United Kingdom / 17 December 2009 / England and Wales, Court of Appeal / National Navigation Co v. Endesa Generacion S.A. (The “The Wadi Sudr”) / A3/2009/0856 & 1064
|England and Wales, Court of Appeal
|17 December 2009
|National Navigation Co v. Endesa Generacion S.A. (The “The Wadi Sudr”)
|A3/2009/0856 & 1064
 EWCA Civ 1397 | online: BAILII
|National Navigation Co. (“NNC”), an English company, was the owner of the vessel “The Wadi Sudr”. It signed a bill of lading with Endesa Generación S.A. (“Endesa”), a Spanish company, for the discharge of a cargo of coal. A dispute arose. Endesa initiated court proceedings in Spain, seeking damages, while NNC initiated proceedings in the English High Court, seeking a declaration of non-liability. NNC objected to the jurisdiction of the Spanish court, relying on, inter alia, an arbitration clause contained in a charterparty that it alleged was incorporated into the bill of lading. Endesa denied that it was bound by the charterparty and asserted that NNC had, in any event, waived any right to rely on the arbitration clause in the charterparty by initiating the High Court proceedings. The Spanish court found in favour of Endesa. Endesa then asserted in the High Court proceedings that the Court was bound by the decision of the Spanish court. The High Court agreed that it was estopped by the decision. However, it found that the decision did not have any estoppel effect with respect to arbitral proceedings that had since been commenced by NNC in London. Endesa appealed. The Court of Appeal allowed the appeal, holding that the decision of the Spanish court was res judicata in England, with respect to both court proceedings and arbitral proceedings. In Lord Justice Miller’s view, the United Kingdom’s obligation under the NYC to give effect to arbitration agreements did not require that English courts not be bound by a decision of a co-signatory of the NYC that there was no such agreement. Lord Justice Moore-Bick indicated that it would not be contrary to English public policy to recognise the foreign judgment, even if an English court would have reached a different conclusion with respect to the existence of a binding arbitration agreement.
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