In a claim between reinsurers and a South African banking group, the English High Court, in an application that was not opposed by the South African party, granted an anti-suit injunction preventing the proceedings taking place in South Africa for various reasons including that the English law exclusive jurisdiction clause was binding.
English legislation allows a court to grant an anti-suit injunction restraining foreign proceedings issued in breach of an exclusive jurisdiction agreement. If there is a binding exclusive jurisdiction agreement, the defendant can escape the injunction if it can show strong reasons why the injunction should not be granted.
Each of the reinsurance contracts relevant to the dispute were expressed to be governed by English law but not all of them referred to exclusive jurisdiction. The reinsurance policies provided that the dispute would be “subject to England Wales Law” or “subject to England and Wales” or “referred to the jurisdiction of the courts of England and Wales”. Each of them had a clause to the effect that the parties agreed to submit “to a worldwide jurisdiction and to comply with all requirements necessary to give such court jurisdiction”. This was held to mean that worldwide the courts should apply English law and jurisdiction. The court, following English authority, said that the fact that English law had been chosen was a strong indication that the parties intended the express choice of English jurisdiction to be exclusive. There are also EU regulations to the effect that jurisdiction granted is exclusive unless the parties agree otherwise.
The court went on to hold that England was clearly the proper forum including the fact that in South African law the judgment would carry interest at the rate of 7% whereas interest in England is less than 1%. The court was also, extraordinarily, told that it could take up to 12 months to serve process in South Africa. In addition the court said the South African proceedings would be vexatious, oppressive and/or unconscionable if it allowed concurrent proceedings in two different jurisdictions.
In case after case the English courts fiercely defend their own jurisdiction as the appropriate jurisdiction for international disputes. If you agree to English law and English jurisdiction in a contract know what the consequences are.
[AXIS Corporate Capital UK II Limited v Absa Group Limited  EWHC 225 (Comm)]