“Delivery by Carboex shall be made as CIF port of discharge, in accordance with the INCOTERMS. 2000, at a safe berth provided by Endesa …. The price of demurrage/dispatch shall be that indicated in the corresponding charterparty.” and at clause 9.1, the following: “… the CFR price shall be the result of adding the freight to the FOB price agreed by Carboex with the producer and with the shipowner respectively, together with the insurer of the Endesa group.”
“… freight payable as per the relevant charterparty”, but no date was given; vi) the reverse of the Bill provided in standard form for the application of the Hague Rules, and in appropriate circumstances, the Hague-Visby Rules International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, as amended by protocols in 1968 and 1979. This judgment does not address whether the Hague-Visby rules apply in the instant case. ; vii) the reverse of the Bill also stated, by Clause 1: “… all terms, liberties and exceptions of the Charterparty dated as overleaf, including the Law and Arbitration clause are herewith incorporated.”
“Clause 79 – Arbitration/Litigation This Charter shall be subject to English Law. Any dispute or difference arising between Owners and the Charterers under this Charter shall be referred to three persons in London, one to be appointed by each of the parties hereto, and the third by the two so chosen, their decision or that of any two of them, shall be final and for the purpose of enforcing any award, may be made a rule of the court. The arbitrators shall be commercial shipping men conversant with shipping matters. The arbitrations shall be conducted under the Rules of the London Maritime Arbitrator’s Association. Each of Owners and Charterers shall be entitled to consolidate proceedings involving related contract disputes with third parties arising from common questions of fact or law and/or to have such proceedings conduct[ed] concurrently with proceedings hereunder. Present Clause to be deemed fully incorporated into Bill(s) of Lading.”
“5. If any dispute or difference should arise under this Charter same to be referred to three parties in the city of New YorkLondon. One to be appointed by each of the parties herein, the third by the two so chosen and their decision, or that of any two of them shall, be final and binding and this agreement may, for enforcing the same, be made a rule of court. Said three parties to be commercial men and members of the LMAA.”
“The Defendants have indicated that they will present a claim against the Claimants for damages said to arise as a result of the cargo being discharged at Carboneras rather than Ferrol. The Claimants deny being liable to the Defendants whether for breach of contract of carriage and/or duty and/or in negligence. The bill of lading incorporated the terms of a voyage charterparty pursuant to which English law governs the contract of carriage and this court has jurisdiction. The Claimants’ claim is for a declaration that they are under no liability to the Defendants. I state that the High Court of England and Wales has power under [the Regulation] (on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) to hear this claim and that no proceedings are pending between the parties in Scotland, Northern Ireland or any other Regulation State as defined bysection 1(3) of the Civil and Jurisdiction and Judgments Act 1982 .”
“… the Spanish Courts do not have jurisdiction to hear the question subject matter [sic] of the aforementioned case, because it should be heard by ‘los tribunales de Londres’.”
“Taking this into account [NNC] initiated proceedings in the High Court of London [sic] on23 January 2008 … to seek the declaration of the absence of liability.”
“… from all that has been said, since it is not Spanish law, but English law, that applies, the Bill of Lading that governs the relationship with the Claimant and the Defendant, according to which the arbitration clause is absolutely valid … the Court must declare itself not to have jurisdiction to hear the disputes arising from the Bill of Lading furnished by the Claimant as Document 3 of the claim in favour of arbitration in London … I hereby petition the Court on the grounds the Court does not have jurisdiction because the question is subject to arbitration in London …”
“22. In seeking to reach an agreement on the question of discharging at Carboneras I had discussions with, amongst others, Mr. Alegre The partner at Thomas Cooper dealing with both actions on behalf of Endesa, but who informed Mr. Askins that in January 2008 he was acting for Carboex. . In particular he informed me that the voyage charter provided for English law and arbitration. I refer to my email dated 13:00hrs22 January 2008 … in which I stated as follows: ‘For the avoidance of doubt owners have agreed to discharge the cargo at Carboneras and for this to be regarded as the port of final discharge. We would be grateful for confirmation that this will happen as soon as a berth becomes available. This is subject to the GA security (bond, average guarantee) being put up before discharge. On security the Club has agreed in principle to put up security for the Euro 2m sought subject to the final wording and agreement on jurisdiction. It would be helpful if some kind of breakdown could be provided particularly in circumstances where it is not obvious that there has been a breach of contract. I note that at the moment you are not minded to do that. Mr. Alegre has confirmed to me that the voyage charter has an English Law and arbitration clause in the contract. The bill is a Gencon 1994 bill and therefore this is incorporated into the contract of carriage. The agreed jurisdiction is therefore London and the LOU should be subject to London arbitration and/or competent court. Please confirm that this is in order. Owners reserve their rights on this issue (my emphasis)’ 23. This email was sent to the following recipients, none of whom sought to challenge its contents at that (or any other) time (save as per paragraph 44 below): (1) Eduardo Albors, a Spanish lawyer acting on behalf of Endesa; (2) Juan Alegre; … [various other recipients were named]. 24. Shortly after this email was sent I had a conversation with Mr. Albors who informed me that he did not have a copy of the voyage charter. I therefore requested a copy from Juan Alegre and Michael Parker, by email dated 15:38hrs22 January 2008 …. 25. Mr. Parker replied at 17:10hrs that day … and informed me that ‘the voyage charterers Messrs Carboex have advised that they do not wish this c/p to be released to third parties’. 26. By now I was increasingly concerned that jurisdiction would prove to be contentious because of the discussions which had been taken place regarding security for the Receivers’ claims against the Vessel. The Receivers had proposed a form of security which would have provided for Spanish law and jurisdiction, which proposal was made on21 January 2008 …. The Owners did not want to consent to Spanish law and jurisdiction. 27. In view of the proposed security wording, I was alive to the possibility that the Receivers would seek to invoke the jurisdiction of the Spanish courts. 28. My difficulty so far as protecting the Owners’ position was concerned was that I had yet to receive a copy of the voyage charter. Although it appeared to be accepted that the voyage charter contained a choice of English law and arbitration, I did not have any proof of this fact in writing such as would enable me to say with certainty that the Bill of Lading was not only subject to English law, but also incorporated a voyage charter containing an arbitration clause. 29. In an effort to prevent the Spanish Courts from being able to take jurisdiction in this matter, I therefore caused a Claim Form to be issued out of the Commercial Court Registry on23 January 2008 on behalf of the Owners seeking ‘a declaration that they are under no liability to the Defendants’ …. 30. I personally signed the statement of truth. 31. In view of my conversation with Mr. Alegre in which I understood him to confirm the voyage charter contained a choice of English law and London arbitration, it may be asked why I chose to proceed in this Court rather than by way of arbitration. My decision was based on the following: (1) Firstly, the existence of the voyage charter was not in issue; (2) Secondly, nobody had challenged the suggestion that the voyage charter was governed by English law and I was confident that the Conditions of Carriage on the reverse of the Congen bill would have validly incorporated the choice of English law into the Bill of Lading; (3) Thirdly, I believe that at common law a choice of English law as the law governing a contract is a factor which will entitle the English courts to take jurisdiction by permitting service out of the jurisdiction:CPR 6.20 (5)(c); (4) Fourthly, I had been informed by another coal trader that Carboex and/or the Receivers were known in the market to insist upon English law and jurisdiction; (5) Fifthly, I suspected (correctly) that Receivers would seek to invoke the jurisdiction of the Spanish Courts; (6) Sixthly, I was concerned that if first seised, the Spanish Courts might not accept that the Bill of Lading validly incorporated the voyage charter (which of course I had not seen) so as to be binding upon the Receivers; (7) Seventhly, as the voyage charter seemed likely to be governed by English law, it seemed reasonable to assume that it might also provide for the English High Court to have jurisdiction; (8) Eighthly, as I had no proof of the existence of any arbitration agreement binding upon the Receivers I was concerned that if I commenced arbitration and the charter in fact provided for High Court jurisdiction, there was a real risk that the Receivers would have invoked the jurisdiction of the Spanish Courts by the time by error came to light and my clients would be forced into a jurisdictional battle before the Spanish Courts, when there was no guarantee that the Spanish Court would adopt the same approach to the incorporation of jurisdiction agreements into bills of lading as would be adopted under English law. If the English Court was first seised, under [the Regulation] a Spanish Court would have to defer to a ruling on jurisdiction from the English Court; (9) Finally, I believed that if the voyage charter did in fact provide for London arbitration, this Court would in any event have jurisdiction because it would have jurisdiction: i To restrain Receivers from proceedings in Spain in breach of the arbitration agreement, by way of an anti-suit injunction; and ii To order a stay of the substantive proceedings in this action in favour of arbitration pursuant tos.9 of the Arbitration Act 1996 .” 32. It followed that so far as I was concerned the Owners were entitled to invoke the jurisdiction of the English Courts and for this reason I felt able to sign the statement of truth on the Claim Form under the assertion that ‘The bill of lading incorporated the terms of a voyage charterparty pursuant to which English law governs the contract of carriage and this Court has jurisdiction.” ‘For the avoidance of doubt owners have agreed to discharge the cargo at Carboneras and for this to be regarded as the port of final discharge. We would be grateful for confirmation that this will happen as soon as a berth becomes available. This is subject to the GA security (bond, average guarantee) being put up before discharge. On security the Club has agreed in principle to put up security for the Euro 2m sought subject to the final wording and agreement on jurisdiction. It would be helpful if some kind of breakdown could be provided particularly in circumstances where it is not obvious that there has been a breach of contract. I note that at the moment you are not minded to do that. Mr. Alegre has confirmed to me that the voyage charter has an English Law and arbitration clause in the contract. The bill is a Gencon 1994 bill and therefore this is incorporated into the contract of carriage. The agreed jurisdiction is therefore London and the LOU should be subject to London arbitration and/or competent court. Please confirm that this is in order. Owners reserve their rights on this issue (my emphasis)’ (1) Eduardo Albors, a Spanish lawyer acting on behalf of Endesa; (2) Juan Alegre; … [various other recipients were named]. (1) Firstly, the existence of the voyage charter was not in issue; (2) Secondly, nobody had challenged the suggestion that the voyage charter was governed by English law and I was confident that the Conditions of Carriage on the reverse of the Congen bill would have validly incorporated the choice of English law into the Bill of Lading; (3) Thirdly, I believe that at common law a choice of English law as the law governing a contract is a factor which will entitle the English courts to take jurisdiction by permitting service out of the jurisdiction:CPR 6.20 (5)(c); (4) Fourthly, I had been informed by another coal trader that Carboex and/or the Receivers were known in the market to insist upon English law and jurisdiction; (5) Fifthly, I suspected (correctly) that Receivers would seek to invoke the jurisdiction of the Spanish Courts; (6) Sixthly, I was concerned that if first seised, the Spanish Courts might not accept that the Bill of Lading validly incorporated the voyage charter (which of course I had not seen) so as to be binding upon the Receivers; (7) Seventhly, as the voyage charter seemed likely to be governed by English law, it seemed reasonable to assume that it might also provide for the English High Court to have jurisdiction; (8) Eighthly, as I had no proof of the existence of any arbitration agreement binding upon the Receivers I was concerned that if I commenced arbitration and the charter in fact provided for High Court jurisdiction, there was a real risk that the Receivers would have invoked the jurisdiction of the Spanish Courts by the time by error came to light and my clients would be forced into a jurisdictional battle before the Spanish Courts, when there was no guarantee that the Spanish Court would adopt the same approach to the incorporation of jurisdiction agreements into bills of lading as would be adopted under English law. If the English Court was first seised, under [the Regulation] a Spanish Court would have to defer to a ruling on jurisdiction from the English Court; (9) Finally, I believed that if the voyage charter did in fact provide for London arbitration, this Court would in any event have jurisdiction because it would have jurisdiction: i To restrain Receivers from proceedings in Spain in breach of the arbitration agreement, by way of an anti-suit injunction; and ii To order a stay of the substantive proceedings in this action in favour of arbitration pursuant tos.9 of the Arbitration Act 1996 .”
“62. If the charterparty incorporated into the Bill of Lading provides for English law and jurisdiction to be taken by the English Court, I believe that the position will be as follows: (1) Article 23 of [the Regulation] provides as follows: ‘If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing; or (b) in a form which accords with practices which the parties have established between themselves; or (c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.’ (2) The Receivers are domiciled in a Member State, Spain; (3) The agreement will be contained in or evidenced by writing and/or in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned, namely the Bill of Lading and voyage charterparty; (4) Accordingly, the parties will have given this Court exclusive jurisdiction to determine the subject-matter of their dispute.” 63. In these circumstances, the only issue will be whether or not the English Court was seised before the Spanish Court. (1) If yes, I believe there are no grounds on which this action should be stayed; (2) In no, I believe it may be appropriate for the claim to be stayed pending determination of the jurisdictional challenge of the Owners to the Spanish proceedings in the Spanish Courts.” (1) Article 23 of [the Regulation] provides as follows: ‘If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing; or (b) in a form which accords with practices which the parties have established between themselves; or (c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.’ (2) The Receivers are domiciled in a Member State, Spain; (3) The agreement will be contained in or evidenced by writing and/or in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned, namely the Bill of Lading and voyage charterparty; (4) Accordingly, the parties will have given this Court exclusive jurisdiction to determine the subject-matter of their dispute.” (1) If yes, I believe there are no grounds on which this action should be stayed; (2) In no, I believe it may be appropriate for the claim to be stayed pending determination of the jurisdictional challenge of the Owners to the Spanish proceedings in the Spanish Courts.”
“These remedies are claimed in the alternative to the relief claimed [in the Commercial Court Action].”
“The court may grant any remedy to which the claimant is entitled even if that remedy is not specified on the claim form.”
“… already made by Owners at the hearing (a) that Endesa must have been aware of the content of the [Voyage] charter, including the London arbitration clause, at all material times (contrary to the submissions made by Endesa to the Spanish court) and 9b) that the [Voyage] charter is within Endesa’s control for the purposes ofCPR Part 31 . We therefore ask the court to make an order against Endesa for production of a copy of the [Voyage] charter forthwith, with liberty to show the same to the Spanish court to correct the false impression which has been given by Endesa in its submissions to the Spanish court regarding the absence of any document containing a London arbitration clause (C pages 218 and 219. We respectfully ask for this order to be made as soon as possible (with reasons to follow) given that a decision on the recurso challenge is expected within the near future. We are not sure whether it will be possible to introduce the [Voyage] charter as part of the recurso appeal as submissions are now technically closed. In this regard, it would greatly assist if the Court, as part of its disclosure order, required Endesa to consent to the admission (or at least not to oppose the admission) of the [Voyage] charter to the Spanish court dealing with the current appeals before judgment is given.”
“… as a matter of Spanish law, Endesa has the right, under the [Carboex Supply Agreement], to require Carboex to supply Endesa with a copy of the ‘corresponding charterparty’ referred to in clause 6 of the [Carboex Supply Agreement]”
“1. the defendant do disclose to the claimant a copy of the [Voyage Charter] …., and the claimant be at liberty, so far as this court is concerned, to use such copy for the purposes of the Spanish proceedings …… but without prejudice to any such order as the Spanish court may make in that regard; 2. the claimant’s application for an order that the defendant be required by this court to consent to the admission (or at least not to oppose the admission) of the [Voyage Charter] to the Spanish court be refused; and 3. costs reserved.”
“It is incompatible with Council Regulation (EC) No 44/2001 of22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters for a court of a Member State to make an order to restrain a person from commencing or continuing proceedings before the courts of another Member State on the ground that such proceedings would be contrary to an arbitration agreement.”
“22. In that regard it must be borne in mind that, in order to determine whether a dispute falls within the scope of Regulation No 44/2001, reference must be made solely to the subject-matter of the proceedings (Rich Marc Rich & Co AG v Societa Italiana Impianti PA [1991] 2 European Community Cases, 358 at 365. , paragraph 26). More specifically, its place in the scope of Regulation No 44/2001 is determined by the nature of the rights which the proceedings in question serve to protect (Van Uden Van Uden Maritime BV v Deco-Line[1998] ECR I-7091 . , paragraph 33). 23. Proceedings, such as those in the main proceedings [i.e. the English proceedings], which lead to the making of an anti-suit injunction, cannot, therefore, come within the scope of Regulation No 44/2001.” ii) Thus it regarded the English proceedings as being proceedings the subject matter of which was to protect West Tankers’ rights to arbitrate, and therefore outside the scope of the Regulation, as did Advocate General Kokott in her opinion in The Front ComorCase C-185/07 , opinion delivered4 September 2008 . . The fact that, in contrast, the Court regarded In paragraphs 25 – 27 of its judgment. the preliminary issue (as to the applicability and validity of an arbitration agreement) raised in the context of a jurisdictional dispute in the proceedings before the Tribunale di Siracusa, as being within the scope of the Regulation (on the grounds that the characterisation of the preliminary issue was the same as that of the principal proceedings before that court – viz. the claim for damages pursuant to Article 5(3)), was irrelevant to its characterisation of the English proceedings. iii) The ECJ’s approach to the characterisation of the English proceedings in The Front Comor as being subject to the arbitration exception and thus outside the scope of the Regulation, is orthodox and consistent with inter alia: a) the approach previously taken by Advocate General Darmon in his opinion in Marc Rich (supra), which included a compelling analysis of why Article 5(1) could not apply to claims of this sort relating to disputes about the existence of arbitration agreements; See paragraphs 76 to 94 of Advocate General Darmon’s opinion. b) the decision of the ECJ in the same case[1992] 1 Lloyd’s Reports 342 ;[1991] ECR I-3855 . , (albeit that the Court there took a broader view of the scope of the “arbitration exception” than the ECJ in The Front Comor; its actual decision was narrow and confined to the single issue as to whether litigation for the appointment of an arbitrator was excluded from the Convention); See paragraph 73 of the judgment of Aikens J (as he then was) in The “Ivan Zagubanski”,Navigation Maritime Bulgare v Rustal Trading Limited[2002] 1 Lloyd’s Reports 106 . c) the analysis of Aikens J (as he then was) in The “Ivan Zagubanski”, Supra. who concluded See paragraphs 71 and 72. , after a comprehensive review of English and European authority, that claims (such as those now formulated in the draft particulars of claim in Folio 64) for a declaration that a valid arbitration agreement exists, fell within the arbitration exception contained in Article 1(4) of the Brussels Convention In similar terms to Article 1(2)(d) of the Regulation. , and accordingly outside the scope of the Brussels Convention, on the basis that the principal focus or subject matter of such proceedings was “arbitration”; d) the decision of the Court of Appeal in Through Transport Mutual Insurance Association (Eurasia) Limited v New India Assurance Association Company Limited[2004] EWCA Civ 1598 , at paragraph 44. , who approved the analysis of Aikens J in “The Ivan Zagubanski; e) the characterisation by the House of Lords of the English proceedings in The Front Comor as being outside the scope of the Regulation.[2007] UKHL 4 ,[2007] 1 Lloyd’s Reports 391 , at paragraphs 13 – 16. iv) The fact that in The Front Comor, the Court At paragraphs 26 and 27 of its judgment. characterised the preliminary issue (as to the applicability and validity of the alleged arbitration agreement), raised in the jurisdictional challenge in the tort proceedings before the Tribunale di Siracusa, as proceedings within Article 5(3) of the Regulation (on the grounds that the main claim for damages was to be so characterised) does not assist Ms. Selvaratnam’s alternative argument in relation to the Commercial Court Action. In relation to that action, there can be no question but that (in its intended revised form as an arbitration claim) its subject matter, i.e. the nature of the rights which it seeks to protect, are NNC’s rights to have its disputes with Endesa resolved by London arbitration. v) Ms. Selvaratnam also referred to discussion of the topic by Thomas Raphael, barrister, in his book The Anti-Suit Injunction Oxford University Press, 2008, paragraph 17.01 – 17.12. , and, in particular, his suggestion At paragraph 17.11. that: “… if a claim for a declaration that a London arbitration clause is binding were to fall outside the arbitration exception, it would probably fall within Article 5(1).”; and also to the passage At paragraph 17.12. where he says: “… If in the pending reference in The Front Comor the European Court were to conclude that injunctions to enforce an arbitration clause were within the material scope of the regime for the purposes of jurisdiction, there would be a strong practical pressure to locate a Brussels-Lugano jurisdiction that would apply, however forced the semantic analysis might be, since the English courts would wish to retain unconstrained jurisdiction to hear claims for anti-suit injunctions to enforce arbitration clauses, at least where the foreign proceedings are outside the Brussels-Lugano zone.”
“Folio 64 remained in existence as a means by which NNC sought disclosure of the [Voyage Charter]. As regards formal opposition to the application made by Endesa challenging jurisdiction in Folio 64, NNC position was reserved.”
“There was no indication anywhere in the information available to Mr. Askins to support an objectively reasonable belief that, contractually, the parties were subject to an agreement to submit their disputes under the Bill of Lading to the exclusive or non-exclusive jurisdiction of the English courts. ….”
“The London arbitration clause of a Charterparty dated25 September 2007 and made between Morgan Stanley Capital Group Inc as disponent owners and Carboex SA as charterers of the vessel WADI SUDR (‘the Carboex charter’) is validly incorporated into the Bill of Lading no.CIL 07/49 dated6 December 2007 issued by the Claimant in respect of a cargo of 64,609MT steam coal in bulk shipped at Indonesia aboard the said vessel (‘the Bill of Lading’) and is binding upon the Defendant.”
“The Brussels Convention should also not apply to the issue of recognition and enforcement of judgments concerning the existence and validity of arbitration agreements. That is because there is the danger that such a judgment may be given in a State other than the place of arbitration.” v) The ECJ in The Front Comor did not say that Professor Dr. Peter Schlosser’s Report Report on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of England and Northern Ireland to the Convention on jurisdiction and judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice, signed at Luxembourg on9 October 1978 . , which states At paragraph 64(b). that “In the same way a judgment determining whether an arbitration agreement is valid or not, or because it is invalid ordering the parties not to continue with the arbitration proceedings, is not covered by the 1968 Convention”
“The Brussels Convention …does not apply for the purposes of determining the jurisdiction of courts and tribunals in respect of litigation relating to arbitration – for example, proceedings to set aside an arbitral award; and, finally, it does not apply to the recognition of judgments given in such proceedings”
“It can be left undecided here how proceedings which concern similar findings in the main case should be evaluated”
“Nothing in subsection (1) shall affect the recognition or enforcement in the United Kingdom of- (a) a judgment which is required to be recognised or enforced there under … the Regulation ….”
“50. A number of other questions which might arise under the Regulation were touched on in argument. In particular, there was some debate on the question whether the judgment of the District court of Kotka is entitled to recognition under Article 33. However, we do not think that this question arises for decision at present. As we understand it, the judgment obtained to date is simply to the effect that that court has jurisdiction to entertain a claim by New India under the Finnish Act. That was essentially a matter for that court in proceedings which seem to us to be within the Regulation. Whether that judgment is entitled to recognition or not does not seem to us to be relevant to the question whether the judge was correct to grant the declarations or injunction which he did. 51. The fact that arbitration is excluded from the Convention means that from time to time there are likely to be conflicting judgments in different member states and it is therefore possible that questions of recognition and enforcement of conflicting judgments may arise in the future in a case like this. In our opinion such questions are best left for decision when and if they arise.”
“24. However, even though proceedings do not come within the scope of Regulation No 44/2001, they may nevertheless have consequences which undermine its effectiveness, namely preventing the attainment of the objectives of unification of the rules of conflict of jurisdiction in civil and commercial matters and the free movement of decisions in those matters. This is so, inter alia, where such proceedings prevent a court of another Member State from exercising the jurisdiction conferred on it by Regulation No 44/2001. … 27. It follows that the objection of lack of jurisdiction raised by West Tankers before the Tribunale di Siracusa on the basis of the existence of an arbitration agreement, including the question of the validity of that agreement, comes within the scope of Regulation No 44/2001 and that it is therefore exclusively for that court to rule on that objection and on its own jurisdiction, pursuant to Articles 1(2)(d) and 5(3) of that regulation. 28. Accordingly, the use of an anti-suit injunction to prevent a court of a Member State, which normally has jurisdiction to resolve a dispute under Article 5(3) of Regulation No 44/2001, from ruling, in accordance with Article 1(2)(d) of that regulation, on the very applicability of the regulation to the dispute brought before it necessarily amounts to stripping that court of the power to rule on its own jurisdiction under Regulation No 44/2001. 29. It follows, first, as noted by the Advocate General in point 57 of her Opinion, that an anti-suit injunction, such as that in the main proceedings, is contrary to the general principle which emerges from the case-law of the Court on the Brussels Convention, that every court seised itself determines, under the rules applicable to it, whether it has jurisdiction to resolve the dispute before it (see, to that effect, Gasser, paragraphs 48 and 49). It should be borne in mind in that regard that Regulation No 44/2001, apart from a few limited exceptions which are not relevant to the main proceedings, does not authorise the jurisdiction of a court of a Member State to be reviewed by a court in another Member State (Case C-351/89 Overseas Union Insurance and Others[1991] ECR I-3317 , paragraph 24, and Turner, paragraph 26). That jurisdiction is determined directly by the rules laid down by that regulation, including those relating to its scope of application. Thus in no case is a court of one Member State in a better position to determine whether the court of another Member State has jurisdiction (Overseas Union Insurance and Others, paragraph 23, and Gasser, paragraph 48). 30. Further, in obstructing the court of another Member State in the exercise of the powers conferred on it by Regulation No 44/2001, namely to decide, on the basis of the rules defining the material scope of that regulation, including Article 1(2)(d) thereof, whether that regulation is applicable, such an anti-suit injunction also runs counter to the trust which the Member States accord to one another’s legal systems and judicial institutions and on which the system of jurisdiction under Regulation No 44/2001 is based (see, to that effect, Turner, paragraph 24). 31. Lastly, if, by means of an anti-suit injunction, the Tribunale di Siracusa were prevented from examining itself the preliminary issue of the validity or the applicability of the arbitration agreement, a party could avoid the proceedings merely by relying on that agreement and the applicant, which considers that the agreement is void, inoperative or incapable of being performed, would thus be barred from access to the court before which it brought proceedings under Article 5(3) of Regulation No 44/2001 and would therefore be deprived of a form of judicial protection to which it is entitled. 32. Consequently, an anti-suit injunction, such as that in the main proceedings, is not compatible with Regulation No 44/2001.”
“[i]n so far as it is to try to oblige or influence the Italian Court to accede to Toepfer’s defence in Italy that the matter falls within a binding arbitration agreement, the object is to prevent the determination by the Italian Courts which it is Molino…’s aim in Italy to pursue...”
“Harmonisation of the solutions adopted by national courts does not constitute an aim in itself, at the expense of the specific features of the area concerned.”
“Each Contracting State shall recognise an agreement in writing under which parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.”
“It seems to me, however, that that provision does not confer an exclusive jurisdiction on the Court of the Contracting State concerned; and it is consonant with that provision that the Court of another Contracting State should make an order procuring the same result.”
“There is no easy answer to the problem raised by the cases of the kind here under discussion. The only general statement which can safely be made about them is that where the courts have to choose between two or more charterparties, they will be inclined to favour the incorporation of terms of that charter which are the more (or the most) appropriate to regulate the legal relations of the parties to the bill of lading contract. Where each (or more than one) of the charterparties is equally appropriate for this purpose, the courts might determine the issue by holding the relevant charterparty to be that one which governed the contractual relations between the original parties to the bill of lading and in pursuance of which the bill was issued.” (Emphasis added.)
“If, contrary to an agreement to refer a matter to arbitration, one party resorts to legal proceedings in an English court in respect of that matter, the court has jurisdiction to hear the dispute. The existence of the arbitration agreement, or even the fact that an arbitration is already in progress, affords no defence to the action. The appropriate course is for the other party to apply for a stay of the legal proceedings. Conversely, there is no principle that requires arbitral proceedings to terminate if a party to the arbitration resorts to legal proceedings. Nor does resort to legal proceedings of itself constitute a repudiation of the arbitration agreement. However, where one party denies that he is bound by the arbitration agreement and thereby repudiates it, the issue of legal proceedings by the other party may amount to an acceptance of the repudiation and so bring the agreement to an end. It there are concurrent or overlapping proceedings in respect of the same matter, both in arbitral and legal proceedings, the court may grant an injunction to restrain the continuance of the arbitral proceedings. But it will not necessarily do so and may allow them to continue. Yet in such a case it would seem that an award in concurrent proceedings without the consent of both parties would then have no effect.” [Emphasis added]
“conduct after the alleged acceptance of the repudiation is irrelevant”
“A simple confirmation of the existence of the jurisdiction regime in the voyage charter would allow us to take instructions on withdrawing the High Court application if in fact the matter is subject to Arbitration.”
“… and on the basis of basic legal grounds … Paragraph 4. ”
“… the only evidence (as opposed to speculation concerning the … Carboex charter party … indicates it contains a London arbitration clause.”
“The London arbitration clause of a Charterparty dated25 September 2007 and made between Morgan Stanley Capital Group Inc as disponent owners and Carboex SA as charterers of the vessel WADI SUDR (‘the Carboex charter’) is validly incorporated into the Bill of Lading no.CIL 07/49 dated6 December 2007 issued by the Claimant in respect of a cargo of 64,609MT steam coal in bulk shipped at Indonesia aboard the said vessel (‘the Bill of Lading’) and is binding upon the Defendant. [The costs of and occasioned by that application are to be paid by Endesa (on a standard/indemnity basis) and referred to a detailed assessment].”