Sun-Line (Management) Ltd v Canpotex Shipping Services Ltd

• Jurisdiction: Singapore
• Judgment Date: 07 May 1986
• Date: 07 May 1986
• Docket Number: Originating Summons No 165 of 1986
• Court: High Court (Singapore)

Sun-Line (Management) Ltd

Plaintiff

and

Canpotex Shipping Services Ltd

Defendant

[1986] SGHC 16

A P Rajah J

Originating Summons No 165 of 1986

High Court

Civil Procedure–Foreign judgments–Agreement that disputes be referred to arbitration in London and subject to English law–Unsuccessful attempt to refer dispute to arbitration–Litigation in England–English judgment registered in Singapore Application to set aside registration based on absence of agreement to submit to jurisdiction of English courts–Whether express or implied agreement to submit to jurisdiction of English courts–Section 3 (2) (b) Reciprocal Enforcement of Commonwealth Judgments Act (Cap 24, 1970 Rev Ed)–Order 67 r 1 The Rules of the Supreme Court 1970–Conflict of Laws–Choice of jurisdiction–Agreement that disputes be referred to arbitration in London and subject to English law–Whether express or implied agreement to submit to jurisdiction of English courts

The applicant and respondent entered into a charterparty agreement whereby the respondent hired a number of vessels from the applicant. The charterparty provided for any dispute to be referred to arbitration in London and be subject to English law (“the arbitration clause”). A dispute subsequently arose and the respondent tried unsuccessfully to refer the matter to arbitration. The respondent then proceeded to litigate the matter in England and obtained a default judgment against the applicant. The respondent registered the said default judgment as a judgment of the High Court of Singapore under the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 24, 1970 Rev Ed). The applicant applied to set aside the registration on the basis that it did not submit or agree to submit to the jurisdiction of the English courts. In reply, the respondent contended that the applicant had, by virtue of the arbitration clause, submitted or agreed to submit to the jurisdiction of the English courts.

Held, allowing the application:

An agreement to submit to the jurisdiction of a foreign court must be express and will not be implied. Hence a court will refuse to imply such an agreement from an agreement that a contract is to be governed by the law of a foreign country. In the instant case, the only agreement between the parties under the arbitration clause was the submission by either party to arbitration in London according to English law. It was not part of the agreement, express or implied, that legal proceedings could be commenced by either party in the English courts to enforce claims arising under the charterparty: at [23], [37] and [38].

Dunbee Ltd v Gilman & Co (Australia) Pty Ltd [1968] 2 Lloyd's Rep 394 (refd)

Ellerman Lines Limited v Read [1928] 2 KB 144; [1928] All ER 415 (refd)

Feyerich v Hubbard (1902) 71 LJ KB 509; 86 LT 829 (refd)

International Alltex Corporation v Lawler Creations Ltd [1965] Ir Rep 264 (refd)

Jeannot v Fuerst (1909) 100 LT 816 (folld)

Pena Copper Mines Ltd v Rio Tinto Co Ltd [1911-13] All ER 209 (refd)

Royal Exchange Assurance v Compania Naviera Santi SA, The Tropaioforos (No 2) [1962] 1 Lloyd's Rep 410 (refd)

Sirdar Gurdyal Singh v The Rajah of Faridkote [1894] AC 670 (refd)

Tracomin SA v Sudan Oil Seeds Co Ltd (No 2) [1983] 1 WLR 1026; [1983] 3 All ER 140 (refd)

Reciprocal Enforcement of Commonwealth Judgments Act (Cap 24, 1970 Rev Ed)s 3 (2) (b) (consd)

Rules of the Supreme Court 1970, TheO 67r 1 (consd)

Rules of the Supreme Court (UK) O 11r 1 (1)d (iii)

Michael Kuah Kim Huat (Lee & Lee) for the applicant

N K Pillai (Niru & Co) for the respondent.

A P Rajah J

1 This is an application by Canpotex Shipping Services (“the judgment debtors”) for an order that the registration of an English High Court default judgment, dated 20 March 1985 in the sum US$74,659.77 together with costs of 142.50 with interest of US$8,033.95 and further costs of 60 and entered against them in favour of Sun-Line (Management) (“the judgment creditors”), as a judgment of the High Court of the Republic of Singapore under the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 24, 1970 Rev Ed) (“the Act”) be set aside.

2 The judgment creditors are a company incorporated under the laws of Hong Kong, having a place of business in Hong Kong at 172-176 Wing Lok Street, Central, Hong Kong.

3 The judgment debtors are a company incorporated under the laws of Canada having a place of business within British Columbia at Suites 1111 and 1112, 100 Park Royal, West Vancouver, British Columbia, Canada.

4 On 28 July 1983, the judgment creditors and the judgment debtors entered into a charterparty agreement in Hong Kong whereby the latter hired a number of seagoing vessels from the former between 20 August 1983 and 3 November 1983. Clause 37 of the charterparty provided for arbitration in London and it reads:

Any dispute of law or fact arising under this charterparty shall be referred to arbitration. Such arbitration must commence within one (1) year of final discharge or from the date of cancellation if the voyage is not performed.

Unless otherwise agreed, arbitration shall take place in London in the following manner and be subject to English law. One arbitrator is to be appointed by each of the parties hereto and a third by the two so chosen. Their decision or that of any two of them shall be final and for the purpose of enforcing any award, this agreement may be made a rule of the Court. The arbitrators shall be commercial men conversant with shipping practice.

5 Disputes then arose between both the parties as to what moneys were payable on freight and demurrage under the charterparty. The judgment creditors sent telex notices in September 1984 through their agents in Hong Kong to the judgment debtors in Canada requiring them to arbitrate the...