Import Export Metro Ltd. & Anor v Compania Sud Americana De Vapores S.A.

A party that has freely agreed to an English jurisdiction clause will ordinarily be held to that bargain unless strong reasons justify departure. Foreseeable matters of convenience, including foreign witnesses, documents and evidence, will rarely suffice. A party must ordinarily show an unforeseeable matter of convenience or a factor engaging the interests of justice.

The fact that foreign law applies, or that proceedings may also exist abroad, does not by itself displace the clause. The English court remains capable of determining foreign-law issues, including the scope of any applicable-law qualification. Multiplicity of proceedings may engage the interests of justice where parallel claims or third-party interests create a serious risk of inconsistent decisions, but separate claims governed by different legal frameworks did not do so here.

The claim concerned alleged mis-delivery of goods shipped under 11 bills of lading from China to Chile. The bills were governed by English law and contained a non-exclusive English jurisdiction clause.

The defendant applied for a declaration that the English court should not exercise jurisdiction, an order setting aside service out of the jurisdiction, and a stay. It argued that Chile was the appropriate forum, relying on the importance of Chilean law, the location and availability of evidence, and related Chilean proceedings involving the parties.

The central issue was whether those matters amounted to strong reasons for departing from the contractual jurisdiction clause.

1. The application was dismissed. The defendant had freely adopted the standard-form bills of lading containing the English law and non-exclusive English jurisdiction clause. The clause represented a contractual choice of a neutral forum.
2. The general rule was that effect should be given to such a bargain unless strong reasons for departure were shown. The approach in BAe v Dee Howard was adopted as the general benchmark for foreseeable matters of convenience. Although all the circumstances remained relevant, foreseeable convenience factors would rarely justify release from the bargain. Strong reasons would ordinarily require an unforeseeable matter or circumstances engaging the interests of justice.
3. Chilean law was potentially relevant under article 10(2) of the Rome Convention and clause 5 of the bills of lading. However, the dispute also required the English court to determine the scope of any Chilean-law carve-out within contracts governed by English law. The English court was familiar with foreign-law evidence, and the existence of foreign-law issues did not itself engage the interests of justice.
4. The evidential difficulties identified by the defendant were ordinary matters of convenience. Difficulties in obtaining evidence from the place of discharge were foreseeable when a neutral forum was chosen. They did not constitute strong reasons for refusing to enforce the clause.
5. The related Chilean proceedings involved different shipments and claims, and would be determined under Chilean law, whereas the English proceedings principally concerned contractual claims governed by English law. The different legal frameworks reduced the risk of legally embarrassing inconsistent outcomes. The multiplicity argument therefore did not engage the interests of justice.
6. The court declined to defer its decision for a preliminary issue concerning the relationship between performance and manner of performance. The parties’ interests were best served by determining the stay application finally.