Tumpuan Megah Development Sdn Bhd v ING Bank NV & Anor
[2024] EWHC 2350 (Comm)
Euronav Shipping NV v Black Swan Petroleum DMCC
26 April 2024
[2024] EWHC 896 (Comm)
High Court
Two companies disagreed about which court should settle a dispute over seized oil. One company (Euronav) wanted arbitration, the other (BSP) wanted a Malaysian court, and had already gotten a ruling in their favor. The English court decided to wait for the Malaysian court's final decision before making its own ruling. This is because the English court needs to be careful not to upset the Malaysian court's authority.
Key Facts
- •Euronav (Belgian tanker operator) and Silk Straits (Malaysian company) entered into a storage agreement for crude oil on Euronav's vessel, governed by Belgian law and CEPANI arbitration.
- •Addendum No. 1 amended the agreement to be governed by English law and High Court of England & Wales jurisdiction for disputes related to assignments.
- •Addendum No. 2 (validity disputed) further amended the agreement, specifying English law and LMAA arbitration in London.
- •BSP (Black Swan Petroleum DMCC) stored oil on the vessel via a separate agreement with Silk Straits, potentially unaware of the Euronav-Silk Straits relationship.
- •The oil was later discovered to be sanctioned Iranian oil, leading to its seizure by US authorities.
- •BSP sued Euronav in Malaysian High Court for conversion.
- •Euronav commenced arbitration in London against BSP, which challenged the arbitration's jurisdiction.
- •The Malaysian court dismissed Euronav's application to stay or strike out the Malaysian proceedings.
- •BSP applied for an anti-arbitration injunction in Malaysia to stop the London arbitration.
- •Euronav sought an anti-anti-arbitration injunction in the English High Court to prevent BSP's Malaysian action.
Legal Principles
To grant an anti-suit injunction in support of arbitration, the applicant must prove to a 'high degree of probability' the existence of a binding arbitration agreement.
Times Trading Corporation v National Bank of Fujairah (Dubai Branch) [2020] EWHC 1078 (Comm), Emmott v Michael Wilson & Partners Ltd [2018] 1 Lloyd's Rep 299, LLC Eurochem North-West-2 v. Tecnimont SPA [2023] EWCA Civ 688
If a binding arbitration agreement is proven, the court will usually grant the injunction unless the defendant shows strong reasons to refuse relief.
The Angelic Grace [1995] 1 Lloyd's Rep 87, Donohue v Armco Inc [2002] 1 All ER 749, LLC Eurochem North-West-2 v. Tecnimont SPA [2023] EWCA Civ 688
In bailment cases involving sub-bailment, the owner can sue the sub-bailee directly, with the sub-bailee’s responsibility potentially affected by the sub-bailment terms if the owner consented to them.
The Pioneer Container [1994] 2 AC 324
The court considers comity (respect between courts) when deciding whether to grant an anti-suit injunction, especially when the applicant has already submitted to the foreign court's jurisdiction.
Excalibur Ventures v. Texas Keystone [2011] 2 Lloyds Rep 289, Credit Suisse First Boston (Europe) v MLC (Bermuda) [1999] 1 Lloyds Rep 767
Outcomes
Euronav's application for an anti-anti-arbitration injunction was adjourned.
The court found that granting the injunction would interfere with the comity between English and Malaysian courts, given Euronav's voluntary submission to Malaysian jurisdiction and the potential for duplicative proceedings. The court also highlighted Euronav's delay in bringing the application.
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