Ecobank v Tanoh – applications to restrain proceedings brought in breach of a jurisdiction or arbitration agreement must be brought promptly
In Ecobank v Tanoh, the English Commercial Court confirmed that it has the power to grant anti-enforcement injunctions, but refused the claimant's application due to unnecessary delay.
Mr Tanoh was an employee at Ecobank. The terms of his employment contract specified that disputes should be referred to arbitration in London under the UNCITRAL rules. When a dispute arose over his termination, Mr Tanoh commenced litigation in the Republic of Cote D'Ivoire and also in the Togolese Republic. Ecobank contested jurisdiction in those proceedings but was unsuccessful, it then commenced its own arbitration proceedings but did not seek an anti-suit injunction from the English courts. Mr Tanoh was successful in both sets of proceedings and was awarded approximately US$24 million. When Mr Tanoh sought to enforce the foreign judgments, Ecobank applied to the English court for an anti-enforcement injunction.
The court rejected Ecobank's application on the grounds that there had been a delay in seeking the injunction. Ecobank argued that the period during which it had challenged the foreign courts' jurisdiction, and the period pending a decision by those courts on jurisdiction, should not be considered when determining if there had been a delay. The court disagreed and said the longer a foreign court had spent considering a dispute, the harder it would be for the English courts to intervene. In particular, the court said that once a foreign court had given judgment, it would be a very serious matter for the English court to then injunct enforcement of that judgment.
Anti-enforcement injunctions are uncommon in England. Although the court did not uphold Ecobank's application in this instance, the case confirms that the English courts are willing to grant anti-enforcement injunctions in the right circumstances. Despite the suggestion that, post-judgment, it would be very serious for the English court to grant such an injunction, the Judge did note that there may be extenuating circumstances, for example where a judgment had been obtained secretly or very quickly. In all other cases, however, claimants should be aware of the need to bring an application promptly.
Ecobank Transnational Inc v Tanoh  EWHC 1874 (Comm)