KB-2025-001929 - [2025] EWHC 2966 (KB)

The factual record is complicated, often disputed, and incomplete. Be that as it may, I am satisfied that there is sufficient material before the court to reach a clear decision on the most appropriate outcome for each application. I will flesh out the facts and evidence relevant to each application where necessary in the section devoted to that application. I provide here no more than a thumbnail overview to give a context to what follows. It is not the definitive history, nor purports to be.

There is a fundamental dispute between the parties about what contract or contracts govern the relationship between Shein and Orange. The defendant’s case is that in October 2021 Shein entered into a written service agreement (the “SA”) with Orange for the performance of customs clearance, warehousing and forwarding services in respect of its goods imported into the UK. The SA contained an arbitration clause (“clause 3” or “arbitration agreement/contract”) which reads as follows:

“All disputes arising in connection with service agreement which the parties cannot settle mutually shall be finally settled under the rules of conciliation and arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the rules. Whatever both parties deem necessary and are not described in this agreement, it shall be subject to discussions between both parties as and when.”

The SA appears to be signed by a “Mr Su Jing”. Shein’s case is that this is the Orange representative who dealt with their mutual commercial relationship. They called him by the English name he used, which is Bill. Orange denies it entered into the SA, or any written contract with Shein, or that Bill had any authority to enter into the SA on its behalf. Mr Du writes his witness statement of 7 July 2025:

“This individual has never held any corporate or representative role within Orange Transgroup Ltd. To the best of the Claimant’s knowledge, he was a sales contact based in mainland China, with no UK employment or legal status permitting him to act for the company.”

It is common ground that from 2021 Orange performed customs clearance, warehousing and forwarding services for Shein. Orange states that this was on a contract concluded by conduct and not formally reduced to writing. The defendant submits that Orange invoiced Shein for its services, and Shein initially paid Orange’s invoices into Orange’s bank account with Lloyds Bank in London, then following Orange’s request, changed payment from the summer of 2022 to an HSBC account in Hong Kong.

The defendant’s case is that part of the arrangement was for Shein to make advance payments in respect of customs duties and other taxes payable on goods processed by Orange. Shein further submits that on 1 August 2022, Shein entered into a further written agreement with Orange (the “supplemental agreement”) by which the parties made more detailed provision for the prepayments of import duty and tax. Shein’s case is that the supplemental agreement, like the SA, was executed on behalf of Orange by Bill. Once more, Orange denies this.

By an email dated 27 January 2025, the defendant claims that Bill informed Shein that Orange would cease providing services to Shein from February “due to internal problems”. It is Shein’s case that Orange thereby repudiated the SA, and Shein accepted that repudiatory breach resulting in the SA terminating at the end of January 2025. However, a dispute arose between the parties about the return of tax and duty prepayments made by Shein to Orange pursuant to the SA. The prepayments had exceeded the amounts due, so Orange retained a significant amount of money. Shein calculates that on termination of the SA the overpayments totalled £1,523,925.48. The defendant sought repayment of this amount by Orange, but Orange refused. The exchanges between Shein and Orange became increasingly bitter, with Mr Du principally corresponding on behalf of Orange and Mr Arish Bharucha, solicitor at Howard Kennedy LLP (“Howard Kennedy”), on behalf of the defendant.

On 22 April 2025 Mr Du, the then sole director of Orange, wrote a letter entitled “Pre-Action Notice” to Shein on behalf of Orange and IT Way. Mr Du informed Shein that Orange and IT Way intended to commence legal proceedings against Shein. Shein responded by letter from Howard Kennedy dated 30 April 2025 stating that any dispute must be resolved by arbitration in accordance with the arbitration clause in the SA. Howard Kennedy also explained that if the overpayment was not repaid to Shein by 14 May 2025, it would prepare and file a request for arbitration without further reference to Orange.

On 10 May 2025 the claimants filed their claim for damages

“arising from fraudulent misrepresentation, abuse of market dominance, breach of contract by conduct, unjust enrichment, customs and VAT fraud, trade secret misappropriation, defamation and unlawful interference with business relations.”

The amount claimed is £5,750,000. After some dispute about the validity of the claim form, on 27 May 2025 Shein filed its acknowledgment of service and indicated its intention to dispute High Court jurisdiction by ticking the box on the standard form. Mr Du responded by filing a witness statement on 28 May 2025 setting out why Shein’s jurisdiction challenge should be dismissed. Further, by a letter of the same date, Mr Du told Shein that unless it withdrew its jurisdiction challenge, he would take steps to bring Shein’s alleged misconduct to the attention of HMRC and regulatory bodies. He repeated this by email on 29 May 2025. On 30 May 2025, he claimed to have submitted a confidential regulatory disclosure to HMRC concerning “historic customs declaration activities undertaken on instruction from [Shein] between 2021 and 2024.” One can understand the framing of these vigorously disputed allegations from the claimants’ skeleton argument (para 4.3), where it is said that Shein is

“a company that has operated with impunity across jurisdictions, invoking scale, complexity, and jurisdictional opacity to stay just out of reach. What distinguishes this case is that—for the first time—there is a party with first-hand operational access, prepared to put evidence before a Court, under oath, in public, and subject to adversarial testing.”

On 10 June 2025, Shein issued its stay and strike out application. In response, on 11 and 12 June 2025, the claimants issued their stay and strike out applications. On 30 June 2025, Shein issued its request for arbitration, relying on clause 3 of the SA. On 3 July 2025, the secretariat of the ICC informed Orange of Shein’s arbitration request. Mr Du responded to the ICC on the same day that there was no valid arbitration agreement between the parties. He sought a stay of the arbitration pending decisions in the High Court. On 7 July 2025, the claimants issued their injunction application in the High Court.

This is merely the bare bones of the background. It will be sufficient to embark on an examination of the applications. It is to this task I turn.