Ms Sara Cockerill QC (sitting as a Deputy Judge of the High Court):
- In these two applications the Claimants, who are respectively the owners of the vessel m/v FLAG EVI ("the Owners", "the Vessel") and their P&I insurers ("the Club") each apply for an anti-suit injunction against the Defendants who are the insurers of cargo interests ("Insurers").
- The proceedings sought to be restrained consist of a cargo claim, originally vested in cargo interests which has been commenced against (amongst others) both Owners and the Club before the Aqaba Court of First Instance in Jordan (the "Aqaba Court").
- Owners say that they are entitled to an anti-suit injunction because the proceedings are in respect of cargo carried under bills of lading governed by English law and providing for arbitration in London.
- The Club on their part say that their letter of undertaking to Insurers and their assured, which appears to form the basis for their inclusion in the Aqaba Court proceedings was also governed by English law, and contained an exclusive jurisdiction clause in favour of the English Courts.
- Both Claimants therefore contend that as a matter of clear authority Insurers should be restrained by injunction in order to uphold Owners' rights under the bills of lading and the Club's rights under the letter of undertaking.
The Facts
- Owners time chartered the Vessel to disponent owners, Starboard Shipping & Trade SA ("Starboard"), by way of an amended NYPE '46 form dated 19 May 2014 (the "Head Charter").
- Starboard then sub-time chartered the Vessel for one trip to charterers Bunge SA Geneva ("Bunge") by way of another amended NYPE '46 form, this time dated 5 March 2015 (the "Trip Charter"). The Trip Charter is evidenced by a fixture recap, which (by clause 18) incorporates the Head Charter.
- The position on the existence of any sub-voyage charters is not entirely clear. On 5 April 2016 Clyde & Co LLP, Insurers' solicitors, provided an unsigned "working copy" of a Synacomex 2000 form also dated 5 March 2015 (the "Synacomex Charter"). By this Charter "International Produce Ltd" as owners purported to charter the Vessel to "Bunge SA Geneva". It is not clear if this charter was ever executed, or how it fits in to the contractual chain.
- Bunge had chartered the Vessel in order to perform pre-existing C&F sale contracts with two Jordanian buyers, one of whom was Insurers' assured, Al Hilal Company for Farms & Manufacturing ("Al Hilal").
- On 19 and 20 March 2015 the Vessel loaded 41,875mt of Argentinian yellow corn. A Congen 1994 bill of lading in respect of the corn designated for Al Hilal was issued on 20 March 2015, naming it as the notify party (the "Corn B/L"). The Vessel then steamed to Rio Grande, where it loaded a cargo of soybean meal. A further Congen 1994 bill of lading in respect of the soybean meal designated for Al Hilal was issued on 7 April 2015, again naming it as the notify party (the "Soybean B/L").
- The Vessel sailed for Aqaba on 8 April 2015. Upon its arrival the Jordanian Ministry of Agriculture rejected the whole of the Vessel's cargo of corn, having found two minor pockets of localised surface moulding on the cargo in holds 3 and 5.
- As a result, on or about 18 May 2015 Al Hilal asserted a cargo damage claim relating to the cargo shipped under the Corn B/L against Owners for some US$3,592,489.
- Al Hilal arrested the Vessel on 21 May 2015. Although Owners disputed (and still dispute) Al Hilal's cargo claim, on the same day a letter of undertaking ("the Initial LOU") was provided by the Club in Insurers' and Al Hilal's favour in the amount of US$4,726,149.96 to enable the Vessel's release. Insurers and Al Hilal accepted the terms of the Initial LOU through their solicitors, Clyde & Co. The Vessel was eventually released on 24 May 2015.
- Notwithstanding Owners' position on liability for the alleged cargo damage, an agreement designed to mitigate the losses of all those involved in the incident was entered into in June 2015 (the "Mitigation Agreement"). Pursuant to the Mitigation Agreement, the rejected cargo was re-purchased by Bunge and sold on to a third party, and Al Hilal was paid US$2,660,625.
- In light of the monies it received under the Mitigation Agreement, and in accordance with its obligations under the Agreement, Insurers and Al Hilal accepted a revised letter of undertaking from the Club dated 13 July 2015 on materially the same terms as before, but for the reduced amount of US$2,059,648.96 (the "Second LOU").
- On 8 September 2015 Owners were notified by Clyde & Co LLP, acting on behalf of subrogated Insurers, of a claim for some US$1,046,747.65 arising from the events set out above. The claim was comprised of three elements:
i) US$950,132.53 for alleged damage to the corn cargo carried under the Corn B/L. This reduced sum reflected the payments made to Al Hilal under the Mitigation Agreement.
ii) US$85,222.62 in relation to an alleged shortage of 198.937mt of the soybean cargo carried under the Soybean B/L.
iii) US$11,392.50 in "customs fees" said to have been incurred by Al Hilal after the cargo of corn had been rejected, but before the Mitigation Agreement had been concluded.
- Owners rejected the claim advanced by Insurers.
- On or around 24 March 2016 Insurers commenced proceedings against Owners, the Club, the Vessel's managers Golden Union Shipping SA, and Bunge Alimentos SA before the Aqaba Court seeking damages amounting to US$2,059,648.96 (the "Jordanian Proceedings").
- A translation of Insurers' Statement of Claim in the Jordanian Proceedings was placed before me. On its face that translation indicates that Insurers' claim has been advanced:
i) Against Owners, for cargo damage and shortage pursuant to the contracts of carriage contained or evidenced in the Corn B/L and Soybean B/L; and,
ii) Against the Club, pursuant to the Second LOU.
- The Claimants became aware of the Jordanian Proceedings on or around 24 March 2016. The Claimants' solicitors wrote to Clyde & Co seeking the discontinuance of the Proceedings against Owners on 29 March 2016. Clyde & Co's response was that they were not instructed in relation to the Jordanian proceedings but would speak with their client.
- Owners were served by Clyde & Co with "protective" notices of arbitration in respect of the cargo claims under the Synacomex Charter on behalf of Insurers and Al Hilal on 5 April 2016. These notices asserted that Insurers were "entitled to bring their claim in the Jordanian Courts" and that that they "disputed the substantive jurisdiction of any arbitration tribunal appointed" .
- The Claimants' solicitors wrote to Clyde & Co seeking the discontinuance of the Jordanian Proceedings against the Club on 27 April 2016. Clyde & Co reiterated that they were not instructed in respect of the Jordanian Proceedings but would take instructions, and indicated that their own understanding was that the claim against the Club in the Jordanian Proceedings was not brought under the LOU but because "it is standard procedure in Jordan to name the insurers as co-defendant".
- These proceedings were issued on 29 April 2016. Some short time was spent thereafter exploring avenues to resolve the parties' dispute amicably. No agreement having eventuated Clyde & Co were provided with copies of the documents issued by the Claimants on 16 May 2016.
- The Claimants' applications first came before Phillips J technically without notice on 17 May 2016 (roughly an hour's notice was given). At that short hearing, the judge directed that the Applications be re-listed the following week to allow Insurers to make submissions, if they wished, not least because (as he noted) the applications potentially raised interesting issues regarding the Hamburg Rules and the jurisdiction clause relied on by the Club.
- Meanwhile, in accordance with the normal procedure in the Aqaba Court, and out of an abundance of caution, Owners and the Club filed a challenge to the Court's jurisdiction, along with (without prejudice to the jurisdiction challenge) a substantive defence in the matter on 19 May 2016, ahead of the deadline for doing so on 23 May 2016.
- The rescheduled applications to this Court were heard on the morning of 27 May 2015. The Defendant did not appear, though it is clear that Clyde & Co were notified of the hearing in good time, having been provided with Phillips J's order on 20 May 2016, and the skeleton argument for the 17 May hearing on 23 May. At the same time the date for the rescheduled hearing was notified. The skeleton argument lodged for that hearing was provided on 24 May. Clyde & Co indicated that they were not instructed in relation to these proceedings but would forward the documents to their clients.
- Finally, I was informed by Mr Coburn QC that his instructing solicitors had sought confirmation from Clyde & Co shortly before the hearing as to whether they would attend the hearing, and had received the same message.
The anti-suit jurisdiction
- In support of their application the Claimants relied on well known authorities. As to the jurisdiction itself, in Aggeliki Charis Compania Maritima SA v Pagnan Spa (The Angelic Grace) [1995] 1 Lloyd's Rep 87 (CA) at 96 col 1, Millet LJ laid out two broad bases upon which an anti-suit injunction may be obtained:
i) Where the respondent is in breach of contract by bringing the foreign proceedings (ie. in breach of an arbitration or exclusive jurisdiction agreement); and
ii) Where there is no breach of contract, but a respondent's conduct is nevertheless vexatious and oppressive, and ought to be restrained in any event.
- That case and subsequent authorities establish that in the first case the Court should ordinarily show no diffidence in granting an anti-suit injunction, unless good or strong reasons (the authorities vary in their terminology on this point) can be shown to the contrary.
- They also submitted that no different approach applies where (as here) the claim sought to be restrained is brought by a subrogated insurer rather than his insured (the original party to the relevant arbitration or exclusive jurisdiction clause): see The Jay Bola [1997] 2 Lloyd's Rep 279 (CA) per Hobhouse LJ at 284 col 2 – 286 col 2, which reasoning was very recently endorsed by the Court of Appeal in Shipowners' Mutual Protection and Indemnity Association (Luxembourg) v Containerships Denizcilik Nakliyat ve Ticaret AS [2016] EWCA Civ 386 at §§33, 56.
- They placed particular emphasis on the judgment of Colman J in West Tankers Inc v RAS Riunione Adriatica di Sicurta SpA (The Front Comor) [2005] 2 Lloyd's Rep 257 at §§59-72, and in particular §68:
"…I have come to the conclusion that, where a subrogated insurer commences proceedings in a foreign court inconsistently with an agreement to arbitrate such a claim which is binding as between the assured and the debtor, the reasoning and approach to the grant of the anti-suit injunction in The Angelic Grace, is as applicable to that insurer as it would have been to the assured had the foreign court proceedings been commenced by that assured. The fact that the subrogated insurer would not commit and actionable breach of contract vis a vis the debtor by commencing the court proceedings would in such circumstances be in principle irrelevant"
- To similar effect is Moore-Bick LJ in the recent Shipowners' Mutual case at § 49: The court intervenes:
"not because the claimant is party to a contract containing an arbitration agreement (which it is not), but because enforcement by arbitration alone is an incident of the obligation which the claimant seeks to enforce and because the defendant is therefore entitled to have any claim against him pursued in arbitration. It is the right not to be vexed by proceedings otherwise than in arbitration that equity will intervene by injunction to protect."
- Although Hobhouse LJ in The Jay Bola and Colman J in The Front Comor were considering breaches of arbitration agreements, there is no distinction of principle here between such clauses and an exclusive jurisdiction agreement: see The Angelic Grace at 96 col 2.
The two applications
Owners' claim
- The Owners submitted that their claim for an anti suit injunction was relatively straightforward.
- They rely upon sections 2(1) and 3(1)(a) and/or (b) of the Carriage of Goods by Sea Act 1992 ("COGSA 1992"), which provide:
"2 Rights under shipping documents
(1) Subject to the following provision of this section, a person who becomes-
(a) a lawful holder of a bill of lading …
Shall (by virtue of becoming the holder of the bill, or as the case may be, the person to whom delivery is made) have transferred to and vested in him all rights of suit under the contract of carriage as if he had been a party to that contract.…
3 Liabilities under shipping documents
(1) Where subsection (1) of section 2 of this Act operates in relation to any document to which this Act applies and the person in whom rights are vested by virtue of that subsection –
(a) takes or demands delivery from the carrier of any of the goods to which the document relates;
(b) makes a claim under the contract of carriage against the carrier in respect of any of those goods…
that person shall (by virtue of taking or demanding delivery or making the claim…become subject to the same liabilities under that contract as if he had been a party to that contract"
- Turning to the position on the facts, both the Soybean B/L and the Corn B/L are subject to English law, and London arbitration in that each expressly incorporates the "law and arbitration clause" of the charterparty "dated as overleaf" and each also refers to a charterparty dated 5 March 2015.
- On the documents this must be a reference either to the Trip Charter or the recently surfaced Synacomex Charter. In the Trip Charter there are multiple references to arbitration in London:
i) Clause 16 of the Recap to the Trip Charter provides that it is "governed in accordance with English law" and "general average and arbitration to be in London".
ii) As set out above, Clause 18 of the Recap incorporates the terms of the Head Charter, including the following:
a) Clause 17: "Arbitration clause to apply – as per Clause 83 with English law and arbitration in London…Any dispute arising out of this CP and from the issuing of Bills of Lading shall be referred to arbitration in London and English law to apply".
b) Clause 19: "…All Bills of Lading issued under this Charter Party are to incorporate English law with Arbitration in London".
c) Clause 83: "any dispute arising under the charter to be referred to arbitration in London in accordance with LMAA Rules" and "English law to apply".
- As for the Synacomex Charter, clause 28 of that document provides that "Any dispute arising out of or in connection with this Contract shall be referred to arbitration in London…This Contract shall be governed by and construed in accordance with English law".
- Owners' position, therefore, is that both the Soybean B/L and Corn B/L validly incorporate the English law and London arbitration provision(s) from the Trip Charter and/or the Synacomex Charter (as the case may be), and any disputes arising out of them are accordingly themselves subject to English law and London arbitration. Further to the extent that any as yet unidentified sub-voyage charter (also dated 5 March 2015) is that referred to in the Soybean and Corn B/Ls, the overwhelming likelihood (given the universality of such provisions in the documents which have emerged) is that it also contains a London arbitration clause, and is subject to English law.
- It seems to me that the Claimants are correct and that:
i) Owners have a contractual right for any claims arising out of or in connection with the Soybean B/L and Corn B/L to be resolved in London arbitration, and subject to English law.
ii) Al Hilal's right of suit against Owners under the B/Ls is a contingent benefit. It follows that it cannot be enforced by demanding delivery of the goods and/or advancing a claim under the B/Ls without recognising Owners' right to have any disputes arising arbitrated in London.
iii) Insurers, who are subrogated to Al Hilal's rights under the Soybean and Corn B/Ls, take those rights subject to the obligation to resolve disputes arising from or in connection with the Soybean and Corn B/Ls in London arbitration, and through the application of English law. As Hobhouse LJ said in The Jay Bola "the insurance company is not entitled to assert its claim inconsistently with the terms of the contract. One of the terms of the contract is that, in the event of dispute, the claim must be referred to arbitration. The insurance company is not entitled to enforce its right without also recognising the obligation to arbitrate."
- The question therefore becomes whether there is any good reason why an anti suit injunction should not be granted against Insurers on Owners' application.
- On this point the Owners rightly drew to my attention the fact that the Hamburg Rules are in force in Jordan. While it is not known how Insurers might seek to rely on these rules, it should probably be inferred (given the declaration in the Jordanian Proceedings that the courts of Jordan have jurisdiction) that they assert that the effect of the Hamburg Rules is to give jurisdiction to the courts of Jordan, as the courts of the place of discharge.
- Owners' position on this point was that it is not a good reason militating against the grant of an injunction that a foreign court will not enforce an exclusive forum clause in favour of another court because that foreign court will apply a mandatory domestic statute which overrides the parties' choice of law and jurisdiction. Comity requires that where there is an agreement for a sole forum for the resolution of disputes under a contract, that agreement is respected. An anti-suit injunction in these circumstances is not a breach of comity; it is merely restraining a party to a contract from doing something which he has promised not to do: OT Africa Line v Magic Sportswear [2006] 1 All ER (Comm) 32 per Longmore LJ at §§30-42.
- The point is perhaps not quite as clear in this case as it was in the OT Africa Line case. As Rix LJ noted in a passage where he carefully weighed a number of competing factors (§§ 57-81), in that case the Canadian legislation went somewhat further than the Hamburg Rules and therefore could not quite be said to represent an international consensus providing "a strong reason, in the interests and supportive of considerations of comity, for departing from any prima facie rule in favour of specifically enforcing the exclusive jurisdiction clause in the parties' bill of lading. It reflects a public policy view, expressive of a wider, shared, international concern, which the Canadian courts are bound to vindicate and which our courts should, out of considerations of comity, respect.". Here there is no suggestion that the Hamburg Rules, as enacted in Jordan, go beyond the international consensus.
- Secondly there is no evidence here (as there was in that case) that the Jordanian Courts would themselves rank an exclusive jurisdiction clause as having precedence over the Hamburg Rules jurisdiction. An injunction here may therefore technically offend against the local court's perception of the requirements of comity in a way which would not have been the case in OT Africa.
- Mr Coburn QC submitted that the less ambiguous reasoning of Longmore LJ was to be preferred and that the two Lords Justices (with both of whom Laws LJ agreed) should be regarded as being ad idem on the two central issues: the importance of upholding the parties contractual bargain, and the fact that the UK is not itself party to the Hamburg Rules and not itself therefore part of any international consensus as encapsulated in those rules.
- Tempting as it is simply to proceed on this basis it seems to me that there are two recent cases which give pause for thought. In Golden Endurance Shipping SA v RMA Watanya ("The Golden Endurance") [2015] 1 Lloyd's Rep. 266 Burton J declined an anti-suit injunction in the context of the parties' adoption of an English law clause and Hague Visby Rules when the alternative forum was Morocco, which would adopt the Hamburg Rules. This raised, albeit in less acute form, the question of the weight to be given to party autonomy when competing with public policy requirements in one of the fora.
- The second case is that of Petter v EMC Europe [2015] EWCA Civ 828; [2015] I.R.L.R. 847, where the Court of Appeal granted an anti-suit injunction where there was an exclusive jurisdiction agreement in favour of another jurisdiction (Massachusetts) because of the employee's rights to protection under Regulation 1215/2012 s.5. The OT Africa case was considered in some depth in that judgment by Sales LJ in the context of attempting to harmonise the approaches of the Court in the cases of (i) clash between an exclusive jurisdiction clause in favour of England and public policy considerations elsewhere and (ii) public policy considerations in England and exclusive jurisdiction clause in favour of another forum. Sales LJ put it thus:
"Whether the public policy of the foreign forum is to be given weight requires an evaluative assessment by the English court, including by inquiry whether the foreign restriction on the party's choice of law or venue corresponds to restrictions in English or EU law (see Akai Pty Ltd , [56]) or to public policy recognised or reflected in that law (see OT Africa Line Ltd v Magic Sportswear at [78]-[79] per Rix LJ). The more it does so, the easier it will be for the English court to consider it should recognise such public policy concerns on grounds of comity and expected reciprocity. Similarly, the English court's assessment may include issues such as the nature of the rule of foreign law (e.g. whether it is permissive, as for the Canadian legislation in issue in OT Africa Line , or preclusive, as in the case of art.22 of the Regulation, since this is likely to reflect the force of the public policy which underlies the rule in question) and whether the foreign public policy calls in question the weight to be given to party autonomy on grounds which would be recognised as having force by an English court (e.g. is the foreign rule designed to protect a party which may be expected to have less bargaining power when making the agreement in the first place: see OT Africa Line at [47], [74] and [77] per Rix LJ, emphasising the strength of the bargaining power of the parties in that case, who "had nothing of the consumer about them"; cf the discussion below in relation to the converse situation of protection of employees under English/EU law, who are recognised to be in a weaker social and economic bargaining position than employers). In Akai Pty Ltd and in OT Africa Line the English court found that the foreign public policy in question in each case should not override the pacta sunt servanda principle in relation to an English exclusive jurisdiction clause"
- Although this line of authority is somewhat controversial and this passage was not adopted by either Moore-Bick or Vos LJJ (Moore-Bick LJ did not regard the case as being of much assistance in the different factual context in which Petter arose), it is perhaps a useful cross check to the factors urged by Mr Coburn QC based primarily on Longmore LJ's analysis in OT Africa.
- The conclusion to which I come is this:
i) While the Angelic Grace principles hold good in the context of an exclusive jurisdiction agreement, the question of when good/strong reason not to grant an injunction will have been shown will require careful consideration in cases where the competing forum has jurisdiction according to its own law;
ii) The question of reciprocity (as considered by Rix LJ in OT Africa) may be one consideration. Another may well be the linked question of how the public policy on which jurisdiction is based is regarded in this jurisdiction;
iii) Another factor which should be taken into account is the nature of the public policy and its intrinsic importance – which may be reflected in the way in which that policy is encapsulated into law, with permissive provisions conveying a less imperative status than preclusive ones. This may be linked to the purpose of the policy or the nature of the person invoking it: for example the protection of consumers or employees will rank higher than commercial factors.
- Taken together in this case this indicates to me that, with some small additional considerations, the factors upon which Owners rely most heavily do carry the day and I am not satisfied that there is good reason not to grant the injunction.
- The authorities make clear that an exclusive jurisdiction clause is regarded as being of great significance, and that the parties' bargain, freely entered into by them, should not lightly be disregarded. The jurisdiction which the Jordanian Courts have does not affect the contractual bargain between the parties, and prima facie the institution of proceedings elsewhere is a breach of contract.
- The jurisdiction granted to the Jordanian Courts by the Hamburg Rules is not an imperative jurisdiction designed (as, for example, the legislation in Petter was) to protect individuals or protect fundamental rights. It is a different, permissive, means of managing a bargain between international corporate counterparties than that embodied in their contract. Further the parties here are such commercial counterparties; neither is an individual.
- Finally, the Hamburg Rules approach is not one which is adopted in this jurisdiction. As Rix LJ said in OT Africa, England is not a member of this club, which it has declined to join. Longmore LJ noted that there seems to be no likelihood of the Hamburg Rules being adopted.
- I do not consider that there is any other reason why the injunction should not be granted. The Claimants very properly drew my attention to the importance of promptness in making an application for anti-suit relief. As set out above the timeline discloses no undue delay and the Jordanian Proceedings are at a very early stage.
- I will therefore grant the injunction sought by the Owners.
The Club's application
- The Club's case is that the Second LOU encapsulates an exclusive jurisdiction clause via the following wording: "This Letter of Undertaking shall be governed by and construed in accordance with English law and we agree to submit to the exclusive jurisdiction of the English Courts"
- There is an obvious difficulty with the Club's case. The clause is couched not in the terminology of bilateral agreement, but in the language of unilateral submission.
- The Club acknowledges this, but submits as follows:
i) Although the words in question are expressed as an agreement by the Club to submit to the specified jurisdiction, that is explicable on the basis that it is the Club who is undertaking the substantive obligations under the LOU.
ii) The phrase "exclusive jurisdiction" strongly suggests that the English Courts were intended to have exclusive jurisdiction in relation to the LOU. The Club point out that they have been unable to locate any case where the phrase "exclusive jurisdiction" was used and the clause involved was not held to be an exclusive jurisdiction clause. They also submit that it is difficult to see what other effect could sensibly have been intended by the phrase.
iii) The English Law provision, which immediately precedes the jurisdiction/submission phraseology, is one which applies to both parties. It makes better commercial sense – particularly given this conjunction - for the LOU to be interpreted as containing an exclusive (rather than a non-exclusive) jurisdiction clause. Having given an LOU on the terms above, incorporating an English Law clause, the Club would not have expected to be susceptible to claims anywhere other than England.
- I have considered these submissions carefully but find myself unable to accept them. The question is ultimately one of construction; and the question of what parties in the position of those involved would have understood the phrase to mean is what I have to consider.
- The first, and it seems to me the most formidable, point confronting the Club is the phraseology of "we submit" taken in the context of the letter as a whole. The LOU is a letter on the Club's headed notepaper, and addressed to the cargo interests. It is signed by the Club only. In the usual way it commences with "In consideration of Cargo Interests refraining from arresting … the above-named ship … we [the Club] hereby undertake to pay you on behalf of the Owners on written demand such sums as may be adjudged …" [emphasis added]. It then goes on thus: "We hereby warrant … We have received … We have authority …"
- In this context would any reader of the final paragraph understand the phrase "we agree to submit" to refer to a bilateral obligation? I find it impossible to think that they would do so. Would the cargo interests or someone in their position have considered in accepting the letter, that they were agreeing to sign away any jurisdictional rights elsewhere? Again, that does not seem credible.
- In this context I note that Article 25 of Regulation 1215/2012 contains criteria for establishing an agreement with which an exclusive jurisdiction agreement must comply and that the Arbitration Act 1996 also contains provisions designed to ensure that agreement to such an important question as jurisdiction can be established to exist. These reinforce the basic contractual principle that agreement cannot be taken "as read" simply because it makes the best sense from one party's perspective.
- Less important but not entirely insignificant is the use of the word "submit". As noted at paragraph 4.11 of Joseph "Jurisdiction and Arbitration Agreements and their Enforcement" (3rd ed. 2015) the authorities suggest that a positive, transitive obligation to refer disputes is more likely to be accepted as conveying an exclusive jurisdiction agreement than the intransitive language of consent or submission. Mr Coburn QC rightly points out that the authorities considered there are ones where the wording of "exclusive jurisdiction" was missing. That is true. However the wording of submission lends further strength to the case he has to meet.
- Nor do I consider that the English Law provision is as helpful to the Club as was suggested. Indeed the difference in the terminology used for the English Law provision ("This Letter of Undertaking shall be governed by English Law") and the submission/jurisdiction wording by which it is closely followed ("we agree to submit to the exclusive jurisdiction of the English Courts") tends to strengthen the conclusion that the submission/jurisdiction wording is a unilateral submission only.
- There is no evidence of bilateral agreement to the provision. In my judgment given the wording acceptance of the letter of undertaking cannot suffice and nor can the commencement of proceedings in Jordan.
- The Club indeed effectively accepted that without the words "exclusive jurisdiction" the wording would plainly not amount to a jurisdiction agreement. Accordingly they submit that the mere use of the words "exclusive jurisdiction" effectively converts what would otherwise be a unilateral obligation into a bilateral one, essentially because of the clarity and notoriety of the phrase. They say that anyone reading it – including Insurers and cargo interests – would understand that it meant that any disputes arising under the LOU had to be raised in the English Courts.
- If it were the case that the words "exclusive jurisdiction" could make no sense otherwise I might be driven to accept this submission. However it seems to me that while they are not optimal or even felicitous in the context of a unilateral submission, they are not devoid of meaning. The phrase can perfectly well be understood to convey a unilateral offer of an exclusive jurisdiction agreement if the other party wishes to litigate in England, which offer can be accepted by commencing proceedings there. Or, to put it slightly differently, it might convey an undertaking to take no forum non conveniens points if proceedings are started in England. Mr Coburn QC points out that, the Club being based in England, they are hardly likely to raise such arguments. That may be so, but it is possible, and the possibility gives some meaning to the words.
- That being the case I conclude that as a matter of construction of the LOU in its context, the clause relied upon is not an exclusive jurisdiction agreement.
- The Club advanced a back up argument to meet this eventuality. They submit (as they are bound to do if they pursue their relief) that the Jordanian Proceedings should be enjoined because they are in any event vexatious and oppressive.
- Firstly, if the Jordanian Proceedings are based on the LOU, they submit that the Second LOU (on any view governed by English law) responds only to either a judgment or award of a competent tribunal determining Al Hilal's claims relating to the cargo carried under the Soybean and Corn B/Ls and can actually only respond to the award of a London seated arbitral tribunal (anything else not being a "competent" tribunal). There is no such judgment or award in existence, and no prospect of there being one in the near future.
- The joinder of the Club as a defendant to the Jordanian Proceedings at this time is, they say, therefore at best premature, but in truth serves no useful or legitimate purpose, and simply vexes the Club.
- Alternatively if Clyde & Co are right that the Club has only been joined for formal reasons following Insurers' claim against Owners, there could be no good reason for the Jordanian Proceedings to remain on-foot against the Club once an injunction is obtained by Owners.
- In considering an anti-suit injunction on the grounds of vexation/oppression, rather different factors come into play. I bear in mind the dictum of Toulson LJ in Highland Crusader Partners LLP v Deutsche Bank AG [2009] EWCA Civ 725, [2009] 2 Lloyd's Rep. 67 at §50. In particular I bear in mind the following passage:
"In [cases where there is no exclusive jurisdiction agreement], the principle of comity requires the court to recognise that, in deciding questions of weight to be attached to different factors, different judges operating under different legal systems with different legal policies may legitimately arrive at different answers, without occasioning a breach of customary international law or manifest injustice, and that in such circumstances it is not for an English court to arrogate to itself the decision how a foreign court should determine the matter. The stronger the connection of the foreign court with the parties and the subject matter of the dispute, the stronger the argument against intervention. … The prosecution of parallel proceedings in different jurisdictions is undesirable but not necessarily vexatious or oppressive."
- At present the Jordanian Proceedings against the Club are either proceedings on the LOU, following on the proceedings brought as of right against the Owners or they are "parasitic" proceedings brought because that is the formal procedure under Jordanian law. Either way, at the time they were commenced and until the injunction which I am making in favour of Owners is followed through, there is nothing intrinsically wrong with those proceedings.
- Nor, does it follow that they will become vexatious or oppressive. Following the injunction the natural course would be for the Owners to be removed from the Jordanian Proceedings. If this is done it would logically follow either that proceedings against the Club will be also discontinued or that they will be "put on ice". In the former eventuality there is no problem. Nor, if they remain "on ice" pending a determination of a tribunal of competent jurisdiction which can trigger the obligation to pay under the LOU, is there anything vexatious or oppressive about them.
- The proceedings may of course become vexatious or oppressive if in some way steps are taken to pursue the Club in the absence of Owners from the litigation. The Club urge me to act against this eventuality and that it would be preferable to have the position of both parties dealt with at the same time.
- However to do so at this stage would seem to me to breach the obligations of comity. In the absence of a proper case on vexation or oppression it is not for me to arrogate the decision which properly belongs to the Jordanian courts of how the litigation should be handled following the removal of the Owners from the action. I therefore dismiss the Club's application for an anti-suit injunction.
