FRIENDSHIP SHIPPING AND TRADING S.A. v. I.V.L. DHUNSERI POLYESTER COMPANY S. A. E.

HCCT 66/2024

[2024] HKCFI 3180

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS NO. 66 OF 2024

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J U D G M E N T

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A. Introduction

1.  This is the substantive hearing of P’s application by Originating Summons filed on 13 June 2024  (the “OS”) for an anti-suit injunction (“ASI”) against D to restrain civil proceedings brought by D on 21 June 2023 in Egypt  against P and/or P’s bareboat-chartered vessel the True Friendship (the “Vessel”) (the “Egyptian Action”).

2.  D is a company conducting business in Egypt. D is the purchaser of cargo which was shipped from China to Egypt on the Vessel effectively owned by P. The cargo was damaged. On 21 June 2023, D commenced the Egyptian Action against P and others. On 10 August 2023, P served a notice of arbitration in Hong Kong on D, which D rejected. No further steps were taken in the Hong Kong arbitration until June 2024 when P sought to appoint arbitrators. Significant hearings and filings have occurred in the Egyptian Action, including final submissions made on jurisdiction and the merits, and the Egyptian Court has reserved judgment to 28 November 2024. 

3.  P contends on this OS that the Egyptian Action is brought in breach of Hong Kong arbitration agreements forming part of contracts of carriage evidenced by two bills of lading issued on 17 April 2023 (the “Bills”).  D disputes that there is any Hong Kong arbitration agreement in the Bills, and asserts that even if P could establish (to the required standard) the applicability of an Hong Kong arbitration clause, the circumstances of this case do not justify an exercise of the Court’s discretion to make and ASI. 

4.  D has raised a preliminary issue, namely, that P has not filed admissible evidence in support of its OS, and accordingly the OS should be dismissed.

B.  Admissibility of P’s evidence

Material Facts

5.  I turn to look at the way the OS has come before me for substantive hearing.

(1)  The OS was filed on 25 June 2024. No evidence in support of the OS was filed and served at that stage.

(2)  P obtained ex parte leave to serve the OS out of the jurisdiction pursuant to RHC O.73 r.7(1) on 28 June 2024 on the basis of the 1^st affidavit of Mr Tsui of P’s solicitors (“Tsui 1”).

(3)  A directions order was made by consent on 22 July 2024 for the filing of evidence in respect of the OS and for the substantive hearing to be fixed.

(4)  Before any evidence was filed, the hearing was fixed on 25 July 2024 to be before me on 6 November 2024.

(5)  On 2 August 2024, Mr Tsui of P’s solicitors filed a 2^nd affidavit (“Tsui 2”) exhibiting unsworn affirmations of Mr Sabra and Mr El Swefy in support of the OS. Mr Tsui stated that Mr Sabra was resident in Greece, that Mr El Swefy practised law in Egypt, and it would take some time for them both to execute their affirmations before a notary public in Greece and Egypt respectively, and courier the same to Hong Kong. Mr Tsui stated that the original and duly executed affirmations would be filed and served as soon as practicable after his firm received them.

(6)  On 30 September 2024, Ms Yau of D’s solicitors filed an affirmation which:

(1)  exhibited:

1.  a copy of the sworn affirmation of Mr Mangalore, the CEO of the D and a resident of Egypt, which had been sworn on 27 September 2024 in Bangkok before a Thai notarial service attorney but had not yet arrived in Hong Kong; and

2.  a draft affidavit of Ms El Ehwany, D’s solicitor in Egypt, who would need some time to execute the affirmation  before a notary public and send it to Hong Kong.

(2)  Undertook to file and serve the affirmations of Mr Mangalore and Ms El Ehwany as soon as practicable upon receipt in Hong Kong.

(7)  On 7 October 2024, D filed the sworn affirmation of Mr Mangalore.

(8)  On 25 October 2024, P filed the 3^rd affirmation of Mr Tsui (“Tsui 3”) in order to:

(a)  Exhibit the 2^nd unsworn affirmation of Mr Sabra;

(b)  Exhibit the 2^nd unsworn affirmation of Mr El Swefy;

(c)  Explain the delay in filing the duly executed 1st affirmations of Mr Sabra and Mr El Swefy as follows ( I will rely on the contents of the exhibited emails rather than Mr Tsui’s summaries):

1.  Mr Tsui exhibits an email from Mr Sabra dated 24 October 2024 apologising for the inability to notarise the affidavit, stating

“we have had to deal with a very time consuming and concerning casualty that has taken up most of our time. In addition, I am presently in Syria and have had difficulty travelling back to Greece because the connecting flight is via Lebanon. The situation there has not allowed me to travel. I will arrange to executed [sic] the affidavit as soon as possible”.

2.  Mr Tsui exhibits a letter dated 24 October 2024 from Mr El Swefy, P’s Egyptian lawyer, stating that:

“the sole authority in Egypt that is invested by the Egyptian government to provide notarizations is the notary public offices in Egypt. Accordingly, we visited one of the Egyptian notary public offices…we were told that the Egyptian notary public will only notarize documents that are either related to pending proceedings in Egypt or documents that will be used within Egypt. …We suggested obtaining a form of attestation from the embassy of Hong Kong in Cairo, Egypt and we tried establishing contact (via telecom) with the said embassy however up till now we are not provided by a firm answer as to whether such procedure is possible or not.”

(9)  On 30 October 2024, D filed the affirmation of Ms El Ehwany, which had been sworn on 10 October 2024 before a notary public in Spain.

(10)  By the time the parties filed their skeleton arguments (P on 1 November and D on 4 November), no sworn evidence had been filed by P. Unsurprisingly, D’s first submission was that P’s OS should be dismissed as it was unsupported by any admissible evidence.

(11)  At the start of the hearing on 6 November, Mr Alder told me that all four of P’s affirmations had been sworn but were not yet in Hong Kong so were not filed. He handed up the affirmation of Mr Chan of P’s solicitors dated and filed 5 November (“Chan”), which:

(1)  deposed to a belief, based on information from P’s English solicitors, that Mr El Swefy had executed his affirmations before a notary public in Egypt; and exhibited signature pages;

(2)  deposed to a belief, based on information from P’s English solicitors, that Mr Sabra had travelled back to Greece and was in the course of getting the affirmations notarized;

(3)  stated that the original and duly executed affirmations of Mr El Swefy and Mr Sabra would be filed and served as soon as practicable.

(12)  When I queried why Mr Alder had told me that all of the affirmations had been sworn, he told me that he was instructed that Mr Sabra had sworn his affirmations after Mr Chan made his affirmation, although he had no evidence to that effect. He confirmed there was no further evidence as to the reasons for delay in providing the evidence beyond what was contained in Tsui 2 and Tsui 3.

(13)  Mr Alder asked the Court to proceed with the OS on the basis of receiving P’s evidence de bene esse, with P’s solicitors undertaking to file the evidence as soon as possible. Alternatively, he submitted, the Court could decide the OS on the basis of Tsui 1 (filed in support of the ex parte leave application) and D’s evidence. As to this proposed alternative course, I indicated immediately that, having read the evidence, it is clear that Tsui 1 was filed for different reasons and D’s evidence is not responsive to Tsui 1; and that such evidence does not provide a complete picture. That course would be manifestly unsatisfactory.

Legal Principles

6.  RHC O.28 r.1A requires that an OS be supported by affidavit / affirmation evidence (which I will refer to collectively as an affidavit).

7.  O.41 rr.1-3 set out the formal requirements of an affidavit.

8.  O.41 r.4 provides that an affidavit may, with the leave of the Court, be filed or used in evidence notwithstanding any irregularity in the form thereof. In the context, in my view, r.4 is concerned with waiving irregularities of form of the type identified in rr. 1-3.

9.  O. 41 r. 5 provides in respect of the contents of an affidavit:

(1)  “Subject to Order 14, rules 2(2) and 4(2), to Order 86, rule 2(1), to paragraph (2) of this rule and to any order made under Order 38, rule 3, an affidavit may contain only such facts as the deponent is able of his own knowledge to prove.

(2)  An affidavit sworn for the purpose of being used in interlocutory  proceedings may contain statements of information or belief with the sources and grounds thereof.”

10.  O.41 r.9 provides that every affidavit used in a cause or matter must be filed with the Registry; and states what indorsements are required for filing.

11.  O. 41 r.10 provides for the use of an original affidavit despite its not having been filed; or the use of an office copy of an affidavit after it has been filed.

12.  Mr Kwok referred me to those rules with the submission that none of them are apposite to the present facts. Mr Alder has not submitted that there is any provision in the rules which would enable me to admit office copies of affidavits which have not been filed with the Registry. In oral submissions, Mr Alder expressly disavowed reliance on O.41 r.5(2) which had been raised in his skeleton argument (and in my view, he did so correctly, given the final nature of this hearing on the OS and the fact that Mr Tsui does not depose to any belief in the relevant matters). 

13.  I have been directed to authority concerning the substantive significance of compliance with the rules on sworn affidavit evidence.  In The Ka Wah Bank Ltd v Low Chung Song(unrep.) HCA 4191/1987, 23 June 1988, an affirmation was taken in Taiwan before a Hong Kong solicitor instead of a notary. DHCJ Cruden stated at p. 13:

“An affirmation is a solemn statement made by an affirmant in writing. It is usually intended to be used in Court proceedings which, when contentious, concern a dispute between parties. The formal requirements for an affirmation prescribed by law are to ensure, so far as it is procedurally possible, that the contents of an affirmation are accurate and truthful. The requirement for an affidavit to be sworn in accordance with a deponent’s religious belief or for an affirmation to be solemnly, sincerely and truly affirmed, serves that important purpose.

The requirement that the person who takes an affirmation must have the qualification of a commissioner for oaths or similar recognised qualifications, is twofold. First, it is to ensure that the affirmation is taken in due form with the affirmant being made aware of the important nature of the document he is signing and the necessity for its contents to be accurate and truthful. Secondly, because the affirmation is taken by an officer of the Court or other recognised officer, the Court can rely upon the affirmation’s authenticity.

A purported affirmation taken by a person not lawfully empowered to do so, lacks both these important twofold qualities. A defect of this nature is a matter of substance. In my view it does not amount to a mere irregularity which can be cured under order 41 Rule 4. The document simply falls far short of being an affirmation affected by irregularities. To the extent that it purports to be an affirmation, it fails to acheive [sic] that status and is a nullity.”

14.  I also have regard to the decision to similar effect of Recorder McCoy SC in Top Flying Investment Ltd v Open Mission Assets Ltd [2006] 4 HKLRD 83 at paras. 30-31.

15.  A fortiori, where the “affidavits” have not been sworn before anyone at all, the documents are not merely “irregular”. Further, the filing of an affidavit is a substantive step: having made the affidavit, another positive step is made when filing it as the document upon which the party seeks to rely and which the party asks the court to accept as factually correct.  A failure to file an affidavit is material. Where the affidavit is said to have been sworn but it has not been filed with the Registry, I consider that the document is not merely “irregular”.

Analysis

16.  On the basis of the rules and these persuasive authorities, it does not seem to me to be a case where I have the discretion to treat the lack of due execution and filing of the evidence as a matter which can be cured. I do not understand Mr Alder to have advanced any jurisdictional basis to found such a discretion; he simply requested that I receive the evidence de bene esse.  I do not see how that course is open to me where the evidence is, on the rules, inadmissible.

17.  In any event, even if I had a discretion to treat the unfiled evidence as admissible, I would not do so for the following reasons.

(1)  P issued the OS on 13 June 2024; P consented to an order made on 22 July 2024 for the filing of its evidence; and P’s evidence was due to be filed by 2 August 2024. P knew that sworn evidence was required to be filed. P provided unsworn evidence only by 2 August 2024, with the promise of filing sworn evidence as soon as practicable. That was over 3 months before the hearing.

(2)  Tsui 2 and Tsui 3 and Chan do not provide any proper explanation as to why, on the one hand, P took steps on 13 June 2024 and 22 July 2024 and 2 August 2024 to indicate that sworn evidence would be forthcoming, but on the other hand, none was filed by the time of the hearing on 6 November 2024. 

(3)  Chan does not explain why Tsui 3 exhibited a letter from Mr El Swefy asserting that it was not possible to notarise his affirmation in Egypt, but that on the eve of the hearing, Chan  states that Mr El Swefy has notarized his affirmations in Egypt.

(4)  Whilst I believe I can take judicial notice of the fact that there has been conflict in the Middle East during the period since issue of the OS, there is no evidence detailing how that has prevented the due execution and filing of P’s evidence in good time before the hearing.

(5)  The timing of the provision of Chan, late on the eve of the hearing, has given D very little time to consider the same but D has through counsel’s oral submissions, raised reasonable forensic points  of concern regarding the authenticity of the notarization:

(1)  Chan has exhibited 4 signature pages in respect of the 2 affirmations of Mr El Swefy, each of which bear a signature and 2 or 3 stamps of a “Fadel Fawzy, Notary Public, State of Cairo”.

(2)  D has received overnight comments from their Egyptian lawyer witness to the effect that:

1.  The stamps are odd as there is no state of Cairo, as opposed to a city;

2.  The format of the notarization is significantly different from the standard notarization, a sample of which was provided to D’s Hong Kong legal team and shown to me in Court, which would bear a certificate in Arabic and a seal.

(6)  Whether or not these forensic points are capable of being satisfactorily answered is unknown because P did not provide D with the purportedly notarized affirmations of Mr El Swefy until late on the eve of the hearing.

(7)  Further, Chan does not even attempt to explain the delay in providing these versions of Mr El Swefy’s affirmations.

18.  No application was made to me to adjourn the hearing of the OS.

19.  In the circumstances, P’s OS is, as at the date of the substantive hearing, not supported by admissible evidence. I therefore dismiss the OS.

C.  Consideration of the substantive arguments

20.  In case I am found to be wrong in dismissing the OS on the grounds of the inadmissibility of P’s evidence, I will set out my findings on the parties’ arguments having considered the evidence de bene esse. As indicated earlier, I do not consider it appropriate to determine the substantive issues by looking at only the admissible parts of the evidence, as D’s evidence is premised on being responsive to P’s inadmissible  evidence and therefore does not exhibit all relevant documents, and self-evidently does not present the whole picture.

21.  The issues are:

(1)  Where there is a dispute as to the existence of a HK arbitration agreement on an application for an ASI, what is the applicable standard of proof which P must meet?

(2)  Has P established the agreement to such standard?

(3)  If so, is it appropriate in the circumstances for the Court to order an ASI?

Issue 1: Applicable standard of proof as to existence of arbitration agreement for ASI

22.  At the hearing, Mr Alder on behalf of P advanced the OS pursuant to s.45 of the Arbitration Ordinance (Cap. 609) (the “AO”) and/or s.21L of High Court Ordinance (Cap. 4) (the “HCO”). D submits that s.45 AO is inapplicable and that only s.21L is relevant.

23.  S. 45(2) of the AO provides:

“On the application of any party, the Court may, in relation to any arbitral proceedings which have been or are to be commenced in or outside Hong Kong, grant an interim measure.”

24.  S.35 of the AO incorporates Article 17 of the Model Law which states:

“ (1)...

(2) An interim measure is any temporary measure, whether in the form of an award or in another form, by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party to:

(a) Maintain or restore the status quo pending determination of the dispute;

(b) Take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself;

(c) Provide a means of preserving assets out of which a subsequent award may be satisfied; or

(d) Preserve evidence that may be relevant and material to the resolution of the dispute. ”

25.  I have been referred to the obiter dicta of G Lam J (as he then was) in  Ever Judger Hldg Co Ltd v Kroman Celik Sanayii Anonim Sirketi[2015] 2 HKLRD 866 at paras.29-35 where jurisdiction was not in issue; and to the subsequent decision of M. Chan J in GM1 v KC[2020] 1 HKLRD 132 at paras 12-14, determined after hearing full argument and considering the reservations of G Lam J.

26.  I note that G Lam J was concerned as to (1) whether the ASI sought was an interlocutory injunction pending the hearing of the OS for final relief under s.21L rather than an interim measure under s.45(2) AO pending the issuance of an award in the HK arbitration (although both counsel assumed the latter); (2)  the anomaly that an order under s.21L would be appealable whereas an order under s.45(2) of the AO would not; (3) how an ASI would fall within the meaning of an interim measure under s.35 of the AO as it was not clear to him how foreign proceedings would cause harm to or prejudice the arbitral process itself.  I set that out because Mr Kwok argued primarily that s.45 AO was not applicable because the OS seeks final relief rather than interim relief.

27.  M Chan J observed in GM1 that “interim measure” as defined by Article 17 of the Model Law concerned temporary measures a party is ordered to take at any time prior to the issuance of an arbitration award. She had regard to the context of the AO which was to facilitate fair and speedy dispute resolutions by arbitration, and the basic principle of the AO that parties should be free to agree on the method of dispute resolution. She considered that an injunction to enforce the positive promise of a party to arbitrate disputes and the negative right not to be vexed by foreign proceedings could be viewed as an interim order which (1) maintains the status quo of parties which have already commenced their arbitration, and (2) restrains a party from commencing or continuing proceedings instituted in breach of an arbitration agreement, where the continuation of such proceedings must inevitably prejudice the arbitral process, the tribunal’s conduct of the arbitration and the orders to be made by the tribunal in the process.

28.  Mr Kwok sought to distinguish GM1 on the basis that the decision was whether to grant an interim ASI pending the filing of evidence and the full hearing of the originating summons seeking a final ASI. However, M Chan J clearly decided that s.45 AO gave the Court jurisdiction to order an ASI at any time up until the issuance of the arbitration award (para. 12).

29.  I therefore agree that the Court has jurisdiction under both s.45 of the AO and s.21L of the HCO to order an ASI. The question is whether that makes any relevant difference to the outcome of the application.

30.  Mr Kwok on behalf of D submits that the difference is relevant for two reasons (and Mr Alder on behalf of P did not disagree):

(1)  The threshold for the strength of case to be established by P as to a valid and binding arbitration clause may differ between the two jurisdictions;

(2)  Under s.45 AO no leave to serve out is required; under s.21L of the HCO, leave is required, and in this case P sought and obtained ex parte leave under O. 73 r.7.

31.  P relied on GM1 para. 22 and a very recent decision of the Singapore Court of Appeal in Asiana Airlines Inc v Gate Gourmet Korea Co Ltd [2024] SGCA(I) 8 at paras.92-95 to submit that it only needed to establish a prima facie case of a binding arbitration clause, and full argument on the issue could be left to the arbitral tribunal.

32.  D argued on the basis of English and Hong Kong authority that P must establish a high degree of probability that there was an arbitration agreement that governed the relevant dispute.

33.  The English Court of Appeal decision in Ecobank Transnational Inc v Tanoh[2016] 1 WLR 2231 comprehensively reviewed the Court’s approach to an ASI application. At paras. 89-91, Christopher Clarke LJ (with whom the rest of the Court agreed) held that an applicant for an ASI had to show a high degree of probability that there was an arbitration agreement that governed the dispute in question. The rationale for the high probability test is that if an ASI is granted it is likely to be final because, in practice, it will end the foreign proceedings for at least sufficient time to enable the arbitration to take place.

34.  D sought to rely on Liaoyang Shunfeng Iron and Steel Co Ltd v Yeung Tsz Wang (CACV 234/2011, 14 June 2012) where Bharwaney J adopted a test of “high degree of probability” of the applicant establishing his case, and Hartmann JA adopted a test of “strong or convincing prima facie case”. Bharwaney J was persuaded by counsel that these higher standards must be met in every case seeking an ASI whether based on an exclusive jurisdiction clause or unconscionable conduct. That is because a breach of an exclusive jurisdiction clause is a species of wrongful conduct; and more importantly, the effect of an ASI is likely to be final. P is right to point out that Liaoyang was itself an unconscionable conduct case rather than an application based on a contractual clause. However, in light of Bharwaney J’s explanation for stating the test to be the same for both, I see no reason to distinguish Liaoyang on that basis.  P’s better point is that Liaoyang was not concerned with a s.45 AO or equivalent application.

35.  D also relied on the following passage from Commercial Injunctions, Gee, 7^th ed. to the effect that  the high degree of probability test applies:

“If the application is for an interim injunction and the applicant can show no more than an arguable case that there is a promise not to sue in the foreign forum then the injunction will usually be refused. It has been said that on an interlocutory application to enforce an alleged promise the applicant must show “to a high degree of probability that its case is right”; this reflects the fact that if there is not confidence that such an enforceable promise presently exists the principles of comity and restraint in interfering with foreign proceedings would weigh heavily against the granting of relief.”

36.  However:

(1)  Other passages of that paragraph in Gee are to the effect that there is no need to establish the heightened standard of high degree of probability.

(2)  A footnote 337 in that paragraph refers to a decision in Clearlake Shipping Pte Ltd & ors v Xiang Da Marine Pte Ltd [2020] 1 All ER (Comm) 61 citing Andrew Burrows QC as stating that it was not entirely clear what standard of proof had to be satisfied for an interim ASI to be granted, and it was assumed without deciding the point that the higher burden had to be satisfied (which was found to be satisfied).

(3)  The paragraph in Gee appears to only relate to the Court’s general power to make interim injunctions, and not to an equivalent to s.45 of the AO enabling the Court to grant interim measures in support of an arbitration, let alone arbitration in a Model Law jurisdiction.

(4)  Accordingly, I derive little assistance from that paragraph in Gee for present purposes.

37.  As long as the Court is exercising its discretion under s.21L to grant an injunction where it appears to the court to be just or convenient to do so, I see that the rationale of applying the higher standard to applications likely to lead to a final conclusion pertains. However, where the Court is asked to order interim relief under the AO in order to facilitate the arbitral tribunal to determine both its own competence and process, and to make decisions as it sees fit, then that rationale falls away, as the Court serves as a filter for the arbitral tribunal.

38.  I do note that P did not elect which jurisdiction it was relying upon, and sought relief under both, to which end it sought leave to serve the OS out of the jurisdiction. I heard no submissions as to the relevance of no election. Notwithstanding s.21L of the HCO is of general application and theoretically available to P, this is a case where P has initiated arbitration so s.45 of the AO appears to me to be the most appropriate jurisdiction.

39.  For present purposes, I consider that P must satisfy the Court of a prima facie case of an arbitration agreement.

Issue 2:   Does P satisfy the prima facie threshold as to the existence of a Hong Kong arbitration agreement?

40.  Mr Alder agreed Mr Kwok’s chronology. I will consider the material facts relating to the formation of the contracts chronologically.

41.  P and D have had no previous dealings.

42.  On 20 March 2023, D purchased a quantity of purified terephthalic acid (“PTA”) from one of its suppliers, Jiangyin Golden Bridge Chemical Co Ltd (“Jiangyin”) at US$770 per metric tonne.  Jiangyin and the PTA purchased were in China, so the PTA had to be shipped to D in Egypt.

43.  On 30 March 2023, P time chartered the Vessel to Sinoway for a duration of 60 days. (the “Time Charter”)

44.  On 5 April 2023, D entered into a voyage charterparty with ISS Global Forwarding India Pvt Ltd (“ISS Global”) to ship the PTA purchased from Jiangyin (“1^st VCP”).

45.  This was followed by 3 sub-voyage-charters for D’s cargo:

(1)  On about 5 April 2023, ISS Global entered into a voyage charterparty for the cargo with Hong Kong Eternal Shipping Co Ltd (“HK Eternal”) (“2^nd VCP”).

(2)  On 5 April 2023, HK Eternal entered into a voyage charterparty for the cargo with Geetai Shipping Company Ltd (“Geetai”) (“3^rd VCP”).

(3)  On 7 April 2023, Geetai entered into a voyage charterparty for the cargo with Sinoway (which had time-chartered the Vessel from P) (“4^th VCP”).

46.  The 1^st-4^th VCPs specified the “Talbot” as vessel, but there is no dispute that the Vessel was substituted instead.

47.  On 17 April 2023, the Bills were issued in China on behalf of the master of the Vessel. It is these Bills which P states incorporate the arbitration agreements by reference. The Bills are as follows:

(1)  Both Bills were on the CONGEN 1994 form, expressly “to be used with charterparties”.

(2)  The shipper is stated to be Jiangyin.

(3)  The consignee is stated to be “to the order of Citibank NA Cairo, Egypt”;

(4)  The notify party is D;

(5)  The port of discharge is Adabiya or Ain Sokhna in Egypt;

(6)  The shipper’s description of goods are 9000n bags of PTA and 3,525 bags of PTA respectively.

(7)  A box states “Freight payable as per CHARTER-PARTY dated ……………….” (i.e. the date is left blank);

(8)  The reverse side of the Bills is not in evidence.

48.  P has exhibited the partial Bills (i.e. 1 page only) along with a sample copy of “Conditions of Carriage”. Condition (1) of the sample copy is “All terms and conditions, liberties and exceptions of the Charter Party, dated as overleaf, including the Law and Arbitration Clause, are herewith incorporated.”

49.  Sabra 1 para 49 on behalf of P states: “The [Bills] are on the CONGENBILL ’94 form.  The reverse side of the [Bills] have not been provided to [P]. However, the standard terms on the reverse of that form state:” and he sets out Condition (1) from the sample copy as I have set out above.

50.  Mangalore para 18 on behalf of D simply observes that P has not provided the Court with evidence of the actual overleaf page of the Bills or what they state.

51.  Neither party has given evidence of how the Bills have been presented by them in the Egyptian Action which has both the jurisdictional challenge and the substantive dispute before it.

52.  D has taken the approach on this application of putting P to proof and has not descended into evidence of whether D has the actual reverse of the Bills or has any knowledge of the contents of the reverse. Mr Alder submits that D has not suggested that any terms other than the standard were adopted. That is true. Further, Mr Kwok has submitted that even if Condition (1) were applicable, this does not advance matters because it seeks to incorporate terms of the “Charter-Party, as dated overleaf”, so it is circular and brings one back to identification of the charterparty referred to on the main part of the Bills. I agree.

53.  The real issue is which charterparty is to be used with the Bills. The only reference to a dated charterparty on the main part of the Bills is in the “freight payable” box.

54.  The parties are agreed that where the relevant charterparty has not been identified on a bill of lading, it is for the Court to determine which charter-party is incorporated by considering which as a matter of commercial sense contains terms that are apposite/applicable to the bill of lading at hand (and, conversely, which contains terms that are inapposite/inapplicable) eg. The San Nicholas [1976] 1 Lloyd’s Rep 8 at 11, 12. I have been shown authority that the incorporated document might not even strictly speaking be a charterparty, as long as it is clear which written terms were agreed by the parties: Welex AG v Rosa Maritime Ltd [2003] 2 Lloyd’s Rep 509.

55.  It is common ground that the head charter to which P as the effective ship owner is party is the Time Charter, and that that is not appropriate to be incorporated into the Bills relating to single voyages.

56.  Neiher P nor D gave factual evidence as to which charterparty is most appropriate to be incorporated but rather stated their positions and treated the issue as a question of law.

57.  Mr Alder submits that D was not a party to the Bills, and the Court should look for clauses that the owner would want to include in the Bills germane to the carriage of goods. He submits that the most appropriate charterparty to be incorporated is the 4^th VCP.  Clearly, P was party to the Time Charter and none of the VCPs.  Mr Alder submitted that despite the Bills referring to the relevant charterparty in the context of freight, freight provisions were not the most important terms of the Bills, and P would not be interested in freight charges because P would earn hire under the Time Charter not freight. He submitted that, in any event, all the voyage charterparties provided for payment of freight.

58.  Mr Kwok on behalf of D makes the following points:

(1)  The 1st VCP is the only charterparty to which D is party.

(2)  D was concerned with the carriage of the PTA safely from China to Egypt for an agreed price. PTA is a commodity at risk of easy contamination so D had specified that the cargo must travel without cargo above or beside it.

(1)  The 1^st VCP reflects the cargo requirement at clause 3; the freight charges are set out at Clause 7; and Clause 19 provides an arbitration clause for arbitration to be in Singapore and English law to apply.

(2)  Contrary to Mr Alder’s submission, none of the other VCPs contain freight charges.

(3)  The 3^rd and 4^th VCPs also provide for the cargo to be in a dedicated hold without other cargo loaded on top or beside the charterer’s PTA bags. The 2^nd VCP makes no such provision.

59.  Mr Kwok took the Court to the evidence and showed that indeed only the 1^st VCP, and none of the others, provided the amount to be paid for freight.

60.  In reply, Mr Alder stated that this was an unexplained oddity, but as a matter of commercial sense, each of the voyage charterparties would charge different amounts for freight with the highest price being paid by D to the final sub-charterer with freight charges being cheaper the further you go up the chain towards the top voyage charterparty.  I see that that sounds plausible, but it is not a matter addressed in P’s evidence.

61.  It seems to me that the key terms of the contract for the carriage of goods include the identification of the cargo, places of loading and discharge, instructions as to manner of carriage, and payment for carriage.

62.  P was the disponent owner of the Vessel but not the direct charterer in respect of the voyage for D’s cargo.  Sinoway, the time charterer, would be primarily interested in the terms for the specific voyage.  D was the notify party on the Bills rather than the direct consignee/receiver, but subject to financial arrangements with the consignee, was envisaged to be the ultimate holder of the Bills, and also directly interested in the terms for the specific voyage.  There was no direct charterparty between Sinoway and D, however. Which of the charterparties is most appropriate to be incorporated in the Bills?  Is it the one to which Sinoway is party (4^th VCP) or the one to which D is party (1^st VCP)? I consider these the most likely candidates rather than either of the intermediate VCPs to which neither was party.

63.  Clearly on its face, the 4^th VCP contains no amount payable in respect of freight. However, as a matter of common sense, there must be an amount payable under that contract, although it is not contained in the 4^th VCP itself. I am not able to decide between the two VCPs on the basis of whether or not the freight amount is stated on the face of the contract.

64.  By the time the Bills were issued, all of the VCPs were in place. I would be inclined to consider that the first VCP in time would set out the key terms required by the ultimate recipient (identified as the notify party), and that the other VCPs were put in place to facilitate the required voyage charter terms.

65.  On that basis, if I had to decide the point, I would consider the 1^st VCP to be the most appropriate to be incorporated. However, I do not need to come to a final conclusion.  As stated above, the threshold to be satisfied by P is whether there is a prima facie case that the relevant VCP is the 4^th VCP.  I find that this low threshold is satisfied, although I would not be satisfied that there is a high probability of that being correct. It should be apparent that I consider that a tribunal or court which had to determine the matter of incorporation would have to consider all of the VCPs and certainly the 1^st VCP.

66.  D raised arguments as to the proper construction of Clause 15 of the 4^th CP relied upon by P which states “Abtri if any in Hong Kong and English law to apply.”

(1)  D submitted that “Abtri” might not mean arbitration.

(2)  D submitted that arbitration “if any in Hong Kong” meant that only the location of an arbitration, if any, was mandated, and not that arbitration itself was mandated.

67.  Despite these arguments, I consider there is a prima facie case that Clause 15 is an agreement to arbitrate in Hong Kong.

Issue 3: Should an ASI be ordered in the circumstances?

68.  Both parties directed me to the decision of G. Lam J. (as he then was) in Ever Judger for the applicable principles when considering whether to order an ASI.

(1)  A party to an arbitration agreement has a contractual right to have the contract enforced. The Court should ordinarily grant an injunction to restrain the pursuit of foreign proceedings brought in breach of an agreement for Hong Kong arbitration, at any rate where the injunction has been sought without delay and the foreign proceedings are not too far advanced, unless the defendant could demonstrate strong reasons to the contrary (at para 45).

(2)  An ASI is an equitable remedy like any other injunction and was therefore subject to equitable defences. (at para 46).

(3)  The fact that the applicant has also challenged jurisdiction in the foreign proceedings is not necessarily a reason to refuse an ASI (para 80).

69.  Where an applicant has established the breach of an arbitration agreement to the necessary standard, the court must consider any delay in seeking the ASI and the stage reached in the foreign proceedings.

70.  The relevance of delay in applying for an ASI and comity were considered in Sea Powerful II Special Maritime Enterprises (ENE) v Bank of China Ltd[2016] HKLRD 1032 (per A. Chan J.) and by the Court of Appeal- see Sea Powerful II Special Maritime Enterprises (ENE) v Bank of China Ltd [2016] 3 HKLRD 352.

71.  The Court of Appeal adopted the reasoning of the English Court of Appeal in Ecobank. I elicit the following principles:

(1)  When considering the question of any delay by the party seeking the ASI, it is not necessary for the party resisting the ASI to establish detrimental reliance. The need for the applicant to avoid delay arises for a variety of reasons including the avoidance of prejudice, detriment, and waste of resources; the need for finality; and considerations of comity.

(2)  It is not a complete answer for the applicant to say that the respondent only has himself to blame because his breach of the arbitration clause has caused the waste.

(3)  An applicant for an ASI should act promptly and claim injunctive relief at an early stage, rather than adopt an attitude of waiting to see what the foreign court decides.

(4)  In respect of comity, the court is not concerned with judicial amour propre, but with the operation of systems of law. Courts around the world try to do justice as expeditiously as they can with the resources available to them. The administration of justice is usually prejudiced by late attempts to change course or terminate the proceedings. If successful, they often mean that time, effort, and expense will have been wasted. Comity between courts require, where possible, the avoidance of such waste.

(5)  Injunctive relief may be sought at any time from the period before any foreign proceedings have begun to the period after judgment in the foreign proceedings. But as each stage in the foreign proceedings is reached, more will have been wasted by the abandonment of the proceedings which compliance with an ASI would bring about. Accordingly, the longer an action continues without any attempt to restrain it, the less likely a court is to grant an injunction and considerations of comity have greater force.

72.  I turn to look at the procedural chronology in this case, which is not in issue.

73.  The Vessel arrived at Adabiya, Egypt on 12 June 2023 and berthed the next day.  On 14 June 2023, the cargo inspectors issued a letter of protest to the Vessel’s Master in respect of the staining of D’s cargo.

74.  On 21 June 2023, D filed a petition with the Egyptian Court for an order to arrest the Vessel as security for its damaged PTA cargo. The petition was against the owners, preparers and operators of the Vessel (the “Counterparties”).  This included P as disponent owner.

75.  On 22 June 2023, the Egyptian Court granted an arrest order over the Vessel, which was served on the Vessel on 24 June 2023.

76.  On 25 June 2023, D issued the Egyptian Writ of Summons against the Counterparties.

77.  On 26 June 2023, El Swefy & Partners (P’s Egyptian lawyers) filed a petition/grievance against the arrest order.  (Thus, 26 June 2023 was the latest date on which P became aware of the Egyptian legal proceedings).

78.  On 10 August 2023, Tsui & Co (P’s Hong Kong solicitors) served a Notice of Arbitration on D, asking D to agree to the appointment of 3 arbitrators, “within 7 days . . . failing which our client will, without further notice to you, make an application to the Hong Kong International Arbitration Centre [i.e. the HKIAC]”. On 17 August 2023, D’s Egyptian lawyers responded, rejecting P’s Notice of Arbitration. Despite its 7-day deadline, D did not approach the HKIAC to appoint arbitrators (or do anything else in Hong Kong for that matter) until 12 June 2024 – almost 10 months later.

79.  Back in Egypt, P arranged alternative security for D’s cargo claim, in place of the arrest of the Vessel, which was consequently released.

80.  On 23 November 2023, P applied to have the Egyptian Writ of Summons and petition/grievance against the arrest order be heard together.  The Egyptian Court granted this on 7 December 2023.

81.  Separately, P brought London arbitration against Sinoway under the Time Charter, and obtained an order that Sinoway provide counter-security.

82.  On 29 February 2024, the Egyptian Court appointed an external maritime transport expert (the “Expert”), to examine the case and assist the Egyptian Court.  Both P and D submitted documents and submissions to the Expert, who also conducted an inspection of D’s cargo in the presence of the parties’ representatives and others (such as insurers’ representatives).

83.  On 9 May 2024, the Expert issued his report (the “Expert Report”).  The Expert found in favour of D’s claim that 2,250 bags of PTA with a value of US$2,079,000 had been damaged through micro-silica contamination, and that the Counterparties were responsible for this.

84.  On 12 June 2024, P applied to the HKIAC to decide on the number of arbitrators and their appointment.

85.  On 13 June 2024, P issued its OS in these proceedings.

86.  On 18 June 2024, P filed Tsui 1 seeking ex parte leave to issue and serve out a concurrent OS on D.  This affidavit referred the Court to the 3^rd and 4^th VCPs (but not the 1st and 2^nd VCPs) and stated the Bills to incorporate a HK arbitration clause (without referring to the existence of the Singapore arbitration clause in the 1^st VCP).  Ex parte leave was granted on 28 June 2024. 

87.  P did not seek an interim ASI.  Nor did P file evidence in support of its OS when the OS was issued.  The first call-over hearing into the OS was vacated by consent with directions for the filing of evidence.

88.  As to evidence on the OS (as discussed above):

(1)  On 2 August 2024, P’s first round of unsworn evidence was provided. 

(2)  On 30 September 2024, D provided its unsworn evidence; and filed the sworn evidence on 7 and 30 October 2024 respectively.

(3)  On 25 October 2024, P provided its second round of unsworn evidence.

(4)  As at the date of the substantive hearing, P had still not filed sworn evidence in support of the OS.

89.  Back in Egypt:

(1)  Since 19 October 2023, the Egyptian proceedings have been adjourned 17 times. 

(2)   At the last hearing on 17 October 2024, P submitted 2 Memoranda of Defences (one containing P’s substantive defence to D’s cargo claim and one with P’s objections to the Expert Report):

(3)  At the hearing of 17 October 2024, the Egyptian Court reserved the case for judgment to be handed down on 28 November 2024. 

(4)  At the hearing of 17 October 2024, as part of its objection to the Expert Report, P requested the Egyptian Court appoint a Committee of 3 Experts. 

(5)  It is not definitively known whether the Egyptian Court will, on 28 November 2024, give final judgment, or appoint a committee of 3 experts or make another order.

90.  I note that P was aware of D’s issue of the Egyptian Action by 26 June 2023; P issued a notice of arbitration in Hong Kong on 10 August 2023 but, following D’s rejection of that notice, P took no further steps relating to the arbitration until June 2024.  It has therefore been a year since P became aware of the alleged breach of arbitration agreement.  I do not look at the time period alone, but have regard to how much work has been done and progress made in the Egyptian Action. There have been at least 17 hearings, and the parties have filed everything they wish to file upon the merits of the case, and are awaiting a decision which might be final judgment on the merits. Of significance is the fact that the Expert issued a report against D in May. I feel constrained to conclude from the circumstances that, for 10 months, P has effectively ignored the alleged arbitration agreement and has participated in the Egyptian Action. In the absence of any other plausible explanation of the chronology, it appears that once it became apparent that things were going against P in the Egyptian Action  following the Expert Report, P decided to try to have a second bite of the cherry in the Hong Kong arbitration.

91.  Mr Alder on behalf of P argued that D has itself to blame for the wasted resources with respect to the Egyptian Action as it could and should have participated in the Hong Kong arbitration instead. However, as stated in Ecobank, applied by the Court of Appeal in Sea Powerful, that is not a complete answer. Indeed, that is a potential argument in any case where an applicant seeks an ASI to restrain breach of an arbitration agreement. If it were a complete answer, that would render any consideration of delay in applying for the ASI otiose. It is clear that D responded promptly to P’s notice of arbitration in August 2023 to deny the existence of a Hong Kong arbitration agreement, and P did not push the point. D has maintained a consistent position. I see no basis for attribution of significant fault to D for any wasted resources in the Egyptian Action in these circumstances.

92.  As the Court’s jurisdiction is equitable, I also have regard to P’s conduct in its application to this Court. It is undisputed that when P sought ex parte leave to serve the OS out of the jurisdiction, it had copies of all four VCPs as they had been disclosed in the Egyptian Action, but P only informed this Court about 2 of the VCPs.  I have already addressed above my view as to the significance of the 1^st VCP to the issue of whether there is a valid Hong Kong arbitration agreement between the parties.

93.  On the basis of both delay and comity (having regard to the resources expended by the parties and the Egyptian Court), and also having regard to P’s lack of clean hands in dealing with this Court, I decline to grant the ASI sought.

D.  Order to be made

94.  The OS is dismissed.

95.  I direct the parties to provide written submissions on costs. I direct that D file its written submissions within 2 working days; P to file its submissions in response within 2 working days thereafter; and D to file any written submissions in reply within 2 working days thereafter.

96.  I further direct, insofar as necessary, that D’s solicitors file an affidavit forthwith to exhibit the document(s) provided to the Court during the hearing as described at para. 17(5)(2)2 above.