Whether dispute between insurer and broker should be heard by the English courts or Italian arbitrators
The claimant insurer began proceedings in England to obtain an order requiring its Italian broker to repay the sum of EURO 32 million (approx.) into an account (which it maintains is a trust account), because it alleges that the broker misappropriated this sum. The defendant denied that it had misappropriated the money and argued that the dispute should be heard in an Italian arbitration rather than by the English courts. This in turn required an examination of the Terms of Business Agreement (“TOBA”) entered into between the parties in 2010 and a Framework Agreement which they (along with the claimant’s parent company) entered into in 2011.
The TOBA provided that all disputes would be heard by the English courts and the Framework Agreement provided for Italian arbitration. Blair J noted that where there are different jurisdiction clauses in agreements between the same parties, the “one-stop” presumption stated by Lord Hoffmann’s dictum in Fiona Trust & Holding Corp v Privalov (see Weekly Update 40/07) is relevant. This is an assumption that the parties, as rational business people, are likely to have intended any dispute arising out of the relationship into which they have entered to be decided by the same tribunal. However, he accepted that the claimant’s argument that the TOBA and Framework Agreements were dealing with different subject matters (namely, the TOBA was dealing with aspects of the relationship, including premium, whereas the Framework Agreement was dealing with exclusivity). Accordingly, “different choices of law and jurisdiction clauses are “rational” in such a situation”. This case also differed from Fiona Trust because the two agreements were entered into at different times. The claimant therefore had a “good arguable case” that the English courts have jurisdiction.
The claimant had also made out its case for a mandatory injunction to have money paid back into the bank account.