Resolving potentially inconsistent jurisdiction and arbitration provisions in commercial contracts
31 March 2015
In Amtrust Europe Ltd v Trust Risk Group SPA  EWHC 4169 (Comm), 10 December 2014, an alleged conflict between jurisdiction and arbitration clauses was resolved by reference to the purpose and construction of the underlying agreements. This case demonstrates that the presumption that parties intend disputes to be determined in the same forum may be displaced where the competing agreements deal with different subject matters.
The defendant Italian broker placed medical malpractice insurance with the claimant UK insurer. The claimant alleged that the defendant had misappropriated premiums received from insured persons which were to be paid into a trust account for the benefit of the claimant. The claimant sought an injunction requiring the defendant to pay the sums into the trust account.
The parties' relationship was governed in part by a 2010 Terms of Business Agreement (TOBA), which was subject to English law and jurisdiction, and a 2011 Framework Agreement, which was governed by Italian law and provided for disputes to be determined by arbitration in Milan.
One matter to be decided was whether the High Court had jurisdiction to grant the injunction, as it was unclear whether the dispute should be settled by arbitration in Milan pursuant to the Framework Agreement, or in the English courts under the TOBA.
The claimant argued that the English court had jurisdiction to grant the injunction sought, because the dispute arose under the TOBA. The TOBA and Framework Agreement dealt with different aspects of the relationship between the parties, and the dispute in question was governed by the TOBA.
The defendant argued that, upon its inception, the Framework Agreement supplanted the TOBA and the parties intended, from then on, for their relationship to be subject to Italian law and arbitration.
Principles for resolving conflicting dispute resolution provisions
The parties agreed on the principles for determining jurisdiction when there is an alleged conflict between jurisdiction and arbitration clauses in different agreements, namely:
• the party seeking to invoke the English court's jurisdiction must show that it has a good arguable case that the English court has jurisdiction (Canada Trust & ors v Stolzenburg and ors (No 2)  EWCA Civ 2592);
• a "good arguable case" does not require proof on the balance of probabilities that the court has jurisdiction, because that would require a trial. However, it is a higher test than "whether there is a serious issue to be tried";
• construction of an arbitration clause should start from the assumption that the parties are likely to have intended that any dispute arising out of the relationship into which they have entered be decided by the same tribunal. This is known as the Fiona Trust presumption (per Fiona Trust & Holding Corp & ors v Privalov & ors  EWCA Civ 20); and
• parties may agree to resolution by different tribunals where, for example, different agreements deal with distinct aspects of their relationship, or where it is convenient to apply a particular dispute resolution regime to some aspect of their relationship.
English court has jurisdiction
Blair J accepted that the Fiona Trust presumption carries considerable weight, but can be displaced by a "rational reason" for there being different dispute resolution clauses.
The claimant had shown, to the "good arguable case" standard, that the TOBA continued in force after the Framework Agreement. The Framework Agreement said that, upon termination "The Agreements including the TOBA shall be modified…", suggesting that the TOBA continued in existence, contrary to the defendant's claims that the TOBA had been supplanted by the Framework Agreement.
Blair J held that the TOBA and Framework Agreement dealt with different aspects of the parties' relationship. The TOBA dealt with, for example, the payment of premiums, whereas the Framework Agreement dealt with the parties' exclusive placing arrangement. Different dispute resolution clauses were a "rational" choice in this situation because each agreement dealt with different aspects of the parties' relationship. As a result, the English court had jurisdiction under TOBA to grant the injunction in respect of the trust account as this was a matter that was specifically covered by the TOBA.
This case demonstrates that there are circumstances where parties may rationally enter into a number of agreements with different dispute resolution provisions and that the courts will recognise this when construing the relevant clauses.
When disputes arise in a multi-contract relationship, it is seldom the case that the claims made fall neatly under just one contract. Including a multiplicity of different dispute resolution mechanisms in relevant contracts therefore gives rise to the risk of a multiplicity of proceedings and, potentially, inconsistent outcomes. In most situations, it is advisable to have consistent dispute resolution provisions in suites of contracts between the same parties in order to minimise this risk. It is therefore prudent to check the dispute resolution provisions in related contracts at the drafting stage, to determine whether they are consistent. If they are not, then it is generally sensible to conform them unless there is a cogent, rational and objectively discernible reason why it is appropriate for different mechanisms to apply. If separate mechanisms are included, it is important that they are drafted as clearly as possible to avoid disputes as to which mechanism applies.
The judge in this case did not rely on identifying the "commercial centre" of the relationship in order to determine whether the English courts had jurisdiction, which was the approach applied in UBS AG v HSH NordBank AG  2 Lloyd's Rep 272. However, the judge did cite UBS with approval, confirming that the question of which mechanism applies is a matter of construction.