“GOVERNING LAW The Contract shall be governed by French law. Any dispute relating to fees shall be referred to the Bâtonnier [President] of the Bar Association of the Paris Bar in the first instance. Any other dispute must be brought before the High Court of Paris.”
“41. Invoices for work on the Goldas Dispute, for example one dated 5 August [2009], indicate that CC LLP applied the agreed hourly rates, i.e. the updated rates set out in Appendix 5 to the 2009 Framework Agreement, and the agreed 7% discount. 42. Reports dating from at least 2010 indicate that CC LLP was providing to SocGen periodic reports that were compliant with the reporting requirements set out in the 2009 Framework Agreement…”
“3.2. In each country where the SG Group and Clifford Chance operate, the relationship is managed cumulatively by: (a) the legal officer(s) of the local SG Group entity(ies) (see Appendix 5) (b) the associate lawyer in charge of the Clifford Chance local office (see Appendix 6)”
“4.1. In accordance with Article 5 of the Terms and Conditions, the parties agree on the following preferential pricing conditions for the SG Group’s own account operations: 4.1.1. : Maximum hourly rates for France, UK, US, by seniority (see Appendix 7); 4.1.2. : Maximum fixed prices per service, based on the description in the appendix, for France, UK, US (see Appendix 8); 4.1.3. : Maximum hourly rates for countries other than France, UK and US by seniority (see Appendix 9); 4.2. The parties favour the use on a case-by-case basis, at SG’s request or on Clifford Chance’s proposal, of innovative alternative invoicing methods, including but not limited to: - Blended hourly rates, where a single hourly rate applicable to any type of work performed by any lawyer involved in a file (or depending on the seniority of the lawyer) is provided. - Fixed-fee arrangements, paid according to the type of file, for any file falling within a particular category, geographic area, period or other. - Flat-fee arrangements, for each stage of a case, distinguishing between high-value-added work phases and more routine phases. - Deal-based billings, established in advance and for the entire operation, including a reduction in fees in the event of failure of the operation . …” (follow[ed] by a number of further alternative variant fee structures)”
“6. It has been a longstanding matter of firm policy, brought about at my instigation after the merger I have described at paragraph 4 above, that any Clifford Chance partner wishing to enter into an agreement with a client binding any Clifford Chance entity beyond the office or offices in that partner’s own country is required to refer that client agreement to “the centre”
“i) Where the wording of a clause is unambiguous, it must be applied purely and simply without distortion. ii) If there is ambiguity in the wording of a clause, the court must first look to ascertain the common intention of the parties rather than the literal meaning of its terms. In doing so, the court will consider (in no particular order) (a) the remainder of the contract, including any preamble, (b) other documents relevant to the contract, (c) pre-contractual negotiations and (d) post-contract conduct. iii) If the common intention of the parties cannot be found, the court will interpret the meaning of the clause in question by reference to the meaning that a reasonable person in the same position as the contracting parties would attribute to it. iv) A contract should be interpreted, insofar as possible, to: a) ensure consistency with the contract as a whole; and b) favour an interpretation that confers an effect to each clause rather than one that does not.”
“9.1 The principle of “representation” allows an agent to bind a principal to a contract as though that principal were, itself, a party. 9.2 Usually, for a principal to be bound to a contract in this manner it is required that (a) the agent is vested (in the case of commercial parties, ordinarily by agreement) with the power of agency and acts within the limits of the powers given to it; (b) the agent assumes the capacity of agent; and (c) the agent has the required intention to enter into a contract. 9.3 Where no power has been conferred on a purported agent or an agent exceeds the power given to it, the general position is that the agent will not bind the principal and the relevant contract will be unenforceable against the principal. 9.4 However, under a well-established legal principle of the ‘apparent mandate’, a contract binds the principal “even in the event of absence or exceeding powers, when the co-contracting party acts in good faith and has serious reason to believe that the agent had the capacity to deal with [it]”
“In practice this means that: i) The party relying on the existence of the agreement must supply an evidential basis showing that it has the better argument (and not much the better argument). ii) If there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so. iii) The nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the existence of the agreement if there is a plausible (albeit contested) evidential basis for it. (Dicey § 12-083, summarising the restatement in Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV[2019] EWCA Civ 10 of the tests as formulated in Brownlie v Four Seasons Holdings Inc[2017] UKSC 80 , and Goldman Sachs International v Novo Banco SA[2018] UKSC 34 ).”
“104. SocGen criticises this evidence on the basis that it is based on recollection and Mr Perrin does not make clear what enquiries he has made about contemporary documents. In addition, it might be said in SocGen’s favour that (a) the fact that CC Europe stated, in the Framework Agreements, that it was acting on behalf of CC LLP in itself constitutes evidence that CC Europe had CC LLP’s authority, and (b) the fact that CC LLP subsequently abided by the fee maxima set out in the 2012 Framework Agreement is evidence that it was aware of that agreement, and thus of the fact that CC Europe had stated that it was entering into the 2012 Framework Agreement on CC LLP’s behalf, yet did not demur from that statement. 105. However, those points have to be weighed against Mr Perrin’s evidence, which is the only direct evidence on the point, and in the context of the inherent probabilities. I find it improbable that CC LLP would have given authority to CC Europe to bind it to an agreement of this nature without some careful vetting process having taken place. More plausibly, CC Europe may have taken the view that, by stating that it was acting on behalf of ‘all offices’ of Clifford Chance, it was confirming that (as in previous Framework Agreements) it was itself agreeing how matters would be handled both in its own and in CC LLP’s various offices, as opposed to directly binding CC LLP to the Framework Agreement. At any rate, I am not persuaded that SocGen has the better of the argument that CC Europe had CC LLP’s actual authority to bind CC LLP to the Framework Agreements. I consider that Mr Perrin’s evidence allows a reliable assessment to be made that no such authority was in fact given.”
“It would have been surprising for a choice of French law and the jurisdiction of the Batonnier/the High Court of Paris to have been made in relation to retainers between all SocGen and all Clifford Chance entities, all over the world and in relation to all kinds of case, including litigation governed by local rules of procedure and professional duties. Conversely, the choice of law and jurisdiction made sense as governing the overarching relationship between SocGen and CC Europe constituted by the Framework Agreements themselves, and the local relationship between SocGen and CC Europe in Paris. The Framework Agreements did not unambiguously state that that choice of law and jurisdiction would apply to individual retainers around the world, and the available evidence does not support the view that the parties intended that.”
“(1) The Judge held that “the 2003 and 2006 Framework Agreements set out principles and procedures that were evidently intended to be applied to work done for SocGen entities by Clifford Chance entitles across the world” [87]. However, and in spite of that finding, the Judge wrongly held that Clifford Chance entities were nonetheless not bound by the terms of the 2003 and 2006 Framework Agreements [87]. The Judge wrongly reached a similar conclusion in respect of the 2009 Framework Agreement [96] and the 2012 and 2015 Framework Agreements [106]. (2) In effect the Judge found that although it was intended all Clifford Chance entities, wheresoever located, would adhere to the terms of the Framework Agreements, they were nevertheless not bound by the terms of the Framework Agreements. This is a conclusion that is all the more surprising for the 2012 and 2015 Framework Agreements, which as the Judge correctly found stated that CC Europe entered into them “acting in its own name and on behalf of all offices of Clifford Chance LLP” [101]. (3) The Judge’s interpretation would lead to unpredictable and unnecessary uncertainty. It would lead to the result of SocGen having no recourse against CC LLP for it failing to adhere to the terms of the Framework Agreement despite it being intended by all that CC LLP was to adhere to it, and, in the context of the 2012 and 2105 Framework Agreements, CC Europe having entered into those Framework Agreements on CC LLP’s behalf. (4) The Judge’s construction is wrong as a matter of French law…in that it fails to give effect to the wording of the agreements and/or fails to reflect the true intentions of the parties and/or fails to accord with the meaning that a reasonable person in the position of the parties would understand the agreements to have. The proper interpretation is that the Framework Agreements intended to bind and did in fact bind all of the SocGen entities and all of the Clifford Chance entities worldwide.”
“If and to the extent that CC Europe did not have actual authority to enter into an agreement binding on CC LLP (itself a surprising conclusion), a failure within the firm’s internal arrangements for approving a contract should not result in a client of the firm being left with an agreement of extremely limited value binding only CC Europe and not other Clifford chance entities with whom it dealt…”
“Where a contract provides that all disputes between the parties are to be referred to the exclusive jurisdiction of a foreign tribunal, the English court will stay proceedings instituted in England in breach of such agreement unless the claimant can satisfy the court that strong reasons exist to allow them to continue (Dicey, 12R-062(3), citing among other cases The Eleftheria [1970] P. 94, 100 and Donohue v Armco[2001] UKHL 64 § 24). Lord Bingham in Donoghue stated, for example, that “[t]he authorities show that the English court may well decline to grant an injunction or a stay, as the case may be, where the interests of parties other than the parties bound by the exclusive jurisdiction clause are involved or grounds of claim not the subject of the clause are part of the relevant dispute so that there is a risk of parallel proceedings and inconsistent decisions” (§ 27). Hence Briggs [Civil Judgments and Jurisdiction 7th ed] states: “… in the context of genuine multipartite litigation, where some but not all of those genuinely involved in the dispute are party to the jurisdiction agreement, the jurisdiction agreement may not be given effect, even if it is for the English courts, as was confirmed by the House of Lords in Donohue v Armco Inc.. Although there may be a contractual agreement on jurisdiction, this will not be specifically enforced where to do so would fracture the coherent adjudication of a multipartite dispute. Of course, the potential for abuse of this principle is understood, and if a court believes that non-parties to the jurisdiction agreement – affiliates and subsidiaries, or ‘friends and relations’ as they were memorably described in Donohue v Armco Inc – have been put up to litigate by one party, in order to contend that they were not bound by the jurisdiction agreement, with a view to fabricating an exception, a court should detect it. But where there is no such manipulation, the existence of a jurisdiction agreement is strongly indicative, but is not conclusive, on the question whether relief will be ordered.” (Briggs § 23.15, footnotes omitted)” “… in the context of genuine multipartite litigation, where some but not all of those genuinely involved in the dispute are party to the jurisdiction agreement, the jurisdiction agreement may not be given effect, even if it is for the English courts, as was confirmed by the House of Lords in Donohue v Armco Inc.. Although there may be a contractual agreement on jurisdiction, this will not be specifically enforced where to do so would fracture the coherent adjudication of a multipartite dispute. Of course, the potential for abuse of this principle is understood, and if a court believes that non-parties to the jurisdiction agreement – affiliates and subsidiaries, or ‘friends and relations’ as they were memorably described in Donohue v Armco Inc – have been put up to litigate by one party, in order to contend that they were not bound by the jurisdiction agreement, with a view to fabricating an exception, a court should detect it. But where there is no such manipulation, the existence of a jurisdiction agreement is strongly indicative, but is not conclusive, on the question whether relief will be ordered.” (Briggs § 23.15, footnotes omitted)”
“110. …[T]here is in reality no substantive claim against CC Europe, and in that sense no dispute on which the jurisdiction clause could bite. Although SocGen’s formal letter of demand is addressed to both CC LLP and CC Europe, SocGen has put forward no remotely arguable basis on which CC Europe, as opposed to CC LLP, could be said to have been retained in relation to the Goldas Dispute or liable for the acts and omissions it alleges...It is hard to see why SocGen’s letter of claim asserted any claim against CC Europe at all (save perhaps with a view to seeking an advantage in terms of choice of law and/or jurisdiction). 111. On that basis, it might be suggested, there is no basis on which CC Europe could need negative declaratory relief of the kind it seeks by its present claim in England. I am not persuaded that that would follow: there may be room for such relief to be sought even in circumstances where the counterparty (here, SocGen) has not put forward any real substantive claim against a claimant. In any event, however, I would accept Clifford Chance’s submission that to prevent CC Europe from seeking relief in England would lead to fragmentation of the proceedings; and that – particularly in circumstances where no genuine claim has been asserted against CC Europe – there would be exceptional reasons to refuse a stay despite the existence of the jurisdiction agreement. In terms of the statement from Briggs quoted in § 78 above, this is not a case where it could be suggested that the involvement of CC LLP is a contrivance to avoid the application of the jurisdiction clause. On the contrary, CC LLP is the real defendant to SocGen’s claims, whereas CC Europe has no real involvement in them.”