Enforcement Of Foreign Judgments: Location, Approbation, Reprobation

The recent case of Golden Endurance Shipping SA v RMA Watanya SA and others [2016] EWHC 2110 (Comm) provides a useful reminder of the principles surrounding the question of whether or not a party has submitted to a foreign jurisdiction in respect of a judgment in non-EU court proceedings.

Background

In the Golden Endurance case, a shipment of cargo to Morocco was found to be damaged and subject to a cargo claim in the Moroccan courts by the recipient's insurers ("the insurers"). Golden Endurance Shipping ("GES"), however, disputed that the Moroccan courts had jurisdiction as each of the three bills of lading contained a London arbitration clause.

Parallel proceedings then unfolded in London and Morocco.

Arbitration proceedings were commenced in London by GES against the cargo recipient and the insurers arising from one of the bills of lading ("the Lome bill"). In these procedings:

An injunction was granted restraining proceedings in relation to that Lome bill taking place anywhere else other than before arbitrators in London; A jurisdictional challenge raised by the insurers in respect of the cargo carried under the other two bills of lading was dismissed; and finally An application for injunctive relief in respect of the Moroccan proceedings, insofar as they related to the cargo under the other two bills, was refused. Within a couple of months the Moroccan court awarded the insurers damages in respect of the cargo carried under these two bills.

GES referred the following preliminary issue to the Commercial Court in England:

Should the Moroccan judgment be recognised by the court so that GES was estopped from pursuing its claim for a declaration of non-liability?

Underpinning this issue was the question of whether or not GES had submitted to the jurisdiction of the Moroccan courts, or should be treated as having done so as a consequence of its conduct in the English proceedings. The insurers argued that GES had not made a jurisdictional challenge in the Moroccan proceedings. They said that the submission that the dispute should be referred to arbitration was a procedural defence and further that GES had lodged a substantive defence as to the merits. Finally insurers said that the argument that GES submitted in the English proceedings was different from that it put forward in the Moroccan court, which was an abuse of process.

Decision

In short it was held that the judgment from the Moroccan court was not entitled to recognition by the...