Construction and scope of jurisdiction agreements and the court’s jurisdiction to restrain proceedings in breach
Clearlake Singapore Pte Ltd and Gunvor Singapore Pte Ltd v Xiang Da Marine Pte Ltd [22.08.19]
Commercial Court grants anti-suit injunction restraining foreign proceedings as being a vexatious and oppressive circumvention of Charterparty jurisdiction clause, despite applicant not being a party to it.
The defendant owners chartered the M/T “Chang Hang Guang Rong” (the Vessel) to Clearlake under an amended BPVOY4 form charter (the Clearlake Charter) containing an exclusive jurisdiction clause in favour of the English courts extending to “any dispute which might arise out of this charter”. Gunvor in turn sub-chartered the vessel from Clearlake (on terms also incidentally containing an exclusive English jurisdiction clause) and then nominated it to perform its sale contract with Chinese buyers.
In the course of the charter, Clearlake issued letters of indemnity (LoIs) containing a jurisdiction clause in terms that a party liable under it “shall at [owners’] request, submit to the jurisdiction of the English courts”. In due course, bills of lading were issued containing an exclusive jurisdiction clause by incorporation of the Clearlake Charter terms.
Disputes arose between Gunvor and its buyer resulting, among other things, in the buyer arresting the vessel and advancing claims in the Singapore against the owners. The owners sought to join Gunvor and Clearlake to those Singapore proceedings seeking an indemnity or contribution. Against Clearlake they asserted claims in contract (under the charter and/or LoI) and against both they asserted claims in tort, essentially alleging misrepresentation in relation to certain statements in the bills of lading.
Clearlake and Gunvor applied without notice for, and obtained, anti-suit injunctions (ASIs) restraining the Singapore proceedings. By the time of the on notice hearing, the owners had pared down their claim against Clearlake in Singapore to just the LoI claim.
Anti-suit injunction: LoI claim against Clearlake
Owners sought to argue that the jurisdiction clause in the LoI was non-exclusive and therefore admitted of Singaporean jurisdiction at the owners’ election, so that there was no basis for restraining the owners’ claim against Clearlake in Singapore. However, the judge accepted that, although there were two jurisdiction clauses in play (the Clearlake Charter and the LoI) the claim under the LoI nevertheless constituted a dispute arising out of the Clearlake Charter.
The judge held that the two jurisdiction clauses should be interpreted consistently as requiring all disputes to be referred exclusively to the English courts. This approach contrasts with the different approach taken in the more common situation where the court is faced with two flatly inconsistent jurisdiction clauses in two separate agreements, in which case the court will need to decide which of the two clauses governs the dispute.
Anti-suit injunction: Tort claim against Gunvor
The judge also upheld the ASI in favour of Gunvor on the ground that to allow the tort claim against Gunvor to continue in Singapore would be vexatious or oppressive.
Each of the Gunvor Charter, the sub charter and the bills of lading contained exclusive jurisdiction clauses indicating that England was the natural forum for the dispute. The judge considered that Clearlake was the more natural party at which to direct the tort claim and that the owners’ assertion of that tort claim against Gunvor therefore amounted to a manipulation (and a procedural manoeuvre) designed to circumvent the exclusive jurisdiction clause in the Clearlake Charter. The judge also considered that an ASI was appropriate in relation to the claim against Gunvor in order to avoid forum-fragmentation on the same issues.
As the claims against Clearlake were bound to proceed before the English courts in light of his earlier findings, it was appropriate for the tort claim against Gunvor also to proceed in those courts, rather than in Singapore, to prevent significant overlap between the issues.
In view of this conclusion, it was unnecessary for the judge to rule on the alternative application by Clearlake for an ASI restraining owners’ tortious claim against Gunvor in the Singapore proceedings, as being in breach of the exclusive jurisdiction clause in the Clearlake Charter.
Application by Clearlake to restrain claims against Gunvor
The judge considered that because Gunvor was not mentioned in the jurisdiction clause, it did not extend to claims against Gunvor. However, the judge accepted that there were five factors that potentially could outweigh that:
- The tort claim against Gunvor might be said to constitute “a dispute arising out of the [Clearlake] charter”.
- There was nothing in the Clearlake Charter that indicated that it did not apply to Owners’ claims against Gunvor.
- There was a close relationship between Clearlake and Gunvor.
- The fact that, had Owners persisted with bringing their tort claim against Clearlake jointly with Gunvor, that claim would likely have been caught by the exclusive jurisdiction clause and it ought not to make any difference that Gunvor alone was now being sued in tort.
- Clearlake had a genuine interest in restraining the tort claim against Gunvor (not least because they might face an indemnity or contribution claim by Gunvor as joint tortfeasor were Gunvor to be found liable to Owners in Singapore).
While accepting the principle that party A may in appropriate circumstances invoke an exclusive jurisdiction agreement with party B to restrain claims by B against C, the judge declined to express any opinion as to whether grounds for such relief had been made out. However, the judge considered the applicable principles in some detail, and the decision represents an important contribution to the law in this area.
The case serves as a useful reminder of the principles applicable to the granting of anti-suit injunctions and of the full scope of the court’s jurisdiction, extending as it does to granting injunctive relief to non-parties to jurisdiction agreements in appropriate circumstances. It also serves to illustrate that the courts are likely to be unsympathetic to the manipulation of claims in an attempt to circumvent jurisdiction agreements.