Conditions for grant

The appeal to the Court of Appeal in Midgulf International Ltd v Groupe Chimique Tunisien [2010] EWCA Civ 66 from two judgments of Teare J [2009] EWHC 963 (Comm) and [2009] EWHC 1684 (Comm), was concerned with two issues: whether an arbitration clause had been incorporated into the parties’ agreement and, if so, whether an anti-suit injunction should be granted to prevent the respondent from continuing judicial proceedings in Tunisia. The leading judgment was given by Toulson LJ, with Mummery and Patten LJJ expressing their agreement, and the decision confirms that the power of the English courts to grant anti-suit relief is, European cases aside, unaffected.

Midgulf : the facts

In June and July 2008 Midgulf International Ltd (‘Midgulf’), a sulphur trader, sold a large quantity of sulphur to Groupe Chimique Tunisien (‘GCT’). The June contract was formed following an offer by Midgulf to GCT. This contained an English law arbitration clause, specifying arbitration in London, and also stated ‘All other terms and conditions as per Midgulf Saudia Arabia standard sales contract.’ GCT objected to these latter terms, and they were removed, but it was common ground that the June contract contained a London arbitration clause. The formation of the July contract was more complex. Midgulf sent an offer to GCT on 2 July, providing that terms and conditions pertaining to certain matters, including arbitration, were as per the June contract. On 4 July there was a telephone conversation, followed on 8 July by an email from Midgulf to GCT requesting written confirmation of the agreement. On the same day GCT sent a fax which stated: ‘we are pleased to confirm the purchase ... We congratulate ourselves for this conclusion and look forward to its smooth execution.’ Midgulf replied by stating that ‘we are in contract ...’. On 14 July GCT sent a fax to Midgulf proposing various amendments, including: ‘We suggest that the settlement of disputes to be submitted either to the Tunisian jurisdiction or to the arbitration of the International Chamber of Commerce with the application of a neutral law by both parties.’