OPINION AND ORDER Petitioners and Respondent Accendo Banco, S.A. (“Accendo”) are engaged in arbitration before the International Chamber of Commerce (“ICC”) regarding their dueling claims that the other breached a contract (the “Purchase Agreement”) to sell Petitioners’ subsidiaries in Mexico to Accendo. Prior to the onset of this ICC arbitration, Petitioners terminated the Purchase Agreement, claiming that Accendo had materially breached its terms, and entered into discussions with third parties to sell the Mexican subsidiaries. Meanwhile, Accendo obtained an ex parte injunction from a Mexican court (the “Mexico Injunction”), enjoining Petitioners from selling the Mexican subsidiaries to any party other than Accendo. Petitioners, in response, on September 18, 2019, filed for injunctive relief in this Court, alleging that Accendo had covenanted in the Purchase Agreement not to seek pre-arbitral relief from any court outside the Southern District of New York or a New York state court of competent jurisdiction. On September 26, Accendo, in turn, applied to the ICC for an emergency arbitrator to grant substantially the same injunctive relief as that which Accendo obtained in the Mexico Injunction. On October 14, the arbitrator denied the application. I grant Petitioners’ motion for injunctive relief for the reasons set forth below. Background A. Relevant sections of the Purchase Agreement The parties entered into the Purchase Agreement that underlies the present dispute in October 2016. See Purchase Agmt., ECF No. 1-1. Under the Purchase Agreement, Petitioners agreed to sell to Accendo, a Mexican bank, two of Petitioners’ Mexican subsidiaries-one a bank (Deutsche Bank Mexico, S.A., Institutcion de Banca Multiple); the other, a broker-dealer (Deutsche Securities, S.A. de C.V., Casa de Bolsa); both owned by Petitioners’ parent, Deutsche Bank AG. See Purchase Agmt., ECF No. 1-1, at A-1. At the time the parties entered into the Purchase Agreement, and ever since, Petitioners have been under pressure from Mexican regulatory authorities to sell their Mexican assets. See Petition, ECF No. 1, at 47. In the Purchase Agreement, the parties agreed to submit all disputes relating to the Purchase Agreement to ICC arbitration in New York: [A]ny dispute, claim or controversy resulting from, relating to or arising out of this Agreement, including the breach, termination enforcement, interpretation, or validity thereof, shall be submitted to final and binding arbitration administered by the [ICC]…. The seat of arbitration shall be New York City, New York. Purchase Agmt., ECF No. 1-1, at §10.4. This same section included a forum selection clause, in which the parties agreed that any and all injunctive relief sought in aid of arbitration would be submitted to the exclusive jurisdiction of the Southern District of New York, or the state courts in New York County: By agreeing to arbitration, the Parties do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment or other temporary or interim order in aid of arbitration proceedings. In any such action, each of the parties hereto irrevocably and unconditionally…submits to the exclusive jurisdiction and venue of the United States District Court for the Southern District of New York…. or, if such court does not have jurisdiction, the Supreme Court of the State of New York or any court of competent civil jurisdiction sitting in New York County, New York. Id. B. The parties’ conduct under the Purchase Agreement Closing under the Purchase Agreement was subject to numerous conditions. As relevant for present purposes, Accendo covenanted that it would have sufficient funds by the time the transaction closed: Buyer…agrees that its obligations hereunder are not subject to any conditions regarding such Buyer’s or any other Person’s ability to obtain financing for the consummation of the transactions contemplated by this Agreement and the failure of Buyer to obtain financing for the consummation of the transactions contemplated by this Agreement is a risk of Buyer and not a risk of Sellers…. Buyer does not have reason to believe that there shall not be sufficient funding, financing and/or cash-in-hand available to Buyer to enable Buyer to consummate the transactions contemplated by this Agreement… Purchase Agmt., ECF No. 1-1, at §5.8. This covenant was designated a “Fundamental Representation” in the Purchase Agreement. Id. at §1.1(eeee). Failure by Accendo to satisfy this or other “Fundamental Representations” by the closing date, gave Petitioners the right to terminate the contract: The obligations of Sellers to effect the Closing shall be subject to the following conditions… The Buyer’s Fundamental Representations shall be true and correct in all respects as of the Closing Date as though made on and as of the Closing Date. Id. at §7.3(a). The Purchase Agreement further provided that if the closing did not occur by an “outside date” of October 31, 2017, Petitioners had the right to terminate the contract: The Agreement may be terminated…by Sellers if the Closing shall not have occurred on or before October 31, 0217 (the “Outside Date”). Id. at §8.1(b). After two amendments, the outside date was adjourned to June 30, 2018. See First Amendment to the Purchase Agmt., Oct. 20, 2017, ECF No. 1-2; Second Amendment to the Purchase Agmt, Mar. 8, 2018, ECF No. 1-3. The closing did not occur by June 30, 2018. Over the summer of 2018, each side contended the other was in breach of the Purchase Agreement. See Petition, ECF No. 1, at 35. Petitioners, in communicating their view that Accendo had breached, expressed repeated concern that Accendo did not possess the funds necessary to close the deal. See id.; see also Letter from Petitioners to Accendo, Feb. 13, 2018, ECF No. 13-4. On October 26, 2018, Petitioners terminated the Purchase Agreement pursuant to sections 7.3 and 8.1 thereof (excerpted above), due to the failure to achieve a closing by the then-outside date. See id. at 38. C. The Mexico Injunction Meanwhile, on April 2, 2018, Accendo obtained an injunction, ex parte from a Mexican court, which, after a later ex parte amendment thereto, enjoined Petitioner, an affiliate of Petitioner, and two Mexican regulatory entities, from selling, taking any action in furtherance of selling, or authorizing the sale of, the Mexican subsidiaries, to any party other than Accendo: As a provisional precautionary measure it is ordered the suspension of any ongoing procedure with any person relating to the potential sale of shares and/or assets, including but not limited to, the suspension of negotiations, due diligence, execution of memoranda of understanding, letters of intent and/or any other act leading to the sale of shares and/or assets of [the Mexican subsidiaries]…to any person other than [Accendo]. As a provisional precautionary measure it is ordered the suspension of any ongoing proceeding for authorization before the [Mexican regulatory entities] for the sale and/or transfer of shares and/or assets of [the Mexican subsidiaries]…to any person other than [Accendo]. Mexico Injunction, ECF 1-4, at 5-6. On September 9, 2019, a copy of the Mexico Injunction was, for the first time, served on Petitioners. Petition, ECF No. 1, at 44. Service of the Mexico Injunction brought to a halt Petitioners’ ongoing negotiations with several would-be purchasers of the Mexican subsidiaries. Id. at 51. D. Arbitration On September 4, 2019, days before Petitioners first became aware of the Mexico Injunction, Accendo filed a request for ICC arbitration, seeking adjudication of their claim that Petitioner had breached the Purchase Agreement by refusing to consummate the deal. See Request for Arbitration, Sept. 4, 2019, ECF No. 31-1. On September 18, 2019, Petitioners filed a petition to this Court, asking that Accendo be required to withdraw and/or cease enforcement of the Mexico Injunction because the Purchase Agreement requires pre-arbitral injunctions to be pursued only in the Southern District of New York or New York state courts. See Petition, ECF No 1. On September 26, 2019, after the present proceedings were underway, Accendo filed an application with the ICC, in which Accendo asked for an emergency arbitrator to be appointed to enjoin the sale of Petitioners’ Mexican subsidiaries to a third-party. See Application for Emergency Measures, September 26, 2019, ECF No. 31-2, at 92. On October 14, 2019, the emergency arbitrator issued a written decision denying Accendo’s request for injunctive relief. Decision, Oct. 14, 2019, ECF No. 32-2. The emergency arbitrator found that Accendo had kept the Mexico Injunction hidden from Petitioners until September 2019, that Accendo lacked any “legitimate reason for this delay,” and thus any “urgency” attendant to the purported need for injunctive relief was of Accendo’s “own making.” Id. at
