In a recent (31 March 2020) decision of the Commercial Court in Terre Neuve SARL & Ors v Yewdale Ltd & Ors [2020] EWHC 772 (Comm), Mr Justice Bryan has given useful guidance on the circumstances in which a jurisdiction clause in a written agreement between parties A and B may apply to a dispute arising out of a separate oral agreement between those parties depending upon the extent of identity between the parties to the respective agreements, and the extent of relatedness in time and subject matter (amongst other things) between the two agreements.
In this particular case, the Swiss-domiciled Third Defendant relied on the existence of Swiss jurisdiction clauses in successive written agreements with either the Second Claimant or the Third Claimant in seeking to dispute the jurisdiction of the English court over claims for breach of oral agreements between the Second and Third Claimants and the Third Defendant and closely related claims in tort under Swiss or French law.
During the course of his judgment (see generally [20]-[61]), the Judge:
- reviewed the well-established principles affirmed in Fiona Trust & Holding Corp v. Privalov [2007] UKHL 40, as well as the extension of those principles to multi-contract disputes;
- distinguished between, on the one hand, the process whereby the written jurisdiction clause may be implied or incorporated by reference into the oral agreement and, on the other hand, the process whereby on its proper construction within the agreement containing it the written jurisdiction clause may be held to apply to the separate oral agreement;
- helpfully summarised the key applicable principles in multi-contract disputes at [31] of his judgment; and
- highlighted the difficulties inherent in seeking to extend (as a matter of construction) the operation of a written jurisdiction clause (or even several jurisdiction clauses) agreed between parties A and B to separate dealings between those parties in circumstances where the parties to those separate dealings are not limited to A and B but involve additional parties, and where those separate dealings are neither proximate in time to the conclusion of the original written agreements containing the jurisdiction clauses nor related in subject matter to those original written agreements.
Alain Choo-Choy Q.C. (instructed by Alex Gerbi of Quinn Emanuel Urquhart & Sullivan UK LLP and leading Samuel Rabinowitz) appeared on behalf of the Claimants in successfully resisting challenges by the Third and various other Defendants to the jurisdiction of the English court. You can view the full Judgment here.