In Golden Endurance Shipping SA v RMA Watanya SA
and others (2016) EWHC 2110 (Comm), the Court considered whether a
foreign judgment should be recognised in England, and whether the
claimant had submitted to the jurisdiction of the foreign court.
The Court also considered whether it was an abuse of process for
the claimant to rely on a stance in the English proceedings which
was allegedly inconsistent with the one it had taken in the foreign
A cargo of wheat bran pellets was shipped to Morocco, where it
was found to be damaged. The cargo receiver's insurers
commenced a subrogated claim in respect of the cargo in the
Moroccan courts, and were awarded damages. The claimant
subsequently commenced proceedings in London, requesting that the
Moroccan judgment not be recognised. The insurers argued that the
Moroccan judgment should be recognised by the English courts
because the claimant had submitted to the jurisdiction of the
The claimant sought to rely on section 33 of the Civil
Jurisdiction and Judgments Act 1982 (the Act), which provides
exceptions for certain actions that do not amount to submission to
the jurisdiction of an overseas court (including, for example,
simply appearing in the foreign proceedings) and proceeded "to
ask the court to dismiss or stay the proceedings on the ground that
the dispute in question should be submitted to arbitration or to
the determination of the courts of another country" (s. 33(b)
of the Act).
Phillips J held that the claimant had not submitted to the
jurisdiction of the Moroccan courts and the Moroccan judgment was
not entitled to recognition by the English courts. It was
held that the claimant's primary response in the Moroccan
proceedings was for the dismissal of the Moroccan proceedings in
favour of London arbitration. Philip J also held, obiter,
that even if (contrary to his conclusion) it was possible for the
claimant to mount a jurisdictional challenge in Morocco, the
claimant had not, from an English law perspective, abandoned its
challenge or succumbed to the jurisdiction of the Moroccan courts.
The judge found that the course taken by the claimant was an
appropriate one for a party seeking to have a dispute referred to
arbitration and regarded by Moroccan lawyers as the only legitimate
course of action available to the claimant in the circumstances. It
was clear, the Court found, that the claimant's objection,
based on the alleged incorporation of arbitration clauses, was its
primary contention throughout.
It was also argued that the claimant had adopted an
inconsistent stance in previously commencing English proceedings
without arguing that the dispute should be referred to arbitration.
The insurers essentially adopted an argument that the claimant was
"blowing hot and cold". This abuse of process argument
was also rejected by the English court, as there was no
"blatant inconsistency" between the claimant's
English and Moroccan positions. While the judge accepted that
there was "a degree of tension" between the
claimant's positions in the English and Moroccan proceedings,
in his view, this was the type of situation that could arise where
disputes were pursued "in parallel proceedings in different
jurisdictions and governed by different laws". It was
determined that this was "certainly not the type of blatant
inconsistency which would cause the court to prevent a party from
relying on the position it has undoubtedly and properly adopted in
This decision provides a useful indication of the Court's
approach when determining whether the party against whom an
overseas judgment was handed down, has submitted to the foreign
jurisdiction. The case also illustrates that, to a certain
degree, different stances may be adopted by a party in parallel
proceedings in more than one jurisdiction. However, when
facing complaints of abuse of process, the Court indicated that it
would take a broad and robust view if it found a "blatant
inconsistency" with the position adopted in foreign
proceedings. In situations of jurisdictional conflict, it is always
advised to tread very carefully.
The English Commercial Court has published two recent judgments of Mr Justice Popplewell in a single anonymised case concerning the removal of two arbitrators under section 24(1)(d)(i) of the Arbitration Act 1996.
As a condition to challenging enforcement or recognition of an arbitration award, the UK Supreme Court overturned a Court of Appeal decision which imposed a $100 Million security obligation on a New York Convention arbitral award debtor...
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).