NATIONAL NAVIGATION CO V ENDESA GENERACION SA

[2009] EWCA Civ 1397, Lord Justice Waller, Lord Justice Carnwath and Lord Justice Moore-Bick, 17 December 2009

Arbitration - Spanish court ruling that charterparty arbitration clause not incorporated into bill of lading - Proceedings brought in England for declaration that arbitration clause binding - Whether English court possessed jurisdiction to grant declaration - Recognition of Spanish judgment - Whether discretion should be exercised - Whether arbitration clause incorporated - Council Regulation (EC) No 44/2001, articles 1(2)(d), 5, 21, 27, 33, 34 and 48

NNC owned the vessel Wadi Sudr, which was time chartered to Sinochart and then subchartered under a voyage charter to Carboex. Both contracts were governed by English law and contained arbitration clauses. Carboex agreed to supply coal to a Spanish company, Endesa. The bill of lading issued to Endesa stated that it incorporated the arbitration clause in the charterparty. The vessel was damaged en route, and Endesa had to obtain an alternative supply of coal. Endesa commenced proceedings in Spain against NNC, and shortly afterwards NNC commenced proceedings against Endesa in England, seeking negative declaratory relief. The Spanish court ruled that there was no arbitration agreement or, if there was, that it had been repudiated by the commencement of English substantive proceedings.