Emirates Shipping Line DMCEST v Gold Star Line Ltd

An application under section 67 of the Arbitration Act 1996 is a rehearing de novo. A court must identify the parties’ objective agreement from the whole sequence of relevant correspondence. It cannot create contractual terms merely because they would be reasonable.

Where linked transactions concern different subject matters, the court may find that they are separate contracts governed by different terms, including different dispute-resolution provisions. An arbitration clause is not incorporated simply because the parties’ relationship would otherwise have a single forum.

Estoppel may establish that an existing contract is subject to a particular contractual framework containing an arbitration clause, but it cannot create a wholly new cause of action or agreement. Promissory estoppel, estoppel by convention and a duty to speak each require the relevant elements of assurance or assumption, reliance and unconscionability.

Emirates Shipping Line DMCEST challenged, under section 67 of the Arbitration Act 1996, an arbitral award declaring that the tribunal had no jurisdiction. The dispute concerned whether Emirates had become a party to a 2018 memorandum of understanding between Gold Star Line and other consortium members.

Emirates had purchased container slots from Gold Star Line and was later intended to join the consortium as a vessel provider. It relied on the 2018 memorandum’s terms, including its arbitration clause, in pursuing an indemnity claim arising from damaged cargo. Gold Star Line denied that the memorandum governed the slot purchase.

The issues were whether the memorandum was expressly or impliedly incorporated, and whether Gold Star Line was estopped from denying its application.

1. Disposition. The application failed. The tribunal’s conclusion that it had no jurisdiction was upheld.
2. Section 67. The application proceeded by way of a rehearing de novo. The award had no presumptive validity, although the tribunal’s reasoning deserved respect, particularly where based on its experience. The court considered the additional evidence available at the rehearing (para. [4]).
3. Contract formation and incorporation. The slot purchase contract was concluded on 31 October 2019, or at the latest when the invoice was paid. It was separate from the later agreement for Emirates to join the consortium, although the transactions were linked. There was no express or implied agreement that the 2018 memorandum governed the slot purchase. Its substantive terms were generally inapposite to a third-party slot purchase, and subsequent conduct could not be used to construe the completed contract. It could be relevant only to variation or estoppel, neither of which was established on the evidence (paras. [35]-[50]).
4. Arbitration clause. The principle in Fiona Trust & Holding Corp. v Privalov, [2007] UKHL 40, that rational businessmen are generally presumed to intend disputes arising from their relationship to be resolved by the same tribunal, was a default presumption rather than an invariable rule. Separate contracts dealing with different subject matters could rationally have different terms and dispute-resolution mechanisms (para. [41]).
5. Estoppel. Estoppel could not create a new cause of action or new rights, but it could prevent reliance on a defence. It was therefore open in principle to use estoppel to establish that an existing slot purchase contract incorporated a contractual framework containing an arbitration clause. The claim nevertheless failed because there was no sufficient promise, reliance, unconscionability, assumption of responsibility or duty to speak. The decision in The Eleni P, [2014] EWHC 2402 (Comm), was not followed on the direct jurisdiction point (paras. [57]-[62]).
6. Specific estoppels. Promissory estoppel was directed to a promise not to enforce strict legal rights, not merely to an assertion that a contract existed. Estoppel by convention required a shared assumption, responsibility, reliance in subsequent dealings and sufficient detriment or benefit to make it unjust or unconscionable to assert the true position. A duty to speak required knowledge that the other party was mistaken about their rights and circumstances making honest and responsible disclosure reasonably expected. Those requirements were not met (paras. [53]-[56], [63]-[79]).

The judgment describes an arbitral award dated 30 May 2022 in which the tribunal declared that it had no jurisdiction. The High Court reheard the jurisdiction issue under section 67 of the Arbitration Act 1996 and upheld the tribunal’s conclusion.