Ecobank Transnational Incorporated v Mr Thierry Tanoh
| Jurisdiction | England & Wales |
| Judge | Mr Justice Knowles |
| Judgment Date | 03 July 2015 |
| Neutral Citation | [2015] EWHC 1874 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: 2015494 |
| Date | 03 July 2015 |
[2015] EWHC 1874 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Knowles CBE
Case No: 2015494
Mr Matthew Coleman (of Steptoe & Johnson) for the Claimant
Mr Vernon Flynn QC (instructed by Boies, Schiller & Flexner (UK) LLP) for the Defendant
Hearing date: 8 June 2015
Introduction
This case concerns an anti-enforcement injunction to uphold an arbitration agreement.
Orders in Ivorian Proceedings and Togolese Proceedings
On 15 January 2015 the Abidjan Commercial Court in the Republic of Cote d'Ivoire ordered Ecobank Transnational Incorporated ("Ecobank") and two others to pay 7.5 billion CFA francs in damages to Mr Thierry Tanoh ("Mr Tanoh"). The Abidjan Commercial Court also ordered publication of its decision in the press at the expense of Ecobank and others. These orders were made in proceedings ("the Ivorian Proceedings") commenced by Mr Tanoh against Ecobank and others.
On 3 February 2015 the Labour Tribunal of Lome in the Togolese Republic ordered Ecobank to pay Mr Tanoh US$11,547,572. This order was made in proceedings ("the Togolese Proceedings") commenced by Mr Tanoh against Ecobank.
Ecobank appealed the decision of the Abidjan Commercial Court made in the Ivorian Proceedings. Ecobank applied on 13 February 2015 for a stay of execution pending the appeal, but this was rejected. The Appeal Court in Abidjan dismissed the appeal on 22 May 2015. Ecobank has stated that it intends to appeal further to the Court of the Organisation pour l'Harmonisation en Afrique du Droit des Affaires (OHADA).
Ecobank also commenced an appeal against the decision of the Labour Tribunal of Lome made in the Togolese Proceedings. That appeal has yet to be determined by the Lome Court of Appeal. However, on Ecobank's application, the Lome Court of Appeal on 6 February 2015 granted a provisional stay of execution.
The parties and the Arbitration Agreement
Mr Tanoh is a national of Cote d'Ivoire. He was formerly employed by Ecobank as its Chief Executive Officer and Group Managing Director. Mr Tanoh and Ecobank entered into a written contract described as an Executive Employment Agreement and dated 15 December 2011 ("the EEA").
Clause 26 of the EEA contained an arbitration agreement ("the Arbitration Agreement") in these terms:
" Arbitration
Any and all disputes, controversies or claims arising under or in connection with [the EEA], including without limitation, fraud in inducement of [the EEA], or the general validity or enforceability of [the EEA] shall be submitted to binding arbitration before one arbitrator to be selected by mutual agreement of the parties or failing mutual agreement to be appointed by the President of the International Chambers of Commerce in Paris, France. The arbitration shall be conducted in London, England under the UNCITRAL Rules and the award of the arbitrator is to be final and enforceable in the Courts of England. Irrespective of the outcome of the arbitration, it is hereby agreed that the parties shall each bear their own costs."
Clauses 27 and 28 of the EEA were in these terms:
"27 Compliance with Local Law
The Company warrants that the terms of this Agreement do not breach any law, regulation or regulatory requirement in Togo.
28 Governing Law and Jurisdiction
This Agreement shall be governed by the laws of England and subject to clause 26 above, the parties hereby submit to the exclusive jurisdiction of the English Courts".
Events leading to the orders in the Ivorian Proceedings and the Togolese Proceedings
Ecobank terminated, or purported to terminate, Mr Tanoh's employment from 12 March 2014. Mr Tanoh disputed Ecobank's entitlement to do this. He did not commence an arbitration but instead commenced the Togolese Proceedings before the Labour Tribunal of Lome, on 4 April 2014. In the Togolese Proceedings he contended that the termination of his employment was in breach of the Labour Code in force in Togo and was unfair.
The Ivorian Proceedings were commenced by Mr Tanoh on 12 May 2014. In those he contended that a letter of 1 March 2014, written by a Dr Matjila but on behalf of a company as a director of Ecobank and making allegations about Mr Tanoh's work whilst employed by Ecobank, was defamatory. The letter had been publicised, including through the financial media.
Ecobank contested jurisdiction, unsuccessfully, before the Labour Tribunal seized of the Togolese Proceedings. By letter dated 17 November 2014 Ecobank's Togolose lawyers wrote a letter addressed to the President of the Labour Court of Lome requesting additional time for Ecobank to submit submissions on the merits, although it did not in the event submit those submissions and did not plead to the merits in the Togolese Proceedings. Ecobank did not seek an anti-suit injunction from the Courts of England & Wales based on the Arbitration Agreement.
In the Ivorian Proceedings Ecobank contested jurisdiction, unsuccessfully, before the Abidjan Commercial Court. It did plead to the merits but in circumstances where the Abidjan Commercial Court had ordered that jurisdiction be joined to the merits. On the evidence before me, under the law of the Cote d'Ivoire to plead to the merits in those circumstances is not a waiver of a right to argue that the dispute must be submitted to arbitration. Ecobank did not seek an anti-suit injunction from the Courts of England & Wales based on the Arbitration Agreement.
The Arbitration
In addition to responding to the Ivorian Proceedings and the Togolese Proceedings in the way I have described, Ecobank commenced arbitration ("the Arbitration") against Mr Tanoh under the Arbitration Agreement.
It did not do so until 22 December 2014. In its notice of arbitration (itself disputed) the dispute Ecobank referred to arbitration was the dispute concerning the termination of Mr Tanoh's employment. It did not claim to refer the dispute over its liability in connection with the 1 March 2014 letter. Ecobank does however state in its submissions before me that it is its "intention to claim in the arbitration all losses that it has suffered as a consequence of the Ivorian Proceedings and the Togolese Proceedings". Mr Matthew Coleman, appearing for Ecobank, indicated that it was accepted that to do so would require some amendment. An arbitrator has not yet been appointed in the Arbitration.
The Interim Injunction
On an application on 10 April 2015 Ecobank, relying on the Arbitration Agreement, sought and obtained from the Commercial Court in England & Wales an interim worldwide anti-enforcement injunction ("the Interim Injunction") in respect of the orders in the Ivorian Proceedings and the Togolese Proceedings.
The application on 10 April was made without notice to Mr Tanoh. The Judge granting the Interim Injunction expressly raised, among other things, the question of delay. The Interim Injunction ordered effectively, and with some interim extensions to enable case management, held the ring to the present hearing, at which both parties were represented and at which the matter was argued for the first time by both parties. Ecobank seeks the continuation of the Interim Injunction. Mr Tanoh seeks its discharge.
Initial points
Mr Vernon Flynn QC, appearing for Mr Tanoh, underlined that there are few reported examples of anti-enforcement injunctions being granted.
I do not consider that point should affect the preparedness of a court to grant an anti-enforcement injunction where that appears necessary to hold a party to its contract; to "enforce the negative right not to be vexed by [other] proceedings" as it is analysed in AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogosrsk Hydropower Plant JSC [2013] 1 WLR 1889; [2013] UKSC 35 at [46] per Lord Mance JSC. Bank St Petersburg OJSC and another v Arkhangelsky and another [2014] 1 WLR 4360, [2014] EWCA 593 provides an example, although on perhaps rather unusual facts. A simple example that might be less unusual might be a case where a judgment was obtained too quickly or...
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