Application for anti-suit injunction refused because the application was not made promptly
Essar Shipping v Bank of China (2015)
The High Court emphasises that failing to apply in a timely manner for an anti-suit (or anti enforcement) injunction is likely to be fatal to the application.
The claimant charterer, Essar Shipping Ltd (an Indian shipping corporation and part of the Essar Group), sought an anti-suit injunction restraining the defendant bank, Bank of China Ltd (a state-owned commercial bank), from continuing proceedings in China in breach of a London arbitration agreement. Essar Shipping had waited two months before challenging the jurisdiction of the Chinese courts in those proceedings, and a further seven months (from the deadline for commencing London arbitration proceedings) to bring its application for an anti-suit injunction in England.
The High Court explained that those seeking anti-suit or anti-enforcement injunctions should act promptly since failing to do so increases the risk of the injunction being seen as an inappropriate interference with the foreign court's jurisdiction. The Court clarified that applicants for an injunction were not required to challenge the foreign court's jurisdiction prior to seeking the injunction. The Court refused the injunction since Essar Shipping had not brought the application sufficiently promptly. The application should have been issued and served by the end of November 2014, given that the deadline for bringing London proceedings expired in January 2015. If it had been issued by this time, the Bank of China could have and would have begun protective arbitration proceedings before the deadline for doing so expired.
Thus, the Bank of China had been prejudiced by Essar Shipping's delay. The Court stated: "there can be no doubt that lack of promptness alone may justify refusal of an anti-suit injunction." Additionally, "it is not a question of whether it is reasonable to apply to the foreign court, nor of whether there will be long delay in the foreign court, but a question of whether the application in this court has been made promptly."
http://www.bailii.org/ew/cases/EWHC/Comm/2015/3266.html
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