Choice of Forum

OT Africa Line Ltd v Fayad Hijazy and another (TLR 28 November QBD)

The claimants were an English company of ship owners. Two sets of defendants had begun proceedings against them in the Belgian courts claiming short delivery of goods under two bills of lading. Both bills contained a clause stating ‘Any claim or dispute whatsoever arising in connection with the carriage under this bill of lading shall exclusively be governed by English law and determined by the High Court in London’. The claimants sought an injunction restraining the defendants from continuing the proceedings in Belgium and pursuing their claim other than before the High Court in London. Although Article 21 of the Brussels Convention provides that the court first seized of a cause of action has jurisdiction, Article 17 provides that where a clause in a contract conferred exclusive jurisdiction on a court, that court should have jurisdiction. In Continental Bank NA v Aeakos Compania Naviera SA ([1944] 1 WLR 588) it was held that Article 17 took precedence over Article 21. The defendants argued that by s6 of Human Rights Act 1998 it would be unlawful for the court to grant an anti-suit injunction which would have the effect of depriving them from pursuing their right to a trial before ‘an independent and impartial tribunal established by law’, in other words, the Belgian court.