English High Court grants an anti-suit injunction and confirms that the choice of arbitral seat is "analogous to an exclusive jurisdiction clause"

In Atlas Power v National Transmission and Despatch Company Ltd [2018] EWHC 1052 the English High Court granted a final anti-suit injunction to permanently restrain a national grid company owned by the Government of Pakistan ("NTDC") from challenging an LCIA Partial Final Award in Pakistan (or anywhere other than England and Wales).

The injunction was granted on the "entirely straightforward" basis that the seat of the arbitration was London.  Phillips J rejected NTDC's arguments that the courts of Pakistan had concurrent jurisdiction or that the seat of the arbitration was Lahore, Pakistan, and confirmed that an agreement on the seat of the arbitration is also an agreement on the forum for any challenges to an award. 

Background

The underlying dispute concerned sums owed by NTDC to nine independent power producers registered in Pakistan ("Claimants") who supplied energy exclusively to NTDC under individual Power Purchasing Agreements ("PPAs").

The PPAs all contained a similar dispute resolution clause ("DR Clause").  The DR Clause contained carve outs for "mutual discussions" and expert determination, with all remaining disputes (including those left unresolved by other methods) to be "settled by arbitration in accordance with the London Court of International Arbitration".

The DR Clause further stated that "the arbitration shall be conducted in Lahore, Pakistan" provided that if (among others) the amount in dispute exceeded $4 million "either Party may […], require that the arbitration be conducted in London […]."

Expert determination process

Initially the dispute was referred to expert determination.  The expert found that NTDC had unlawfully withheld various sums owed to the Claimants under the PPAs ("Determination").

The Claimants sought payment of the sums specified in the Determination.  However, the Government of Pakistan sought a declaration from the courts of Pakistan that the Determination was null, void and illegal, and obtained an injunction preventing the Claimants and NTDC from acting upon the Determination until further order.

Arbitration proceedings

Each of the Claimants had commenced separate LCIA arbitration proceedings and stayed them pending the outcome of the expert determination process.

Following the injunction, in November 2015, the Claimants wrote to the LCIA asking for: (i) the arbitrations to be resumed on the basis that the Determination was final and binding; and (ii) declaratory relief as to the validity of the Determination and payment of the specified sums.

Seat of the arbitration

Relying on the provisions of the DR Clause and the value of the claim, the Claimants designated London as the seat of the arbitration.

NTDC argued in its Responses to the arbitrations that the DR Clause only entitled the Claimants to select the venue of the arbitrations and not the seat.  NTDC maintained that the seat of the arbitrations was Lahore, Pakistan.

On 31 December 2015 the Claimants wrote again to the LCIA asserting that, if NTDC's interpretation was correct: (1) the parties had not agreed on a seat at all; and (2) the seat accordingly fell to be determined under article 16(1) of the LCIA Rules 1998, which provides that in the absence of any agreement between the parties: "the seat of the arbitration shall be London unless and until the LCIA court determines […] that another seat is more appropriate".

The LCIA Court determined that the seat of the arbitrations was London.

Partial Final Award

NTDC unsuccessfully applied to stay the arbitrations.  The Government of Pakistan sought further injunctive relief against the arbitrations from the courts of Pakistan.

The sole arbitrator ruled that the (by now consolidated) arbitration could proceed nonetheless.  However various preliminary issues were determined on the basis of written submissions as NTDC considered itself unable to participate in a hearing due to interim orders granted in Pakistan.

On 8 June 2017 the arbitrator issued a Partial Final Award finding that:

• the Claimants had validly exercised a conditional option under the PPAs to vary the seat of the arbitration, but, in any event, the LCIA had determined the seat in a manner that was final and binding;
• the Determination was final and binding on the parties; and
• NTDC should pay interim security for the Claimants' claims.

In July 2017 NTDC sought an order from the courts of Pakistan setting aside the Partial Final Award.  In August 2017 the Claimants filed an application in the English High Court for an anti-suit injunction.

Decision

NTDC argued that under the law of Pakistan, the parties could not exclude the supervisory jurisdiction of the courts of Pakistan from a contract concluded between Pakistani parties and governed by Pakistani law. Therefore, on NTDC's case, the choice of a London seat could not give rise to a "presumed intention" that the English courts had exclusive supervisory jurisdiction.  NTDC maintained that the courts of Pakistan must have at least concurrent jurisdiction over the dispute and that an anti-suit injunction was inappropriate.

In the alternative, NTDC argued that if there could only be one supervisory jurisdiction, (i.e. the jurisdiction of the courts of the seat of the arbitration) then the choice of a London seat must be invalid as it was contrary to the law of Pakistan.

However, the Claimants successfully argued that the seat of the arbitration was London (as determined by the LCIA Court and the arbitrator) and relied on the Court of Appeal decision in C v D [2008] 1 Lloyd's Rep 239, to assert that the English courts did have exclusive supervisory jurisdiction over the arbitration.

Phillips J held (applying C v D) that the choice of the seat determined the "curial law" of the arbitration (i.e. the law governing the arbitration proceedings), which would include any challenge to an award.  In particular, Phillips J referred to paragraph 42 of the first instance judgment of Cooke J in C v D [2007] EWHC 1541 (Comm) (approved by the Court of Appeal):

"it does not matter whether English law is or is not the governing law of the agreement to arbitrate.  It is the curial law which governs the question of the validity of the award and challenges to it".

NTDC's attempts to distinguish C v D on the basis that the PPAs were governed by the law of Pakistan were therefore rejected.

Phillips J further confirmed that the English courts regard the choice of arbitral seat as "analogous to an exclusive jurisdiction clause" in favour of the courts of the seat, and rejected the "highly unsatisfactory" alternative where more than one jurisdiction could hear challenges to an award.

NTDC's alternative argument that the seat was in Pakistan also failed, as it had not made a timely challenge to the LCIA's determination that the seat was in London.  Phillips J rejected NTDC's argument that it could not have brought a challenge within the jurisdiction without implicitly accepting that the seat of the Arbitration was in England, holding that an application to challenge jurisdiction or the seat of an arbitration "plainly" does not amount to an acceptance of that jurisdiction or seat.  NTDC was therefore bound by the decision of the LCIA Court.

Accordingly, Phillips J held that the English courts represented the only venue in which the Award could be challenged and granted the anti-suit injunction.

Comment

This is the latest decision in a line of case law confirming that the English courts will treat a choice of seat as akin to an exclusive jurisdiction clause in favour of the courts of the seat.  Atlas Power acts as a welcome reminder of the robust position that the English courts will take towards their supervisory powers under the Arbitration Act 1996, and the consistency of English case law in this area.

The case also highlights the importance of: (i) clearly defining the seat of the arbitration in the arbitration agreement; and (ii) clear drafting, particularly where the parties seek to customise an arbitration clause – in this case the bilateral option to vary the seat of the arbitration.  The concurrent proceedings in England and Pakistan demonstrate the additional delay and costs that can be incurred by parties though satellite litigation over the terms of the arbitration agreement.

The case also acts as a reminder for parties to bring a timely application if challenging an arbitral seat.  NTDC faced difficulties with its alternative argument that the arbitration was seated in Pakistan as it had not challenged the LCIA's determination at the time, and there was no pending challenge to the Partial Final Award on the basis that the seat was not London.

For further information, please contact Chris Parker, Partner, Emily Blanshard, Senior Associate, or your usual Herbert Smith Freehills contact.