English Court Grants Anti-Suit Injunction Confirming Choice Of Seat Is Analogous To Exclusive Jurisdiction Clause”

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

Herbert Smith Freehills reviews the English High Court’s decision in Atlas Power v National Transmission and Despatch Company Ltd [2018] EWHC 1052, where the Court granted a final anti-suit injunction to permanently restrain a national grid company owned by the Government of Pakistan from challenging an LCIA Partial Final Award in Pakistan (or anywhere other than England and Wales). The authors observe that 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 and 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 authors further comment that 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.

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About Phillip Rompotis

Phillip practices as a barrister and arbitrator in Hong Kong. He has over 25 years’ litigation and arbitration experience in commercial disputes relating to construction & engineering, financial services, joint venture & shareholders agreements, technology, trusts, property and landlord & tenant. He is a Fellow of the Chartered Institute of Arbitrators, the Singapore Institute of Arbitrators, the Malaysian Institute of Arbitrators, and a member of various lists/panels of arbitrators.

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