Vale do Rio doce Navegaçao S.A. v Shanghai Bao Steel Ocean Shipping Company Ltd (t/a Bao Steel Ocean Shipping Company )
| Jurisdiction | England & Wales |
| Judge | Thomas J. |
| Judgment Date | 14 April 2000 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 14 April 2000 |
QUEEN'S BENCH DIVISION
Before Mr Justice Thomas
Arbitration - challenging existence of arbitration contract
When the proposed first defendants denied being a party to a contract with the claimants, an arbitration claim form seeking a declaration whether they had been party to such a contract raised a question as to the contractual power under which the arbitration was sought.
The High Court, therefore, had no jurisdiction either
(i) as an arbitration exception to the Lugano Convention: see the Civil Jurisdiction and Judgments Act 1982, as amended by section 1 of the Civil Jurisdiction and Judgments Act 1991,
(ii) under Practice Direction - Arbitrations (see 49GPD in Civil Procedure (second edition, 1999)) or
(iii) under the Arbitration Act 1996 to give permission to serve the claim form on the second defendants, the brokers in Norway through whom the contract was said to have been made, since the appropriate forum to bring an action against them was Norway.
Mr Justice Thomas so held in a reserved judgment in the Queen's Bench Division setting aside the arbitration claim form of the claimants, Vale Do Rio Doce Navegacao SA and Seamar Shipping Corporation, against the defendants, Shanghai Bao Steel Ocean Shipping Co Ltd, trading as Baosteel Ocean Shipping Co, and Sea Partners AS, seeking a declaration that the first defendants had been a party to an affreightment contract made on September 3, 1997 with the claimants.
Mr Duncan Matthews for the claimants; Mr Christopher Butcher for the second defendants; the first defendants did not appear and were not represented.
MR JUSTICE THOMAS said that the term "arbitration" could not refer to anything other than the arbitration itself and proceedings brought before the national courts between the parties to the arbitration or arbitration agreement in relation to that arbitration.
There was no warrant for reading the words in any wider sense and as applicable against persons not parties to the arbitration agreement.
None of the cases in which the decision of Marc Rich and Co AG v Societa Italiana Impianti (The Atlantic Emperor) (Case No 190/87)((1991) 1 ECR 3855) had been applied had suggested a wider application of the arbitration exception.
On the scope of the...
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