Deutsche Bank Ag v Tongkah Harbour Public Company Ltd [2011] EWHC 2251 (Comm) (24 August 2011)

Deutsche Bank Ag v Tongkah Harbour Public Company Ltd [2011] EWHC 2251 (Comm) (24 August 2011)

The claims under the Facility Agreement and Export Contract are aspects of the same matter, both arising from the same breach and contractual arrangements; once Deutsche Bank referred the dispute to arbitration, the statutory stay under s.9 Arbitration Act 1996 applies to the court proceedings against Tungkum. The Guarantee claim against Tongkah is not subject to arbitration and may proceed in court, as the Guarantee contains no arbitration agreement and the parties' bargain must be respected.

Citation
[2011] EWHC 2251 (Comm)
Parties
Claimant (respondent): Deutsche Bank AG; Defendant (applicant): Tongkah Harbour Public Company Limited; Defendant (applicant): Tungkum Limited
Jurisdiction
England and Wales
Judgment Date
24 August 2011
Procedural Posture
Commercial Court Proceedings and Application for Stay Under S.9 Arbitration Act 1996 / Application for Stay of Proceedings Pending Arbitration
Outcome
Application for stay granted in part
Legal Topics
Stay of Proceedings, Arbitration Agreements, Jurisdiction Clauses, Guarantees, Contractual Interpretation
Arbitration Banking and Finance Contract Stay of Proceedings Arbitration Agreements Jurisdiction Clauses Guarantees Contractual Interpretation

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Parties

Deutsche Bank AG

Claimant (respondent)

Tongkah Harbour Public Company Limited

Defendant (applicant)

Tungkum Limited

Defendant (applicant)

Procedural Posture

Commercial Court Proceedings and Application for Stay Under S.9 Arbitration Act 1996 / Application for Stay of Proceedings Pending Arbitration

Legal Issues

  1. 1 Whether proceedings under the Facility Agreement should be stayed under s.9 Arbitration Act 1996 due to parallel LCIA arbitration
  2. 2 Whether the claim under the Guarantee should also be stayed pending arbitration

Ratio Decidendi

The claims under the Facility Agreement and Export Contract are aspects of the same matter, both arising from the same breach and contractual arrangements; once Deutsche Bank referred the dispute to arbitration, the statutory stay under s.9 Arbitration Act 1996 applies to the court proceedings against Tungkum. The Guarantee claim against Tongkah is not subject to arbitration and may proceed in court, as the Guarantee contains no arbitration agreement and the parties' bargain must be respected.

Court Disposition

Application for stay granted in part

Orders

  • Proceedings against Tungkum Limited (2011 Folio 190) stayed under s.9 Arbitration Act 1996
  • Proceedings against Tongkah Harbour Public Company Limited (2011 Folio 189) not stayed and may proceed in court