NB Three Shipping v Harebell Shipping. (NB Three Shipping) The charterparty the subject of the litigation in this case contained a unilateral, dual dispute resolution optional clause154 which provided that: “[t]he Courts of England shall have jurisdiction to settle any disputes which may arise out of or in connection with this Charterparty but the owner shall have the option of bringing any dispute hereunder to arbitration”. 155 Pursuant to the first, mutual limb of the clause, the charterer commenced proceedings in an English court. The owners sought a stay of the English proceedings under national arbitration legislation156 and, in reliance on their option, to refer the dispute to arbitration.157 Applying English law, Xxxxxxx J construed the commencement of proceedings by the charterers in accordance with the jurisdiction clause as a bypassing of the owners’ option to determine that disputes be resolved by arbitration. His Honour held that the owners could exercise the option even after the charterers had commenced proceedings. 152 Lornamead Acquisitions, supra n 19, [112]. 153 Ibid, [112]. 154 His Honour considered the hybrid clause in isolation and did not have regard to the enforceability of the other jurisdictional options granted to the option holder under the charterparty. These clauses conferred on the owners the option to bring disputes before the courts of England, any other court which had jurisdiction by virtue of the Brussels Convention, any other court which had jurisdiction by any convention covered by Art 57 of the Brussels Convention or “any court in an any country or territory in which the property of the charterer is situated” (emphasis added). 155 NB Three Shipping, supra n 147. 156 Arbitration Xxx 0000. 157 Section 9(1) of the Arbitration Act 1996 is in the following terms: “A party to an arbitration agreement against whom legal proceedings are brought (whether by way of claim or counterclaim) in respect of a matter which under the agreement is to be referred to arbitration may (upon notice to the other parties to the proceedings) apply to the court in which the proceedings have been brought to stay the proceedings so far as they concern that matter”. In NB Three Shipping, the owners’ option was in effect “not circumscribed by any time constraint or formality”. 158 The exercise of the option took effect retrospectively and deprived the non-option holder of the ability to bring any disputes in the designated forum until such a time as the option holder had exercised its opt...
