Syed Ahmad Idid J:

The plaintiffs, through their ex parte summons-inchambers of 17 July 1992, applied for an order that the defendants be restrained from further participating in the arbitration proceedings then being conducted in London and a further order that the "forum conveniens most suitable in the circumstances of this case be the Regional Centre for Arbitration (UN), Kuala Lumpur". Plaintiffs also asked that "the Court do appoint the said centre or another body acceptable to the Court to be the Nominating Body for an Arbitration." Additionally, the plaintiffs also sought for an order that the proceedings in progress at that time was "illegal, unlawful, null and void, alternatively that in the event the same is held to be validly in progress, the same be stayed pending the full and final disposal of this action."

Mr. Alexander Decena put forth the submission for the plaintiffs at the ex parte hearing in chambers and obtained an order on 28 July 1992 that the arbitration proceedings conducted by Graham Clark (of an address in London) be stayed until further order.

The plaintiffs' claims were for a declaration that the Charter Party or Contract of Affreightment (COA) has been rescinded and deemed determined in law, alternatively void for uncertainty; and for the other orders which I have set out at the introduction above and for costs. A contract of affreightment (COA) is one for the carriage of goods in a ship. In practice these contracts are usually expressed in writing and most frequently in one or other of two types of documents called respectively a charter party and a bill of lading. See Halsbury's Laws. See Maclachlan on Merchant Shipping. The defendants on 5 November 1992 filed separate summons-in-chambers, the first (a) to set aside the injunction and the second (b) to set aside the writ of summons on the following grounds:

(i) The plaintiffs and the defendants having incorporated the terms and conditions as in Attachments 'A' and 'B', agreed to refer To Arbitration In London According to English Law the matters in respect of which this action is brought. (ii) The plaintiffs' claim therefore does not give rise to a cause of action to be adjudicated by the Malaysian Court or by the Regional Centre for Arbitration (UN) Kuala Lumpur; and that (iii) The plaintiffs' claim is res judicata.

As the facts unfold themselves, we see that the Iraq- Kuwait war did have some impact on the COA which both parties had signed on 21 September 1990. The Iraqi invasion of Kuwait took place on 2 August 1990 and the problems abated on 2 March 1991. See defendants' Exhibits HAR-1A with additional clauses 25 to 36 at HAR-1B, and additional clauses 44 to 62 at HAR- 1C. These correspond to those submitted by the plaintiffs as Exhibits OCW-7, OCW-5, OCW-6, OCW- 3 and OCW-4. By the Addendum, it was agreed that other terms will also apply, that is, Attachment 'B' (or OCW-5/HAR-1B) also known as Iron Ore Charter Party Vale do Rio Doce terms 1967 with additional clauses 44 to 62 where charterer declare load port Narvich, Norway, or Attachment 'A' (or OCW-3/ HAR-1C if charterer declare load port Tubarao, Brazil). This is a copyright, published by the Baltic & International Maritime Conference (BIMCO), Copenhagen code-name "OREVOY" with additional clauses 25 to 36. I am unable to accept any contention that these do not form part of the agreements taking into consideration the very nature of the transactions. Maritime practices accept such additions. This is on account of the way ships are chartered, loaded and run. I cannot see how plaintiffs' submission that the contract is void for uncertainty can be acceptable

The plaintiffs, being a company that produce Hot Briguette Iron (HBI) Methanol and Electricity, obtain raw material in the form of iron ore from various sources around the world. They do not own their own fleet of ships. They go to the open market to charter vessels for the carriage and transportation of iron ore. Accordingl