In Verity Shipping SA and others v NV Norexa and others – Butterworths Law Direct 13.2.08 the Claimants were the owners and managers of the vessel SKIER STAR. By a voyage charterparty the vessel was chartered by an Argentine company to carry a cargo of fresh fruit from Campana to Antwerp. Bills of lading were issued in Campana. The Defendants claimed to be the holders of the bills of lading and the insurers of the cargo. The cargo was discharged at Antwerp where the Belgian Federal Agency for Food Safety (“the Agency”) condemned the cargo as being contaminated. The Defendants issued proceedings in Antwerp alleging that the Claimants were liable for the loss of the cargo. Subsequently, the Claimants issued proceedings in Antwerp against the Agency seeking an indemnity in respect of any liability they might have to the Defendants. The Claimants indicated to the Defendants that they would apply for an anti-suit injunction unless they agreed to withdraw their claim before the Antwerp court, and sought to enforce an arbitration clause in the voyage charterparty that required disputes arising out of the contracts of carriage to be referred to arbitration in London, to be determined in accordance with English law. The Defendants did not withdraw their claim and the Claimants succeeded in obtaining an anti-suit injunction in London. The Claimants applied to continue the anti-suit injunction.
The Defendants opposed the continuation of the injunction on the basis, inter alia, that there was a risk of inconsistent decisions being made in the arbitration and in the Antwerp court as the Agency could not be a party to the arbitration even though the Claimants had sought an indemnity from it in respect of any liability they might have to the Defendants.
The Commercial Court dismissed the application. It held that it was established law that the risk of inconsistent decisions was a factor that had generally been accorded significance in cases where exclusive jurisdiction or arbitration clauses were sought to be enforced.
In this case, by reason of the Claimants' decision to claim against the Agency in Antwerp, there was a risk of inconsistent decisions that might cause an injustice to the Agency if the Defendants succeeded in the London arbitration but the Agency was found liable to the Claimants in Antwerp. If the Antwerp court tried both the Defendants' claim against the Claimants and the Claimants' claim against the Agency there would be no risk of inconsistent decisions and no risk of injustice to the Agency.
The anti-suit injunction would therefore be discontinued.