It is widely understood amongst lawyers and non-lawyers alike that where contracting parties' terms and conditions pass to and fro as part of a commercial negotiation, the party who fires the "last shot" usually wins the so-called "battle of the forms".

However in the recent decision of TRW Ltd v Panasonic Industry Europe GmbH & Anor, the Court of Appeal agreed with the decision of the lower court that in some circumstances the "first shot" could win the battle.

In this case, the battle was over competing jurisdiction clauses. Panasonic argued that the courts of Hamburg had jurisdiction over the dispute concerning defective products it supplied when TRW signed Panasonic's "customer file" incorporating its own General Terms and Conditions. TRW, however, contended that the supply dispute was to be governed by the terms of its own purchase orders which conferred jurisdiction on the English Court under the provisions of the Brussels Recast Regulation.

In this case the judge of the lower court had considered what was the "key event" in the battle of the forms, determining that TRW's agreement to Panasonic's General Terms and Conditions was the only occasion where one party signed a document which referred to the other sides' terms and conditions and was therefore the only overt sign of an agreement. As Lord Justice Coulson put it "[t]o continue the warfare analogy commonly used in these cases, it was the only occasion when one side walked across no-man's land, and fraternised with the enemy".

The decision does not necessarily change the legal landscape, but shows how courts will apply sharp focus to exchanges of "small print", and objectively assess whether a party has fired a shot in the battle at all.

"To continue the warfare analogy commonly used in these cases, it was the only occasion when one side walked across no-man's land, and fraternised with the enemy"

 https://www.judiciary.uk/publications/trw-limited-v-.....