Africa Express Line Ltd ("Ael") v Socofi SA ("Socofi") & Anor

Under Article 23 of the Judgments Regulation, a jurisdiction clause must be supported by real consent or actual acceptance, clearly and precisely demonstrated. General words incorporating the terms of a separate contract will usually incorporate terms germane to the commercial services undertaken, but will not ordinarily incorporate an ancillary jurisdiction or arbitration clause unless the language and commercial context show that intention. The court must construe the communications objectively and assess the contractual context, including the relationship between the parties and the differences between the incorporated agreement and the new contract.

Africa Express Line Ltd claimed freight from Socofi SA and Plantations Dam SA. Socofi applied for a declaration that the court had no jurisdiction, contending that the English jurisdiction clause in an agreement between AEL and Dam had not been incorporated into the later agreement between AEL and Socofi.

AEL’s August 2007 correspondence offered maritime transport under the conditions of the AEL-Dam agreement. Socofi accepted the maritime transport service on those conditions and a separate fixed charge for related services. The central issue was whether those words clearly and precisely incorporated the jurisdiction clause.

1. Application granted. The court declared that AEL could not rely on the English jurisdiction clause in the AEL-Dam agreement against Socofi.
2. Article 23 of Council Regulation No 44/2001 required real consent or actual acceptance of the jurisdiction clause, clearly and precisely demonstrated. AEL had to show that it had the much better argument that the Article 23(1) requirements were satisfied and that consensus on the jurisdiction clause was established.
3. The court distinguished between incorporation of standard trading terms and incorporation of the terms of a separate contract made between different parties. In the standard-terms context, an express reference to the terms may suffice without a specific reference to the jurisdiction clause. Separate-contract incorporation requires construction of the language in its commercial context.
4. General words of incorporation are usually apt to carry across provisions directly bearing on the nature and cost of the services, but are ordinarily insufficient for an ancillary arbitration or jurisdiction clause. No rigid rule applied. The ultimate question remained what the parties objectively intended.
5. The correspondence focused on the services to be supplied and their cost. The AEL-Dam agreement was not incorporated in its entirety: Dam’s obligations to ship all its export production, and probably its deadfreight provisions, did not apply to Socofi. The words used were apt to incorporate carriage-related provisions, including terms concerning bills of lading, freight, payment, lien, insurance and force majeure, but did not clearly demonstrate agreement to the jurisdiction clause.
6. The commercial context reinforced that conclusion. Socofi was a French company seeking replacement services from French businesses for shipments from Côte d’Ivoire to France and Belgium. Nothing in that context supplied the deficiency in the language of incorporation.
7. The post-contractual seizure proceedings in France did not assist in determining the parties’ agreement. The French statutory lien was apparently available irrespective of the governing law or jurisdiction clause of the carriage contract.