Hin-Pro International Logistics Ltd v Compania Sud Americana De Vapores SA

A jurisdiction clause need not use the word “exclusive” to confer exclusive jurisdiction. Its effect depends on the language, commercial purpose and contractual context. A provision that claims and disputes “shall be subject to” English law and the English High Court ordinarily makes both choices mandatory, particularly where later sentences address proceedings commenced elsewhere despite that requirement.

A court retains a flexible discretion to hear an appeal by a contemnor. The governing question is whether the interests of justice favour hearing the appeal, while giving paramount importance to prompt compliance with court orders. Failure to file an acknowledgment of service does not itself remove the right to appeal.

Hin-Pro, a Hong Kong freight forwarder, brought numerous Chinese proceedings against CSAV under bills of lading, alleging delivery of cargo without production of the original bills. Clause 23 provided that each bill, and any claim or dispute arising under it, “shall be subject to” English law and the jurisdiction of the English High Court. Hin-Pro continued the Chinese proceedings despite English anti-suit injunctions and findings of contempt.

Cooke J held that clause 23 conferred exclusive English jurisdiction, permanently restrained the Chinese proceedings and granted associated monetary relief: [2014] EWHC 3632 (Comm). Hin-Pro appealed. CSAV sought to set aside permission to appeal and argued that Hin-Pro should not be heard while its contempt continued.

The Court of Appeal considered whether to entertain the appeal, whether permission should be rescinded, and whether clause 23 was an exclusive jurisdiction clause.

1. Appeal dismissed. The court nevertheless exercised its discretion to hear Hin-Pro despite its continuing contempt. The appeal challenged the jurisdiction clause underlying the disobeyed orders, raised issues of wider importance, and had already received permission after security for costs was provided. Those considerations outweighed the strong reasons otherwise favouring refusal to hear a party deliberately defying court orders.
2. The permission to appeal would not be set aside under rule 52.9 of the Civil Procedure Rules. A compelling reason ordinarily requires a serious irregularity in the grant of permission. Failure to file an acknowledgment of service did not deprive the Court of Appeal of jurisdiction. It was a procedural error which did not invalidate subsequent steps unless the court ordered otherwise. Flaux J's order barred participation at trial, not an appeal to the Court of Appeal. Seeking permission was not an abuse of process.
3. Clause 23 conferred exclusive jurisdiction on the English High Court. The words “shall be subject to” were imperative and applied with equal force to English law and English jurisdiction. They submitted all disputes to the English court rather than merely consenting to its jurisdiction if invoked. The commercial purpose was to identify both the governing law and the court that would determine disputes. In a worldwide bill of lading regime, merely adding England as one optional forum would provide limited certainty.
4. The phrase addressing proceedings commenced elsewhere “notwithstanding the foregoing” confirmed that the first sentence imposed a contractual requirement to litigate in England. The later sentences catered for jurisdictions in which an exclusive clause might be ineffective, including where the Hamburg Rules applied. They did not make English jurisdiction optional.
5. The contra proferentem principle did not alter the result. It has limited use in ordinary commercial contracts and operates only where ambiguity remains. Clause 23 was not ambiguous. In any event, it bound and benefited both parties by providing certainty, a neutral forum and a court applying its own law.
6. Article 21(1)(d) of the Hamburg Rules concerns an additional place designated in the contract for instituting proceedings, not an additional port of loading or discharge. Article 23 would make an exclusive clause ineffective only to the extent that it derogated from the Convention. That consequence under the Rules did not determine the clause's construction under English law.

Beatson and Elias LJJ agreed with Christopher Clarke LJ.

1. Court of Appeal (Civil Division): The appeal was entertained despite the appellant's contempt. The application to set aside permission was rejected, and the appeal from Cooke J was dismissed: [2015] EWCA Civ 401.
2. High Court, Commercial Court: Cooke J held that clause 23 conferred exclusive English jurisdiction, granted a permanent anti-suit injunction and ordered associated monetary relief: [2014] EWHC 3632 (Comm).