CIVIL PROCEDURE
Shipping – Contract – Supply of bunkers –
Breach of Contract – Terminated – Arbitration –
Stay Application – Anti-Arbitration Injunction –
Arbitration Act 2005
Cockett Marine Oil (Asia) Pte Ltd v MISC
Berhad
Civil Appeal No. W-02(IM)(ADM)-251-02/2021 | Court of Appeal
- see the grounds of judgment here
Facts Cockett Marine (the
"Appellant") is a Singaporean company
which supplies bunker fuel for shipping vessels. MISC Berhad (the
"Respondent") is a bunker supplier and
owner of a vessel ("the Vessel"). The Respondent invited
tenders for the supply of bunkers and sent an invitation via email
to the Appellant, attaching a copy of its terms and conditions,
which amongst others gave exclusive jurisdiction to the Malaysian
courts. The Appellant had submitted its tender and entered into
negotiations with the Respondent through a series of email
correspondences which contained a hyperlink to its website, which
contained the Appellant's standard terms and conditions.
Subsequently, both parties entered into a contract for the supply
of the bunker fuel. Nevertheless, the Vessel and the
Appellant's barge were detained by the Malaysian Maritime
Enforcement Agency and the Appellant was ordered not to use the
bunkers pending completion of an investigation. The Respondent then
proceeded to terminate the contract on the grounds that the
Appellant had breach its obligations and filed an action in the
High Court for the same. However, the Appellant commenced
arbitration proceedings in London and a notice of commencement of
Arbitration was issued. The Appellant then filed for a stay of
proceedings in the High Court pending arbitration which led to the
Respondent filing for an anti-arbitration injunction against the
Appellant. The Learned Judicial Commissioner
("LCJ") refused the Appellant's
application to stay the proceedings and granted the
anti-arbitration injunction against the Appellant on the grounds
that, amongst others that the Appellant had failed to demonstrate
the existence of an arbitration agreement. Hence this appeal.
Issues 1. Whether the LJC had misconstrued the
provisions of s.18(1) and (8) of the Arbitration Act 2005?
2. Whether the LJC had in principle proceeded on a correct basis in
determining the question of the existence of an arbitration
agreement by identifying whether there was prima facie existence of
an arbitration agreement?
Held In allowing the Appeal, the Court of Appeal
held that, it was an error for the LJC to disregard the impugned
link highlighted by the Appellant which was plainly a reference to
an arbitration clause. It was the view of the Court of Appeal that
the LJC had failed to give serious consideration to this crucial
aspect which would have a strong bearing on the question of the
existence of an arbitration agreement which was the fact that the
Appellant's last email i.e its Confirmation of Supply, was the
contractual document between the parties to the supply contract.
The Court of Appeal was in agreement with the contention put forth
by the Appellant that the agreement jurisdiction of the Court is
limited to identifying whether there is prima facie existence of an
arbitration agreement and once a prima facie determination is made,
the matter is to be stayed and referred to arbitration for a full
determination on whether there is in fact a binding arbitration
agreement. Hence, the LJC exceeded his jurisdiction by purporting
to determine conclusively not only that there was a prima facie
case existence of an arbitration agreement but to make a factual
determination that the same was not enforceable and did not bind
the parties. In conclusion, the Court of Appeal allowed the appeal
and granted a stay of proceedings as applied for by the Appellants
in the High Court.
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