Gao Chunhe v Nanjing Ocean (BVI) Company Ltd and Others [Eastern Caribbean Supreme Court]
| Jurisdiction | British Virgin Islands |
| Judgment Date | 01 May 2013 |
| Docket Number | CLAIM NO: BVIHCM (COM) 65 of 2012 |
| Date | 01 May 2013 |
| Court | High Court (British Virgin Islands) |
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
COMMERCIAL DIVISION
CLAIM NO: BVIHCM (COM) 65 of 2012
In the Matter of Nasbulk Limited
And in the Matter of The British Virgin Islands Business Companies Act 2004
And in the Matter of The Insolvency Act 2003
(Claim brought by Chinese national for relief under section 1841, Business Companies Act, 2004 (‘section 1841') — first and fourth defendants served in BVI as of right — first defendant seeking stay of proceedings on forum non conveniens grounds — first defendant relying on connections with PRC and with certain PRC jurisdiction and choice of law clauses in agreements entered into by the claimant — whether another available forum — application of the Spiliada principles to claims under section 1841 considered)
This is an application made by the first defendant, Nanjing Ocean (BVI) Co. Ltd (‘Nanjing’), for a stay of these proceedings on the grounds that the People's Republic of China (‘PRC’) is clearly or distinctly the most appropriate forum.
The proceedings are brought under section 1841 of the Business Companies Act, 2004 (‘section 1841'). The nominal Claimant is a Chinese national called Gao Chunhe (‘Mr Gao’). Heis the registered owner of 30% of the issued shares in the fourth Defendant (‘Nasbulk’). Nasbulk is a BVI registered company. The other 70% of Nasbulk's shares are held by Nanjing. Each of Nanjing and Nasbulk has been served here as of right. By agreement between the parties, the proceedings against Nasbulk have been stayed to abide the outcome of Nanjing's application. I describe Mr Gao as the nominal Claimant because in a Memorandum dated 13 February 2009, a translation of which is in evidence, Mr Gao is described as the nominal investor into Nasbulk for Mr Hu Quingchun (‘Mr Hu’). The Memorandum is signed by Mr Hu, who alone gives evidence in opposition to the present application. It is plain that the party in interest in these proceedings is Mr Hu.
The statement of claim, issued on 5 July 2012, asserts, and it is not in dispute, that Nanjing holds its shares in Nasbulk on behalf of its parent, a PRC entity referred to as Nasco PRC. The pleading alleges an arrangement reached in late 2008/early 2009 between Mou Ling (‘Mr Mou’) the intended second Defendant to the proceedings, on the one hand, and Mr Hu, on the other, pursuant to which Nasco PRC and Mr Hu would enter into a joint venture between themselves for the carrying on of a shipping business. The venture was to be carried on through two companies, one, to be incorporated in Singapore, to be the management company and the other, to be incorporated in the BVI, to be the ship operating company, both to be managed by Mr Hu from Singapore. In the events which have happened, the Singaporean company is Nasco Singapore Pte Ltd (‘Nasco Singapore’) and the BVI company is Nasbulk.
The terms of the arrangement are said to have been reflected in a series of agreements and memoranda dated, respectively, 6 and 19 December 2008 The pleading alleges that these agreements were entered into between a company called Nanjing Yuanyang Shipping Co., Ltd, defined in the statement of claim as ‘Nasco HK’1 and Mr Hu.
The first, a joint venture or joint investment agreement, is dated 6 December 2008 and appears to have been made between a PRC company (presumaby Nasco PRC) and Mr Hu. It provides for the setting up of Nasco (Singapore) with Nasbulk to act as the operating company. It makes provision for the management and control of the joint venture and provides that any unresolved matters are to be resolved through negotiation, failing which, the parties agree to apply PRC laws and submit to the jurisdiction of the place where the contract was entered into, stated to have been Nanjing, PRC.
The second, dated 19 December 2008 is said to have been entered into between ‘Nanyuan Shipping Co Ltd (Chinese)' and Mr Hu. It provides that the parties are to engage an incorporation agent for the purposes of setting up the Singapore and BVI
companies and for the constitutional documents of each to be in a form signed or initialed by the parties. Chinese laws are to apply to this agreement.The third document relied on in paragraph 5 of the statement of claim is an outline memorandum and articles of association for each of the proposed Singaporean and BVI joint venture companies. Clause 42 of the outline provides (among other things) that performance and dispute resolution under the articles of association shall be governed by PRC laws and/or the laws of (in Nasbulk's case) the BVI.
The pleading asserts that (presumably after 19 December 2008, although no date is given) Mr Hu invited Mr Gao, his father in law, to invest in Nasbulk and that this was accepted by Mr Mou. Mr Gao agreed to do so, it is said, on condition that Mr Hu would be permitted to manage Nasbulk's day to day affairs and that he should be one of two signatories on Nabulk's bank account.
It is pleaded that Nasbulk was incorporated here in the BVI on 2 January 2009 and Nasco Singapore2 in Singapore three days later. Nanjing was incorporated on 17 January 2009 and the shares in Nasbulk were then allotted in the proportions which I have already mentioned. A management agreement was entered into between Nasco Singapore and Nasbulk on 10 January 2010 under which Nasbulk agreed to pay Nasco Singapore a management fee of $70,0003 a month.
It is then pleaded that in April 2011 Mr Mou and another asked Mr Hu to arrange for Nasco Singapore to enter into time charters in respect of two vessels owned, indirectly, by Nasco PRC. Nasbulk's bank account is said to have been ‘lent’ to Nasco Singapore for the purpose of receiving hire due (indirectly) to Nasco PRC under the charterparties and freight payable to Nasco Singapore under sub-charters entered into by that company.4 In the second half of 2011, it is said, the market turned so that the...
To continue reading
Request your trial