Anti‐suit Injunctions and the Doctrine of Comity

DOIhttp://doi.org/10.1111/1468-2230.12183
AuthorFelix W. H. Chan
Publication Date01 Mar 2016
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CASES
Anti-suit Injunctions and the Doctrine of Comity
Felix W. H. Chan
Hin-Pro International Logistics Limited vCSAV is an important case in the areas of anti-suit
injunctions, contractual interpretation and private international law. Despite the ambiguities
surrounding the jurisdiction clause contained in the bills of lading, the Court of Appeal con-
strued the jurisdiction clause as ‘exclusive’ in the context of a ‘contractual background’, and
affirmed the continuation of the anti-suit injunction granted by the Commercial Court. It is
argued that the approach of applying the common law principles of contractual interpretation
to a bill of lading is questionable. The approach used to apply English private international law
is problematic in a number of ways. There are legitimate reasons for concern that the doctrine
of comity in English private international law may become undermined as a result.
INTRODUCTION
In Hin-Pro International Logistics Limited vCompania Sud Americana De Vapores
SA,1the carrier (CSAV) issued a series of bills of lading to a Hong Kong
company (Hin-Pro) cover ing the carriage of goods by sea from Nanjing, China
to Venezuela. Hin-Pro suffered great losses as a result of the alleged delivery of
the cargo by CSAV to the wrong parties without presentation of the bills of
lading. The bills of lading contained the following clause
Clause 23: Law and jurisdiction
This Bill of Lading and any claim or dispute arising hereunder shall be subject to
English law and the jurisdiction of the English High Court of Justice in London.
If, notwithstanding the foregoing, any proceedings are commenced in another
jurisdiction, such proceeding shall be referred to ordinary courts of law .. . 2
A fundamental question was whether this was an exclusive jurisdiction clause.
Taking the view that the second sentence meant that it was not an exclusive
jurisdiction clause, Hin-Pro commenced proceedings in foreign courts.3
Faculty of Law, University of Hong Kong. The author thanks Anselmo Reyes, Stefan Enchelmaier
and Scott Veitch for the useful discussions and comments. Any faults are the author’s.
2 [2015] EWCA Civ 401 at [4]. Clause 23 contained a third sentence that read: ‘In the case of
Chile, arbitrators shall not be competent to deal with any such dispute and proceedings shall be
referred to the Chilean Ordinary Courts.’ It was not contested by the parties, and was viewed
by the Court of Appeal as a common ground, that the third sentence of Clause 23 was void
under Chilean law.
3 Proceedings were commenced in various Maritime Courts in mainland China.
C2016The Author. The Modern Law Review C2016The Moder n Law ReviewLimited. (2016)79(2) MLR 341–363
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

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