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England and Wales High Court (Commercial Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> A v B [2020] EWHC 3657 (Comm) (02 December 2020) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2020/3657.html Cite as: [2020] EWHC 3657 (Comm) |
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BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
COMMERCIAL COURT (QBD)
Fetter Lane London, EC4A 1NL |
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B e f o r e :
____________________
A |
Claimant |
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- and – |
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B |
Defendant |
____________________
THE DEFENDANT was not present and was not represented.
____________________
Crown Copyright ©
MR JUSTICE CALVER:
"The Contract to (inaudible) in accordance with English law, arbitration and general average to be settled in London as per LMMA Rules."
There is then a para.(b) which reads,
"All disputes arising out of this Contract shall be arbitrated in London and, unless the parties agree forthwith on a single arbitrator, be referred to the final arbitrament of two arbitrators carrying on business in London, who shall be full members of the LMAA and engaged in shipping …[and so on]."
Clause 136 of the charterparty contains a BIMCO Dispute Resolution Clause 2015 -
English Law London Arbitration, which provides that,
"This Contract shall be governed by and construed in accordance with English law and any dispute arising out of or in connection with this Contract shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof save to the extent necessary to give effect to the provisions of this Clause.
The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association (LMAA) Terms current at the time when the arbitration proceedings are commenced … [and so on]."
"All terms and conditions, liberties and exceptions of the Charterparty dated as overleaf, including the law and arbitration clause, are herewith incorporated."
"In view of the fact that we found some heat damage and mouldy soya bean in all holds of your vessel discharging at the Chinese port on August 21 2019, we hereby tender this letter of protest for this meeting and declare that we, as receivers of this cargo, reserve the right for a claim against you and other parties concerned at later convenience."
Again, that would not have put the claimant on notice that the defendant intended to bring proceedings in China, but what it does unambiguously state is that they are, indeed, the receivers of the cargo.
"The bills of lading do not state the name of the parties to the allegedly incorporated Charterparty or the date of its signature on their face",
which it said, in its ruling, was a precondition to the effective incorporation of a charterparty arbitration clause into a bill of lading and, in doing so, the Chinese Court appears to have applied the special maritime procedure law of China in order to reach that decision.
"The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so."
That, of course, includes anti-suit injunction: injunctions in arbitration cases. The authority for that is AES Ust [2013] 1 WLR 1889 and is also referred to in Raphael, The Anti-Suit Injunction 2nd Ed 2019, paras.3.01 to 3.08.
"If an injunction is granted, it is not granted for fear that the foreign court may wrongly assume jurisdiction to spite the plaintiffs, but on the sure ground that the defendant promised not to put the plaintiff to the expense and trouble of applying to that court at all. Moreover, if there should be any reluctance to grant an injunction out of sensitivity to the feelings of a foreign court, far less offence is likely to be caused if an injunction is granted before that court has assumed jurisdiction than afterwards, while to refrain from granting it at any stage would deprive the plaintiff of its contractual rights altogether. In my judgment, where an injunction is sought to restrain a party from proceeding in a foreign court, in breach of an arbitration agreement governed by English law, the English court need feel no diffidence in granting the injunction provided it is sought promptly and before the foreign proceedings are too far advanced."
"… a party who wishes to enforce a jurisdiction clause should apply promptly once he is aware of a breach of the arbitration clause': …The statement of principle by Millet LJ in The Angelic Grace that an anti-suit injunction should be sought 'promptly and before the foreign proceedings are too far advanced' is clear and should be understood and applied in a common sense and straightforward manner."
"Injunctive relief may be sought (a) before any foreign proceedings have begun; (b) once they have begun; (c) within a relatively short time afterwards; (d) when the pleadings are complete; (e) thereafter but before the trial starts; (f) in the course of the trial; (g) after judgment. The fact that at some stage the foreign court has ruled in favour of its own jurisdiction is not per se a bar to an anti-suit injunction … But, as each stage is reached more will have been wasted by the abandonment of proceedings which compliance with an anti-suit injunction would bring about. That being so, the longer an action continues without any attempt to restrain it the less likely a court is to grant an injunction and considerations of comity have greater force.
Whilst a desire to avoid offence to a foreign court, or to appear to interfere with it, is no longer as powerful a consideration as it may previously have been, it is not a consideration without relevance. A foreign court may justifiably take objection to an approach under which an injunction, which will (if obeyed) frustrate all that has gone before, may be granted however late an application is made (provided the person enjoined knew from an early stage that objection was taken to the proceedings). Such an objection is not based on the need to avoid offense to individual judges (who are made of sterner stuff) but on the sound basis that to allow such an approach is not a sensible method of conducting curial business."
"It is clear on authority that an applicant for an anti-suit or anti-enforcement injunction should apply 'promptly and before the foreign proceedings are too far advanced' However Mr Coleman, for Ecobank, submits that delay does not include any period during which the applicant sought to challenge the jurisdiction of a foreign court and the period pending the foreign court's decision on that challenge.
I cannot accept that proposition. Leggatt LJ in The Angelic Grace … described graphically the 'reverse of comity' were the English court 'to adopt the attitude that if a foreign court declines jurisdiction, that would meet with the approval of the English court, whereas if the foreign court assumed jurisdiction, the English court would then consider whether at that stage to intervene by injunction'. As Christopher Clarke J said in [the Transfield case] '… comity, which involves respect for the operation of different legal systems, calls for challenges … to be made promptly in whatever is the appropriate court'. Advent Capital PLC … cited by Mr Coleman in support of his submission, was a decision on its facts and is not authority for a principle in the form of Mr Coleman's proposition. It is of note that Morison J [in that case] included a quotation of Leggatt LJ's reference to the 'reverse of comity'."
"(1) There is no rule as to what will constitute excessive delay in absolute terms. The court will need to assess all the facts of the particular case, see Essar Shipping v. Bank of China.
(2) The question of delay and the question of comity are linked. The touchstone is likely to be the extent to which delay in applying for anti-suit relief has materially increased the perceived interference with the process of the foreign court or led to a waste of its time or resources - see Ecobank Transnational v Tanoh …"
(3) When considering whether there has been unacceptable delay a relevant consideration is the time at which the applicant's legal rights had become sufficiently clear to justify applying for anti-suit relief - see, for example, Sana Sabbagh v Khoury [2018 EWHC 1330 …"
"That the application for the anti-suit injunction was made by the claimant promptly and before the Chinese proceedings had become too far advanced. The claimant first learned of the Chinese proceedings on 17th August 2020. It objected to the Chinese Court's jurisdiction very promptly thereafter in its objection to jurisdiction filed on 14 September 2020. The ruling on 21st September 2020 [by the Chinese court that is] was given unusually quickly for the Chinese courts and left the claimant with virtually no time to take any steps to protect its position in this jurisdiction in advance of the ruling; secondly, very promptly upon receipt of the ruling, less than three weeks after it was given, the claimant made the application for an anti-suit injunction on 8 October 2020; and, thirdly, the claimant has appealed the ruling before the Chinese courts, importantly, therefore, pending the resolution of that appeal, the Chinese proceedings remain at the jurisdictional stage and have not progressed to any substantive stage or required submission on the merits."
It is right that, although the claimant did not seek interim anti-suit injunctive relief immediately upon receipt of the Chinese proceedings on 17 August 2020, as it might have done, but chose to contest those proceedings so far as jurisdiction is concerned, they have not engaged in those proceedings on the merits.
"'...comity, which involves respect for the operation of different legal systems, calls for challenges … to be made promptly in whatever is the appropriate court'.. Whilst recognising that delay is not necessarily a bar to relief, and the importance of upholding the rights of those who are the beneficiaries of exclusive jurisdiction agreements, I do not regard the cases subsequently decided by this court as rendering that statement inaccurate."
Transcribed by Opus 2 International Limited Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 civil@opus2.digital |