Morgan Stanley & Co International Plc v China Haisheng Juice Holdings Co Ltd

This is a claim by Morgan Stanley & Co. International Plc (“MSIP”) for a declaration and a final anti-suit injunction against China Haisheng Juice Holdings Co. Ltd. (“CH”). The claim is based upon an exclusive jurisdiction clause in favour of the English court contained in an ISDA Master Agreement (2002 form) as amended by a Schedule and dated as of 2 July 2008 (the “Master Agreement”) between MSIP and CH. The application has been brought because CH commenced proceedings in the Intermediate Peoples’ Court of Xi’an, Shaanxi Province in the PRC on 2 April 2009. Those proceedings were brought against not only MSIP but also Morgan Stanley Asia Limited (“MSAL”).

On 13 May 2009 MSIP issued proceedings in the English Commercial Court against CH claiming sums due under the Master Agreement. In those proceedings MSIP also included its claim for declaratory and injunctive relief to which I have referred. MSIP contends that by the terms of the exclusive jurisdiction clause CH has agreed to bring its claims against both MSIP and MSAL in England and that there is no strong reason for refusing an anti-suit injunction. The grant of an anti-suit injunction would ensure that all claims and counterclaims take place in one jurisdiction, namely, England. If, on the true construction of the exclusive jurisdiction clause, CH has only agreed to bring its claims against MSIP in England, MSIP seeks an anti-suit injunction in relation to CH’s proceedings against MSIP in China. No relief is sought in respect of CH’s claims against MSAL in that event (provided that those claims do not include any claim for rescission of the Master Agreement).

CH accepts that it cannot prevent MSIP from pursuing its claim against CH for sums due under the Master Agreement in the English Commercial Court. However, CH maintains that the exclusive jurisdiction clause only extends to the claims it has brought against MSIP and does not extend to the claims it has brought against MSAL. CH contends that in those circumstances there is strong reason for not granting an anti-suit injunction in relation to the claims against MSIP in China because, in particular, refusal of an injunction affords the better prospect of all claims being pursued in China. In this regard reliance is placed on the possibility that at some future stage this court may, on case management grounds, stay MSIP’s claim in this court pending the determination of the claims by CH in China. If CH is wrong on the construction of the excusive jurisdiction clause so that the clause applies to the claims brought against MSIP and MSAL no positive case is advanced as to there being strong reasons for not granting an anti-suit injunction in respect of CH’s claims against MSIP and MSAL in China.

There are therefore two principal issues. First, what is the true construction of the exclusive jurisdiction clause and second, whether and in what terms an anti-suit injunction should be granted. Before resolving those two issues it is necessary to recount the factual background.

MSIP is an English company within the Morgan Stanley investment and financial group. MSAL is a Hong Kong company within the Morgan Stanley group. CH is a Cayman Islands company which is listed on the Hong Kong stock exchange. It is the holding company for the Haisheng Group which is principally concerned in the manufacture, distribution and export of fruit juice concentrate related product and has subsidiaries in the BVI, the USA and the PRC. One of those subsidiaries is Shaanxi Haisheng Fresh Fruit Juice Co. Ltd. which operates in Xi’an, PRC.

In late 2007 and 2008 CH was considering ways of securing external investment. MSAL sought to assist CH in that regard, first, by means of a secondary share issue and, second, by means of a bond issue. However, neither issue went ahead, though an engagement letter dated 22 July 2008 was sent by MSAL to CH with regard to such issues. It provided for an exclusive jurisdiction clause in favour of the courts of Hong Kong.

CH also had a significant currency exchange rate risk because its revenue was primarily paid in US dollars whereas its costs were primarily incurred in Renmibi, the Chinese currency. MSAL (who, under the engagement letter, had an exclusive right to arrange related hedging transactions and a right to provide pricing and to match bids to arrange other hedging transactions) discussed with CH how that risk might be hedged. To this end a US$/Renmibi currency swap was proposed on 22 June 2008. The Indicative Terms and Conditions sent on 25 June identified MSIP and CH as the two contracting parties. In due course MSIP and CH entered into an ISDA Master Agreement (2002 form) as amended by a Schedule and dated as of 2 July 2008. They also entered into a Credit Support Annex dated as of 2 July 2008 pursuant to which CH was liable to pay to MSIP collateral in respect of any transaction where the exposure under the transaction exceeded a threshold of US$10m.

CH maintains that it was plain to MSAL from the start that CH was looking to MSAL to guide and advise it, CH having no experience of international capital markets, complex derivatives or the contractual documentation which such transactions characteristically involve. CH contends that Mr. Ng Hoi of MSAL took on the task of guiding and advising CH through the proposed hedging transactions, that he made misleading statements and failed to draw the attention of CH to any of the disadvantages and pitfalls inherent in the transaction and that Mr. Hoi was reckless. These allegations are rejected by MSIP.

The initial currency swap was executed in two tranches on 10 July 2008 and 7 August 2008 and a second swap was executed on 7 August 2008. They involved in total US$8m. In September 2008 the US$/Renmibi exchange rate moved against CH and, according to MSIP, CH became liable to provide collateral. CH did not do so. On 17 October 2008 the transactions were restructured.

On 30 March 2009 MSIP notified CH that it was required to provide collateral in the sum of US$14.5m. CH did not do so.

On 2 April 2009 CH commenced proceedings in China against MSIP and MSAL. In those proceedings CH claims rescission of the currency swap transactions and compensation for the losses suffered by CH. The complaint of CH has been summarised by its counsel as follows: “…..the swaps, purportedly bespoke-designed for its benefit, were unsuited to CH and its business, and exposed CH to enormous hidden risks.……it was induced to expose itself to those risks by a combination of misleading statements on the part of Mr. Hoi and overall failure on the part of MSAL and MSIP to advise them fairly and clearly (as they were obliged to do).”

By letter dated 17 April 2009 MSIP informed CH that it was bound to pay an Early Termination Amount of US$26,250,000 together with interest and out of pocket expenses. On 13 May 2009 MSIP issued proceedings in the English Commercial Court claiming such sums.

It is necessary to set out section 13 of the Master Agreement, as amended by the Schedule, in full.

Mr. Daniel Toledano QC, counsel for MSIP, submitted that clause 13 (b) obliged CH to bring its claims against MSIP and MSAL in England because they arose out of or in connection with the Master Agreement. The clause was not restricted to claims against MSIP, but applied to “any suit, action or proceedings relating to any dispute arising out of or in connection with this Agreement.” He submitted that those were very wide words (not merely “any dispute arising out of or in connection with” but “any suit …relating to any dispute arising out of or in connection with”) and that the Master Agreement was an umbrella agreement which applied to all currency swaps made pursuant to its terms. He drew attention to a clause in the Schedule which provided that “the parties and their affiliates intend that all Transactions and all other obligations (whether or not arising under this Agreement …………) shall be treated as mutual and part of a single, indivisible contractual and business relationship.”

With regard to the proper construction of exclusive jurisdiction clauses counsel relied upon three authorities in particular. First, he relied upon the statement by Lord Collins of Mapesbury in UBS AG v HSH Nordbank AG[2009] EWCA Civ 585 at paragraphs 82-83:

Secondly, reliance was placed upon the approach of Lord Hoffman in Fiona Trust to the construction of arbitration clauses on the basis that the same approach should apply to the construction of exclusive jurisdiction clauses. He said at paragraph 13:

Thirdly, counsel relied upon the speech of Lord Scott in Donohue v Armco at paragraphs 60-61 to support his submission as to the extent of clause 13 (b):

Lord Scott’s analysis was followed by Norris J. in Winnetka Trading Corporation v Julius Baer International[2008] EWHC 3146 (Ch), [2009] Bus.LR 1006.

Mr. Andrew Onslow QC, counsel for CH, submitted that the exclusive jurisdiction clause only applied to claims between the parties to the Master Agreement, CH and MSIP. Reliance was placed in particular on the judgment of Rix J. in Credit Suisse First Boston (Europe) Ltd. v MLC (Bermuda) Ltd. [1999] 1 All ER (Comm) 237 at p.252 where an argument similar to that advanced on behalf of MSIP was rejected:

Counsel submitted that there were several reasons why the language of clause 13 did not indicate, plainly or at all, that the exclusive jurisdiction clause extended to claims against non-parties.

The true construction of the exclusive jurisdiction clause in the Master Agreement must depend upon its own terms. They are not identical to those considered either by Rix J. in Credit Suisse or by Lord Scott in Donohue and Armco. In construing the clause I accept that I should be guided by the approach of Lord Collins in UBS AG v HSH Nordbank AG and by the approach of Lord Hoffman in Fiona Trust to the construction of arbitration clauses. However, the key question is whether clause 13 would reasonably be understood to mean that MSIP and CH promised each other that claims arising out or in connection with the Master Agreement would be brought in England regardless of whether the claims were against the other or a non-party to the Master Agreement. That type of issue was not addressed by either Lord Collins or Lord Hoffman (and in the context of arbitration it could not arise because a non-party could not be subject to an arbitration to which it had not agreed).

The only “background” material mentioned by either counsel was that the engagement letter dated 22 July 2008 sent by MSAL to CH provided for an exclusive jurisdiction clause in favour of the courts of Hong Kong. However, although that letter provided that MSAL was to be granted an exclusive right of first refusal to act not only in relation to any share and bond issues but also in relation to hedge deals it is accepted (for the purposes of this application) that none of the disputes between the parties is caught by the exclusive jurisdiction clause in the letter. Accordingly the letter does not, I think, affect the question of construction with which I am concerned.

It is common ground that clause 13 (b)(i) should be understood in a transitive sense, that is, that each party promises to submit claims within the clause to the English Court; see Austrian Lloyd Steamship Company v Gresham Life Assurance Society Limited[1903] 1 KB 249 and Continental Bank v Aeakos SA [1998] 1 WLR 588 at p.592. The words “any suit, action or proceedings relating to any dispute arising out of or in connection with this Agreement” are capable of applying only to disputes between the parties to the agreement in which the clause is found (for the reasons given by Rix J. in Credit Suisse) but they are also capable of applying to CH’s claims against MSAL because those claims relate to a dispute which arises out of or in connection with the Master Agreement (for the reasons given by Lord Scott in Donohue v Armco). However, those words do not stand alone. They must be construed in the context of the whole of the Agreement and in particular the whole of clause 13. The following matters are to be noted from the other parts of clause 13:

Clause 13 (b)(ii) expressly deals with “Third Party Rights”. It provides that where a right is expressly given to an affiliate under the Master Agreement the affiliate may enforce that right subject to clause 13(a) and (b) provided that it first gives written notice of its agreement to the provisions of clause 13. Clause 13 (b)(ii) does not deal with claims against an affiliate of MSIP such as MSAL. Counsel for MSIP submitted that “it would be absurd to suppose that the parties contemplated that claims by affiliates under the Agreement had to be brought in the contractually agreed forum and yet intended that claims against such affiliates in respect of the agreement could be made in any jurisdiction.” I am not satisfied that such a supposition would be absurd. The restriction on an affiliate is limited to those cases where the affiliate wishes to exercise a right expressly granted to it under the Agreement. Claims against an affiliate which arise in connection with the Agreement may be of a broader category than that. Moreover, the fact that the parties dealt expressly with Third Party Rights but did not expressly deal with claims against third parties supports the suggestion that the parties were not addressing claims against third parties in clause 13.

Clause 13(c) provides that when claims are brought against a party a Process Agent will accept service. The clause does not deal with claims against non-parties which also supports the suggestion that the parties were not addressing claims against third parties in clause 13. It was pointed out by counsel for MSIP that neither party in fact appointed a Process Agent but clause 13(c) remains part of clause 13 and cannot simply be ignored.

Clause 13(d) provides for certain waivers by each party (as indeed does clause 13(b)(i)(2)). No such provision is made where non-parties are sued which is further support for the suggestion that the parties were not addressing claims against third parties in clause 13.

However, it was submitted on behalf of MSIP that the parties, as rational businessmen, are likely to have intended that all disputes arising out of or connected with the relationship into which they had entered would be decided by the same court. If such businessmen are considering claims by and against each other arising out of that relationship that submission must be accepted. It is also likely that the parties, as rational businessmen, would see sense, where there are claims arising out of or in connection with that relationship by one of them against the other and against a non-party (for example an affiliate of the other), in all such claims being decided by the same court. However, the parties, as rational businessmen, would have to take the following additional matters into consideration:

On MSIP’s construction of the exclusive jurisdiction clause CH is bound to sue a non-party such as MSAL in England but MSAL is not bound to sue CH in England (save where it wishes to enforce a right expressly given to it in the Master Agreement).

If CH sues a non-party such as MSAL in England there can be no guarantee that the English court would have jurisdiction over MSAL since MSAL has not submitted to the jurisdiction or waived any objections to the jurisdiction (save where it wishes to enforce a right expressly given to it and has given written notice agreeing to the provisions of clause 13 of the Master Agreement). The fact that MSAL may in a particular case choose to submit to the jurisdiction does not, I think, meet this point.

There is therefore considerable imbalance between a party and a non-party.

Once those additional considerations are borne in mind it is not clear that the parties, as rational businessmen, would be likely to have intended that any dispute with a third party arising out of the relationship into which they entered with each other should be decided by the same court which decides disputes between the same parties.

The clause in the Schedule which states that the parties and their affiliates intended that all obligations were to be regarded as part of a single and indivisible contractual and business relationship was not part of the exclusive jurisdiction clause. Its purpose may have been to assist with arguments concerning set off. I do not regard it as a clear indication that claims brought against affiliates are to be brought in the exclusive jurisdiction, whether or not such affiliates have given written notice that they have accepted clause 13, the exclusive jurisdiction clause.

Having regard to the whole of clause 13 and the imbalance or difference between the position of the parties inter se and the position of the parties and non-parties inter se I do not consider that clause 13 can reasonably be understood to mean that MSIP and CH promised each other that claims arising out or in connection with the Master Agreement were to be submitted to the English court regardless of whether the claims are against the other or a non-party to the Master Agreement.

Counsel for MSIP, perhaps recognising the difficulties in the way of a submission that the exclusive jurisdiction clause applied where a party wished to sue a non-party on a claim arising out of or in connection with the Master Agreement, submitted that the clause did not apply to all such claims against third parties but only to such claims against affiliates of a party. Such a limitation is not to be found in clause 13 (b) (i). The only basis for suggesting such a limitation is to argue that that is the effect of clause 13 (b) (i) when read with clause 13 (b) (ii). I do not consider that such argument is correct, essentially for the reasons I have already given when discussing clause 13 (b) (ii). It does not follow from the premise in clause 13 (b) (ii), namely, that the parties contemplated that claims by affiliates had to be brought in the contractually agreed forum, that the parties must have intended that claims by a party against affiliates must be brought in the contractually agreed forum. The restriction on claims by an affiliate is limited to those cases where the affiliate wishes to exercise a right expressly granted to it under the Agreement. Claims against an affiliate which arise in connection with the Agreement may be of a broader category than that. Thus, if a party wishes to bring a claim against an affiliate of another party which does not arise in connection with a right expressly granted to the affiliate under the Master Agreement but which arises in connection with the Master Agreement the affiliate will not have been obliged to have given notice that it agrees to the terms of clause 13. Thus it will not have been obliged to submit to the jurisdiction of the contractually agreed forum or to waive such objections as it might have to such jurisdiction. The definition of affiliates in section 14 in the Master Agreement is very broad and would, according to one list I was shown, include affiliates in Japan, Hong Kong, Asia and Australia. It is to be presumed that any one of them could, like MSAL, introduce a company to MSIP for the purpose of a currency swap. Yet there is no evidence that such companies have submitted to the jurisdiction of the English court. That is no doubt why clause 13 requires an affiliate which wishes to enforce a right expressly given to it under the Master Agreement to give notice agreeing to the provisions of section 13. Furthermore, the fact that the parties dealt expressly with claims by affiliates but did not expressly deal with claims against affiliates supports the suggestion that the parties were not addressing claims against affiliates in clause 13.

I have therefore concluded that the true construction of clause 13, that is, the meaning it would reasonably be understood to have, is that the exclusive jurisdiction clause applies to claims between the parties to the Master Agreement arising out of or in connection with the Master Agreement.

That conclusion is consistent with the approach of Rix J. in Credit Suisse. It is not inconsistent with the opinion of Lord Scott in Donohue v Armco because Lord Scott was not considering a clause in the terms of clause 13 (b), (c) and (d). It is also to be noted that Lord Scott’s opinion did not represent the view of the majority of the House of Lords. Lord Bingham, with whose reasoning Lords Mackay and Nicholls agreed, did not give detailed consideration to the scope of the jurisdiction clauses in that case. He said it was not the subject of argument before the House (see paragraph 14 of his speech) and Mr. Toledano QC, who was junior counsel in Donohue v Armco, has told me that the point addressed by Lord Scott was not the subject of argument in the printed cases. It would therefore appear that the opinion expressed by Lord Scott was not that of the majority. I do not accept the submission made by counsel for CH that the majority disagreed with that expression of opinion for no such disagreement was expressed. The majority simply did not consider the point addressed by Lord Scott. Lord Scott’s opinion was followed in Winnetka Trading Corporation v Julius Baer International Ltd. [2008] EWHC 3146. But as in Donohue v Armco Norris J. was not considering a clause in the terms of clause 13 of the Master Agreement.

For these reasons I have concluded that I am unable to accept that CH has promised to sue MSAL in England. Its promise extended only to claims against MSIP.

In the light of my decision on the first principal issue two things are certain. First, as accepted by counsel for CH, MSIP’s action against it in the English Commercial Court for sums due under the Master Agreement cannot be stayed on jurisdictional grounds. This seems to me to be the inevitable consequence of clause 13(b)(i) of the Master Agreement. Second, MSIP is unable to obtain an anti-suit injunction against CH with regard to the latter’s action against MSAL in China. There will therefore be an action in this court for sums due under the Master Agreement and, subject to any decision of the Chinese court on a jurisdictional challenge, an action in the Chinese court by CH against MSAL for damages. Counsel for CH has stated that no freestanding claim for rescission of the Master Agreement is made against MSAL in China. However, the same matters which found the claim for damages in China will presumably found a defence to MSIP’s claim in England by way of a counterclaim for rescission and/or damages.

This cannot be described as satisfactory because there is a clear risk of inconsistent decisions between that of the English court and that of the Chinese court. That the ends of justice are best served by all matters in issue being decided in one jurisdiction so as to avoid the risk of inconsistent decisions has long been clear; see Donohue v Armco at paragraphs 27 and 34 per Lord Bingham. Indeed, that was in essence the reason why an anti-suit injunction in that case was refused notwithstanding that Mr. Donohue had the benefit of an exclusive jurisdiction clause. There is, however, an important distinction between that case and the present case, namely, whereas Mr. Donohue did not have his own claim to advance in the exclusive jurisdiction (England) MSIP does and there is no jurisdictional basis upon which it can be prevented from advancing it. Notwithstanding that distinction counsel for CH submitted that there is strong reason for not injuncting CH from proceedings against MSIP in China, namely:

such refusal will create the best chance of all matters effectively being decided in one jurisdiction; and

the centre of gravity of the dispute between CH, MSIP and MSAL is China.

The first point is made on the premise that at some future date this court will have the opportunity to decide on case management grounds that MSIP’s English action should be stayed pending determination of CH’s allegations of “misselling” in China; see Reichold v Goldman Sachs [1999] 2 Lloyd’s Rep. 567 and Curtis v Lockheed[2008] EWHC 260 (Comm). However, I was not referred to any authority which suggested that such a step could properly be taken against the wishes of a party who had sued in the agreed exclusive jurisdiction. Moreover, it was common ground that English law applied to MSIP’s claim and to the defence of rescission. In such circumstances it seems unlikely that a stay on case management grounds is a realistic possibility.

The contention that the centre of gravity of the disputes between MSIP and CH lies in China is based upon a number of matters:

the documents and witnesses are in China or Hong Kong;

the claim against MSAL is likely to involve issues of Chinese law eg breach of advisory duties and negligent product design;

CH, although registered in Cayman, is a Chinese based company operating in China; its losses are suffered in its Chinese pockets;

MSIP, although an English company, is part of a world wide group with a strong presence in China;

there is no prejudice to MSIP if CH’s claims against MSIP are determined in China; if extra costs are incurred they can be recovered as damages for breach of the exclusive jurisdiction clause.

But against those matters must be weighed the following:

even if CH cannot be injuncted from claiming damages against MSAL in China, it is much more appropriate that the claim against MSIP for rescission of the Master Agreement and/or damages be heard as a counterclaim in England so that all issues concerning MSIP can be heard in one jurisdiction;

the law applicable to MSIP’s claim and the counterclaim for rescission is English; it is more appropriate that the English court decide that claim and counterclaim;

the law applicable to CH’s claim for damages against MSIP for fraudulent misrepresentation inducing CH to enter the Master Agreement is likely to be English law pursuant to Article 12 of Regulation No.864 of 2007 on the law applicable to non-contractual obligations (Rome II);

MSIP would be prejudiced by the loss of the agreed forum and, possibly, by a law other than that which was agreed being applied to its claim.

Although I have set out the factors favouring the Chinese jurisdiction and those favouring this jurisdiction, it is doubtful that a careful weighing of “forum conveniens” factors will now constitute a strong reason for not enforcing an exclusive jurisdiction clause; see Jurisdiction and Arbitration Agreements and their Enforcement by Joseph at para.10.09 and The Anti-Suit Injunction by Raphael at para.8.06 and 8.07 where the modern authorities are collected. In any event the first of the above factors relied upon by MSIP is, in my judgment, clearly the most important factor.

The present case, it seems to me, is one of those cases where the court cannot ensure that all issues are determined in one jurisdiction. In that regard it is comparable to Credit Suisse. Lord Bingham recognised in Donohue v Armco that there can be such cases: see paragraph 28. MSIP’s claim will continue in England and CH’s claim against MSAL will, subject to any decision of the Chinese court, continue in China. In such circumstances the best that the court can legitimately do in accordance with the ends of justice is to ensure that at least all claims and counterclaims concerning MSIP are heard in the one jurisdiction. This court can ensure that all claims and counterclaims concerning MSIP will be heard in England by granting an anti-suit injunction. Refusal of an anti-suit injunction is most likely to mean that there will be concurrent proceedings in England and China in which common issues would be CH’s claim to rescission of the Master Agreement and/or damages. Those issues would be raised as a defence or counterclaim in England and as a claim in China. Such a situation would give rise to a risk of inconsistent decisions. That would not serve the ends of justice. This consideration, in my judgment, means that there is plainly no strong reason for refusing an anti-suit injunction.

The exclusive jurisdiction clause in the Master Agreement applies only to claims between the parties to that agreement, MSIP and CH.

There is no strong reason for not enforcing that exclusive jurisdiction clause by granting an anti-suit injunction restraining CH from pursuing its claims against MSIP in the Intermediate Peoples’ Court of Xi’an, Shaanxi Province in the PRC.

I record that CH’s solicitor has by letter dated 28 July 2009 stated that in the event that the Court grants an anti-suit injunction in respect of CH’s claim against MSIP but not against MSAL, CH will undertake not to pursue a claim for rescission of the Master Agreement in China against MSAL.