This decision marks another chapter in the dispute between TRG (a broker), and ATEL (an insurer). The two parties had agreed a non-exclusive Terms of Business Agreement (ToBA), dealing with premiums and commission, and a framework agreement dealing with their exclusive relationship for placement of medical malpractice insurance by TRG in Italy. The dispute arose when TRG retained premium (on the basis commission was owed to TRG) that led to a decision by the Court of Appeal, upholding an earlier decision by the Commercial Court in ATEL’s favour, that the ToBA, and its English jurisdiction provision, covered the dispute over premium. We reported on the Court of Appeal decision in May2.
However, despite ATEL’s initial success ensuring English jurisdiction applies to that dispute under the ToBA, the conflict continues. TRG continued their arbitration proceedings in Italy (in accordance with the jurisdiction clause in the framework agreement). ATEL applied for an “anti-arbitration” injunction in the Commercial Court, to prevent the arbitration in Italy from proceeding, arguing that:
- It had already been decided in the English Courts that the parties had agreed in the ToBA that English courts had exclusive jurisdiction.
- TRG was advancing arguments already rejected in the Court of Appeal.
- TRG’s conduct was vexatious (as TRG had not paid a costs order by the Court of Appeal).
In reply, TRG’s main arguments concerned ATEL’s delay in seeking relief, and ATEL’s counterclaim in the arbitration.
The Judge commented that although it was not disputed that the English Court had personal jurisdiction over TRG, and jurisdiction under section 37 of the Senior Courts Act 1981 to grant an injunction restraining the arbitration proceedings (notwithstanding that it has a seat in a different jurisdiction), the ultimate question before the court was whether it was “just and convenient” to grant an injunction. It was not usually the case that an injunction would be allowed, and it was particularly important that any such decision would be exercised with great caution, when it was not disputed that the parties had agreed to arbitrate in a foreign seat (as they had in the framework agreement): this was not a case where TRG had pursued arbitration without an arbitration agreement being in place.
The injunction was denied. In response to ATEL’s arguments, The Judge concluded that just because jurisdiction for claims under the ToBA had been decided by the English Courts, it did not necessarily follow that this applied to TRG’s claims in the arbitration under the framework agreement. The English courts had no supervisory jurisdiction to dismiss unarguable claims in any arbitration, nor could they determine the jurisdiction of the arbitration which was, according to the Italian Code of Civil Procedure to be decided by the tribunal (or by application to the Milan Court of Appeal). Neither did the Judge agree that TRG’s arguments regarding the applicable agreement for the premium dispute had already been rejected in earlier English court decisions. The previous decisions did not examine whether the arbitration provision in the framework agreement covered the disputes in arbitration; they were only concerned with whether ATEL had made a case for interlocutory purposes and there were no findings on the balance of probabilities.
This decision demonstrates the principles relevant to an application for “anti-arbitration” injunction, and the extreme caution that will be exercised when deciding whether it is “just and convenient” to grant it.
The judgment can be found here: http://www.bailii.org/ew/cases/EWHC/Comm/2015/1927.html.