Read the full judgment text of CACV 000398/2007 on BabelCite. This Court of Appeal judgment was delivered on 24 April 2008 before Ma CJHC, Tang VP, Stone J.
Civil procedure – non-exclusive jurisdiction clause – challenge to jurisdiction – RHC O.11 service out of jurisdiction – forum non conveniens – contractual bargain to submit to named forum – Co-Operation Agreement for plasterboard waste recycling business in Japan – clause 27.1 stating parties 'submit to the non-exclusive jurisdiction of the courts of Hong Kong' – clause 27.4 preserving right to sue in any other court of competent jurisdiction – whether Recorder erred in treating non-exclusive jurisdiction clause as merely one factor in Spiliada balancing exercise – effect in law of non-exclusive jurisdiction clauses – distinction between proceedings commenced in the named forum (paragraph 33(1) situation) and proceedings commenced in another forum (paragraph 33(3) situation) – where parties have agreed to submit to the named forum, effect of non-exclusive clause in practice the same as an exclusive jurisdiction clause – legal burden on plaintiff to show named forum is clearly appropriate discharged by reference to existence of the clause – defendant must then show strong or overwhelming reasons, being factors not reasonably contemplated at time of contract, to escape the contractual bargain – not appropriate to embark on Spiliada connecting-factor balancing exercise – Hong Kong authorities T & K Electronics v Tai Ping Insurance and Peregrine Fixed Income v JP Morgan distinguished as paragraph 33(3)-type cases where Hong Kong was not the named forum – Brussels Convention Article 17 does not distinguish the English authorities – Recorder erred in law in treating the clause as merely a factor and in conducting a forum non conveniens analysis – factors relied on (negotiations in Japanese, Japanese law on authority to sign, location of damages evidence) were foreseeable and not strong or exceptional reasons – appeal allowed with costs here and below – leave to serve out of the jurisdiction restored.
Legal issues: Effect in law of non-exclusive jurisdiction clauses when proceedings commenced in the named forum · Application of the principles to the facts
Outcome: Appeal allowed; the Recorder's order setting aside Master Kwan's order granting leave to serve the Writ out of the jurisdiction is set aside, and the Plaintiffs' leave to serve out stands.
Cited by 2 cases