Nakanishi Kikai Kogyosho Ltd. v Intermare Transport GmbH

Summary judgment is inappropriate where the contractual identity of the parties, the surrounding transaction, or an agent’s authority depends on disputed and incomplete evidence. The court may consider documents executed as part of the same transaction and, where necessary, extrinsic evidence concerning the parties’ identity. A party seeking summary relief must show that the opposing case has no real prospect of success. Where the factual background is obscure and there is a realistic prospect that disclosure and cross-examination may alter the assessment, the issues should proceed to trial. This applies both to construction-related questions and to alleged actual or ostensible authority to conclude an arbitration agreement.

The claimants sought declarations under section 72 of the Arbitration Act 1996 that they were not parties to arbitration agreements contained in two seven-year time charterparties, together with injunctions restraining related arbitrations.

The charterparties described the owners as Namirei-Showa, Nakanishi Kikai, or their guaranteed nominee. The vessels were never delivered. The defendants commenced arbitrations against the claimants and others, contending that the claimants were contractual parties and that the signatory had authority to bind them.

The central questions were whether the claimants were parties to the charterparties and whether the signatory had actual or ostensible authority to contract on their behalf.

1. Applications refused. The claimants had not established that the defendants had no real prospect of successfully defending the claim. The issues required determination at trial after disclosure and, if appropriate, cross-examination.
2. In deciding whether the claimants were parties, the court could consider the charterparties, the contemporaneous Memoranda of Agreement and other evidence forming part of the same transaction. The judge declined to resolve as a matter of general jurisprudence whether party identity is a question of construction or fact.
3. Even assuming in the claimants’ favour that “or” in the description of the owners was disjunctive, the evidence left unresolved how the relevant owner was selected and what position applied before selection. It was sufficiently arguable that the claimants and Namirei-Showa were initially jointly and severally liable unless another owner was nominated and guaranteed.
4. The broking communications and surrounding circumstances gave the defendants a real prospect of showing that the claimants remained involved in the project, that the brokers acted for them, and that the claimants had not notified the defendants that their involvement had ended. The evidence was therefore too obscure for summary judgment.
5. The authority issue was equally unsuitable for summary determination. There was a realistic prospect that the defendants could establish actual or, at least, ostensible authority. The evidence might show that the brokers had authority to arrange the charterparties and held out the signatory as authorised to sign for the companies named as owners. Matters concerning powers of attorney and the events at the signing ceremony required trial investigation.