COMPANIA SUD AMERICANA DE VAPORES S.A. v. HIN-PRO INTERNATIONAL LOGISTICS LTD

FAMV No. 33 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 33 OF 2015 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NO. 243 OF 2014)

____________________

________________________

D E T E R M I N A T I O N

________________________

Chief Justice Ma:

1.  We are satisfied that the proposed appeal gives rise to the following questions of great general or public importance relating to section 21M(1) of the High Court Ordinance[1] (“section 21M(1)”), namely:

“In the context of an application to the Hong Kong Court (not being the agreed or natural forum for the trial of the underlying substantive dispute) under section 21M(1) for interlocutory relief in aid of foreign proceedings, in a case where (i) a party to a contract containing an exclusive jurisdiction clause providing for an agreed litigation forum sues or has sued upon the contract elsewhere in breach of that clause, and (ii) the other party to the contract then obtained in the agreed litigation forum an interlocutory worldwide Mareva injunction against the defaulting party:

(1) What are the legal principles applicable in aid of the said application, and in particular, whether the first stage test in Refco Inc v Eastern Trading Co [1999] 1 Lloyd’s Rep 159, namely, if the facts would warrant the interim relief sought if the substantive proceedings were brought in Hong Kong is (i) applicable at all, and/or (ii) if applicable, should be applied with the necessary modification that the Hong Kong Court should apply the first stage test as if the contractually agreed forum is Hong Kong (“1^st Question”);

(2) Whether in the light of the English Court of Appeal cases of The Angelic Grace [1995] 1 Lloyd’s Rep 87 and Deutsche Bank v Highlander Crusader Partners LP [2010] 1 WLR 1023, the principle of judicial comity is necessarily engaged in the Hong Kong Court’s consideration of the said application, and even if engaged, whether such principle is (i) relevant in the first stage test in Refco, and (ii) relevant to (and if so, to what extent) the ‘just and convenient’ test in the second stage (“2^nd Question”);

(3) Whether it was correct for the Court of Appeal to have relied on the general principles regarding anti-suit injunctions and comity formulated by Lord Goff in Airbus Industrie GIE v Patel [1999] 1 AC 119 at 138G-H in the light of Lord Goff’s express reservation at 138F of his speech, particularly in the context of a section 21M application where Hong Kong is necessarily not the contractual forum chosen and agreed upon by the parties in the exclusive jurisdiction clause (“3^rd Question”).”

2.  Accordingly, we grant leave to appeal on the basis of those questions of law.

3.  We are also satisfied that it is appropriate to grant leave to appeal on the “or otherwise” basis on the question of whether the defendant’s undertaking proffered by it to the court provided sufficient protection such that the judge should have declined to grant the relief sought by the plaintiff (i.e. the applicant herein) under section 21M(1).

4.  The appeal will be heard on 12 October 2016.