DP WORLD DJIBOUTI FZCO AND OTHERS v. CHINA MERCHANTS PORT HOLDINGS CO LTD

HCA 1951/2018

[2020] HKCFI 639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1951 of 2018

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D E C I S I O N

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1.  The Defendant applies for leave to appeal against this Court’s decision dated 20 December 2019, rejecting a stay of these proceedings for determination by the Djibouti Court as the appropriate forum. The grounds are that the Court failed to apply the correct tests or approach in determining the forum conveniens.

2.  The Plaintiffs argued that the intended appeal is against an exercise of the discretion of the Court, and parties should not be encouraged to litigate the merits of competing fora at different levels of the court, in the hope of persuading a higher court to strike a different balance in the factors pointing for or against a foreign forum.  That is correct, but having considered the draft Notice of Appeal and the submissions of Counsel, I grant the leave sought.

3.  I accept that the Defendant has shown that it has more than just an arguable case (Wynn Resorts (Macau) SA v Mong Henry [2009] 5 HKC 515) on the intended appeal, with regard to the issues of the 3^rd Plaintiff’s authority to sue, the factors to be considered for the place of commission of the tort complained of by the Plaintiffs, and whether there was error in law, as alleged, in the context of the existence or materiality of public policy considerations.  These are complex issues, and the Defendant does not have to establish that its appeal will probably succeed, in order to obtain leave.

4.  The summons for leave to appeal is granted, with costs in the cause of the appeal.  I also grant the extension of time sought for filing the Defence, as per “Version 1” of the draft order submitted by the Defendant.