5. Asiana did not, in the arbitral proceedings, challenge the validity of the arbitration agreements. It argued only that the [T]ribunal ought to have considered that [GGK’s] interpretation of the Catering Agreement would render the Catering Agreement null and void under the Korean law doctrine of abuse of power of representation. In [OS 11] and [CAS 5], Asiana also did not challenge the validity of the arbitration agreements. On the contrary, it proceeded on the basis that the arbitration agreements were valid. For instance, in its written submissions for OS 11 dated 7 February 2022 at paragraph 95, it argued only that the [T]ribunal failed to consider that GGK’s interpretation of the Catering Agreement would render it null and void, without challenging the same for the CA Arbitration Agreement.

6. During the arbitral proceedings and the setting aside proceedings, it was open to Asiana to raise the alternative argument that the CA Arbitration Agreement and the JVA Arbitration Agreement are null and void. But it did not do so. It was only in [OA 14] that Asiana first challenged the validity of the CA Arbitration Agreement. As for the argument that the JVA Arbitration Agreement is null and void, this was first raised in CAS 12. We find this to be an abuse of process.

[emphasis in original]

All disputes, controversies or claims arising out of or in connection with this Agreement shall be referred to and finally settled under the Rules of Arbitration of the International Chamber of Commerce by three (3) arbitrators appointed in accordance with those Rules. The seat of the arbitration shall be Singapore. The language of the arbitration shall be English.

[61] In my opinion, an exclusive jurisdiction clause in the wide terms of that with which this case is concerned is broken if any proceedings within the scope of the clause are commenced in a foreign jurisdiction, whether or not the person entitled to the protection of the clause is joined as defendant to the proceedings. An injunction restraining the continuance of the proceedings would not, of course, be granted unless the party seeking the injunction, being someone entitled to the benefit of the clause, had a sufficient interest in obtaining the injunction. It would, I think, be necessary for him to show that the claim being prosecuted in the foreign jurisdiction was one which, if it succeeded, would involve him in some consequential liability. It would certainly, in my opinion, suffice to show that if the claim succeeded he would incur a liability as a joint tortfeasor to contribute to the damages awarded by the foreign court.

(1) Whether an exclusive jurisdiction clause should be understood to oblige a contractual party to bring claims relating to the contract in the chosen forum even if the claim is one against a non-contracting party, requires a consideration of the contract as a whole including not just the language used in the exclusive jurisdiction clause but also all other terms in the contract that may shed light on what the parties are likely to have intended.

(2) The principle that rational businessmen are likely to have intended that all disputes arising out of or connected with the relationship into which they had entered would be decided by the same court cannot apply with the same force when considering claims brought by or against non-contracting third parties. More particularly, whilst it is well established that the language of an exclusive jurisdiction clause is to be interpreted in a wide and generous manner, the starting position in considering whether disputes involving a non-contracting third party might come within the scope of the clause must be that, absent plain language to the contrary, the contracting parties are likely to have intended neither to benefit nor prejudice non-contracting third parties.

(3) Where it is clear from the express terms that the contracting parties have turned their minds to the position of third parties and more particularly whether such third parties are to benefit or bear the burden of rights and obligations agreed between the contracting parties, the absence of any express language in the exclusive jurisdiction clause that provides for the application of that term in relation to claims brought by or against third parties may be an indication that the clause was not intended either to benefit or prejudice such third parties.

(4) Where the exclusive jurisdiction clause is silent on the question, the fact that any provision in the contract dealing with third parties indicates an intention that third parties should not acquire rights as against the contracting parties by virtue of the contract, may be a further indication that the clause was not intended either to benefit or prejudice such third parties.

(5) Where a particular interpretation of the exclusive jurisdiction clause produces a material contractual imbalance because for example it results in one party to a dispute relating to the contract being subjected to an obligation to bring proceedings in the chosen jurisdiction in circumstances where the other party to the dispute is not similarly obliged, or where that interpretation would require a claim against a non- contracting third party to be brought in the agreed jurisdiction even where the chosen forum may not actually have jurisdiction over such a claim against that party, this too may be an indication that the clause was not intended to so apply because such a result is unlikely to be what the contracting parties as rational businessmen would have agreed.

(6) The fact that there is nothing in the contract that might indicate a rational limit in terms of the identity of non-contracting third parties whose rights and interests might be affected by the application of an exclusive jurisdiction clause might provide a further indication that the clause was only intended to affect the rights and interests of the contracting parties.

(7) It follows that where contracting parties intend that any claim relating to the contract be subject to the exclusive jurisdiction clause even where it is one brought by or against a non-contracting party, clear words should be used expressly setting out this intention, the parties to be affected and, if relevant, the manner in which submission of any non- contracting parties to the jurisdiction of the chosen court is to be ensured.

Xiang Da has manipulated its third party claims to try to avoid being caught by the exclusive jurisdiction clause in the Clearlake charter. It was Clearlake (through China Grace), not Gunvor, that directly dealt with Xiang Da. The email of 1 April 2016, containing the alleged misrepresentation ‘due to receiver’s request’, was directly provided to Xiang Da (through China Grace) by Clearlake not Gunvor. In other words, despite the criminal case mentioned in paragraph 11 above, the most obvious tortious misrepresentation claim, open to Xiang Da, would be against Clearlake not Gunvor; and it appears that the claim against Gunvor rests on the misrepresentations being passed on by Clearlake to Xiang Da. If Gunvor were to be held liable to Xiang Da for tortious misrepresentation, it is hard to see why Clearlake would not also be so liable; and certainly one would normally expect Clearlake to be sued for tortious misrepresentation if Xiang Da were suing Gunvor for such misrepresentations. Yet such a claim against Clearlake would have fallen within the exclusive jurisdiction clause in the Clearlake charter; and, had the misrepresentation claim been brought against Clearlake in England (as required by the exclusive jurisdiction clause in the Clearlake charter) it would plainly have constituted unacceptable forum fragmentation on the same issues for the misrepresentation claim against Gunvor to have been heard in Singapore. Although I reject the submissions, forcibly put on behalf of Gunvor (and Clearlake), that the tort claim against Gunvor is hopeless (so that I do not think that this case is equivalent to Shell International Petroleum Co v Coral Oil Co Ltd (No 2) [1999] 2 Lloyd’s Rep 606), I consider that the bringing of the tortious misrepresentation claim solely against Gunvor and not against Clearlake is a procedural manoeuvre designed to evade the exclusive jurisdiction clause. It may well be that this precise type of procedural manoeuvre has not previously triggered an antisuit injunction on the ground of being vexatious or oppressive; but, as we have seen at paragraph 18(ii) above, the categories of what counts as vexation or oppression should not be regarded as closed.

33. In my view, the steps taken by Elan on the Mainland by instituting the Shangdong Proceedings against [Armani] SpA and extending the claims to [Armani] Shanghai, [Armani] HK and GA all of which are closely associated, are vexatious attempts to bypass the arbitration agreement, and to subject the plaintiffs to duplicative costs and inconvenience in parallel proceedings on the same issues. It would be unconscionable for this Court to allow Elan to pursue its claims against [Armani] SpA and its associates on the Mainland, when such claims fall within the scope of the arbitration clause in the [Master Agreement] (BNP Paribas SA v Open Joint Stock Co Russian Machines [2011] EWHC 308 (Comm)). It is no less unconscionable of Elan to make a claim against [Armani] Shanghai, [Armani] HK and GA otherwise than through arbitration, than it would be for Elan to make a claim against [Armani] SpA, when the true substance of its claim arises under and derived from the supply and sale of the Products bearing the Armani Marks under the [Master Agreement], and the relationship created under the [Master Agreement].

Thus, in line with Tomolugen ([30] supra), the prima facie test should be adopted to determine whether “there is a valid arbitration agreement between the parties to the court proceedings” in the context of an application for an ASI in favour of arbitration. Since the issue of assignment is directly relevant to whether there is an arbitration agreement between the Plaintiff and the Defendant, the prima facie test should also be applied to the question of whether the arbitration agreement had been assigned to the Plaintiff or whether the Plaintiff can otherwise avail itself of the arbitration agreement.