In the case CFG CAPITAL PARTNERS LTD –V- VANISTELROY HOLDINGS LTD & OTHERS, the District Court of Nicosia cancelled interim injunctions issued pursuant to Section 9 of the Law 101/87 in aid and/or in support of an arbitral claim which the Applicant intended to file before the Swedish Court of International Arbitration (“SCIA”) on inter alia the ground that the Applicant failed to file such arbitral claim within reasonable time from date of obtaining the Cypriot interim relief. The Applicant filed its arbitral claim before SCIA after 5½ months from obtaining the Cypriot interim relief, and Cypriot Court considered such time as not being reasonable.
The Cypriot Court adopted the following dicta from the Indian Case FIRM ASHOK TRADERS AND ANOTHER –V- GURUMUKH DAS SALUJA & OTHERS AIR 2009 SC 1433:
“17. (.) The word “before” means, inter alia, “ahead of in presence or sight of, under the consideration or cognizance of the two events sought to be interconnected by use of the term “before” must have proximity of relationship by reference to occurrence; the latter even proximately following the proceeding event as a foreseeable or “within sought” certainty. The party invoking Section 9 may not have actually commenced the arbitral proceedings, but must be able to satisfy the Court that the arbitral proceedings are actually contemplated or manifestly intended and are positively going to commence within a reasonable time. The distance of time must not be such as would destroy the proximity of relationship of the two events between which it exists and elapses.
18. (.) The party having succeeded in securing an interim measure of protection before arbitral proceedings cannot afford to sit and sleep over the relief, conveniently forgetting the “proximately contemplated” or “manifestly Intended” arbitral proceedings itself, If arbitral proceedings would stand snapped and the relief allowed to the party shall cease to be an order made “before”, i.e. in contemplation of arbitral proceedings.”
The Cypriot Court ruled that the 5½ months which had passed from the issue of the Cypriot interim relief until the filing by Applicant of its arbitral claim before SCIA, was not “reasonable time” and furthermore rendered the Cypriot interim relief proceedings, as an abuse of Court process by Applicant.
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