ADM ASIA-PACIFIC TRADING PTE LTD V PT BUDI SEMESTA SATRIA

[2016] EWHC 1427 (Comm), Queen's Bench Division, Commercial Court, Mr Justice Phillips, 20 June 2016

Arbitration - Anti-suit injunction - Whether applicant guilty of delay - Discretion of court - Comity

In April 2010 ADM and BSS entered a Stock Financing Agreement (SFA) under which ADM was to supply soybeans to BSS under a series of individual sales contracts. The SFA was governed by the law of Indonesia, and conferred non-exclusive jurisdiction on the District Court of Central Jakarta, Indonesia. The dispute in the present case arose under a contract of sale entered into in April 2012, under which disputes were to be referred to FOSFA arbitration in London. A dispute arose as to the quality of the goods, and BSS refused to pay the full purchase price. In May 2013 BSS commenced proceedings against ADM in the District Court of Central Jakarta, and jurisdiction was claimed under clause 17 of the SFA. Unaware of the action, in June 2013, ADM commenced a FOSFA arbitration under the terms of the contract of sale. A few days later ADM became aware of the Indonesian proceedings, although service was not effected until 26 May 2014. ADM contested the jurisdiction of the Indonesian court and gave notice renewing its arbitration claim. Thereafter, the Indonesian judicial process and the FOSFA arbitration in London continued in parallel. On 2 December 2014 the District Court upheld the jurisdictional challenge. BBS appealed, and its appeal was upheld on 8 July 2015 by the High Court of Indonesia, the dispute being remitted to the District Court. ADM became aware of the outcome of the appeal on 1 September 2015. In the meantime, on 7 May 2015 the FOSFA First-Tier arbitrators ruled that they possessed jurisdiction, that BSS was guilty of the two alleged breaches and that ADM was entitled to damages of US$21,425,291.23 for breach of the contract of sale and US$150,000 for breach of the arbitration agreement. BSS appealed to a FOSFA Board of Appeal and the hearing took place in October 2015. On 11 September 2015 ADM commenced the present action seeking an anti-suit injunction against BSS continuing its participation in the Indonesian proceedings.