In Louis Dreyfus Commodities Kenya Ltd v Bolster Shipping Company Ltd [2010] EWHC 1732 (Comm), the claimant shippers applied for a final anti-suit injunction to restrain the defendant shipowners from taking any steps to join them as a party to court proceedings in Mexico (Mexican Proceedings). The claimant submitted that joining them would amount to a breach of an arbitration clause contained in a bill of lading to which both the claimant and defendant were parties.

The underlying dispute related to damaged cargo shipped by the claimant on the defendant's vessel, and subsequently sold to a third party, S. S commenced the Mexican Proceedings against various parties, including the defendant shipowners. The defendant applied to the Mexican court challenging its jurisdiction but, in accordance with Mexican procedure, it also had to set out its defence on the merits. While it contended that it was not asserting that the claimant was liable to S, it referred to pre-shipment damage allegedly caused while the cargo was stored by the claimant, and it sought to join the claimant to the proceedings.

There was disagreement between the parties as to the nature of the request for joinder by the defendant. The defendant submitted that it was seeking resolution "causing involvement" of the claimant, but that it was not looking to hold it liable for the amounts claimed by S. The claimant argued that the defendant was asking the Mexican court to render a judgment against it, or at least that any judgment should bind it.

The court dismissed the application. It held that the defendant's purpose in seeking to involve the claimant in the Mexican Proceedings was to ensure that all the relevant information and documentation was before the Mexican court. That would enable it to argue its case as to the condition of the cargo on shipment. Even if the defendant's conduct could be characterised as inviting S to bring a claim against the claimant in the Mexican Proceedings (which the defendant denied), such conduct did not amount to a breach of the arbitration clause. A party to an arbitration clause does not undertake to his contractual partner that, if sued by a third party, he will not suggest that the third party look for recompense from his contractual partner. Here, the defendant was not asking the Mexican court to resolve any dispute it had with the claimant, nor making a claim against the claimant in the Mexican Proceedings.

The case demonstrates that the English court will examine the nature and purpose of foreign court proceedings carefully before concluding that they necessarily amount to a breach of an arbitration clause. Similar cases often relate to court applications for security (such as vessel arrests), but this case demonstrates the court's approach where the joinder application relates to court proceedings to secure evidence.