This case demonstrates the problems that can arise when multiple agreements govern the relationship between insurer and broker. It concerns an appeal by a broker, Trust Risk Group SpA (TRG), on whether a Terms of Business Agreement (ToBA) with an insurer, AmTrust Europe Limited (ATEL), and the jurisdiction clause applied to a dispute between them.
TRG agreed a non-exclusive ToBA with ATEL that dealt with premiums and payment of commission and, six months later, a Framework Agreement (appending the ToBA) for an exclusive relationship for placement of medical malpractice insurance in Italy. A dispute arose when TRG withheld premium due to ATEL, as TRG claimed it was due a large sum from ATEL for advance commission. ATEL alleged by doing so TRG had breached the ToBA governed by an English law and jurisdiction clause. TRG argued the Framework Agreement superseded the ToBA, and its Italian law and arbitration provisions applied instead. ATEL successfully claimed relief in the High Court and it ruled ATEL had a good arguable case and the English Court had jurisdiction. TRG then appealed on the correct construction of the Framework Agreement to determine jurisdiction.
The critical question that fell to the Court of Appeal to decide was whether there was one overarching agreement, or two separate agreements.
Fiona Trust & Holding Corporation v Primalov2
In the analysis Beatson LJ considered the “one-stop”/”one-jurisdiction” principle in Fiona Trust in the House of Lords that when an arbitration clause is included in an agreement it is presumed the parties intended that any dispute arising out of their relationship will be decided by the same tribunal. However the presumption had limited application when there were two or more different express choices of jurisdiction and/or law in different agreements, and instead the analysis required a careful and commercially minded construction of the agreements providing for resolution of disputes. Beatson LJ commented that where contracts are “not part of one package”, in this case separated by six months, it was easier to conclude the parties chose to have different jurisdictions deal with different aspects of the relationship.
The Court of Appeal held the two agreements were separate, and that the ToBA’s English law and jurisdiction clause applied to the dispute.
Beatson LJ opined that as the Framework Agreement was not drafted well there was more scope to resort to the apparent commercial purpose, than a detailed linguistic analysis, and the Court had to “discern the parties’ intentions, objectively speaking, from the words used, in the relevant context and against the factual background in which the documents were created”. It was observed that the business arising under the ToBA was a separate and distinct stream of business and TRG’s construction would have allowed the Framework Agreement to substantially change the foundation of the parties’ relationship to business pre-dating it. Beatson LJ did not prefer TRG’s “radical” interpretation, and his analysis of the wording concluded that it would be inconsistent not to interpret the ToBA as a separate agreement dealing with different aspects of the parties’ relationship.
This case demonstrates the importance of ensuring parties to a ToBA to use clear wording to detail its scope and application, in particular if it is appended to, or included in a package with, other closely connected contracts. It also highlights the benefit of ensuring, if possible, that dispute resolution clauses included in closely connected contracts are the same.
The judgment can be found here: http://www.bailii.org/ew/cases/EWCA/Civ/2015/437.html.