Hin-Pro International Logistics Ltd v Compania Sud Americana de Vapores SA [2015] EWCA Civ 401
The Appellant Freight Forwarder commenced actions in China under 70 bills of lading, which incorporated the Respondent's standard clauses. Clause 23 provided in material part:
"This Bill of Lading and any claim or dispute arising hereunder shall be subject to English law and the jurisdiction of the English High Court of Justice in London. If, notwithstanding the foregoing, any proceedings are commenced in another jurisdiction, such proceeding shall be referred to ordinary courts of law."
The Respondent subsequently commenced proceedings in London and obtained an anti-suit injunction against the Appellant in respect of the Chinese proceedings. The injunction was made permanent, with the English court finding that clause 23 obliged the Appellant to litigate disputes under the bills of lading in England.
In breach of the injunction, the Appellant continued to pursue its claims in China. It appealed against the decision of the English Court. The Court was required to consider:
- whether it should entertain the appeal in view of the fact that the Appellant was in contempt of court due to its breach of the anti-suit injunction;
- whether there were compelling reasons to set aside the permission to appeal; and
- whether clause 23 as incorporated into the bills of lading was an exclusive jurisdiction clause.
The Court noted that it had a discretion not to hear a party in contempt of court until its contempt had been purged. In this instance, however, it decided that it would hear the appeal.
Further, there were no compelling reasons to set aside the permission to appeal, on the basis that:
- it concerned a clause which was the foundation of the orders the Appellant had disobeyed;
- it was an appeal against the order which had put the Appellant in contempt;
- it raised matters of general importance; and
- it was an appeal for which leave had already been given, subject to provision of security for costs (which was provided).
On the jurisdiction point, the Appellant had argued that the clause did not provide for exclusive jurisdiction. It asserted that the second and third sentences recognised that proceedings may not be begun in England, and made provision for that eventuality. Rather than prohibiting the commencement of proceedings in other jurisdictions, the clause sought to regulate them.
The Court disagreed, and held that clause 23 provided for the exclusive jurisdiction of the English High Court. The words "shall be subject to" were imperative and directory, and did not provide an option. The parties had agreed to submit all disputes to the English Court. This made commercial sense, where providing for optional jurisdiction as the Appellant argued would cause uncertainty. The number of courts that might have jurisdiction would be at least as large as the range of countries in which the cargo may be loaded, transhipped or discharged.
The use of the phrase "if notwithstanding the foregoing..." was a recognition that the preceding sentence required litigation in England as a matter of contract. It was intended to cover a situation where the first sentence was ineffective, for example due to the application of the Hamburg Rules, and proceedings were commenced in another jurisdiction. The aim was to ensure that in such a situation the proceedings would at least be before the "ordinary courts" of that jurisdiction.
The appeal was dismissed, and the Appellant remained subject to the anti-suit injunction.
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