COURT GRANTS ANTI-SUIT INJUCTION RESTRAINING FOREIGN PROCEEDINGS AGAINST AN AFFILIATED COMPANY

Laura Swithinbank

In Dell Emerging Markets (EMEA) Ltd and another v IB Maroc.com SA [2017] EWHC 2397 (Comm), the High Court granted an anti-suit injunction preventing the defendant from pursuing foreign proceedings against an affiliated company of the first claimant.

Facts

The first claimant, Dell UK, entered into an international distribution agreement (“IDA”) with the defendant, IB Maroc. The IDA made reference to affiliates of Dell UK, including the second claimant, Dell Maroc. Dell Maroc was not a party to the IDA and the Contracts (Rights of Third Parties) Act 1999 did not apply. IB Maroc brought a contractual claim against both claimants in the Commercial Court in Casablanca.

Clause 31 of the IDA provided that “any dispute arising out of, or in connection with, the contract should be handled through the English courts”. Clause 27 of the IDA expressly contemplated claims by IB Maroc against an affiliate of Dell UK, requiring that such claims be brought within a one-year limitation period. The question was whether clause 31 extended to claims that IB Maroc wished to bring against affiliate of Dell UK.

Judgment

The Court held that both Dell UK and Dell Maroc were entitled to an anti-suit injunction. Clause 31, on its true construction, was wide enough to refer to disputes between IB Maroc and an affiliate of Dell UK, so long as the dispute arose out of, or in connection with, the IDA. It would be inequitable or oppressive and vexatious for a party to seek to enforce a contractual claim without respecting the jurisdiction clause within that contract. Further, there were no strong reasons not to grant the injunction.

Comment

This case confirms the broad availability of the use of the English anti-suit injunction which, in some cases, will be capable of extending to restrain foreign proceedings against affiliated companies – even where they are not a party to a contract. Although a discretionary remedy, anti-suit injunctions based upon an exclusive jurisdiction clause, can be a powerful weapon.

Post By Laura Swithinbank (2 Posts)

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