Know your defendant when commencing arbitration.

In London Arbitration 13/16, reported in LMLN, the claimants commenced arbitration against X and Y under a Conline booking form containing a London arbitration clause. The form evidenced a contract between X, as merchants, and the claimant. The claimants alleged that during the voyage an accident occurred due to alleged misdescription of the cargo by X and Y at the port of loading. A claim under the booking note could clearly be made against X, but what about Y? They were described in the booking note as the merchant’s representative at the loading port and were also named as the shipper in the bill of lading that was eventually issued. Y objected to the jurisdiction of the tribunal as they were not a party to the booking note, an objection  accepted by the tribunal who declared that it had no jurisdiction and ordered the claimants to bear Y’s costs and the costs of the award.  Claims against Y might exist in tort or under the bill of lading, but Y was not a party to the booking note. The position was not changed by the contemplation of the claimants and X that the booking note was an interim contract which would be superseded by the bill of lading.

Get your skates on for an anti-suit injunction

The English courts may be very willing on principle to give you an anti-suit injunction against someone who sues elsewhere while putting up two fingers to a binding London arbitration clause. But you must play your part and act quickly. You can’t lackadaisically ask the foreign court to decline jurisdiction and then seek to injunct the other guy in London several months later when it’s apparent that it won’t. A hapless shipowner found this out on his unlucky Friday 13. For details see Essar Shipping Ltd v Bank of China Ltd [2015] EWHC 3266 (Comm) (13 November 2015), available on BAILII.

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