Tracomin S.A. v Sudan Oil Seeds Company Ltd (Nos. 1 and 2)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ACKNER,LORD JUSTICE FOX |
| Judgment Date | 24 June 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J0624-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 83/0279,83/0282 |
| Date | 24 June 1983 |
[1983] EWCA Civ J0623-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (COMMERCIAL COURT)
(MR. JUSTICE STAUGHTON)
Royal Courts of Justice.
The Master of the Rolls
(Sir John Donaldson)
Lord Justice Ackner
and
Lord Justice Fox
83/0279
MR. D. GRACE (instructed by Messrs. Richards Butler & Co.) appeared on behalf of the Appellants.
MR. N. MERRIMAN (instructed by Messrs. William A. Crump & Son) appeared on behalf of the Respondents.
The previous history of this appeal appears in a report of the judgment of Mr. Justice Staughton in (1983) 1 All England Reports 406. That being so, I can come immediately to the point of the appeal. Tracomin appeal against that decision of the learned judge given on the 6th October, whereby he held that a judgment of a Swiss court could not be recognised in this country. The basis of the learned judge's decision was that the judgment was affected by sections 32 and 33 of the Civil Jurisdiction and Judgments Act 1982. That Act had come into force during the course of the hearing, and the whole issue in the appeal is whether it took effect so as to bear upon a foreign judgment given before the date when the particular provisions came into force.
Section 32 provides:
"Subject to the following provisions of this section, a judgment given by a court of an overseas country in any proceedings shall not be recognised or enforced in the United Kingdom if—
(a) the bringing of those proceedings in that court was contrary to an agreement under which the dispute in question was to be settled otherwise than by proceedings in the courts of that country; and
(b) those proceedings were not brought in that court by, or with the agreement of the person against whom the judgment was given; and
(c) that person did not counterclaim in the proceedings or otherwise submit to the jurisdiction of that court.
(2) Subjection (1) does not apply where the agreement referred to in paragraph (a) of that subsection was illegal, void or unenforceable or was incapable of being performed for reasons not attributable to the fault of the party bringing the proceedings in which the judgment was given.
(3) In determining whether a judgment given by a court of an overseas country should be recognised or enforced in the United Kingdom, a court in the United Kingdom shall not be bound by any decision of the overseas court relating to any of the matters mentioned in subsection ( 1) or (2)."
Similarly section 33 provides:
"For the purposes of determining whether a judgment given by a court of an overseas country should be recognised or enforced in England and Wales or Northern Ireland, the person against whom the judgment was given shall not be treated as having submitted to the jurisdiction"—and then it goes on to define what is meant by submission to the jurisdiction.
Mr. Grace has submitted that prima facie provisions of this nature have no effect on substantive law, although he accepts that they would affect procedural law, and the learned judge held that this was a procedural provision. But that is subject to another rule, namely that if Parliament wishes to enact retrospectively, it can do so provided it uses sufficiently plain words. The intention to legislate restrospectively need not be expressed provided that there is a very clear implication to that effect.
To find out what Parliament's intention was in this case it is necessary to look at the 13th Schedule, which deals with "Commencement, Transitional Provisions and Savings". Paragraph 2 of that Schedule indicates the dates upon which particular sections are to come into force. Sections 32 and 33 came into force six weeks after the day upon which the Act was passed, and that six weeks in fact expired on the 24th August, 1982. But the 13th Schedule does not stop there, and it contains this provision in paragraph 8:
"Section 32 shall not apply to any judgment—
(a) which has been registered under Part II of the Administration of Justice Act 1920, Part I of the Foreign Judgments (Reciprocal Enforcement) Act 1933 or Part I of the Maintenance Orders (Reciprocal Enforcement) Act 1972 before the time when that section comes into force; or
(b) in respect of which proceedings at common law for its enforcement have been finally determined before that time."
Mr. Grace concedes that he is not within either (a) or (b). He also concedes that if sections 32 and 33 are intended to have retrospective effect, then this appeal fails.
So we have to look at the 13th Schedule and answer the question: What was Parliament's intention? In my judgment, it is quite clear that Parliament was making provision in paragraph 8 for delineating the retrospective extent of section 32, and it was saying that it should not have retrospective effect in relation to any judgment in respect of which enforcement proceedings had been taken, as indicated in (a) and (b). But in setting out precisely the extent to which section 32 should not have retrospective effect Parliament impliedly indicated that in all other respects it should have retrospective effect. Mr. Grace says that the opening words of paragraph 8(1), "Section 32 shall not apply to any judgment", properly construed mean that section 32 shall not apply in relation to the enforcement of any judgment in (a) and (b), but have no reference to recognition.
I do not so construe it. If I did so construe it, there would still be a question in my mind as to whether Parliament having made express provisions in relation to the enforcement of judgments it did not follow on the ordinary principles of expressio unius est exclusio alterius that there was to be a retrospective effect in relation to recognition. As I say, I do not so construe it. I think that the paragraph means precisely what it says. It says that section 32 shall not apply to particular categories of judgments, and by necessary implication it shall apply to all other judgments. The Swiss judgment in this case was one of those other judgments, and accordingly in my judgment section 32 applies. There are equivalent provisions for section 33 contained in paragraph 9 of the Schedule, and the same arguments apply.
Accordingly, I would dismiss the appeal.
I should have added that I very much appreciate the extent to which Mr. Grace has refined his submissions, and has made every concession he possibly could make with a view to saving time and cost.
I agree.
I also agree.
( Order: Appeal dismissed with costs)
[1983] EWCA Civ J0624-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (COMMERCIAL COURT)
(MR. JUSTICE LEGGATT)
Royal Courts of Justice.
The Master of the Rolls
(Sir John Donaldson)
Lord Justice Ackner
and
Lord Justice Fox
83/0282
and
MR. D. GRACE (instructed by Messrs. Richards Butler & Co.) appeared on behalf of the (Plaintiffs) Respondents
MR. N. MERRIMAN (instructed by Messrs. William A. Crump & Son) appeared on behalf of the (Defendants) Appellants.
Sudan Oil Seeds Co. Ltd., as their name implies, are a Sudanese company. Tracomin S.A. are a Swiss corporation. On the 30th November, 1980 Sudan Oil Seeds Co. Ltd. agreed to sell 2,000 tons of ground nuts to Tracomin S.A. to form the subject matter of three separate shipments in the spring of 1981. A week later, on the 6th December, they entered into a further contract with Tracomin for another 2,000 tons of the same commodity to form the subject matter of four separate shipments in 1981.
The contract notes for both these contracts contained the clause: "Other Conditions: As per F.O.S.F.A. Contract No. 20". The material clause in F.0.S..F.A. Contract No. 20 which has given rise to the present litigation is the arbitration clause, clause No. 20, which was in the following terms:
"Any dispute arising out of this contract, including any question of law arising in connection therewith, shall be referred to arbitration in London (or elsewhere if so agreed) in accordance with the Rules of Arbitration and Appeal of the Federation of Oils, Seeds and Fats Associations Limited, in force at the date of this contract and of which both parties hereto shall be deemed to be cognizant. Neither party hereto, nor any persons claiming under either of them shall bring any action or other legal proceedings against the other of them in respect of any such dispute until such dispute shall first have been heard and determined by the arbitrators, umpire or Board of Appeal (as the case may be) in accordance with the Rules of Arbitration and Appeal of the Federation, and it is hereby expressly agreed and declared that the obtaining of an Award from the arbitrators, umpire or Board of Appeal (as the case may be), shall be a condition precedent to the right of either party hereto or of any person claiming under either of them to bring any action or other legal proceedings against the other of them in respect of any such dispute."
In February, March and April 1981 shipments were made under the first contract, and the buyers were highly dissatisfied with the...
To continue reading
Request your trial
- Canpotex Shipping Services Ltd; Sun-Line (Management) Ltd
-
Detlev von Appen GmbH v Voest Alpine Intertrading GmbH [QBD (Comm)]
...1 AC 871. Toepfer (Alfred C) International GmbH v Molino Boschi SRL [1996] CLC 738. Tracomin SA v Sudan Oil Seeds Co Ltd (No. 1)WLR [1983] 1 WLR 1026. Waterhouse v ReidELR [1938] 1 KB 743. Jurisdiction — Arbitration — Subrogation — Leave to serve out — Anti-suit injunction — Vessel carrying......
-
Man (E. D. & F.) (Sugar) Ltd v Yani Haryanto (No. 2)
...with caution (see Ellerman Lines Ltd. v. Read (supra) at 158; Castanho v. Brown & Root (UK) Ltd. (supra) at 573; also Tracomin SA v. Sudan Oil Seeds Co. Ltd. [1983] 1 WLR 1026, 1035B). The reason for caution is that an exercise of jurisdiction does involve an indirect interference with exta......
- Sea Trade Maritime Corporation v Hellenic Mutual War Risks Association (Bermuda) Ltd (No.1)
-
The Recognition, and Res Judicata Effect, of a United States Class Actions Judgment in England: A Rebuttal of V
ivendi
...16–17 (objection to that point of differencebetween the settlement classes not upheld).99 Tracomin SA vSudan Oil Seeds Co Ltd [1983] All ER 404 (QB,Comm) 413–414 per Staughton J.100 DSV Silo-und Verwaltungsgesellschaft mbH vOwners of the Sennar [1985] 1 WLR 490, 493–494.101 ibid, 499.102 Ba......