DHL PROJECT & CHARTERING LTD v GEMINI OCEAN SHIPPING CO., LTD

DHL PROJECT & CHARTERING LTD v GEMINI OCEAN SHIPPING CO., LTD

The unlifted 'subject shipper/receivers approval' clause in the recap evidenced no intention to create legal relations or enter into any contract, including an arbitration agreement. The arbitration agreement and the main contract stood or fell together. As the subject was never lifted, there was no binding arbitration agreement and the arbitrator lacked substantive jurisdiction. The award was set aside under section 67 of the Arbitration Act 1996.

Parties
Claimant: DHL Project & Chartering Ltd; Defendant: Gemini Ocean Shipping Co., Ltd
Jurisdiction
England and Wales
Judgment Date
31 January 2022
Procedural Posture
Commercial Arbitration Challenge / Judgment on Application to Set Aside Arbitral Award Under Section 67 of the Arbitration Act 1996
Outcome
Award set aside; application under section 67 of the Arbitration Act 1996 succeeds.
Legal Topics
Arbitration Agreement Formation, Charterparty 'subjects' Clauses, Separability Doctrine, Jurisdiction of Arbitral Tribunal, Interpretation of Recap and Proforma Charterparty
Arbitration Contract Law Shipping Law Arbitration Agreement Formation Charterparty 'subjects' Clauses Separability Doctrine Jurisdiction of Arbitral Tribunal Interpretation of Recap and Proforma Charterparty

Case Brief

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Parties

DHL Project & Chartering Ltd

Claimant

Gemini Ocean Shipping Co., Ltd

Defendant

Procedural Posture

Commercial Arbitration Challenge / Judgment on Application to Set Aside Arbitral Award Under Section 67 of the Arbitration Act 1996

Legal Issues

  1. 1 Whether a binding arbitration agreement existed between the parties given the presence of an unlifted 'subject' clause in the recap
  2. 2 Whether the arbitrator had substantive jurisdiction to make the award
  3. 3 Whether the 'subject' clause was qualified by terms in the incorporated proforma charterparty

Ratio Decidendi

The unlifted 'subject shipper/receivers approval' clause in the recap evidenced no intention to create legal relations or enter into any contract, including an arbitration agreement. The arbitration agreement and the main contract stood or fell together. As the subject was never lifted, there was no binding arbitration agreement and the arbitrator lacked substantive jurisdiction. The award was set aside under section 67 of the Arbitration Act 1996.

Court Disposition

Award set aside; application under section 67 of the Arbitration Act 1996 succeeds.

Orders

  • The arbitral award is set aside under section 67 of the Arbitration Act 1996.
  • No further order on the section 69 application as it does not arise.