Lloyd's Maritime and Commercial Law Quarterly


Adrian Briggs*

Mozambique v Privinvest Shipbuilding
FamilyMart v Ting Chuan
What is a court to do when a claimant brings judicial proceedings against a defendant who contends, plausibly enough, that a part of what the claimant’s proceeding will require the court to address falls within the four corners of an arbitration agreement? In two decisions, handed down on the same day, the Supreme Court and the Privy Council dealt with an issue which had also been recently considered by the Singapore Court of Appeal1 and which can be seen as one of real significance for jurisdictions in which arbitration is serious business and the predisposition of the courts of benevolence towards commercial arbitration. The ostensible focus of each judgment was on the meaning of a “matter” agreed to be referred to arbitration, as this term was used in national arbitration legislation giving effect to or reflecting the UNCITRAL Model Law.2 The courts conducted a survey of national jurisdictions before concluding that a “matter” was, in this context, a substantial issue that was legally relevant (though not merely marginal or tangential) to the claim or the defence liable to be raised, suitable for determination by an arbitrator even though forming only part of the broader dispute. No objection can be raised to any of that, albeit that the particular question of statutory interpretation was not the most challenging. But there was more to it than that, for, once an arbitrable matter had been identified, there was to be an assessment, evaluative in nature, and calling for the application of common sense.
The case before the Privy Council was the easy one. In FamilyMart China Holding Co Ltd v Ting Chuan (Cayman Islands) Holding Corp,3 the minority shareholder in a Cayman Islands company complained of mismanagement by the majority shareholder and, in accordance with Cayman law, which did not provide a dedicated procedure for complaints of minority oppression, petitioned for winding up on the just and equitable ground, hoping thereby for relief that did not require a winding up. Proceedings on the petition were complicated by a shareholders’ agreement, which provided for shareholder complaints of mismanagement to be arbitrated in Beijing. Was the fact that a tribunal would not be able to wind up a Cayman company, nor make an award declaring that it should be wound up that would be binding on the Cayman court,4 enough of a reason to override the arbitration agreement? The Cayman Court of Appeal, evidently concerned about the status of a Cayman company more than anything else, said yes. The Privy Council, focusing on the arbitration agreement, said no: no irreparable harm would result from staying the

Case and comment


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