Impala Warehousing and Logistics (Shanghai) Co.Ltd v Wanxiang Resources (Singapore) PTE Ltd

General incorporation wording can incorporate contractual choice-of-law and jurisdiction clauses where the document expressly states that disputes are subject to the incorporated terms. Referring to standard terms on a website may be sufficient notice where the document directs the holder to the website and the relevant terms are identifiable. A court should not finally determine the effect of apparently conflicting contracts without evidence of their factual and commercial context. An interim mandatory injunction requires a high degree of assurance that its basis is correct. Inability to enforce the resulting judgment in the claimant’s home country may constitute a strong reason for departing from an exclusive jurisdiction clause.

Wanxiang claimed ownership of aluminium stored in Qingdao and pursued proceedings in Shanghai against Impala Shanghai for delivery. Impala Shanghai obtained an interim anti-suit injunction in England on the basis that warehouse certificates contained an exclusive English jurisdiction clause. It then sought a final anti-suit injunction and a mandatory order requiring discontinuance of the Chinese proceedings, alternatively an interim mandatory injunction.

Wanxiang maintained that its claim arose under a tripartite Collateral Management Agreement, governed by Singapore law with non-exclusive Singapore jurisdiction, and argued that the warehouse certificates should be construed consistently with that agreement. The central issues were whether the certificates incorporated Impala’s online warehousing terms and whether the court had sufficient evidence to determine the competing contractual analysis.

1. Application dismissed. The court refused the final prohibitive and mandatory injunctions and the alternative interim mandatory injunction.
2. The warehouse certificates stated that the certificate and all disputes arising from it were subject to Impala’s terms and conditions. The reverse directed holders to the relevant terms on Impala’s website. The warehousing terms, rather than the website-use or freight terms, were clearly applicable, and clause 10 provided for English law and exclusive English jurisdiction.
3. Incorporation depends on whether the party relying on the terms took reasonably sufficient steps to give notice of them. The certificate’s reference to its reverse, followed by the direction to the website, satisfied that requirement. The express reference to disputes also incorporated provisions governing dispute resolution, including choice-of-law and jurisdiction clauses.
4. The court could not fairly or properly determine the principal issue without evidence concerning the making of the Collateral Management Agreement, the parties’ knowledge of it, and Impala Shanghai’s role when issuing the certificates. The documentary material did not provide the necessary factual context.
5. An interim mandatory injunction requires a high degree of assurance that the basis for the order is correct. That threshold was not met. The alleged vexatiousness of the Chinese proceedings also lacked sufficient force once Wanxiang’s explanation that its claim could lie under the certificates was accepted.
6. Obiter, the judge considered the principles in Donohue v Armco [2002] 1 Lloyd’s Rep. 425 and the factors identified in The Eleftheria [1969] 1 Lloyd’s Rep. 237. Chinese evidence, related claims, the parties’ connections with China and lack of negotiation would not suffice on these facts. Inability to enforce an English judgment in China, absent a reliable means of avoiding that prejudice, would constitute strong reason to depart from the clause.