The availability of declaratory relief

In spite of the unequivocal decision of the ECJ inThe Front Comor [2009] 1 Lloyd’s Rep 413that anti-suit injunctions are incompatible with the Regulation and fundamentally, the principle of mutual trust, the Court of Appeal inNational Navigation Co v Endesa [2009] EWCA Civ has controversially opined that declarations of validity may be used as grounds for non-recognition of a foreign judgment where the declaration is given prior to the foreign court’s decision. This reading however is unlikely to be favourable in Europe, as declarations may now be seen as having the same adverse effect as anti-suit injunctions. The case is discussed by Jennifer Lavelle of the Institute of Maritime Law, University of Southampton.

Endesa: the background facts

The matter before the Court of Appeal arose out of a dispute between National Navigation Co (NNC), Egyptian shipowners of the vessel the ‘Wadi Sudr’, and a Spanish electrical generating company, Endesa. Carboex, a sub-charterer of the vessel, agreed to supply coal to Endesa. NNC issued a bill of lading for the goods, incorporating the law and arbitration clauses from the charterparty. The coal was discharged at Carboneras, Spain, instead of the contractually agreed delivery place of Ferrol, and Endesa, as consignees under the bill, claimed damages against NNC.