DHL Project & Chartering Ltd v Gemini Ocean Shipping Co Ltd (Re "Newcastle Express") [2022] EWCA Civ 1555 (24 November 2022)

DHL Project & Chartering Ltd v Gemini Ocean Shipping Co Ltd (Re "Newcastle Express") [2022] EWCA Civ 1555 (24 November 2022)

Where a charterparty recap is expressly stated to be 'subject shipper/receivers approval', no binding contract or arbitration agreement is formed until the subject is lifted. The separability principle does not operate to create a binding arbitration agreement in the absence of contract formation. Therefore, the arbitrator had no jurisdiction and the award was rightly set aside.

Citation
[2022] EWCA Civ 1555
Parties
Respondent/claimant: DHL Project & Chartering Limited; Appellant/defendant: Gemini Ocean Shipping Co Limited
Jurisdiction
England and Wales
Judgment Date
24 November 2022
Procedural Posture
Appeal (civil) / Court of Appeal Judgment on Section 67 Challenge to Arbitral Jurisdiction
Outcome
Appeal dismissed
Legal Topics
Separability of Arbitration Agreements, Contract Formation, Charterparty 'subjects', Jurisdiction of Arbitral Tribunals
Arbitration Contract Law Shipping Law Separability of Arbitration Agreements Contract Formation Charterparty 'subjects' Jurisdiction of Arbitral Tribunals

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Parties

DHL Project & Chartering Limited

Respondent/claimant

Gemini Ocean Shipping Co Limited

Appellant/defendant

Procedural Posture

Appeal (civil) / Court of Appeal Judgment on Section 67 Challenge to Arbitral Jurisdiction

Legal Issues

  1. 1 Whether a charterparty recap 'subject shipper/receivers approval' contains a binding arbitration agreement
  2. 2 Whether the separability principle applies to contract formation issues in arbitration clauses

Ratio Decidendi

Where a charterparty recap is expressly stated to be 'subject shipper/receivers approval', no binding contract or arbitration agreement is formed until the subject is lifted. The separability principle does not operate to create a binding arbitration agreement in the absence of contract formation. Therefore, the arbitrator had no jurisdiction and the award was rightly set aside.

Court Disposition

Appeal dismissed

Orders

  • Arbitration award set aside for want of jurisdiction
  • Section 67 challenge by Charterer succeeds