Lloyd's Maritime and Commercial Law Quarterly
ARBITRATION LAW
Christopher Newman*
CASES
37. ADM Asia-Pacific Trading PTE Ltd v PT Budi Semesta Satria 1
Arbitration clauses—anti-suit injunctions—delay—promptness
The parties entered a Stock Financing Agreement (“SFA”), contemplating the supply by the claimant of soybeans to the defendant pursuant to individual sales contracts. The SFA contained an Indonesian jurisdiction clause; however, the individual sales contracts, which incorporated FOSFA 24, were subject to English law and contained a London arbitration clause. A dispute as to quality arose and the defendant did not pay part of the purchase price under a particular sales contract. On 22 May 2013, the defendant commenced proceedings in the Indonesian courts. On 19 June 2013, the claimant commenced a FOSFA arbitration. The two sets of proceedings then continued in parallel for a substantial period of time. On 11 September 2015, the claimant commenced proceedings before the English High Court, seeking a final anti-suit injunction to restrain the defendant from continuing with the proceedings in Indonesia on the grounds that those proceedings were in breach of the FOSFA arbitration agreement.
Decision: Application dismissed.
Held: (1) Applications for anti-suit injunctions had to be brought promptly once the applicant knew of the breach of the arbitration agreement. It was incumbent on the applicant to seek an anti-suit injunction before the foreign proceedings were too far advanced. This was so even where there had been no detrimental reliance on the delay. (2) In the present case it was clear that the claimant had not applied for an anti-suit injunction either promptly or before the Indonesian proceedings were too far advanced. It appeared that the claimant had been content to participate in the Indonesian proceedings until the Indonesian court made a decision contrary to its interests. Only then had it belatedly sought the intervention of the English court. (3) The Indonesian courts had been seised of the matter to an extent which would make it inappropriate for the English court to intervene.
Comment: This case acts as a useful reminder of the need to act swiftly when seeking an anti-suit injunction to restrain proceedings brought in breach of an arbitration agreement.
Arbitration Law
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