Pan Ocean Co. Ltd v China-Base Group Co. Ltd & Anor

An exclusive jurisdiction clause under Article 25 of the Recast Regulation requires consent to be clearly and precisely demonstrated. The clause being in writing is insufficient: the agreement to jurisdiction must itself be in writing, or be evidenced or confirmed in writing. Agreement implied solely from conduct does not satisfy Article 25(1)(a). An anti-suit injunction remains discretionary. Submission to the foreign court, delay, expenditure, the stage of the foreign proceedings and comity may justify refusing relief.

Pan Ocean sought a declaration that the English court lacked jurisdiction and an order setting aside the claim form. It also sought an anti-suit injunction restraining proceedings brought by China-Base and Beihai in Singapore concerning cargo documentation and customs losses. Pan Ocean relied on an alleged exclusive jurisdiction clause in an implied contract.

The court considered, on the assumption that the alleged implied contract existed, whether the clause satisfied Article 25 of the Recast Regulation. It also considered whether an anti-suit injunction should be granted if the clause were binding, having regard to submission, delay and the progress of the Singapore proceedings.

1. Article 25 jurisdiction agreement. Consent to an exclusive jurisdiction clause had to be clearly and precisely demonstrated. The Article’s formal requirements served that purpose, but remained requirements of form. The parties’ agreement to jurisdiction, rather than merely the clause itself, had to be written, evidenced or confirmed in writing.
2. There was some flexibility. An oral agreement might satisfy the requirements where subsequently confirmed or evidenced in writing, or where reliance on the formal defect would offend good faith. However, no authority supported treating consent implied solely from conduct as sufficient under Article 25(1)(a). On the assumed facts, the alleged implied contract therefore did not establish a binding exclusive jurisdiction clause.
3. The court declined to determine whether the implied contract in fact existed, because that issue would be considered by the Singapore court and the English court had no jurisdiction on the assumed facts.
4. Even if a binding exclusive jurisdiction clause had existed, an anti-suit injunction would not have been granted. Submission was part of the overall discretionary enquiry rather than an absolute bar. A step going beyond a purely defensive jurisdiction challenge could weigh heavily against relief. The application to stay the Singapore proceedings was also a factor, without the court deciding conclusively whether it amounted to submission under English law.
5. The application was brought too late. The Singapore proceedings had involved an arrest application, hearings, an appeal and substantial expenditure before the anti-suit application was made. Applying The Angelic Grace [1995] 1 Lloyd’s Rep. 87 and Ecobank v Tanoh [2016] 1 WLR 2231, delay, prejudice, wasted resources and comity justified refusing relief. The applications were refused.

Not stated in the judgment.