Lloyd's Law Reporter
SEA POWERFUL II SPECIAL MARITIME ENTERPRISES (ENE) V BANK OF CHINA LTD
[2016] HKCFI 39, Court of First Instance, Hong Kong, Anthony Chan J, 12 January 2016
Conflict of laws - Anti-suit injunctions - Bill of lading incorporating arbitration clause from charterparty - Delay - Limitation period
This was an application for an anti-suit injunction in respect of proceedings commenced before the Qingdao Maritime Court in respect of a claim under a bill of lading. The judge declined to issue the injunction. He decided that the arbitration clause had been effectively incorporated into the bill of lading from the charterparty, stating that Hong Kong law did not differ from English law in that respect. The applicant was not assisted by a strong inference that it had sought to evade service of the QMC proceedings, awaiting the expiry of the limitation period. Conversely the defendant had not acted reasonably in failing to take steps to obtain a copy of the charterparty, as a result of which it had only become aware of the contractual forum upon the applicant's jurisdictional challenge before the QMC. No injunction would be granted: the plaintiff's delay had been inordinate and culpable in that it had filed the jurisdictional challenge before the QMC and then waited four months before applying for an anti-suit injunction. Delay was a free-standing argument in this context: Ecobank Transnational Inc v Tanoh [2016] 1 Lloyd's Rep 360. There was good reason for using the limitation period as a measuring stick for the delay, as in Essar Shipping Ltd v Bank of China Ltd (The Kishore) [2016] 1 Lloyd's Rep 427.