This case concerned disputes arising out of a sale and purchase agreement and a put and call option agreement entered into by the parties. The claimant, Nomihold Securities (Nomihold), sought an injunction to prevent the defendant, Mobile Telesystems Finance SA (MTSF), from bringing new arbitral proceedings, on the basis that the new proceedings concerned matters which had already been determined by a previous tribunal. In response, MTSF sought a stay of the court proceedings. For more detail on the case, see Legal update, Concurrent jurisdiction to consider issue estoppel (Commercial Court).

The court confirmed that it had the power to grant an anti-arbitration injunction pursuant to its powers under section 37 of the Senior Courts Act 1981 if it thought it just and convenient to do so, despite the existence of a valid arbitration clause. Ultimately, however, it declined to exercise its discretion to grant an injunction, on the basis that the:

Further, the court refused to grant the stay sought by the defendant. It held that the fact that a tribunal had concurrent jurisdiction would not be enough to establish that the claimant had breached the arbitration agreement by bringing court proceedings. Nor did it oblige the court to grant the stay sought by the defendant. This was because the issues raised were not matters "to be referred to arbitration", as they also fell to be decided by the court by virtue of its supervisory jurisdiction.

Smith J's refusal to grant the injunction is indicative of the English court's reluctance to interfere with matters which fall within the jurisdiction of arbitral tribunals even if the court has an overlapping jurisdiction. Indeed, it was noted that the court should proceed with caution in this regard, limiting its intervention to unusual circumstances.

On the facts, the court was evidently persuaded by the fact that the arbitral tribunals would have adequate powers to determine the relevant issues themselves. Therefore, the intervention of the English court was not strictly necessary. Further, MTSF's undertaking not to pursue the allegations which went directly to enforcement of the existing arbitral award also satisfied the court that the previous award could be effectively enforced without the need to intervene.

Finally, the judgment includes an interesting exposition of the principle in Henderson v Henderson and its application in the context of arbitration proceedings. This principle, which is that a party will not be permitted to raise an issue that he could and should have raised in an earlier reference, but did not due to negligence, inadvertence or accident, was held to apply more narrowly where the previous issue was determined in arbitration. In particular, Smith J addressed the question of whether it would be an abuse of process for a party to bring further proceedings regarding a complaint which it has failed to raise in previous arbitral proceedings given that arbitration is a consensual process.

This case highlights the fact that the English court will be disinclined to rely on its discretionary supervisory jurisdiction to intervene in proceedings where an applicant can seek the same recourse from an arbitral tribunal. However, it remains to be seen whether the court would have exercised this discretion differently had the matter been urgent or presented a bar or delay to the enforcement of an award.

Case: Nomihold Securities Inc v Mobile Telesystems Finance SA [2012] EWHC 130 (Comm)