In Midgulf International Ltd v Group Chimiche Tunisien [2009] EWHC 963 (Comm) the Claimant applied for the appointment of an arbitrator pursuant to s18 of the Arbitration Act 1996.

The Claimant company entered into two contracts to sell sulphur to the Defendant company which was owned by the state of Tunisia. The Defendant complained about the quality of the sulphur supplied under both contracts. The parties agreed that the dispute in relation to the first contract would be arbitrated in London. The Defendant sought to resolve the dispute arising out of the second contract in the Tunisian courts. The Claimant, however, wished the dispute arising out of the second contract to be resolved in London and made this application. The Claimant also applied for an order to continue an anti-suit injunction restraining proceedings in Tunisia. The Defendant opposed the applications and issued its own applications seeking orders that the court had no jurisdiction to grant the orders sought.

The terms of the second contract were disputed by the parties. In order to establish the terms of that contract, the court had to rely on written correspondence and findings in relation to a conversation that had taken place between the parties, the contents of which could not agreed upon.

Teare J held that this was an appropriate case in which to grant an anti-suit injunction. He noted that the effect of the injunction would be to bring the Tunisian proceedings to an end and he ruled that in those circumstances, the test should be whether there was a high degree of probability that the case against the respondent was right and that the appellant was entitled to have the proceedings abroad restrained as of right. It could not be established on the basis of the documentary evidence before the court that there was a high probability that an arbitration clause had been agreed. The court ordered that a speedy trial was needed to rule on the terms of the second contract. The Claimant had not submitted to the jurisdiction of the Tunisian courts. The modest length of the delay in seeking an injunction and the Claimant’s behaviour did not make the grant of an anti-suit injunction inappropriate for reason of delay.