In Friendship Shipping & Trading SA v IVL Dhunseri Polyester Co SAE [2024] HKCFI 3180, shipowner Friendship Shipping applied for an anti-suit injunction (ASI) to restrain cargo receiver IVL Dhunseri from continuing Egyptian legal proceedings brought for cargo damage. Friendship Shipping contended that the parties had agreed to arbitrate any dispute in Hong Kong because the bills of lading incorporated a charterparty which in turn contained a Hong Kong arbitration agreement.   

The Court examined its jurisdiction to grant anti-suit relief under s.45 of the Arbitration Ordinance and s.21L of the High Court Ordinance, the threshold to be established in showing a binding arbitration agreement, the principles of incorporation of an arbitration agreement where the bills of lading fail to identify the relevant charterparty (and where there were a time charter and 4 voyage charterparties as contenders), the impact of delay, comity and how far advanced the Egyptian proceedings were on the Court’s equitable discretion, and the admissibility of unsworn or unfiled overseas evidence.  

In line with recent Singapore appellate authority, the Court considered that the test for the existence of an arbitration agreement that applies under the Model Law in Hong Kong for a s.20 stay to arbitration, the prima facie case, also applies to anti-suit applications, leaving jurisdiction to the arbitral tribunal. This confirms Hong Kong’s pro arbitration stance and sets Hong Kong apart from, for example, England & Wales where the Court usually adopts a more interventionist approach.

On the facts, issues concerning the admissibility of unsworn/unfiled overseas evidence, the delay in bringing the ASI application, comity (having regard to the resources expended in the Egyptian proceedings) and the lack of clean hands proved fatal.  The Court therefore refused to grant ASI relief.  

Edward Alder (instructed by Tsui & Co) acted for Friendship Shipping, and Eugene Kwok and Lavesh Kirpalani(instructed by Baker & McKenzie) acted for IVL Dhunseri.

The judgment can be found here.