Pan Ocean Co. Ltd v China-Base Group Co. Ltd & Anor

There are before me two applications. The first is for a declaration that the English Court has no jurisdiction, and an order setting aside the claim form. The second is for an antisuit injunction preventing the continuance of proceedings in Singapore commenced by the Defendants against the Claimant.

The two applications raise similar considerations. Indeed, one has been described as the obverse of the other by the Claimant.

The facts can be briefly summarised as follows:

On about 25 April 2016, a sale contract was entered into between Gunvor

Prior to this, on about 13 April 2016, a charter contract had been entered into between Clearlake Shipping Pte Ltd, a company said to be associated with Gunvor, as charterer, and the Claimant, which was the demise charterer of the GRAND ACE 12 (“the Vessel”). That charter was evidenced by a recap telex of that date, and was on the BP Voy form with amendments, which were set out in the recap. Under the charter:

The load range was to be 1-3 safe ports Ningbo – Yizheng range including

The discharging range was to be 1-3 safe ports STS Taiwan, intention

The charterers’ intentions were then recorded as being to load in Singapore area/Korea/Taiwan/Subic via terminal or STS; to proceed to the Philippines and receive approximately 50mt of MGO into one empty slop tank, without a bill of lading being issued, to then commingle the MGO with the previous cargo, and then to proceed to China, with redocumentation for the entire cargo prior to the arrival at the discharge port, showing the Philippines as the loadport for the entirety of the cargo, and the date of loading to be that when

The recap stated: “GARB ENG LAW”

The recap then went on to set out amendments to the standard BP Voy form. In relation to clause 49 of the BP Voy form, the recap stated that various words were to be added, as follows:

Clause 49 of the BP Voy charter standard terms provides, under the heading “LAW” that:

The Vessel loaded about 36,360 mt of light cycle oil and gas oil at Zhoushan, China and Taichung, Taiwan. Pan Ocean issued bills of lading which accurately reflected the loadports and nature of the cargo.

The Vessel then proceeded to Subic Bay in the Philippines, where she loaded a further 50 mt of gasoil, for which no separate bill of lading was issued.

In accordance with Clearlake’s instructions, it is said that an agent of Pan Ocean issued switch bills of lading dated 7 May 2016 falsely naming the loadport for the entire cargo as Subic Bay, Philippines and mis-describing the entire cargo as light cycle oil.

The Vessel proceeded to Nansha, China, where she discharged the cargo into bonded shore tanks. China-Base/Beihai neither presented any bills of lading nor gave any letter of indemnity (“LOI”) to Pan Ocean or their agents.

China-Base/Beihai sought to obtain customs clearance for the cargo using documents which misdescribed the loadport and nature of the cargo in the same manner as the Switch Bills.

It is China-Base/Beihai’s case that the cargo was impounded by the China anti-smuggling bureau (in May 2016), on the grounds that the origin of the cargo was China and Taiwan rather than the Philippines as shown in the documentation presented for customs clearance. Cargo from the Philippines was subject to a lower rate of import duty than

China-Base/Beihai accordingly claim damages against Pan Ocean for loss and damage suffered by reason of false statements in the Switch Bills and cargo manifests as to the loadport and nature of the cargo.

China-Base/Beihai assert that they have never received the Switch Bills and have no reason to believe they were ever indorsed by Societe Generale (to whose order the cargo was consigned).

A writ in rem was issued in Singapore on 13 April 2017, and a Statement of Claim produced dated 14 July 2017. That writ was amended (to take out a claim for breach of contract which had originally formed part of the claim) on 7 February 2018. On 28 February 2018 the Vessel was arrested in Singapore, and on 3 March 2018 was released from arrest against a club letter of undertaking. Thereafter:

Pan Ocean entered an appearance on 7 March 2018.

China-Base/Beihai served their Statement of Claim on 21 March 2018.

Pan Ocean then made an application to set aside the arrest, by summons dated 4 April 2018. That summons sought various relief, as follows:

That the Writ of Summons, Warrant to Arrest and Statement of Claim filed or issued in this action herein and the service thereof, be set aside pursuant to Order 12 Rule 7 of the Rules of Court and/or the inherent jurisdiction of the Court on the grounds that the Plaintiffs’ claims do not fall within the admiralty jurisdiction of the Singapore High Court and/or the Plainiffs have failed to make full and frank disclosure of all material facts;

That the Plaintiffs return forthwith to the Defendant or their solicitors the Letter of Undertaking dated 6 March 2018 issued by the Britannia Steam Ship Insurance Association Limited provided as security to the Plaintiffs for the release of the Vessel;

That the Plaintiffs pay the Defendant damages for wrongful arrest of the Vessel in this action;

That the time for filing and serving the Defence be extended pending the outcome of this application;

The costs of and incidental to the action and of this application be paid by the Plaintiffs to the Defendant; and

Such further and other relief as this Honourable Court deems fit.

The summons was supported by an affidavit of Mr Park. In that affidavit, the allegation of wrongful arrest was set out under the general heading of wrongful arrest – bad faith or gross negligence. That affidavit contained allegations of bad faith against China-Base/Beihai, on the footing that at the time of the ex parte application for the warrant of arrest, no reference had been made to the existence of an arbitration clause in the contract which was said to exist between the parties; and no reference had been made to a potential time bar argument arising out of the fact that no arbitration claim had been made within the one year time limit. There was then a separate section dealing with want of full and frank disclosure. The Affidavit made no mention of a claim for damages.

In May 2018, Gunvor obtained an ASI against the Claimant, based on the EJC said to form part of the bill of lading contract or charter between Gunvor and the Claimant. The bill of lading was the original switch bill; the charter was the Clearlake charter. The latter might have been relevant if Clearlake were Gunvor’s agent in making the charter. That ASI has been continued up until the date of this judgment, as I understand the position.

Accordingly, in May 2018, the Claimant knew that an EJC might be relied on.

On 1 August 2018, there was a hearing to determine whether expert evidence was relevant and admissible in relation to customs clearance issues.

Also in August 2018, a further ground was put forward in an affidavit of for the allegation of bad faith, namely that China-Base/Beihai were party to the customs fraud which was allegedly being perpetrated by Gunvor.

Written submissions were put in on 10 August 2018 by the solicitors for the Claimant. Again, it was asserted that the arrest was wrongful, and involved malice or gross negligence, and cases relating to damages claims were cited. However, there was again no reference to a damages claim.

The hearing of the application to set aside took place before the Assistant Registrar on 14 August 2018. I have seen a note of the hearing itself, in which the legal representatives of China-Base/Beihai make reference to a damages claim. However, the judgment, which was given on 26 October 2018, contains no reference to such a claim.

The Claimant appealed against the decision of the Assistant Registrar. Shortly before the hearing of that appeal, which was due to take place on 14 December 2018, the current application for an ASI was issued (on 12 December 2018).

On 17 December 2018, the Claimant’s appeal against the order of the Assistant Registrar was determined, and was dismissed.

On 20 December 2018, there was a pre-trial conference at which the Claimant indicated that it would seek a stay of the Singaporean proceedings on the basis of the EJC, and was ordered to make any application by early January 2019. That application was duly issued on 11 January 2019, within time.

On 1 February 2019, Phillips J ordered an expedited hearing of these applications and gave consequential directions.

The Claimant has been ordered by the Singaporean Court to file its evidence in support of its application to stay the Singapore proceedings in reliance on the EJC by 22 March 2019. I do not know what evidence was served.

The hearing in Singapore is fixed to take place on 17 April 2019.

I can therefore summarise the issues on jurisdiction as follows:

Was there a contract between the Claimant and the Defendants?

If there was such a contract, what were its terms? In particular, did it include an exclusive jurisdiction clause (“EJC”) in favour of the English Courts?

Did that ECJ satisfy the requirements of Article 25 of the Recast Regulation?

If the answer to the above issues is that there was no valid and binding EJC, then it is common ground between the parties that the English Court has no jurisdiction, and thus it would be, strictly, unnecessary to move on to the second issue of whether an anti suit injunction should be issued. However, I consider in this judgment both the question of whether there is jurisdiction on the basis of an EJC, and the further question of whether, if there is, an anti-suit injunction should be issued.

However, Mr Collett QC, for China-Base/Beihai, submitted that I should not examine the question of whether there was in fact an implied contract unless I was satisfied that I had jurisdiction, since this would involve me in making observations which might be relied on in Singapore in circumstances in which I might in fact decide I had no jurisdiction. I agree with this concern. Accordingly, I propose to examine the question of whether the EJC here is binding, on the hypothesis that there was an implied contract of the sort alleged by the Claimant, without deciding that point at this stage.

The first question is as to the test that I am to apply in determining the application. Both parties agree that the guidance in Kaefer Aislamentos SA de CV v AMS Drilling Mexico SA de CV [2019] EWCA Civ 10 is the most helpful guidance in this regard. In that case, the Court of Appeal considered recent Supreme Court authority on this question and concluded that:

The Court of Appeal then went on to consider the application of this test in cases which involved Article 25 of the Recast Regulation, stating as follows:

The Privy Council in Bols held that the domestic good arguable case test had to be read in the light of the " clear and precise " evidence requirement and in this manner it was consistent with the purpose behind the EU Regulation. Mr Cooper QC relied upon this to support his argument that, howsoever one cast the test, it nonetheless was not the minimal test advanced by the appellant. He pointed out that in Brownlie the judgment in Bols had been cited with apparent approval (see paragraph [62] above). An obligation to adduce clear and precise evidence to show jurisdiction was a test importing weight and substance. It was not for instance a test to be equated with that for summary judgment (as the Judge seemed to conclude in paragraph [83] of his Judgment). Mr Nolan QC for the appellant in an attempt to side-line the clear and precise standard argued that it did not apply because the rationale behind it (as explained in the case law of the Court of Justice) was that exclusive jurisdiction agreements amounted to a derogation from the normal rules determining jurisdiction, such as a defendant's domicile, and as a derogation from a basic norm it had to be strictly construed. This was why the arguably high hurdle of clear and precise had been introduced. But that logic was, he said, no longer apposite since the Recast Brussels Regulation now applied irrespective of a defendant's domicile. Now that the rules had changed the logic behind the " clear and precise " rule no longer arose. Mr Cooper QC retorted that this was a distinction without a difference. Article 25 did not (could not) apply two rules: one where the defendant was an EU company and one where it was not. There had to be a single test.

The Supreme Court in Brownlie and in Goldman Sachs seemingly approved Bols but did not address how the new three-limbed formulation took into account the provisions of the Recast Brussels Regulation, no doubt because it did not specifically arise on the facts of those cases. I agree with the analysis of Mr Cooper QC on this. I consider that in a case such as the present where the background legal context is Article 25 some regard must be paid to the fact that, as was held in Bols , the " clear and precise " test must be taken into account as a component of the domestic test and the melding of the two is necessary to ensure that domestic law remains consistent with the Regulation. As with so much of the language used in this context, that which is " clear and precise " is not easy to define with precision. But I would rely upon it as providing at least an indication of the quality of the evidence required. It supports the conclusion that the prima facie test (in limbs (i) and (ii)) is a relative one; and in so far as the court cannot resolve outstanding material disputes (limb (iii)) it affords an indication as to the sort of evidence that a Court will seek. I would not go much beyond this though.”

Applying that approach, I turn to the central issue between the parties, namely whether there was an exclusive jurisdiction clause in favour of the Courts of England and Wales which satisfies the requirements of Article 25 of the Recast Regulation?

I begin with the provisions of Article 25 itself, which provides as follows.

in writing or evidenced in writing;

in a form which accords with practices which the parties have established between themselves; or

in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.” The authorities.

I was referred to a number of authorities on this question, and I deal with what I regard as the most relevant passages of each in turn (although not always the entirety of the text to which I was referred, which I have, however, read and taken into account), before turning to a consideration of the parties’ respective submissions based on the cases. I deal with the authorities in chronological order.

My starting point is the decision of the ECJ in Estasis Salotti di Colzani Aimo e Gianmario Colzani v RUWA Polstereimaschinen GmbH (Case 24/76) [1976] ECR 1831 . In that case, the ECJ said this:

The first paragraph of Article 17 of the Convention provides: "If the parties, one or more of whom is domiciled in a Contracting State, have, by agreement in writing or by an oral agreement confirmed in writing, agreed that a court or the courts of a Contracting State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have exclusive jurisdiction" .

The way in which that provision is to be applied must be interpreted in the light of the effect of the conferment of jurisdiction by consent, which is to exclude both the jurisdiction determined by the general principle laid down in Article 2 and the special jurisdictions provided for in Articles 5 and 6 of the Convention. In view of the consequences that such an option may have on the position of the parties to the action, the requirements set out in Article 17 governing the validity of clauses conferring jurisdiction must be strictly construed. By making such validity subject to the existence of an "agreement" between the parties, Article 17 imposes on the court before which the matter is brought the duty of examining, first, whether the clause conferring jurisdiction upon it was in fact the subject of a consensus between the parties, which must be clearly and precisely demonstrated. The purpose of the formal requirements imposed by Article 17 is to ensure that the consensus between the parties is in fact established. The questions referred to the Court by the Bundesgerichtshof must be examined in the light of these considerations .” (my emphasis)

Next, I was referred to the decision of the ECJ in Galeries Segoura v Rahim Bonakdarian (Case 25/76) [1976] ECR 1851 , and in particular the following passage.

The first paragraph of Article 17 of the Convention provides: "If the parties, one or more of whom is domiciled in a Contracting State, have, by agreement in writing or by an oral agreement confirmed in writing, agreed that a court or the courts of a Contracting State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have exclusive jurisdiction" .

The way in which that provision is to be applied must be interpreted in the light of the effect of the conferment of jurisdiction by consent, which is to exclude both the jurisdiction determined by the general principle laid down in Article 2 and the special jurisdictions provided for in Articles 5 and 6 of the Convention. In view of the consequences that such an option may have on the position of the parties to the action, the requirements set out in Article 17 governing the validity of clauses conferring jurisdiction must be strictly construed . By making such validity subject to the existence of an "agreement" between the parties, Article 17 imposes upon the court before which the matter is brought the duty of examining, first, whether the clause conferring jurisdiction upon it was in fact the subject of a consensus between the parties, which must be clearly and precisely demonstrated. The purpose of the formal requirements imposed by Article 17 is to ensure that the consensus between the parties is in fact established. The questions referred to the Court by the Bundesgerichtshof must be examined in the light of these considerations.

The first question is whether the requirements of Article 17 of the Convention are satisfied if, at the oral conclusion of a contract of sale, a vendor has stated that he wishes to rely on his general conditions of sale and if he subsequently confirms the contract in writing to the purchaser and annexes to this confirmation his general conditions of sale which contain a clause conferring jurisdiction.

In accordance with the foregoing general considerations, it cannot be presumed that one of the parties waives the advantage of the provisions of the Convention conferring jurisdiction. Even if, in an orally concluded contract, the purchaser agrees to abide by the vendor's general conditions, he is not for that reason to be deemed to have agreed to any clause conferring jurisdiction which might appear in those general conditions. It follows that a confirmation in writing of the contract by the vendor, accompanied by the text of his general conditions, is without effect, as regards any clause conferring jurisdiction which it might contain, unless the purchaser agrees to it in writing.

The second question then asks whether Article 17 of the Convention applies if, in dealings between merchants, a vendor, after the oral conclusion of a contract of sale, confirms in writing to the purchaser the conclusion of the contract subject to his general conditions of sale and annexes to this document his conditions of sale which include a clause conferring jurisdiction and if the purchaser does not challenge this written confirmation.

It emerges from a comparison of the wording of the two questions and from the explanations given during the proceedings before the Court that the second of the two questions concerns the hypothetical situation of a sale being concluded without any reference being made at all to the existence of general conditions of sale. In such a case, it is patent that a clause conferring jurisdiction which might be included in those general conditions did not form part of the subject-matter of the contract concluded orally between the parties. Therefore subsequent notification of general conditions containing such a clause is not capable of altering the terms agreed between the parties, except if those conditions are expressly accepted in writing by the purchaser. [11] It follows from the foregoing, in both of the alternative cases suggested by the Bundesgerichtshof, that a unilateral declaration in writing such as the one in the present case is not sufficient to constitute an agreement on jurisdiction by consent. However, it would be otherwise where an oral agreement forms part of a continuing trading relationship between the parties, provided also that it is established that the dealings taken as a whole are governed by the general conditions of the party giving the confirmation, and these conditions contain a clause conferring jurisdiction. Indeed, in such a context, it would be contrary to good faith for the recipient of the confirmation to deny the existence of a jurisdiction conferred by consent, even if he had given no acceptance in writing.

The European Court of Justice had to consider the question of whether an oral agreement, confirmed in writing, satisfied the requirements of the then equivalent of Article 25, in the case of Berghoefer GmbH v ASA [1986] 1 CMLR 13. The headnote in that case reads as follows.

In the text of the judgment, the Court analysed the position as follows:

If it is actually proved that jurisdiction was conferred by an oral agreement relating expressly to this point and if the confirmation of the oral agreement given by one of the parties was received by the other, who raised no objection in reasonable time, this literal interpretation of Article 17 is, as the Court has already held in another context ( cf. judgment in tilly russ ), also in conformity with the function of this Article, which consists precisely in ensuring that consent between the parties is established. It would then be contrary to good faith for the party which raised no objection to dispute application of the oral agreement. In the present case it is unnecessary to decide whether and, if so, to what extent objections said to have been raised by the other party against the written confirmation of an oral agreement could be taken into consideration should the need arise.

Therefore the reply should be that Article 17(1) of the Convention of 27

The next decision in time to which I was referred was the ECJ decision in Benincasa v Dentalkit Srl [1997] IL Pr 559, and in particular paragraphs 29-32. Those paragraphs provide as follows:

That solution is consistent not only with the approach taken by the Court in Effer v. Kanter , in which it ruled that the plaintiff may invoke the jurisdiction of the courts of the place of performance in accordance with Article 5(1) of the Convention even when the existence of the contract on which the claim is based is in dispute between the parties, but also with the judgment in Case 73/77, Sanders v. Van der Putte , in which the Court held, in connection with Article 16(1) of the Convention, that, in the matter of tenancies of immovable property, the courts of the State in which the immovable property is situated continue to have jurisdiction even where the dispute is concerned with the existence of the lease.

It must be added that, as the Court has held, it is for the national court to interpret the clause conferring jurisdiction invoked before it in order to determine which disputes fall within its scope (Case C - 214/89, Powell Duffryn ). Consequently, in the instant case it is for the national court to determine whether the clause invoked before it, which refers to “any dispute” relating to the interpretation, performance or “other aspects” of the contract, also covered any dispute relating to the validity of the contract.

The answer to the national court's third question must therefore be that the courts of a Contracting State which have been designated in a jurisdiction clause validly concluded under the first paragraph of Article 17 of the Convention also have exclusive jurisdiction where the action seeks in particular a declaration that the contract containing that clause is void.”

I turn then to Coreck Maritime GmbH v Handelsveem BV (Case C - 387/98) [2000] ECR I - 9337, para 13, which was a case concerned with the requirements for proof of assent to a jurisdiction clause in a bill of lading. In that case the ECJ said:

However, if the purpose of art. 17 of the Convention is to protect the wishes of the parties concerned, it must be construed in a manner consistent with those wishes where they are established. Article 17 is based on a recognition of the independent will of the parties to a contract in deciding which courts are to have jurisdiction to settle disputes falling within the scope of the Convention, other than those which are expressly excluded pursuant to the fourth paragraph of art. 17 ( Meeth v Glacetal (Case 23/78) [197 8] ECR 2133 , para. 5).

It follows that the words ‘have agreed’ in the first sentence of the first paragraph of art. 17 of the Convention cannot be interpreted as meaning that it is necessary for a jurisdiction clause to be formulated in such a way that the competent court can be determined on its wording alone. It is sufficient that the clause states the objective factors on the basis of which the parties have agreed to choose a court or the courts to which they wish to submit disputes which have arisen or which may arise between them. Those factors, which must be sufficiently precise to enable the court seised to ascertain whether it has jurisdiction, may, where appropriate, be determined by the particular circumstances of the case….

It is sufficient to note that the court has held that, in so far as the jurisdiction clause incorporated in a bill of lading is valid under art. 17 of the Convention as between the shipper and the carrier, it can be pleaded against the third party holding the bill of lading so long as, under the relevant national law, the holder of the bill of lading succeeds to the shipper's rights and obligations ( Tilly Russ , para. 24, and Castelletti , para. 41).

It follows that the question whether a party not privy to the original contract against whom a jurisdiction clause is relied on has succeeded to the rights and obligations of one of the original parties must be determined according to the applicable national law.

If he did, there is no need to ascertain whether he accepted the jurisdiction clause in the original contract. In such circumstances, acquisition of the bill of lading could not confer upon the third party more rights than those attaching to the shipper under it. The third party holding the bill of lading thus becomes vested with all the rights, and at the same time becomes subject to all the obligations, mentioned in the bill of lading, including those relating to the agreement on jurisdiction ( Tilly Russ , para. 25). 26 On the other hand, if, under the applicable national law, the party not privy to the original contract did not succeed to the rights and obligations of one of the original parties, the court seised must ascertain, having regard to the requirements laid down in the first paragraph of art. 17 of the Convention, whether he actually accepted the jurisdiction clause relied on against him.

In 2009, Hamblen J decided the case of Polskie Ratownictwo Okretowe v Rallo Vito [2009] IL Pr 55. That case concerned the question of whether a jurisdiction agreement had been incorporated into a towage contract between the parties, which was made orally and then confirmed in writing. Hamblen J found that the clause did satisfy the formal requirements, stating as follows:

Even if the parties did agree to confer jurisdiction on the English Court, the defendants say that the requirements as to formality in art.23 are not satisfied in this case. They contend that there is no agreement in writing or even evidenced in writing within art.23(a). They point out that the defendants did not produce any document indicating that they had agreed to confer jurisdiction on the English Courts and did not sign any such document produced by someone else. Moreover, they say that such documents which were produced by Marint, namely the recap and the pro forma TOWHIRE, were quickly challenged by the defendants on the basis that the documents sought to include terms which had not been agreed.

Under art.23(a) all that is required is that an oral the agreement be “ evidenced in writing ”. There is no need for the agreement to be signed: Powell Duffryn Plc v Petereit ( C - 214/89) [1992] E.C.R. I - 1745; [1992] I.L.Pr. 300 . The writing relied on need not emanate from the party against whom the jurisdiction clause is being enforced: Berghoefer GmbH & Co KG v ASA SA ( 221/84) [1985] E.C.R. 2699; [1986] 1 C.M.L.R. 13 at [20], para [14] . Further, a failure to raise an objection within a reasonable time to the terms of a written confirmation following an oral agreement may establish the formalities required by Article 23: Berghoefer [1985] E.C.R. 2699; [1986] 1 C.M.L.R. at [21] , para.[15]; Iveco Fiat SpA v. Van Hool S.A. ( 313/85) [1986] E.C.R. 3337; [1986] 1 C.M.L.R. 57, 70 – 71, para [9] (Footnote: ¹) .

Here, the towage contract was finally agreed and concluded orally over the telephone at 19:30 GMT, when Mr. Palumbo confirmed the fixture to Mr. Heath. That agreement was then confirmed by Mr. Heath by the revised recap sent 20.42 GMT on February 4.

I am satisfied to the requisite standard of proof that the defendants failed to raise any objection within a reasonable time to the terms of the recap and the TOWHIRE form incorporated thereby.

This was a situation of urgency. Instructions to mobilize the tug had to be given almost immediately whereupon the tug would be delivered under the tow contract. The tow itself was to be attempted on 5 February.

It was the evidence of Mr Halfweeg that, as in this case, towage contracts are commonly negotiated and agreed over the telephone under considerable time pressure. In such circumstances, if a recap does not correctly reflect the deal, the practice is for the broker receiving the recap (here, CRS) to respond “ immediately with a refusal, knowing that at that time the tug was mobilising ”. The burden is on the receiving broker (CRS) and the party (the defendants) “ to immediately point out any error or omissions in the terms set out in the recap, absent which the recap is accepted as correctly setting out the terms of the contract .”

The first defendant contends that it was engaged in dealing with the situation on the ground and could not be expected to respond immediately. However, their brokers, CRS, could be so expected and in any event there were likely to be responsible people in the first defendant's offices, such as their accountant Mr Margiottta.

I am accordingly satisfied to the requisite standard of proof that the recap, expressly incorporating Bimco TOWHIRE, provides the evidence in writing required by art.23(a).”

Next I turn to the decision of Males J (as he then was) in BNP Paribas v Anchorage Capital [2013] EWHC 3073 (Comm), where the learned judge said:

Next in time is the decision of the Court of Appeal in Antonio Gramsci Shipping Corp & Ors v Lembergs [2013] 2 Lloyd’s Rep. 295. In that case, the question arose of whether it was sufficient to satisfy the requirements of Article 25 that there had been an oral agreement which was thereafter confirmed in writing. The Court of Appeal confirmed that this sufficed to satisfy the requirements of the Article. They set out their reasons for so holding in the following paragraphs.

The purpose of Article 23 is to ensure that the parties have actually consented to the choice of jurisdiction. The decisions of the ECJ (now the CJEU) make it clear that, to be effective for the purpose of Article 23 , an agreement to confer jurisdiction must establish consensus between the parties “clearly and precisely”: Case C - 24/76 Estasis Salotti v RÜWA Polstereimaschinen GmbH [1977] 1 CMLR 345 and case C 25/76 Galleries Segoura SPRL v Rahim Bonakdarain [1976] ECR 1851 .

There is, however, a measure of flexibility. Although (see Case C - 313/85 Iveco

Secondly, written consensus may exist in the absence of a binding contract: see Fentiman, International Commercial Litigation (2010) at 2.40, giving a non-binding memorandum and an unsigned version of a contract which requires a signature as examples.

Despite this measured flexibility, the jurisprudence of the ECJ regards the departures from the general rule of domicile-based jurisdiction, including Article 23 , as derogations. In that sense they are regarded as exceptions to the general rule, although to regard jurisdiction based on Article 23 as exceptional may (see Fentiman, International Commercial Litigation (2010) 2.42) risk placing an obstacle to giving effect to party autonomy.

There are also statements that departures from the general rule of domicile-based jurisdiction should be strictly construed (see Case C - 24/76 Estasis Salotti v RÜWA [1977] 1 CMLR 345 at [7] and Bank of Tokyo-Mitsubishi v Baskan Gida Sanayi Pazarlama [2004] EWHC 945 (Ch) at [191] per Lawrence Collins J, as he then was) and interpreted in “keeping with the spirit of certainty”. This means they should be interpreted so as to ensure that they are only applicable in clear cases and without having to delve into the merits of the underlying dispute: see Case C - 159/97 Castelletti v Trumpy [1999] ILPr 492 at [48]-[49]. This last point has particular relevance when what is under consideration is an enquiry at the interlocutory stage in a case such as this one where there is a sharp conflict of evidence….

Mr Collett referred me, next, to the decision of the ECJ in Profit Investment Sim SpA v. Ossi (Case C-366/13) [2016] 1 WLR 3832.

I start with the Opinion of the Advocate General, which included the following passages.

That tripartite division of the question is necessary in so far as the first limb seems to me to be exclusively concerned with the validity of the prorogation of jurisdiction clause in the relationship between the parties to the contract containing that clause, whereas the second limb relates to whether that clause is transferable to successive purchasers of the securities. The third limb of the question includes both those issues and is concerned more generally with the effectiveness of that clause as against any purchaser or sub-purchaser of the securities.

Case law has proved to be unstintingly rigorous in its interpretation of the requirements of form laid down in sub-paragraph (a) of the first paragraph of article

The court has held that the insertion of a clause conferring jurisdiction contained in the general conditions of sale of one of the parties, printed on the back of a written agreement, satisfies the requirement of writing only if the contract signed by both parties contains an express reference to those general conditions: Estasis Salotti di Colzani Aimo e Gianmario Colzani snc v Rüwa Polstereimaschinen GmbH (Case 24/76) [1976] ECR 183 , para 10.

In the case of a contract concluded verbally, it has taken the view, leaving aside the case of an ongoing trading relationship between the parties, that a prorogation of jurisdiction clause could be effective only if the vendor's confirmation in writing accompanied by notification of the general conditions of sale had been accepted in writing by the purchaser: Galeries Segoura SPRL v Société Rahim Bonakdarian (Case 25/76) [1976] ECR 1851 , para 12.

Focusing exclusively on the existence of consent to the prorogation of jurisdiction, the court has held, with respect to the first paragraph of article 17 of the Brussels Convention , that, by making the validity of a jurisdiction clause subject to the existence of an “agreement” between the parties, that provision imposes on the court before which the matter is brought the duty of examining first whether the clause was in fact the subject of consensus between the parties, which must be clearly and precisely demonstrated: Coreck Maritime GmbH v Handelsveem BV (Case C - 387/98) [2000] ECR I - 9337 , para 13 and the case law cited and the Refcomp case [2013] 1 All ER (Comm) 1201 , para 27. In accordance with its teleological method of interpretation, it has held that “ article 23(1) of [Regulation No 44/2001] must be interpreted as meaning that, like the aim pursued by the first paragraph of article 17 of the Brussels Convention , ensuring the real consent of the parties is one of the aims of that provision”: the Refcomp case, para 28 and the case law cited.

It therefore follows clearly from that case law that consent to a prorogation of jurisdiction clause cannot simply be tacit or inferred from the circumstances. Other than in the cases provided for in article 23(1)(b) and (c) of Regulation No 44/2001 , the effectiveness of such a clause is, on the contrary, subject to express consent given by using one of the formal modes of expression provided for in article 23(1)(a) and (2) of that Regulation.

However rigorous they may appear to be, those requirements of form are justified in my opinion, in so far as they provide a means of protecting the weaker party against the risk of insertion of a jurisdiction clause to which that party's attention has not been drawn in a sufficiently clear manner: the MSG case [1997] QB 731 , para 17. 44 In the light of those requirements, as interpreted by settled case law, the question raised by the referring court can only be answered in the negative, since the requirement of writing cannot be said to be satisfied solely by the insertion of the clause conferring jurisdiction in the memorandum created unilaterally by the issuer of the CLNs.”

Turning to the judgment of the Court:

By its second question, the referring court asks, in essence, whether article 23(1)(a) and (c) of Regulation No 44/2001 must be interpreted as meaning that a jurisdiction clause, such as that at issue in the main proceedings, satisfies the formal requirements laid down in article 23(1)(a) where (i) it is contained in a prospectus produced by the bond issuer concerning the issue of bonds, (ii) it is enforceable against third parties who acquire those bonds through a financial intermediary and (iii), in the event that the first two parts of the second question are answered in the negative, it corresponds to a usage in the field of international trade or commerce for the purpose of article 23(1)(c) .

As a preliminary point, it must be stated that, as regards the conditions for the validity of a jurisdiction clause, article 23(1) of Regulation No 44/2001 sets out in substance the formal requirements and mentions only one substantive condition relating to the subject matter of the clause, which must concern a particular legal relationship. Therefore, the wording of that provision does not indicate whether a jurisdiction clause may be transmitted, beyond the circle of the parties to a contract, to a third party, who is a party to a subsequent contract and successor, in whole or in part, to the rights and obligations of one of the parties to the initial contract: see, inter alia, Refcomp SpA v Axa Corporate Solutions Assurance SA (Case C - 543/10) [2013] 1 All ER (Comm) 1201 , para 25.

However, article 23(1) of Regulation No 44/2001 clearly indicates that its scope is limited to cases in which the parties have “agreed” on a court. As appears from recital (11) of that Regulation, it is that consensus between the parties which justifies the primacy granted, in the name of the principle of the freedom of choice, to the choice of a court other than that which may have had jurisdiction under that Regulation: the Refcomp case, para 26.

In order to respond to the first part of the second question, it must be determined whether a jurisdiction clause contained in a prospectus unilaterally produced by the bond issuer concerning the issue of bonds meets the “in writing” requirement laid down in article 23(1)(a) of Regulation No 44/2001 .

The court has already held that that requirement is not fulfilled where a jurisdiction clause is included among the general conditions of sale of one of the parties, printed on the back of a contract, unless the contract contains an express reference to those general conditions: Estasis Salotti di Colzani Aimo e Gianmario Colzani snc v Rüwa Polstereimaschinen GmbH (Case 24/76) [1976] ECR 1831 , para 10.

In addition, according to settled case law, article 23(1) of Regulation No 44/2001 must be interpreted as meaning that, like the aim pursued by the first paragraph of article 17 of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, ensuring the real consent of the parties is one of the aims of that provision (see, inter alia, the Refcomp case, para 28 and case law cited) and that, consequently, that provision imposes on the court before which the matter is brought the duty of examining whether the clause conferring jurisdiction upon it was in fact the subject of consensus between the parties, which must be clearly and precisely demonstrated: see, inter alia, Coreck Maritime GmbH v Handelsveem BV (Case C - 387/98) [2000] ECR I - 9337 , para 13 and the case law cited, and the Refcomp case, para 27.

In the main proceedings, the clause conferring jurisdiction on the English courts is contained in the prospectus, a document produced by the bond issuer. It is not entirely clear from the order for reference whether that clause was included, or expressly referred to, in the contractual documents signed upon the issue of the bonds on the primary market.

The answer to the first part of the second question is therefore that, where a jurisdiction clause is included in a prospectus concerning the issue of bonds, the formal requirement laid down in article 23(1)(a) of Regulation N o 44/2001 is met only if the contract signed by the parties upon the issue of the bonds on the primary market expressly mentions the acceptance of that clause or contains an express reference to that prospectus, which it is for the referring court to verify.

Finally, in this review of the case law, I refer to the decision of Leggatt J (as he then was) in The Magellan Spirit [2016] 1 CLC 480. At paragraph 7 of that decision, the learned judge said:

In addition to the above cases, I was referred to certain textbooks, as follows:

First, the editors of Dicey, Morris and Collins make the following observations, at paragraph 12-135 (footnotes omitted).

Secondly, I was referred to the most recent edition of Briggs on Civil Jurisdiction and Judgments (the 6 ^th edition), at paragraph 2.131. That rather lengthy paragraph provides (with footnotes omitted) as follows (and I have added numbering, as did Mr Collett QC, for ease of reference).

Based on the above cases, Mr Lord QC, for the Claimant, put forward five propositions in oral argument, as follows:

The EU jurisprudence on Article 25 and its predecessors showed that the Court was not concerned with particular formalities, but must establish consensus clearly and precisely. In support of this proposition, he relied on Antonio Gramsci and Coreck .

The question of whether the requirement is satisfied is one for the national Court applying national law, although subject to its overriding duty to ensure that those laws were consistent with the aims of the Regulation. In this regard, he referred to paragraphs 81-83 of Kaefer , which I have set out above, and also Bols , along with the decision in the Benincasa case, and in particular paragraphs 29-32 of that case, as also set out above.

In the context of the present case, the rules of English law on the implication of contracts, which would only allow such implication where it was necessary to do so, did not derogate from the Regulation. He did not cite authority in this regard; but submitted that it flowed as a matter of principle.

There is no rule that consensus can only be established by consent in writing. In this regard, he relied on paragraph 12-135 of Dicey , and the decisions in Iveco , Berghoefer and Polskie .

Most of the EU and English cases were concerned, not with the current situation, but with cases where the only issue was assent in writing. Accordingly, the language of the cases was framed with that in mind. He relied on Estasis and Galeries Segura in this regard, and sought to distinguish Profit and BNP , essentially on the basis that each of these latter cases turned on its own particular facts.

Mr Collett QC, for his part, addressed each of these propositions, and sought to negative them:

In relation to the first proposition, then he submitted that, whilst it was clear that the EU jurisprudence required consent to be clearly and precisely demonstrated, the formal requirements in Article 25 were the means to achieve this. In this regard, he relied on a number of passages from the authorities:

First, he took me to paragraphs 19 to 27 of the Profit case, and paragraph 24 of the Attorney-General’s opinion in that case, arguing that those paragraphs showed that the purposes of the formal requirements in Article 25 was to establish the fact of consent.

Next, he referred to paragraph 38 of the Attorney-General’s opinion in Berghoefer , contending that this also supported the conclusion that the requirements of writing were in fact necessary to establish consent, so that the Regulation was indeed concerned with formalities. In fact, in his submission, Berghoefer was simply an orthodox application of Article 25,

Both Estasis and Galeries Segoura , he contended, supported his submission, as could be seen from the reliance on those authorities by Males J (as he then was) in BNP .

Paragraph 35 of the Polskie decision was, he said, supportive of his position. That paragraph simply states that “ In this regard, art.23 has two elements. First, there must be an agreement between the parties to confer jurisdiction on the court. Secondly, that agreement must also satisfy the requirements as to formality set out in sub-paragraphs (a), (b) or (c).”

He also relied on paragraph 12-135 of Dicey , contending that it did not establish the proposition for which Mr Lord QC contended.

He focused on the first, fourth and seventh paragraphs of the extract from Briggs that I have set out above, all of which, he said, were consistent with the proposition that the cases did indeed show the importance of the formalities in establishing consent to the jurisdiction agreement. He also pointed out that the paragraph in Briggs which had been relied on in Antonio Gramsci had been amended, to make it rather less black and white.

Finally, as regards Coreck , he argued that this was, in the main, to do with succession to the rights of a prior holder of a bill. Where, as here, the question was as to whether an original party to a contract said to be implied from conduct on the terms of the bill of lading was bound by an EJC in the bill, then that case made it clear the provisions of what is now Article 25 had to be satisfied.

Turning to Mr Lord QC’s second submission, he submitted that the authorities, and in particular Dicey 12-130 and paragraph 36 of Polskie (which states that : “As to the need for agreement - the claimant must show that both the parties “ clearly and precisely ” consented to the alleged jurisdictional agreement. In a case, such as this, where a party alleges that it never accepted the clause, the task of the Court is to determine if there was sufficient consensus between the parties as a question of fact, without recourse to any rules of national law: see Dicey, Morris & Collins The Conflict of Laws 14th edn, para.12-108” , showed that Article 25 was to be given an autonomous meaning. Kaefer , in his submission, dealt with the mode of proof, not the test itself.

As to the third proposition put forward by Mr Lord QC, Mr Collett QC submitted that it was striking that no authority was put forward for this proposition and indeed that no case had been identified in which a contract which was said to have been made entirely by conduct was sufficient to satisfy the requirements of Article 25. In fact, he submitted, the opinion of the Advocate General in Profit , at paragraph 42, (which is set out above) ran clearly counter to this third proposition.

Mr Collett QC then submitted that there was indeed a requirement that the agreement to the clause was in writing or evidenced (or confirmed) in writing. The EU case law which I have set out above was consistent on that point, and the fact that English law recognised that contracts could be implied from conduct did not derogate from this.

Finally, Mr Collett QC agreed that the cases have focussed on the need for writing, but argued that that was simply because that was what Article 25 required the Court to do.

I turn to set out my conclusions on this issue. In my judgment, the cases show the following.

The fundamental issue is clearly whether consent to the EJC has been clearly and precisely demonstrated: see Estasis , at paragraph 7, Galeries Segoura , at paragraph 6, Berghoefer , paragraph 13, Benincasa , paragraph 29, Coreck , paragraph 13, BNP Paribas , paragraph 44, Antonio Gramsci , paragraph 37, Profit , paragraph 41 of the Attorney General’s Opinion and paragraph 27 of the judgment of the Court, and The Magellan Spirit, paragraph 7.

The purpose of the formal requirements in Article 25 is to establish such consent, clearly and precisely. The requirement of writing is not satisfied by the fact that the clause itself is in writing; the consent must be in writing or evidenced (or confirmed) in writing: see in particular BNP Paribas , a case by which I am bound, but with which I respectfully agree. It is clear from the European authorities that the purpose of the formal requirements in the Article is to establish consent to the necessary degree of certainty.

Whilst it is clear that there is a “degree of flexibility”, to adopt the phraseology of Professor Briggs in his helpful exposition of the authorities, then this cannot be taken too far. In my judgment, the authorities show that if there is no written agreement, then there must at least be written confirmation which evidences consent. Those authorities of which Antonio Gramsci is perhaps the most recent example, can be explained on one of two bases. The first is, quite simply, on a literal reading of the Regulation, which provides for the case where an agreement which is not itself in writing is then either confirmed or evidenced in writing. The second is on the basis of the doctrine of good faith, whereby the denial of the agreement, when it would otherwise be clearly established, by reliance on the want of compliance with the formal requirements of the Article, would amount to bad faith: see The Antonio Gramsci itself and Berghoefe r, at paragraph 15.

There is, as Mr Lord QC very fairly accepted, no authority which would go so far as to say that agreement to an EJC which was implied solely from the conduct of the parties suffices for the purposes of compliance with Article 25. In my judgment, this is a telling consideration. On the face of it, then where there is no agreement (in the sense of consent) in writing or evidenced (or confirmed) in writing, then there is no sufficient compliance with Article 25(1)(a) (the only

In addition, I would agree with Mr Collett QC that the Article is indeed concerned with formalities, since otherwise there would be no purpose in including the various limbs in Article 25(1). The fact that the Article is concerned with formalities for a particular purpose – namely to establish consent clearly and precisely – does not detract from the proposition that the Article is indeed concerned that such formalities should be complied with.

Accordingly, I conclude that, on the assumption that there was a contract between the parties implied from the conduct of those parties at the discharge port, that was not sufficient to satisfy the requirements of Article 25 of the Regulation. Accordingly, I hold that there was no binding EJC on the facts of this case.

As I noted earlier in this judgment, I have considered the above on the basis of an assumption made in favour of the Claimant, namely that there was an implied contract. I do not intend to consider whether that assumption is in fact well-founded. That is because I agree with Mr Collett QC that, having determined that I do not have jurisdiction, it would be undesirable for me to express views on the very issue that the Singapore Court will be considering.

It follows from what I have held thus far that there is no basis for the grant of an ASI. However, if, contrary to the views that I have expressed to date, there was in fact an EJC, the further issue arises of whether an anti-suit injunction (“ASI”) should be issued to give effect to the agreement between the parties established by reference to that EJC.

For the reasons I set out in the following paragraphs, I have come to the conclusion that, even if any EJC was concluded between the parties, then I would not be prepared to grant an ASI to give effect to that agreement.

In this regard, there were two issues between the parties:

Was there a submission by Pan Ocean to the jurisdiction of the Singapore Courts?

Was there a delay of such magnitude to mean that I should not exercise my discretion to grant an ASI?

Although these were treated as independent questions, in my judgment then they are in fact interrelated, for the reasons I set out below.

Both parties were in agreement that the question under this head was whether, applying English principles of law, there had been a submission to the jurisdiction. In that regard, I was referred to the decision of the Court of Appeal in Henry v Geoprosco [1976] QB 726, where the Court of Appeal said:

Despite this agreement, I was provided with a number of reports from Singaporean lawyers. Those reports did not really assist me, save in one respect, for two reasons:

The first is that the parties were agreed that the relevant question was whether, applying English principles, there had been a submission. The rules of Singapore law were therefore in fact irrelevant.

The second is that the Singapore rules appeared to be the same as the English rules, in any event. The difference between the experts was not as to the relevant principles, but as to the application of those principles to the facts of this case. This latter is, in my judgment, a matter for me.

The one respect in which the reports were of assistance was that both experts were in agreement that, as a matter of Singapore law, once the jurisdiction dispute had been determined on appeal then, unless the earlier acknowledgement of service was withdrawn, the Claimant was to be deemed to have submitted to the jurisdiction in Singapore. Thus, it would appear to be common ground that, in Singapore, there has now been a submission to the jurisdiction under Singaporean procedural rules.

The English rules of conflict of laws were, as both parties accepted, those set out in Willams & Glyns Bank v Astro-Dynamico [1984] 1 WLR 438. There, the House of Lords drew a distinction between invoking the jurisdiction to determine jurisdiction, and invoking the jurisdiction to determine the merits. In particular, Lord Fraser said:

Mr Collett QC then referred me to the decision in Golden Endurance Shipping v RMA Watanya [2017] 1 All ER (Comm) 438, a decision of Phillips J. In paragraph 29 of that case, the judge said:

Henry v Geoprosco has been statutorily reversed, in this jurisdiction, by s.33 of the Civil Jurisdiction and Judgments Act 1982, which states that a party shall not be taken to have submitted to the jurisdiction simply because that party applies for a stay of the proceedings in favour of arbitration. However, there is no evidence before me that there is any similar provision in Singapore.

Based on the above principles, Mr Collett QC submitted (in very brief summary) that:

There had been a submission to the jurisdiction, in accordance with the principles in Astro Dinamico , because the Claimant, during the course of its challenge to the jurisdiction of the Singapore Court, went beyond the taking of purely defensive steps and positively invoked the jurisdiction of that Court, in particular by making a positive claim for wrongful arrest. He submitted, in reliance on Joseph on Jurisdiction and Arbitration Agreements , para 12.130, that a party who has submitted to the jurisdiction will generally be unable to obtain an ASI. That paragraph provides (footnotes omitted) that:

My attention was also drawn to Briggs, Civil Jurisdiction and Judgments , at p. 550, where the author states that:

There had been a submission to the jurisdiction by virtue of the fact that the Claimant had now made an application in Singapore to stay the proceedings there on the basis of the alleged EJC, this being a situation that is on all fours with that in Henry v Geoprosco , (as explained again in The Golden Endurance ) where the application to stay in favour of arbitration was a submission on the merits.

Conversely, Mr Lord QC submitted (again, in outline) that there was here no submission.

In relation to the steps taken prior to the determination of the appeal in relation to the arrest proceedings, he submitted that these were purely defensive. The reference to wrongful arrest was not to a positive claim for damages for such wrongful arrest, but simply a reference to wrongful arrest as a ground for discharging the arrest and security.

In relation to the application in Singapore to stay in reliance on the EJC, he submitted that this was necessary by reason of the fact that, if no such application were made, the Claimant ran the risk of having a default judgment entered against it.

Mr Lord QC also took issue with the absolute nature of the statement in Joseph , above. In his submission, the question of submission was simply part of the overall discretionary exercise. In my judgment, he is right that the question of submission is simply part of the overall discretionary enquiry. In this regard, I prefer the statement of Professor Briggs to that of Mr Joseph QC.

I have set out the relevant factual chronology earlier in this judgment.

On the basis of the overall chronology, Mr Collett QC submitted that there had clearly been a submission to the jurisdiction in Singapore in accordance with the English law principles set out above. In this regard, he argued that the claim for damages for wrongful arrest was a counterclaim; that it was a positive invocation of the Singaporean jurisdiction; and that, because such a claim would fall within the EJC it was a clear election not to rely on the EJC in this regard.

As to the proposition that the making of a counterclaim was a submission to the jurisdiction, he relied on CNA International Ltd v Office Depot International [2005] EWHC 456, and Cheshire and North on the Conflict of Laws , 15 ^th ed, p.333, fn 113. I accept this proposition, and indeed I did not understand it to be disputed by Mr Lord QC.

I would also accept the second proposition. If there was a clear submission of a positive claim to the jurisdiction of the Singapore Court, then in my judgment this would either amount to an election not to rely on the provisions of the EJC, or would at the very least amount to a very strong reason for refusing an application for anti-suit relief in reliance on the EJC. This, in my judgment, follows from the passages in Joseph and Briggs to which I have already made reference; though, as I have said, I regard Professor Briggs’ statement of the principle as preferable.

The real dispute between the parties (and indeed between the Singapore law experts) was whether, on the facts, the Claimant had made a counterclaim for damages and thus gone beyond what was necessary for the purposes of the challenge to jurisdiction.

It was the submission of Mr Collett QC that there was, quite clearly, a claim for damages for wrongful arrest. In particular:

The application to release the arrest included, in addition to the paragraph seeking a release from arrest, a paragraph asking for an order that the arrest was wrongful. That, it was submitted, could only be interpreted as a claim for wrongful arrest, which in turn would require a showing of either gross negligence or mala fides.

The fact that the affidavit in support of the application did not make a specific claim for damages for wrongful arrest did not detract from the fact that the claim had been made in the application notice. That affidavit, and the further affidavit sworn in June 2018, included allegations that the arrest had been made grossly negligently and in bad faith, and no sensible party, who only wished to set aside the arrest and did not wish to claim damages, would make such allegations, since it would only be necessary to show non-disclosure of a knock out point (Footnote: ²) to justify setting aside.

It was also clear from the record of the hearing before the Assistant Registrar that China-Base’s Singaporean lawyers understood there to be a claim for damages for wrongful arrest.

Mr Lord QC, conversely, submitted that there was no positive claim for damages for wrongful arrest.

He accepted that the application notice included a claim for an order that the arrest was wrongful. However, in reliance on the report of Mr Seah, he submitted that this reference was simply to relief “consequential” on the release of the arrest, and

He relied on the fact that the affidavits sworn by the Claimant made no claim for damages. Instead, the wrongful conduct alleged by the Claimant was, in each affidavit, he argued, said to be a ground for the discharge of the arrest.

He relied on the fact that neither of the judgments of the Court (at first instance and on appeal) made any reference to any claim for damages for wrongful arrest.

I have concluded that on this point, on balance (although not without some degree of hesitation) the submissions of Mr Lord QC are to be preferred:

On its own, I would have concluded that the application notice was reasonably to be interpreted as making a claim for damages for wrongful arrest. I do not accept

However, the application notice cannot be read on its own and in the abstract. In the context of the supporting affidavits, I take the view that the reference to wrongful arrest is indeed to be regarded as referable to the relief that is sought, which is solely the setting aside of the warrant of arrest. The fact that ChinaBase/Beihai’s lawyers seem to have understood the reference differently does not alter my view.

Accordingly, I hold that there was here no submission during the course of the proceedings challenging jurisdiction.

That leaves the question of whether the application to stay the Singaporean proceedings on the basis of the EJC is, as a matter of English law, sufficient to amount to a submission to the jurisdiction so as to preclude the grant of an ASI. It clearly is a submission as a matter of Singaporean law. However, the question remains of whether, applying English law, there has been a sufficient submission by reason of the failure to apply to withdraw the earlier acknowledgement of service coupled with the application to stay to justify the refusal of an ASI.

In this regard, I do not regard the decision in The Golden Endurance as determinative.

I have concluded that, in relation to both of the matters relied on by Mr Collett QC, the taking of these steps was not sufficient to constitute an absolute bar to the grant of an ASI. Instead, in my judgment, the taking of these steps forms part of the overall discretionary enquiry that I am engaged in as to whether or not an ASI should be granted.

I turn to the second discretionary factor relied on by China-Base/Beihai, which is excessive delay in the bringing of the application for anti-suit relief, coupled with the steps taken in Singapore.

My starting point is the decision in The Angelic Grace [1995] 1 Lloyd’s Rep. 87, and in particular the statement of Lord Justice Millett, as he then was, which is the locus classicus of the law in this area. That passage reads as follows:

Accordingly, an injunction should be granted, provided that the application is sought promptly and before the foreign proceedings are too far advanced. This approach has been adopted and applied in numerous cases, which were put before me as decisions on their particular facts. I do not think that it is profitable to go through numerous decisions in which the same principles are applied to the facts. For present purposes, in my judgment, the most helpful recent and authoritative decision is that of the Court of Appeal in Ecobank v Tanoh [2016] 1 WLR 2231. As recorded in the headnote, in that case the Court of Appeal held that:

That was of course an application to enjoin enforcement proceedings, and was thus an a fortiori case to the present. However, the Court of Appeal’s approach was, in my judgment, equally apposite to an anti-suit injunction application seeking to prevent the continuance of foreign proceedings prior to judgment. The Court of Appeal summarised the position as follows:

I agree with the judge (para 24) that it is not a precondition to the refusal of an injunction that the respondent should establish detrimental reliance, if by that is meant that he must show (a) that he believed that no application for an injunction would be made or (b) that he believed that and, if he had realised that an application would or might be made, he would have abandoned the foreign proceedings. The existence or otherwise of such reliance is relevant but not determinative. The relevance of delay is wider than that. The need to avoid it arises for a variety of reasons including the avoidance of prejudice, detriment, and waste of resources; the need for finality; and considerations of comity.

It is, thus, not, in my view, a complete answer for Ecobank to say that someone in the position of Mr Tanoh has only himself to blame because it his breach which will have caused the waste. The court is, in an appropriate case, entitled to be reluctant to use its coercive powers to restrain that which the applicant has in fact allowed to continue without any application for relief for some time. This is especially so if, as appears to me to be the case here, little useful purpose is likely to be served by the party who claims to be entitled to an injunction holding back from claiming it. In some cases, an objection to the jurisdiction can be dealt with first before the substantive merits, so that there may be something to be said for pursuing that objection in the foreign court. But that was not the case here.

Further the tenor of modern authorities is that an applicant should act promptly and claim injunctive relief at an early stage; and should not adopt an attitude of waiting to see what the foreign court decides. In The Angelic Grace [1995] 1 Lloyd's Rep 87 Leggatt LJ said that it would be patronising and the reverse of comity for the English court to decline to grant injunctive relief until it was apparent whether the foreign court was going to uphold the objection to its exercising jurisdiction and only do so if and when it failed to do so. Whilst those observations related to the approach of the court it seems to me that they are a guide to what should be the approach of a would-be applicant for anti-suit or anti-enforcement relief….

I have looked at the various cases to which I have been referred which consider the application of the above principles to the facts of particular cases, and I have also looked at the textbooks on the point, and in particular Raphael on Anti-Suit Injunctions , which sets out a helpful summary of those cases. However, in the final analysis, then each case turns on its own facts and the application of the above principles to those facts.

I have come to the conclusion that, even if, contrary to my earlier conclusion, there was here a binding EJC, then the Claimant’s application for an ASI should be refused, as a matter of the exercise of my discretion. I bear in mind the following considerations in this regard:

The warrant of arrest was served on 28 February 2018. At this point, therefore, the clock started ticking for the purposes of applying for an ASI.

No application was however made at this point. Instead, the Claimant took the deliberate step of applying to set aside the warrant of arrest in Singapore, an application based in part on the existence of an arbitration clause, and invoked the jurisdiction of the Singapore Court to determine this question. It did not seek in the alternative to rely on the existence of the EJC.

In May 2018, the Claimant was itself the subject of proceedings based on the EJC brought by Gunvor. This reemphasised the potential argument based on the existence of the EJC. No application was made at this stage.

Instead, the Claimant chose to continue its challenge to jurisdiction, again based (in part) on the existence of an arbitration clause, and not an EJC.

That challenge led to two hearings, both at first instance and on appeal.

It was only shortly before the decision on appeal that this application for an ASI was brought.

In these circumstances, in my judgment, it cannot be said that the application has been brought promptly; nor can it be said that it has been brought before the foreign proceedings are too far advanced. Substantial time and costs have been expended in the Singapore proceedings. The Singapore courts have also given up substantial time and resources to this matter. Applying the approach laid down in the Ecobank case, as set out above, then in my judgment the Claimant has simply left it far too late to make its application here. Accordingly, if I had found that there was an EJC, I would still have refused to grant the ASI sought.

It only remains for me to thank both Counsel and their respective teams for their very helpful and illuminating arguments. I would ask that an appropriate order be drawn up in order to give effect to this judgment.