cairo Phoenix from prosecuting their claims relating to the MSA against the Bank in Egypt.

The option agreement

28. In so far as the Egyptian claims include an allegation that the Bank acted in breach of the option agreement by "refusing to implement" the option agreement (as they may do, though it remains unclear) the Bank and the Second Claimant also seek an anti-suit injunction restraining such a claim. Such an injunction cannot be said to be necessary to protect the Bank's monetary claims in its Part 7 proceedings because the Part 7 proceedings do not concern the option agreement. However, what is said in this context is that the anti-suit injunction is necessary to protect the Part 8 proceedings which seek a declaration of non-liability in relation to the option agreement. It is said that in circumstances where the option is never exercised the Bank cannot possibly be liable for "refusing to implement" the option agreement and must be entitled to a declaration of non-liability. If such a declaration is granted then it would be unconscionable or vexatious and oppressive for Agrinvest to be permitted to seek to controvert that declaration by proceeding in Egypt. In this regard reliance is placed on the decision of Field J. in Trafigura Beheer BV v Kookmin Bank Co. [2006] EWHC 1921 (Comm) at para.55).
29. Field J. described the injunction which he granted as a "post-trial anti-suit injunction" (see para.1 of the judgment). I respectfully agree that the issuance of an anti-suit injunction in that case was a proper application of the principles governing anti-suit injunctions. In the present case the anti-suit injunction is sought at the same time as the declarations of non-liability but I do not consider that this makes it inappropriate to apply those same principles.
30. I accept the submission that, in circumstances where Agrinvest has not exercised its option to purchase the Kenyan Government promissory notes, the Bank cannot be liable for refusing to implement the option agreement and I will make an appropriate declaration of non-liability. This is so as a matter of English law which is the applicable law of the option agreement but it is difficult to see how a different result could be reached under any other system of law. That being so it is appropriate, following the approach of Field J., to grant the anti-suit injunction in order to protect the declaration of non-liability. Of course, in so far as Agrinvest's claim in Egypt is that it was prevented from exercising the option by reason of the Bank's breach of the MSA then such claim is within the exclusive jurisdiction clause of the MSA and the Bank can rely upon that clause to support the injunction it seeks.

Further Declarations of non-liability

31. The declarations sought, as set out in the draft final order and explained in a further note from Counsel, contain declarations in relation to applicable law and exclusive jurisdiction as well as declarations of non-liability. They are as follows:

i) English law is the law applicable to the claims brought by the Defendants against the Claimants in the Defendants' Egyptian Proceedings and to the contracts in relation to which those claims are brought.

ii) English law is the law applicable to the claims sought to be brought by the First Defendant against the First Claimant in the First Defendant's proposed Amended Complaint in its Mississippi Proceedings against the First Claimant, as well as the law applicable to the contracts in relation to which those claims are brought.

iii) The claims set out in the said Egyptian Proceedings against each of the Claimants, and the claims set out in the First Defendant's proposed Amended Complaint in its Mississippi Proceedings against the First Claimant, are claims in relation to which the English Court has exclusive jurisdiction.

iv) All of the claims set out in the Egyptian Proceedings and in the proposed Amended Mississippi Complaint against either of the Claimants are time barred as a matter of English Law and for that reason neither of the Claimants has any liability in respect of any of them.

v) Further, as a matter of English Law, the Second Claimant is not liable to any of the Defendants in respect of the claims sought to be brought by any of the Defendants against it in the Egyptian Proceedings for the reason that it is not, and never has been, a party to any contractual relationship with any of them.

32. I accept the submission that the Court should make declarations (i) and (ii) because the applicable law of the MSA is English law pursuant to clause 19.1 of the MSA and because English law is the applicable law of the option contract for the reasons explained in paragraph 4 above.
33. So far as declaration (iii) is concerned I have already accepted the submission that the English Court has exclusive jurisdiction in relation to the claims relating to the MSA. These claims would include the claim that appears to be made that as a result of a breach of the MSA Agrinvest was disabled from being able to exercise its option under the option agreement. However, in so far as those claims also include a claim for breach of the option agreement, as they might do, then I am unable to accept the submission that the English Court has exclusive jurisdiction in relation to such a claim. That is because the option agreement does not contain a jurisdiction agreement. Declaration (iii) must therefore be subject to a saving in respect of a claim for breach of the option agreement.
34. The basis of declaration (iv) is, as I understand the matter, that the fall in the price of GDRs occurred in June 2000 and the sale of the GDRs took place in December 2000 - February 2001. Accordingly, any breach of the MSA by the Bank must have occurred more than 6 years ago and any such claim must therefore be time barred. The declaration should make this clear.
35. So far as declaration (v) is concerned I accept that the Second Claimant is not a party to the MSA and therefore is entitled to the declaration sought. The declaration should however make reference to the MSA and the option agreement rather than to "any contractual relationship".
36. I have already accepted that declaration (vi) is appropriate.
37. For these reasons I shall grant the remedies sought, subject to the above corrections. I shall ask Counsel to draw up an amended Final Order.

Costs

38. It is appropriate that the Defendants should pay the Claimants' costs since the Claimants have obtained the relief they sought. I have not been asked to assess the costs summarily and do not do so. I have, however, been asked to order an interim payment of costs. I have been provided with a draft schedule of costs in a sum of over £54,000. I will order an interim payment of £25,000.