C v (1) D1 (2) D2 (3) D3 [2015] EWHC 2126 (Comm)

" 67(1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court — (a) challenging any award of the arbitral tribunal as to its substantive jurisdiction; or for an order declaring an award made by the tribunal on the merits to be of no effect, in whole or in part, because the tribunal did not have substantive jurisdiction . A party may lose the right to object (see s.73) and the right to apply is subject to the restrictions in s.70(2) and (3) … (3) On an application under this section…the court may by order – a) confirm the award , b) vary the award, or c) set aside the award in whole or in part … 68(1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award. A party may lose the right to object (see s.73) … (2) Serious irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant — b) the tribunal exceeding its powers (otherwise than by exceeding its substantive jurisdiction: see s.67)… "

" 73(1) If a party to arbitral proceedings takes part, or continues to take part, in the proceedings without making, either forthwith or within such time as is allowed by the arbitration agreement or the tribunal or by any provision of this Part, any objection — a) that the tribunal lacks substantive jurisdiction , b) that the proceedings have been improperly conducted , c) that there has been a failure to comply with the arbitration agreement or with any provision of this Part, or d) that there has been any other irregularity affecting the tribunal or the proceedings , he may not raise that objection later, before the tribunal or the court, unless he shows that, at the time he took part or continued to take part in the proceedings, he did not know and could not with reasonable diligence have discovered the grounds for the objection . (2) Where the arbitral tribunal rules that it has substantive jurisdiction and a party to arbitral proceedings who could have questioned that ruling — a) by any available arbitral process of appeal or review, or b) by challenging the award , does not do so, or does not do so within the time allowed by the arbitration agreement or any provision of this Part, he may not object later to the tribunal's substantive jurisdiction on any ground which was the subject of that ruling. "

" In accordance with this Contract, [C] shall: a) prepare Work Programmes and Budgets and carry out approved Work Programmes in accordance with internationally acceptable petroleum industry practices and standards with the objective of avoiding waste and obtaining maximum ultimate recovery of Crude Oil at minimum costs;… "

" This Contract shall be governed by and construed in accordance with the Laws of the Federation of Nigeria ."

" 23.2 If a difference or dispute arises between the Parties, concerning the interpretation or performance of this Contract, and if the Parties fail to settle such difference or dispute by amicable agreement, then any Party may serve on the other a demand for arbitration . 23.3 Within thirty (30) days of such demand being served, each of [D1 and D3] and [C] shall appoint an arbitrator and the two arbitrators thus appointed shall within a further thirty (30) days appoint a third arbitrator. If the arbitrators do not agree on the appointment of such third arbitrator, or if either [D1 and D3] or [C] fails to appoint the arbitrator to be appointed by it, such arbitrator or third arbitrator shall be appointed by the President of the Court of Arbitration of the International Chamber of Commerce (ICC) in Paris on the application of any other Party (notice of the intention to apply having been duly given in writing by the applicant Party to the other Parties). The third arbitrator when appointed shall convene meetings of the arbitration panel and act as chairman. If an arbitrator refuses or neglects to act or is incapable of acting or dies, a new arbitrator shall be appointed in his place and the above provisions of appointing arbitrators shall govern the appointment of such new arbitrator or arbitrators . 23.4 The arbitration award shall be binding upon the Parties. The Nigerian Arbitration and Conciliation Act Cap 19, laws of the Federation of Nigeria, 1990 shall apply to this Contract and the judgment upon the award rendered by the arbitrators may be entered in a court having jurisdiction thereof. Each Party shall pay its own attorney's fees and costs . 23.5 The venue of the arbitration shall be Paris. The arbitration shall be conducted in the English language ."

" Notwithstanding termination of this Agreement, the Parties shall remain bound by the indemnity provisions of Articles 7.3(b), 22(d) and 22(f), as well as the provisions of Articles 20 and 23 ."

" Transferred Interests means the undivided legal and beneficial interests of the Seller in the following, to be purchased by the Purchaser under this Agreement and more particularly described in Schedule 1 (Transferred Interests): (a) a 40% undivided participating interest in [Lease 1]; (b) a 40% undivided participating interest in the [Lease 2]; and (c) all of the Seller'[s] rights, interests, duties, liabilities and obligations under the PSC or deriving therefrom, and the Joint Property, including for the avoidance of doubt all of C's rights, interests, liabilities and obligations as Contractor, as Operating Contractor and as one of the entities referred to collectively as the First Party (as such terms are defined in the PSC): (i) all of Seller's rights and interests to Cost Oil relating to the Joint Property to which Seller might be entitled thereto and any other rights arising out of, or in relation to, Operating Costs relating to the Joint Property incurred by Seller, including to the maximum extent allowed under applicable law, the use of such Operating Costs to offset revenue for purposes of determining Petroleum Profits Tax, subject to any applicable Nigerian tax authorities approval. "

" 9.1 Until Completion…. . a) the Seller shall not do any of those things described in Part 1 of Schedule 3 … without the prior consent (not to be unreasonably withheld or delayed) of the Purchaser; and b) the Seller shall perform all those obligations described in Part 2 of Schedule 3 … 9.2 The Purchaser shall indemnify and hold harmless…the Seller…from and against any and all reasonable losses…which an Indemnified Person may suffer or incur from time to time arising out of or based upon or in connection with, whether directly or indirectly a) the proper performance by the Seller of its obligations described in Part 2 of Schedule 3 ."

" Pre-Economic Date Benefits means, all income, interests, receipts, rebates, benefits, credits, assets and other value relating to the Transferred Interests and calculated on an Accrual Basis of Accounting, that are attributable to the period up to, but excluding, the Economic Date ."

" [C] shall be entitled to all Pre-Economic Date Benefits and [D1] shall pay to [C] an amount equal to any Pre-Economic Date Benefits received by [D1] within ten (10) Business Days of receipt, together with interest at the Agreed Rate on that amount for the period from the date of receipt by [D1] up to but excluding the date of actual payment by [D1] to [C] ."

" Pre-Economic Date Liabilities means, all claims, costs, charges, expenses, obligations and liabilities relating to the Transferred Interests, other than all Environmental Liabilities, all Decommissioning Liabilities and calculated on an Accrual Basis of Accounting, that are attributable to the period up to, but excluding, the Economic Date ."

" 11. INDEMNITY 11.1 Subject to Clause 11.3, [C] shall be liable for all Pre-Economic Date Liabilities and such Post-Economic Date Liabilities that are attributable to the period from and after the Economic Date up to including December 31, 2011 (all of which have been already included in the Consideration) with the exception of those which are for the account of [D1] pursuant to Clause 11.2, and shall, on demand by [D1], indemnify [D1], each Affiliate of [D1], their successors and assigns, and their respective directors, officers and employees (each, for the purposes of this Clause 11.1, an Indemnified Person) from and against any and all claims (whether or not successful, compromised or settled), actions, liabilities, demands, proceedings or judgments which may be instituted, made, threatened, alleged, asserted or established (each, for the purposes of this Clause 11.1, an Indemnity Claim) in any jurisdiction against or otherwise involving an Indemnified Person and from all losses, costs, damages, charges or expenses (including legal expenses incurred each, for the purposes of this Clause 11.1, an Expense) which an Indemnified Person may suffer or incur from time to time (including all Expenses incurred in disputing any Indemnity Claim and/or in establishing a right to be indemnified pursuant to this Clause 11.1 and/or in seeking advice regarding any Indemnity Claim or in any way related to or in connection with this indemnity), in any such case arising out of, based upon or in connection with, whether directly or indirectly, the Pre-Economic Date Liabilities, and such Post-Economic Date Liabilities that are attributable to the period from and after the Economic Date up to including [sic] December 31, 2011 (all of which have been already included in the Consideration), with the exception of those which are for the account of [D1] pursuant to Clause 11.2 … 11.4 The indemnities in Clauses 11.1, 11.2 and 11.3 shall not apply to the extent that any Indemnity Claim or Expense (as defined in the relevant Clause) is found by a court of competent jurisdiction (not subject to appeal) to have resulted from gross negligence, fraud or wilful default on the part of such Indemnified Person or of any person for whose actions such Indemnified Person is responsible or liable at law ."

" In the event that there is any dispute as to any amount payable under this clause 11 (indemnity) such dispute shall be referred to the independent accountants in accordance with clause 6 (independent accountants) ."

"… arising out of or in connection with this Agreement including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration Rules which Rules are deemed to be incorporated by reference into this Clause 26 ."

"10. This Deed of Novation shall be governed by and construed in accordance with Nigerian law. Any dispute arising out of or in connection with this Deed of Novation, including any question regarding its existence, validity or termination which cannot be amicably resolved between the Parties, shall be settled by arbitration under the provisions of Article23 of the PSC. A dispute shall be deemed to have arisen when a Party notifies the other Party in writing to that effect ."

" 3. Nothing contained herein shall prejudice the rights, obligations and liabilities of [C] and [D1] under the SPA or under any other agreement between them in respect of the Transferred Interest. For the avoidance of doubt, the foregoing sentence shall not negate the provisions of sub-clause 2.6 above. Notwithstanding any other provision of this Deed of Novation, to the extent that anything stated in this Deed of Novation is contrary to or inconsistent with the terms of the SPA between [C] and [D1] only, the terms of the SPA shall prevail ."

" ISSUE 1: JURISDICTION/INTERPRETATION OF CLAUSE 11.1 a) Does Clause 26 of the SPA confer jurisdiction on the Tribunal to determine claims arising from alleged breaches by [C] of the terms of the PSC, as asserted by [D1]; and/or (if relevant) as asserted by, or on behalf of, [D3] i) under the PSC; and/or ii) under Clause 11.1 of the SPA? b) Whether on its true construction, Clause 11.1 of the SPA require [C] to indemnify [D1] in respect of alleged damages and losses suffered by [D1] and [D3] as a result of breaches by [C] of the PSC, as asserted by [D1]? ISSUE 2: JOINDER a) Is the Tribunal's power to join a third person to the arbitration as a party pursuant to Article 22.1(h) of the LCIA Rules available in the circumstances of this case? b) If that power is available, should the Tribunal exercise it in this case? "

" (1) By majority decision, the Tribunal declares that Clause 26 the SPA does confer jurisdiction on the Tribunal to determine claims arising from alleged breaches by the Claimant of the terms of the PSC, as asserted by [D1]; and/or (if relevant) as asserted by, or on behalf of, [D3] (a) Under the PSC; and/or (b) Under Clause 11.1 of the SPA . (2) By majority decision, the Tribunal declares that Clause 11.1 of the SPA requires the Claimant to indemnify [D1] in respect of Pre-Economic Date Liabilities (including claims with respect to the PSC covered thereby) suffered by [D1] and its Affiliates subject to the limitations and other provisions of the SPA . (3) By majority decision, the Tribunal decides that it has the power to join [D3] and that it should exercise such power to join [D3] to these proceedings. "

" In light of the Tribunal's invitations to the parties at paragraph 47 of the Partial Award to confer on procedural issues we write to seek agreement on the next steps in the arbitration . Paragraphs 45 to 47 of the Partial Award 1. As explained below the Respondents consider that the procedure contemplated by paragraphs 45 to 47 of the Partial Award is not suitable to the circumstances of this case in that it does not afford the Respondents an adequate opportunity to present their respective defences to [C]'s claims and answer the position that will be put forward by [C] in response to such defences … 7. The Respondents are also concerned that the procedure contemplated by the Tribunal for dealing with [C]'s Adjustment Guarantee claim and [D2]'s defence, will inevitably involve consideration of arguments and potentially decisions that would have a direct bearing on [D1]'s defence to [C]'s Adjustments Claim. There is a risk that the proposed procedure could result in the summary disposal of issues central to [D1]'s defence of [C]'s claim without allowing [D1] a reasonable opportunity to put its case or answer the case advanced by [C] … Other procedural issues 11. Thus, the Respondents are concerned that rather than saving time and cost, the bifurcation and summary consideration of [C]'s Guarantee claims will not only result in unfairness but in unnecessary duplication of costs. The Respondents are further concerned that the resolution of the remaining issues in the arbitration including, in particular, [D1] and [D3]'s counterclaims against [C], will also be unnecessarily delayed . 12. We therefore invite your client to agree that the Tribunal should issue a revised procedural order setting out a timetable for the determination of all of the remaining disputes before it… "

"… Nevertheless, in light of the fourteen-day deadline provided for in paragraph 47 of the Partial Award, by this email the Respondents apply to the Tribunal : a) Reconsider the procedure set out in paragraphs 45–47 of the Partial Award; and b) Issue a revised procedural order setting out a timetable for the determination of all remaining disputes before it; for the reasons set out in our letter to Hogan Lovells and as proposed in it… "

"… none of the various assertions or alleged and un-particularised "concerns" set out in your letter is accepted … The Tribunal will, of course, have taken full account of all relevant procedural matters in making its directions as set out at paragraphs 45 to 47 of the Partial Award. Those directions are perfectly clear and we look forward to receiving your clients' written submission within the time period stipulated by the Tribunal … The Tribunal is respectfully invited to dismiss forthwith the applications referred to in your email dated 31 October 2014 ."

" 4. In respect of both of [C]'s claims against [D2], the Respondents are concerned that the procedure envisaged by the Tribunal could result in the summary disposal of issues central to [D1]'s defence of [C]'s claims against it without allowing D1 an opportunity to put its case or answer the case made by [C] (because [D2]'s defences will involve a consideration of arguments and conclusions that are relevant to [D1]'s defences to [C]'s claims … 6. Finally, in paragraph 12 of our letter dated 29 th October 2014 we invited [C's solicitors] to agree to a revised procedural timetable for the determination of all remaining issues in dispute before the Tribunal. By an email of 31 October 2014 we applied to the Tribunal to issue a revised procedural timetable setting out the timetable for the resolution of all remaining issues in dispute before it… . 7. The Respondents respectfully request that the Tribunal set a timetable for the continuation of the reference …"

" …and will assist the Tribunal in finally disposing of part of the subject matter of this reference . For the avoidance of doubt, the Claimant's understanding and clear expectation is that the subject matter of the hearing will be the determination of its application for a partial final award against [D2] in respect of its liability to [C] pursuant to the two Guarantees … In the event that the Tribunal wishes to hear the parties on any issue other than the above, we respectfully request the Tribunal to identify to the parties the nature of any such issue as soon as possible …"

" We have received a copy of Stephenson Harwood's letter, also dated 5 November 2014. This appears largely to repeat the points referred to in their letter of October 29 th 2014…. We invite the Tribunal to disregard the Respondents' request to defer their response to the Tribunal's email regarding the 8 December hearing … As to the suggestion that the Tribunal should set a timetable now for the remainder of the reference, again the Tribunal is invited to disregard this as wholly inappropriate at this stage. The remaining timetable is of course a matter to be discussed between the parties and agreed if possible, in close consultation with the Tribunal. We will write with [C's] proposals in this regard in due course and at the appropriate time ."

" We refer to those parts of the Tribunal's majority award dated 21 October 2014 which address the issues of (a) the Tribunal's jurisdiction over the Respondents' purported counterclaims and (b) the joinder of [D3] to the arbitral proceedings . We have now had an opportunity to obtain our client's instructions on those parts of the award. We confirm that our client respectfully objects to the Tribunal's award on jurisdiction and joinder and that accordingly it does not recognise the Tribunal's jurisdiction over the purported counterclaims nor the joinder of [D3]. We shall set out the detailed grounds for the Claimant's objection as soon as possible. In the meantime, and for the avoidance of doubt, the Claimant's continued participation in the arbitral proceedings is, of course, under protest as regards the Tribunal's determination of those issues ."

"… Your letter appears to foreshadow a challenge to the courts by the Claimant to the Tribunal's findings in its award on the Preliminary Issues dated 21 October 2014 … The Respondents deny that there any grounds upon which the Claimant can challenge the Tribunal's findings on jurisdiction and joinder in the Preliminary Issues Award. If such grounds did exist, the Claimant would not have taken more than three weeks to notify the Tribunal of their existence. In any event, in circumstances where the Claimant has taken a number of steps in this arbitration since the Preliminary Issues Award (consisting of letters dated 31 October 2014, 1 November 2014 and 7 November 2014, and an email dated 7 November 2014) without objecting forthwith to the Tribunal's findings, the Claimant has waived any objection that it may have had . As you will appreciate, as your letter discloses no grounds for the Claimant's purported objections, it does not constitute an "objection" within the meaning of the Arbitration Act 1996 …"

" 37. By parity of reasoning, where issues A and B have been determined by an arbitrator who has issued an interim award and the losing party wishes to use a procedure under the 1996 Act for challenging the arbitrator's conclusion on issue B but not on issue A, it is not open to him to challenge the conclusion on issue B by arguing that the arbitrator should have reached a different conclusion on issue A ."

" …7. For the avoidance of doubt, [C] does not challenge the Tribunal's determination that it had jurisdiction over claims brought against [C] by [D1] or an indemnity under Clause 11.1 of the SPA in reliance on alleged breaches by the Claimant of the terms of the PSC …"

" Although [C] does not agree with the Tribunal's majority determination at paragraph 241(2) as to the meaning and effect of Clause 11.1 of the SPA, [C] does not seek to challenge it in this application (since it is not a determination as to the Tribunal's substantive jurisdiction) ."

" [5] Both of these defences raise the same fundamental question about the attitude of the courts to arbitration. Arbitration is consensual. It depends upon the intention of the parties as expressed in their agreement. Only the agreement can tell you what kind of disputes they intended to submit to arbitration. But the meaning which parties intended to express by the words which they used will be affected by the commercial background and the reader's understanding of the purpose for which the agreement was made. Businessmen in particular are assumed to have entered into agreements to achieve some rational commercial purpose and an understanding of this purpose will influence the way in which one interprets their language . [6] In approaching the question of construction, it is therefore necessary to inquire into the purpose of the arbitration clause. As to this, I think there can be no doubt. The parties have entered into a relationship, an agreement or what is alleged to be an agreement or what appears on its face to be an agreement, which may give rise to disputes. They want those disputes decided by a tribunal which they have chosen, commonly on the grounds of such matters as its neutrality, expertise and privacy, the availability of legal services at the seat of the arbitration and the unobtrusive efficiency of its supervisory law. Particularly in the case of international contracts, they want a quick and efficient adjudication and do not want to take the risks of delay and, in too many cases, partiality, in proceedings before a national jurisdiction . [7] If one accepts that this is the purpose of an arbitration clause, its construction must be influenced by whether the parties as rational businessmen, were likely to have intended that only some of the questions arising out of their relationship were to be submitted to arbitration and others were to be decided by national courts. Could they have intended that the question of whether the contract was repudiated should be decided by arbitration but the question of whether it was induced by misrepresentation should be decided by a court? If as appears to be generally accepted there is no rational basis upon which businessmen would be likely to wish to have questions of the validity or enforceability of the contract decided by one tribunal and questions about its performance decided by another one would need to find very clear language before deciding that they must have had such an intention . … [11] With that background, I turn to the question of construction. Your Lordships were referred to a number of cases in which various forms of words in arbitration clauses have been considered. Some of them draw a distinction between disputes 'arising under' and 'arising out of' the agreement . In Heyman Darwins Ltd [1942] 1 All ER 337 at 360 , [1942] AC 356 at 399 Lord Porter said that the former had a narrower meaning than the latter but in Union of India vEB Aaby's Rederi A/S, The Evje [1974] 2 All ER 874 , [1975] AC 797 Viscount Dihorne ( [1974] 2 All ER 874 at 885 , [1975] AC 797 at 814 ), and Lord Salmon ( [1974] 2 All ER 874 at 887 , [1975] AC 797 at 817 ) said that they could not see the difference between them. Nevertheless, in Overseas Union Insurance Ltd v AA Mutual International Insurance Co Ltd [1988] 2 Lloyd's Rep 63 at 6, Evans J said that there was a broad distinction between clauses which referred 'only those disputes which may arise regarding the rights and obligations which are created by the contract itself' and those which 'show an intention to refer some wider class or classes of disputes.' The former may be said to arise 'under' the contract while the latter would arise 'in relation to' or 'in connection with' the contract. In Fillite (Runcorn) Ltd v Aqua-Lift (1989) 26 ConLR 66 at 76 Slade LJ said that the phrase 'under a contract' was not wide enough to include disputes which did not concern obligations created by or incorporated in the contract. Nourse LJ gave a judgment to the same effect. The court does not seem to have been referred to Mackender v Feldia AG [1966] 3 All FR 847 , [1967] 2 QB 590 , in which a court which included Lord Denning MR and Diplock LJ decided that a clause in an insurance policy submitting disputes 'arising thereunder' to a foreign jurisdiction was wide enough to cover the question of whether the contract could be avoided for non-disclosure . … [13] In my opinion the construction of an arbitration clause should start from the assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of the relationship into which they have entered or purported to enter by the same tribunal. The clause should be construed in accordance with this presumption unless the language makes it clear that certain questions were intended to be excluded from the arbitrator's jurisdiction. As Longmore LJ remarked at [17]: "if any businessman did want to exclude disputes about the validity of a contract, it would be comparatively easy to say so."… [26] … No contract of this kind is complete without a clause which identifies the law to be applied and the methods to be used for the determination of disputes. Its purpose is to avoid the expense and delay of having to argue about these matters later. It is the kind of clause to which ordinary businessmen readily give their agreement so long as its general meaning is clear. They are unlikely to trouble themselves too much about its precise language or to wish to explore the way it has been interpreted in the numerous authorities, not all of which speak with one voice. Of course, the court must do what it can to provide charterers and shipowners with legal certainty at the negotiation stage as to what they are agreeing to. But there is no conflict between that proposition and the guidance which Longmore LJ gave at [17]–[19] of the Court of Appeal's judgment ( [2007] EWCA Civ 20 , [2007] 1 All ER (Comm) 891 , [2007] Bus LR 686 ) about the interpretation of jurisdiction and arbitration clauses in international commercial contracts. The proposition that any jurisdiction or arbitration clause in an international commercial contract should be liberally construed promotes legal certainty. It serves to underline the golden rule that if the parties wish to have issues as to the validity of their contract decided by one tribunal and issues as to its meaning or performance decided by another, they must say so expressly. Otherwise they will be taken to have agreed on a single tribunal for the resolution of all such disputes . … [28] As Bingham LJ said in Ashville Investments Ltd v Elmer Contractors Ltd [1988] 2 All ER 577 at 599 , [1989] QB 488 at 517, one should be slow to attribute to reasonable parties an intention that there should in any foreseeable eventuality be two sets of proceedings. If the parties have confidence in their chosen jurisdiction for one purpose why should they not have confidence in it for the other? Why having chosen their jurisdiction for one purpose should they leave the question which court is to have jurisdiction for the other purpose unspoken, with all the risks that this may give rise to? For them, everything is to be gained by avoiding litigation in two different jurisdictions. The same approach applies to the arbitration clause. "

" [82] Are these claims within the dealer's confirmation jurisdiction clause? I accept UBS's submission that the proper approach to the construction of clauses agreeing jurisdiction is to construe them widely and generously: see Donohue v Armco Inc [2001] UKHL 64 at [14] , [2002] 1 All ER (Comm) 97 at [14]. I also accept that in the usual case the words 'arising out of' or 'in connection with' apply to claims arising from pre-inception matters such as misrepresentation: see Fiona Trust and Holding Comp v Privalov [2007] EWCA Civ 20 , [2007] 1 All ER (Comm) 891 ( affd [2007] UKHL 40 , [2007] 2 All ER (Comm) 1053 ), Deutsche Bank AG v Asia Pacific Broadband Wireless Communications Inc [2008] EWA Civ 1091 , [2009] 2 All ER (Comm) 129 and Ashville Investments Ltd v Elmer Contractors Ltd [1988] 2 All ER 577 [1989] QB 488 . [83] But the essential task is to construe the jurisdiction agreement in the light of the transaction as a whole. As I suggested in Satyam Computer Services Ltd v Upaid Systems Ltd [2008] EWCA Civ 487 at [93] [2008] 2 All ER (Comm) 465 at [93] whether a dispute falls within one or more related agreements depends on the intention of the parties as revealed by the agreements . [84] Plainly the parties did not actually contemplate at the time of the conclusion of the contracts that there would be litigation in two countries involving allegations of misrepresentation in the inception and performance of the agreements. But in my judgment sensible business people would not have intended that a dispute of this kind would have been within the scope of two inconsistent jurisdiction agreements. The agreements were all connected and part of one package and it seems to me plain that the result for which UBS contends would be a wholly un-commercial result and one that sensible business people cannot have intended . [85] It is fanciful to suppose (as UBS contends) that the dealer's confirmation jurisdiction clause had been specially renegotiated to provide expressly for the exclusive jurisdiction of the English court to deal with disputes of this kind or that the parties must have envisaged the risk of a clash . … [95] In this case it is not necessary to go so far. Whether a jurisdiction clause applies to a dispute is a question of construction. Where there are numerous jurisdiction agreements which may overlap, the parties must be presumed to be acting commercially, and not to intend that similar claims should be the subject of inconsistent jurisdiction clauses. The jurisdiction clause in the dealer's confirmation is a 'boiler plate' bond issue jurisdiction clause, and is primarily intended to deal with technical banking disputes. Where the parties have entered into a complex transaction it is the jurisdiction clauses in the agreements which are at the commercial centre of the transaction which the parties must have intended to apply to such claims as are made in the New York complaint and reflected in the draft particulars of claim in England. "

" 38. The presumption in favour of one-stop adjudication may have particular potency where there is an agreement which is entered into for the purpose of terminating an earlier agreement between the same parties or settling disputes which have arisen under such an agreement. Where parties to a contractual dispute enter into a settlement agreement, the disputes which it can be envisaged may subsequently arise will often give rise to issues which relate both to the settlement agreement itself and to the previous contract which gave rise to the dispute. It is not uncommon for one party to wish to impeach the settlement agreement and to advance a claim based on his rights under the previous contract. In such circumstances rational businessmen would intend that all aspects of such a dispute should be resolved in a single forum. Where the settlement/termination agreement contains a dispute resolution provision which is different from, and incompatible with, a dispute resolution clause in the earlier agreement, the parties are likely to have intended that it is the settlement/termination agreement clause which is to govern all aspects of outstanding disputes, and to supersede the clause in the earlier agreement, for a number of reasons. Firstly it comes second in time and has been agreed by the parties in the light of the specific circumstances which have given rise to the disputes which are being settled and/or the circumstances leading to the termination of the earlier agreement. Secondly it is the operative clause governing issues concerning the validity or effect of the termination/settlement agreement and therefore the only clause capable of applying to disputes which arise out of or relate to the termination/settlement agreement. Thirdly, in considering any dispute about the scope or efficacy of a settlement or termination agreement, the tribunal is likely to have to consider the background, of which an important element will often be the circumstances in which the dispute arose and the rights of the parties under the earlier contract. There will therefore often arise a risk of inconsistent findings if the tribunal addressing the validity or efficacy of the termination/settlement jurisdiction is not seised of disputes arising out of the earlier contract and the latter fall to be determined by a different tribunal . 39. In such circumstances, therefore, the dispute resolution clause in the termination/settlement agreement should be construed on the basis that the parties are likely to have intended that it should supersede the clause in the earlier agreement and apply to all disputes arising out of both agreements. Whether it does so in any particular case will depend upon the language of the clause and other surrounding circumstances . … 42. That was not however a case in which there was a new dispute resolution clause in the terminating agreement, or any risk of fragmentation of issues. Where the terminating agreement contains a new dispute resolution provision which differs from that in the agreement which it terminates, different considerations arise. It is then necessary to determine which dispute resolution clause applies and it is likely that the parties should wish the earlier dispute resolution provision, in the form of an arbitration agreement, to be superseded for the reasons I have endeavoured to identify, Whether that is so will depend upon the proper construction of the clause in the terminating agreement in all the surrounding circumstances, but I would not accept that it could only have that effect by making express reference to termination of the arbitration agreement and DDT Trucks is not authority for any such proposition . … 44. A termination or settlement agreement which contains no new dispute resolution clause is unlikely to be treated as a direct impeachment of an arbitration clause in an earlier agreement, in the absence of clear language, because it is directed merely at a challenge to the continued substantive rights under the matrix agreement, not the separate arbitration agreement within it. But a new and inconsistent dispute resolution provision will raise the presumption that the parties intended to impeach not just the earlier agreement but also the dispute resolution agreement within it and so go directly to impeach the arbitration agreement. This is not a failure to give effect to the doctrine of separability, but the reverse: it recognises that a dispute resolution provision in the second agreement raises a presumption that the parties intended to address the separate arbitration agreement within the earlier agreement because both clauses are concerned with how and where disputes are to be resolved and in this respect are in conflict. "

" 44b) The scope of the Fiona Trust presumption: In Fiona Trust & Holding Corporation v Primalov [2007] UKHL 40 , 31 reported at [2008] 1 Lloyd's Rep 254 at [13] Lord Hoffmann stated (at [6]) that, in adopting an arbitration clause, the parties show they want disputes in their relationship to be "decided by a tribunal which they have chosen, commonly on the grounds of such matters as its neutrality, expertise and privacy, the availability of legal services at the seat of the arbitration, and the unobtrusive efficiency of its supervisory law"

"The decision in Fiona Trust has limited application to the questions which arise where parties are bound by several contracts which contain jurisdiction agreements for different countries. There is no presumption that a jurisdiction (or arbitration) agreement in contract A, even if expressed in wide language, was intended to capture disputes in contract B; the question is entirely one of construction…" (§12–094) That reflects inter alia the statement of Rix J in Boston (Europe) Ltd v MLC (Bermuda,) Ltd [1999] 1 Lloyd's Rep 767 at 777 that: "

" (1) …[I]n construing a jurisdiction clause, a broad and purposive construction must be followed: see [39]; (2) …[A]n agreement which [is] part of a series of agreements [should be construed] by taking into account the overall scheme of the agreements and reading sentences and phrases in the context of that overall scheme": see [40]; (3) It is generally to be assumed … that just as parties to a single agreement do not intend as rational businessmen that disputes under the same agreement be determined by different tribunals, parties to an arrangement between them set out in multiple related agreements do not generally intend a dispute to be litigated in two different tribunals": see [41]; but (4) …[W]here there are multiple related agreements, the task of the court in determining whether the dispute falls within the jurisdiction clauses of one or more related agreements depends upon the intention of the Parties as revealed by the agreements as against these general principles": see [42] . 48. The current (16 th ) edition of Dicey, Morris and Collins states (at § 12–110) that: "

" 65. Before examining the clauses of the Framework Agreement upon which Mr Samek particularly relied, I make four observations: (1) It was common ground before the judge that the business arising under the ToBA was a separate and distinct stream of business to that arising under the Framework Agreement and the Agency Agreement… "

" Such a concept may not be portable to a case where there are two available arbitration provisions in different contracts to which all are parties… "

" 26.2 Save as otherwise expressly provided in this Agreement, any dispute arising out of or in connection with this Agreement including any question regarding its existence, validity or termination , shall be referred to and finally resolved by arbitration under the London Court of International Arbitration Rules which Rules are deemed to be incorporated by reference into this Clause 26 ."

" The effect of the SPA was to draw a line under the parties' commercial relationship, save as regards the terms and conditions of sale of the transferred interests ."

" Except as expressly stated in this Agreement, a person who is not a party to this Agreement may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999 ."

" 205. Therefore, the Tribunal has concluded that it is appropriate in the interests of one-stop adjudication for [D3] to be joined as a party to this arbitration. This decision is however without prejudice to whether any claims which may be presented by [D3] in this arbitration may properly be brought ."

" 22.1 Unless the parties at any time agree otherwise in writing, the Arbitral Tribunal shall have the power, on the application of any party or of its own motion, but in either case only after giving the parties a reasonable opportunity to state their views: … (h) to allow, only upon the application of a party, one or more third persons to be joined in the arbitration as a party provided any such third person and the applicant party have consented thereto in writing, and thereafter to make a single final award, or separate awards, in respect of all parties so implicated in the arbitration;… "

" Competence of tribunal to rule on its own jurisdiction (1) Unless otherwise agreed by the parties, the arbitral tribunal may rule on its own substantive jurisdiction, that is, as to — a) whether there is a valid arbitration agreement , b) whether the tribunal is properly constituted, and c) what matters have been submitted to arbitration in accordance with the arbitration agreement . (2) Any such ruling may be challenged by any available arbitral process of appeal or review or in accordance with the provisions of this Part. "

" It is uncertain whether the list of jurisdictional issues in s.30(1) is exhaustive. Although the sense of the provision would appear that it is (particularly by including the words "that is, as to"), the draftsman did not make it expressly so. Accordingly, it appears fairly well settled that s.30 applies to other matters…for example the question of whether a reference to arbitration was, in the light of other agreed dispute resolution mechanisms that had not been exhausted, premature…We consider that this expansive approach to the provision is the correct one; a restrictive approach would only undermine the separability principle set out in s.7 and give rise to a legislative incongruity that was probably not intended ."

" 23. Rather, it seems to me that Mr Jacobs' threshold objection is correct for the following reasons. First, it is, in my view, more consistent with the ordinary language of s.30(1)(c) i.e. the only question in that context is to identify what matters have been submitted to arbitration. Here, it is common ground that the matters the subject of the Second Award had been referred to arbitration. Second, I do not consider that the suggested "expansive approach" urged by Mr Cutress is supported by the cases referred to in Merkin and Flannery. Moreover, in my view, such suggested "expansive approach" urged by Mr Cutress is contrary to the general principle as stated in s.1(c) of the 1996Act ("…in matters governed by this Part the court should not intervene except as provided in this Part") as well as the underlying thrust of the decision of the House of Lords in Lesotho. Third, I do not accept that this reading of s.30(1)(c) is somehow "unfair" or "un-commercial" as Mr Cutress suggested. This would perhaps be so if there were no other remedy available to an applicant in circumstances such as these apart from s.67 of the 1996 Act. However, as Mr Jacobs submitted, it seems to me that there is an available remedy under s.68(2)(b) of the 1996 Act. Mr Cutress countered by submitting, in effect, that this was not a sufficient or satisfactory remedy in particular because s.68 places additional hurdles in the way of an applicant – including the requirement of showing "substantial injustice"

" I have no doubt whatever that s.67 relates to situations in which it is alleged that the arbitral tribunal lacks substantive jurisdiction i.e. that there was in fact no arbitration clause at all, and no jurisdiction for the arbitrators to act at all at any rate in relation to the relevant dispute, and not situations in which arbitrators properly appointed were alleged to have exceeded their powers ."

" 23. Contrary to the view I have expressed, I will now assume that the tribunal committed an error of law. That error of law could have taken more than one form. The judge ( [2003] 1 All ER (Comm) 22 , para 25) and the Court of Appeal [2004] 1 All ER (Comm) 97 , para 35 ) approached the matter on the basis that the tribunal erred in the interpretation of the underlying contract. Another possibility is that the tribunal misinterpreted its powers, under s.48(4) to express the award in any currency . Let me approach the matter on the basis that there was a mistake by the tribunal in one of these forms. Whichever is the case, the highest the case can be put is that the tribunal committed an error of law . 24. But the issue was whether the tribunal "exceeded its powers" within the meaning of s.68(2)(b). This required the courts below to address the question whether the tribunal purported to exercise a power which it did not have or whether it erroneously exercised a power that it did have. If it is merely a case of erroneous exercise of power vesting in the tribunal no excess of power under s.68(2)(b) is involved. Once the matter is approached correctly, it is clear that at the highest in the present case, on the currency point, there was no more than an erroneous exercise of the power available under s.48(4). The jurisdictional challenge must therefore fail … 29. It will be observed that the list of irregularities under s.68 may be divided into those which affect the arbitral procedure and those which affect the award. But nowhere in s.68, is there any hint that a failure by the tribunal to arrive at the "correct decision" could afford a ground for challenge under s.68. On the other hand, s.68 has a meaningful role to play. An example of an excess of power under s.68(2)(b) may be where, in conflict with an agreement in writing of the parties under s.37, the tribunal appointed an expert to report to it. At the hearing of the appeal my noble and learned friend, Lord Phillips of Worth Matravers MR, also gave the example where an arbitration agreement expressly permitted only the award of simple interest and the arbitrators in disregard of the agreement awarded compound interest. There is a close affinity between s.68(2)(b) and s.68(2)(e). The latter provision deals with the position when an arbitral institution vested by the parties with powers in relation to the proceedings or an award exceeds its powers. The institution would exceed its power of appointment by appointing a tribunal of three persons where the arbitration agreement specified a sole arbitrator … 31. By its very terms s.68(2)(b) assumes that the tribunal acted within its substantive jurisdiction. It is aimed at the tribunal exceeding its powers under the arbitration agreement, terms of reference or the 1996 Act. Section 68(2)(b) does not permit a challenge on the ground that the tribunal arrived at a wrong conclusion as a matter of law or fact. It is not apt to cover a mere error of law. This view is reinforced if one takes into account that a mistake in interpreting the contract is the paradigm of a "question of law" which may in the circumstances specified in s.69 be appealed unless the parties have excluded that right by agreement. In cases where the right of appeal has by agreement, sanctioned by the Act, been excluded, it would be curious to allow a challenge under s.68(2)(b) to be based on a mistaken interpretation of the underlying contract. Moreover, it would be strange where there is no exclusion agreement, to allow parallel challenges under s.68(2)(b) and s.69 . 32. In order to decide whether s.68(2)(b) is engaged it will be necessary to focus intensely on the particular power under an arbitration agreement, the terms of reference, or the 1996 Act which is involved, judged in all the circumstances of the case. In making this general observation it must always be borne in mind that the erroneous exercise of an available power cannot by itself amount to an excess of power.

" Unless otherwise agreed by the parties, the Tribunal may appoint experts… "

" It is clear that the intention behind s.73 is to ensure that a party objecting to jurisdiction, who has decided to take part in the arbitral proceedings, should bring forward his objections in those proceedings before the arbitrators. He should not hold them in reserve for a challenge to jurisdiction in the court. I agree with Colman J that this intention reflects a principle of "openness and fair dealing" between parties who may, or may not, be bound by an arbitration clause …"

" 32.1 A party who knows that any provision of the Arbitration Agreement (including these Rules) has not been complied with and yet proceeds with the arbitration without promptly stating its objection to such non-compliance, shall be treated as having irrevocably waived its right to object ."

" Election itself is a concept which may be relevant in more than one context. In the present case we are concerned with an election which may arise in the context of a binding contract, when a state of affairs comes into existence in which one party becomes entitled, either under the terms of the contract or by the general law, to exercise a right, and he has to decide whether or not to do so. His decision, being a matter of choice for him, is called in law an election. … In particular, where with knowledge of the relevant facts a party has acted in a manner which is consistent only with his having chosen one of the two alternative and inconsistent courses of action then open to him – for example to determine a contract or effectively to affirm it – he is held to have made his election accordingly, just as a buyer may be deemed to have accepted un-contractual goods in the circumstances specified in s.35 of the 1979 Act.… But of course an election may not be made in this way. It can be communicated to the other party by words or conduct; though, perhaps because a party who elects not to exercise a right which has become available to him is abandoning that right, he will only be held to have done so if he has so communicated his election to the other party in clear and unequivocal terms…Once an election is made, however, it is final and binding …"

"… that each requires an unequivocal representation, perhaps because each may involve a loss, permanent or temporary, of the relevant party's rights ."