On 4 October 2024, the Commercial Court (Henshaw J) handed down judgment in Investcom Global Limited v Plc Investments Limited [2024] EWHC 2505 (Comm) discharging (in part) an anti-suit injunction which had been granted by Foxton J at an ex parte hearing on 18 July 2024 on the grounds that the English Court does not have supervisory jurisdiction in respect of arbitrations which are seated outside of England and Wales.

The anti-suit injunction prevented the defendants from pursuing proceedings in Liberia which Investcom alleged had been brought in breach of an agreement to arbitrate under ICC Rules.  At the time the injunction was originally granted, Foxton J was satisfied to a high degree of probability that the seat of the ICC arbitration would be London.  However, pursuant to Article 18(1) of the ICC Rules, the ICC Court had subsequently determined that the seat of the arbitration was Toronto.

At the return date, Investcom argued that there was a good arguable case that the ICC Court’s determination would be overturned, either by the arbitral tribunal itself or by the English Court under section 67 of the Arbitration Act 1996.  On that basis, Investcom argued that the injunction should be continued, at least until it had had an opportunity to challenge the ICC Court’s determination as to seat.

Despite authorities such as 1Malaysia Development Berhad and Sodzawiczny which emphasise the primacy to be afforded to the Court’s powers under the Arbitration Act 1996, Henshaw J reaffirmed the critical importance of the seat of an arbitration as founding the basis for the Court’s supervisory jurisdiction, with the result that – unless the seat of the arbitration is or will be in England and Wales – the English Court has no supervisory role to play. 

The judgment contains important observations as to the powers of the ICC Court to determine the seat under Article 18 of the ICC Rules and the ability of the arbitral tribunal to change the seat once it has been determined by the ICC Court. 

Article 18 gives the ICC Court the power to designate the seat in the absence of agreement between the parties.  Henshaw J rejected Investcom’s attempt to distinguish between the parties to the arbitration and the parties to the original arbitration agreement and held that the ICC Court has power to designate the seat unless all parties to the arbitration have reached an agreement.  The judge said that he could see no reason to anticipate that the arbitral tribunal would conclude that the ICC Court had erred in designating Toronto as the seat and so was not willing to continue the injunction.

Edward Levey KC and Laurie Brock acted for the defendants (instructed by Segun Osuntokun of BCLP).  A copy of the judgment is available here