Hong Kong—general words of incorporation in a bill of lading not enough to incorporate arbitration clause (OCBC Wing Hang Bank v Kai Sen Shipping Company, the ‘YUE YOU 903’)

Article summary

Arbitration analysis: The Hong Kong Court of First Instance refused an application to stay proceedings brought by a bank as lawful holder of a bill of lading in favour of arbitration. The terms of a charterparty containing an arbitration clause were incorporated into the bill of lading, but there was no express reference to the arbitration clause in the words of incorporation. The court held (applying English law as the putative proper law) that the arbitration agreement contained in the charterparty was not incorporated into the bill of lading. The Hong Kong Court applied the Thomas v Portsea (1912) principle to require specific words of incorporation. Further, the court found that a notice of arbitration commencing arbitration for protective purposes did not constitute a submission to arbitration. Written by Siân Knight, professional support lawyer, at HFW, Hong Kong.