England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
COMMERCIAL COURT
The Hon. Mr Justice Blair
[2014] EWHC 4169 (Comm)

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th April 2015

Lord Justice Beatson :

I. Introduction

1. This appeal concerns a jurisdiction dispute arising from the breakdown of a business relationship about the placement of medical malpractice insurance in the Italian market. Trust Risk Group SpA ("TRG"), an Italian insurance broker based in Milan, is the appellant. AmTrust Europe Limited ("ATEL"), the UK subsidiary of the American insurance group, AmTrust Financial Services Inc ("AmTrust"), is the respondent.
2. The underlying question is whether the contractual arrangements between TRG and ATEL consist of a single composite and overarching agreement, a "Framework Agreement" dated 27 January 2011 to which an earlier agreement, a Terms of Business Agreement ("ToBA") dated 20 July 2010 appended to it as a Schedule, is subordinate, or whether the Framework Agreement and the ToBA are two freestanding contracts. The Framework Agreement provides for Italian law and arbitration in Milan. The ToBA contains a jurisdiction and choice of law clause providing that it "be construed according to English law and any disputes arising under it shall … be determined in the English Courts". TRG appeals against the order of Blair J dated 10 December 2014 reflecting his judgment handed down on the same date: [2014] EWHC 4169 (Comm). Blair J decided that ATEL had a "good arguable case" that the ToBA continued as an agreement and was not superseded by the "Framework Agreement", and that the courts of England and Wales have jurisdiction in relation to disputes arising out of that agreement.
3. The material provisions of the ToBA and the Framework Agreement are set out or summarised in the Appendix to this judgment. The ToBA is a non-exclusive brokering agreement. The Framework Agreement provided for an exclusive relationship between TRG and ATEL regarding medical malpractice insurance in Italy. The parties to it were TRG, ATEL and AmTrust. The judge also ordered TRG to repay €32 million which ATEL claims has been misappropriated from a designated trust account held with Banco di Napoli in the period 13 – 16 October 2014 by TRG's president and CEO, Mr Antonio Somma, but the appeal is limited to the issue of jurisdiction.
4. Mr Samek QC, on behalf of TRG, submitted that, in this case, the issue of jurisdiction is determined by the proper construction of the Framework Agreement. He argued that the judge was wrong in law and in fact to find that the ToBA was not superseded by the Framework Agreement but "continued as an agreement after the Framework Agreement" without amendment. In a nutshell (see [20ff] below for a fuller summary), TRG's case is that the Framework Agreement is a single complete agreement governing the parties' relationship, including the terms of the ToBA which are scheduled to it and subordinate to it. Mr Samek relied on clause 1.4(b) of the Framework Agreement, set out at §3 of the Appendix to this judgment, which states that ATEL and TRG "shall modify the [ToBA] currently in force between them to the extent necessary to reflect the terms hereunder". He also relied on clauses 5.5 and 5.9 of the Framework Agreement, set out at §7 of the Appendix, which respectively provide that "this Agreement, including its Schedule, constitutes the entire agreement between the Parties with respect to the transactions contemplated herein, and supersedes any prior understanding … with respect to such transactions…" and that the recitals and the Schedule "are an integral part" of "this Agreement".
5. The effect, Mr Samek submitted, is that where there is conflict between the documents, the terms of the Framework Agreement, in particular the choice of law and jurisdiction clauses, displace those in the ToBA. To regard the ToBA and the Framework Agreement as two separate contracts, as the judge did, leads to different dispute regimes governing the same issues and, in relation to exclusivity, to conflicting provisions. It would have been odd for the parties to have agreed to what he claimed to be an uncommercial and over-complex arrangement. The correct approach was to apply the "one-stop" "one jurisdiction" presumption formulated by Lord Hoffmann in Fiona Trust & Holding Corporation v Primalov [2007] UKHL 40 reported at [2008] 1 Lloyd's Rep 254 at [13]. The presumption, he argued, "applies all the more where there are apparently contradictory jurisdiction and dispute resolution provisions within the same agreement, both purporting to apply to the whole agreement (as opposed to distinct and carefully defined obligations of the agreement)": skeleton argument §31. He submitted that the judge erred in concentrating on a textual analysis of some of the individual clauses (in particular clause 3(a)), but not giving proper weight to others (in particular clauses 1.4(b), 5.5 and 5.9 of the Framework Agreement) and not standing back and assessing the arrangement as a whole.
6. ATEL's case is that the ToBA and the Framework Agreement deal with different aspects of the relationship between the parties. The ToBA dealt with premiums and provides for payment of commission by ATEL to TRG for brokering the insurance contracts. The Framework Agreement provided for exclusivity in the Italian market and provided for a payment by TRG to ATEL as consideration for the exclusivity. Mr Downes QC submitted that the judge was correct to conclude (judgment, [50(3)]) that different choices of law and jurisdiction clauses are "rational" in such a situation. He submitted that the difficulties of overlap and conflict relied on by TRG are either imaginary or, in the case of exclusivity, capable of resolution. He also relied on the statements in a number of decisions, most recently in VTB Capital Plc v Nutritech International Corp. [2013] UKSC 5, reported at [2013] 2 AC 337 at [69], [97] – [98] and [156], that appellate courts should be slow to interfere with a first instance judge's assessment at the interlocutory stage of the merits on a jurisdiction point. An appellate court should not, in the light of these statements, interfere unless satisfied that the judge made a significant error of principle or a significant error in the considerations taken or not taken into account.
7. In sections II and III of this judgment I summarise the factual background and the decision of the judge. Section IV provides a fuller summary of TRG's case than that at [4] – [5] above. Section V contains my reasons for concluding that ATEL has satisfied the "good arguable case" requirement which, in this context, includes what has been described as the "Canada Trust gloss"^[1] of "a much better argument on the material available", and that this appeal should be dismissed.

II. The background

8. The material parts of the factual and procedural background are stated in [8] – [28] of the judgment below. Those relevant to the issue of jurisdiction can be summarised as follows. The ToBA (Appendix, §1) is a standard London-form agreement governing relations between an insurer and a broker. It provided for payment of commission by the insurer, ATEL, to the broker, TRG. It also provided that, where the broker holds monies as cover holder or for onward payment to the insurer's agents or representatives in respect of claims adjustment and legal and similar professional fees, the broker shall hold such monies "as agent and trustee of the Insurer" (ToBA, clause 6.2). Two endorsements to the ToBA were subsequently agreed, respectively making provision in the event that a sub-broker was appointed, and establishing Trust Risk Iberica as a sub-broker in the Spanish medical malpractice insurance market.
9. The Framework Agreement (Appendix, §§2 – 10) consists of recitals, the terms of the agreement, and a Schedule containing the terms of the ToBA. Recital D states that ATEL and AmTrust, together with other insurance companies owned or controlled by them, defined as "AmTrust", "intend to develop their insurance business in Italy with reference to the medical malpractice ('MedMal') insurance risks, by entering into an exclusive relationship with the TRG insurance group in respect of MedMal insurance risks". Recital E states that the TRG Group (TRG and other companies and/or brokers owned or controlled by TRG) "intends to enter into an exclusive relationship with AmTrust with respect to MedMal insurance risks in Italy".
10. The exclusivity provisions in the Framework Agreement are in clauses 1.1 and 1.2. Clause 1.1 provides that AmTrust agreed that it would accept insurance proposals for such risks only if they have been submitted by the TRG Group, but (by clause 1.2) it has discretion to accept or decline any risk so submitted. Clause 1.2 also obliges the TRG Group "to submit all its insurance proposals for MedMal risks in the Italian market exclusively to AmTrust".
11. There were two endorsements to the Framework Agreement. The first, dated 18 January 2012, extended the duration of the agreement from 5 years to 15 years. The second, dated 2 June 2014, replaced Recitals D and E, and a number of other clauses, to reflect the acquisition by Mr Somma of all the shares in TRG, to provide that neither party would terminate the agreement because of this, and to address inter alia maximum brokers' commission. It was common ground that, in the light of Whitworth Street Estates (Manchester) Ltd v James Miller & Partners [1970] AC 583 at 603 these post-contractual endorsements are irrelevant as aids to the construction of the Framework Agreement. Neither party relied on them at the hearing, although below (see [2014] EWHC 4169 (Comm) at [48]) TRG submitted that, if ATEL's case was correct, it would have been expected that the endorsements would have referred to the ToBA.
12. AmTrust subsequently established an Italian branch and, on 10 May 2013, that branch entered into an agency agreement ("the Agency Agreement") with Trust Risk Italia Srl, a company owned and controlled by TRG. That agreement is not the subject of these proceedings. It suffices to state that it was subject to Italian law and arbitration and, unlike the Framework Agreement, was in the Italian language. After the Agency Agreement, all new business was placed through AmTrust's Italian branch, with Trust Risk Italia Srl acting as agent in the placement of the policies. Existing business continued through ATEL.
13. By October 2014, the relationship between TRG and ATEL had broken down. On 10 October 2014, TRG wrote to ATEL claiming that it was entitled to advance commission totalling €96,963,055.10 because it was entitled to receive all the brokerage commission upon placement of the policies. It stated that it would withhold premium payments received in support of that claim. ATEL responded in a letter dated 15 October stating that this was a breach of the ToBA. TRG responded, stating that the relationship was governed by the Framework Agreement and the Agency Agreement rather than the ToBA. In a letter dated 20 October 2014, sent on 21 October 2014, ATEL sent TRG two notices. One notice was of termination under the ToBA if TRG did not remedy the material breach within 20 days. The other notice concerned premiums said to be due under the Agency Agreement. On 23 October, TRG commenced arbitration proceedings against ATEL and AmTrust in Milan under the Framework Agreement.
14. On 26 and 27 October ATEL conducted an audit which it claimed revealed a deficit in the account in which the premiums were held. On 31 October 2014 it filed the claim form in these proceedings. Its application for interim relief was made on 4 November 2014 and came before Eder J on 7 November 2014. It appears from Eder J's judgment (see [2014] EWHC 3192 (Comm) at [16] and [21]) that his tentative view was that ATEL had not shown a "good arguable case" or a "sufficiently good arguable case" that the ToBA's jurisdiction clause had survived. But, because the matter came on at great speed and there had been insufficient time for proper argument (see [27]), he adjourned the application, giving ATEL liberty to re-apply even without showing change of circumstances. He commented that the case may be one "where further evidence might be adduced".
15. On 12 November 2014, ATEL appointed an arbitrator in the Milan arbitration and disputed the arbitrators' jurisdiction. On 21 November 2014, on the application of ATEL, the public prosecutor at the Torre Annunziata Court in Naples made an Order for Emergency Precautionary Sequestration in relation to the funds transferred by TRG out of the various accounts. Shortly after that, on 25 November 2014, the matter came before Blair J.

III. The judgment below

(a) The principles in a jurisdiction challenge:

16. Before the judge, the parties were in agreement as to the applicable principles. The judge summarised them as follows at [31]:

"(1) As decided in Canada Trust Co v Stolzenburg (No.2) [1998] 1 WLR 547, the party seeking to invoke the court's jurisdiction must show that it has a good arguable case that the court has jurisdiction. The defendant accepted in oral argument that, at this stage in the proceedings, the same test applies as regards the mandatory stay under s.9 Arbitration Act upon which it relies, though it has not yet made a formal application.

(2) A "good arguable case" does not require proof on the balance of probabilities that the court has jurisdiction (necessarily, because that would require a trial). However, it is a higher test than "whether there is a serious issue to be tried". In Stolzenburg, Waller LJ explained at 555 that:

"'Good arguable case' reflects in that context that one side has a much better argument on the material available. It is the concept which the phrase reflects on which it is important to concentrate, i.e. of the court being satisfied or as satisfied as it can be having regard to the limitations which an interlocutory process imposes that factors exist which allow the court to take jurisdiction."

(3) Where there are different jurisdiction clauses in agreements between the same parties, the "one-stop" presumption stated in Lord Hoffmann's dictum in Fiona Trust & Holding Corp v Privalov [2008] 1 Lloyd's Rep 254 at [13] is relevant. This is to the effect that the construction of an arbitration clause should start from the 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.

(4) Examples of a rational choice by the parties to a commercial relationship of resolution by different tribunals include where different agreements deal with distinct aspects of their relationship (Sebastian Holdings Inc v Deutsche Bank AG [2010] EWCA Civ 998 at [42] and following), or where it is convenient to apply a particular regime to some aspect of their relationship such as security (Deutsche Bank AG v Tongkah Harbour Public Co Ltd [2011] ArbLR 20 at [30]).

(5) In any case, the "one-stop" presumption is an aid to construction, and where the provisions in one agreement give jurisdiction to the court, and in another refer disputes to arbitration, the allocation of jurisdiction is fundamentally one of construction (UBS AG v HSH NordBank AG [2009] 2 Lloyd's Rep 272 at [83]; Lewison, The Interpretation of Contracts, 5th ed at 18.03)."

(b) Application of the principles in this case:

17. After summarising the submissions of the parties and the relevant provisions in the ToBA and the Framework Agreement, the judge stated (at [50]) that "this is a difficult issue, with arguments going both ways", and listed the considerations he particularly had in mind. He stated:

"(1) I accept the defendant's contention that on the face of it the Fiona Trust 'one-stop' presumption carries considerable weight, because on the claimant's case part of the relationship is governed by English law and jurisdiction, whereas on the defendant's case all disputes between them are referred to arbitration in Milan and Italian law. Unless there is some rational reason for such an outcome, it is more likely that both parties intended one set of jurisdiction and dispute resolution provisions to govern the agreement which should be read accordingly.

(2) The claimant relies on the fact, as it puts it, that the TOBA is 'awash' with references to English law concepts. However, I agree with the defendant that the references in the agreement which depend on English law are primarily to UK financial services legislation and regulatory requirements. This reflects the fact that the claimant is a UK incorporated company, which is regulated by the UK regulators, and the form is a standard London form. I do not think that this shows that the agreement remained subject to English law if it otherwise appears that the parties chose otherwise.

(3) However, there is force in the claimant's contention that the TOBA and the Framework Agreement are dealing with different subject matters. The TOBA is dealing with aspects of their relationship including premium, whereas the Framework Agreement is dealing with exclusivity. Different choices of law and jurisdiction clauses are 'rational' in such a situation.

(4) As against that, there appears as the defendant says to have been some overlap in that, albeit after the date of the agreement, endorsement 2 of the Framework Agreement dated 2 June 2014 is dealing with matters other than exclusivity, and, as the defendant says, amendments were made to the Framework Agreement, not the TOBA.

(5) However, as the claimant says, these are post contractual endorsements, and do not necessarily cast any light on the construction of the Framework Agreement itself.

(6) As a matter of construction, the principal question is whether the claimant is right to say that the reference in clause 6 of the Framework Agreement (dealing with applicable law and arbitration) to 'this Agreement', is referring only to the Framework Agreement, and does not include, as the defendant contends, the scheduled TOBA as well.

(7) The 'entire agreement' clause 5.5 refers to 'this Agreement, including its Schedule …', and that provision has to be read with clause 5.9, providing that the '…Schedule [is] an integral part of this Agreement'. These two clauses give support to the defendant's position that after the Framework Agreement, the TOBA ceased to exist as a separate agreement, and that from then on there was only a single agreement.

(8) As against that, there is force in the claimant's contention that the fact that the TOBA was scheduled to the Framework Agreement is consistent with it continuing as a separate agreement. This is also consistent with clause 1.4(b) by which the parties agreed to modify the TOBA to the extent necessary to reflect the terms of the Facility Agreement.

(9) Further, as the claimant says, in the context of termination, clause 3(a) provides that 'the exclusivity provisions between the parties will terminate. The Agreements including the TOBA shall be modified as of the date of termination of this Agreement'.

(10) In my view, this is the strongest of the various textual submissions made by the parties. This clause is arguably inconsistent with the defendant's case that from the time of the Framework Agreement, the TOBA ceased to exist as a separate agreement, because it specifically refers to the 'Agreements'. It lends support to the claimant's case that where in the Framework Agreement's law and arbitration clause the words refer to 'This Agreement', reference is being made to the Framework Agreement only, and not to the TOBA as well.

(11) Further, this case differs from Fiona Trust, in that although there are different law and jurisdiction clauses in the TOBA and the Framework Agreement, the two agreements were entered into at different times. The defendant accepts, of course, that the TOBA is governed by English law and jurisdiction, but contends that this changed when the Framework Agreement was entered into.

(12) On the basis (for the purposes of this application) that Italian law does not recognise the trust as such, and that the TOBA did create a trust account for the receipt of premiums (which is the next matter I have to decide), it would follow if the defendant is correct that there was a substantial change in the foundation of the parties' relationship at the time of the Framework Agreement, which applied to pre-existing business.

(13) The defendant accepts that no weight can be given to evidence as to the defendant's intention on entering into the Framework Agreement which is inadmissible as an aid to construction."

18. The judge then stated that, at that stage of the proceedings, "the question is whether the claimant can show a good arguable case that the English court has jurisdiction", and that "the court is not concerned at this stage of the proceedings to determine that issue conclusively". He concluded (at [51]) that, for the reasons given which I set out in the last paragraph, ATEL had done so: "it has shown to the good arguable case standard that the ToBA continued as an agreement after the Framework Agreement". He rejected an alternative argument by TRG that, if the ToBA survived as a separate agreement, it was amended by clause 1.4(b) of the Framework Agreement by the replacement of the existing jurisdiction and dispute resolution provisions in it with the Italian law and arbitration clause in the Framework Agreement.
19. It was suggested, although without much conviction, that the reference to "the good arguable case standard" showed the judge adopted a less onerous requirement than the "much the better of the argument" test. This is an untenable suggestion. What the judge stated at [51] has to be understood in the light of what he stated earlier in his judgment. At [31] (see [16] above) he summarised the principles of law as to which the parties were in agreement. This included (at [31(2)]) quoting Waller LJ's formulation in Canada Trust Co v Stolzenburg (No.2) the origin of the "much the better of the argument" test, the "Canada Trust gloss".

IV. The Appellant's case

20. Mr Samek structured his submissions in six sections or stages. The first was that clause 5.9 which provided that the recitals (see [4] above) and the Schedule were "an integral part" of "this Agreement". This meant that it was wrong to regard the ToBA as having equal force and operating alongside the Framework Agreement. The second was that clause 8, which identified the Schedule, showed the significance of the physical attachment of the Schedule to the Framework Agreement. It was "an important symbol" showing that the provisions of the ToBA should apply to the Framework Agreement, modified where necessary to avoid conflict.
21. The third stage of Mr Samek's submissions relied on the "entire agreement" provision in clause 5.5 which also stated that "[t]his Agreement…supersedes any prior understanding, whether written or oral" about the transactions "contemplated herein" or "any other matter peripheral or ancillary thereto". He submitted that exclusivity was a meaningless concept unless it related to an activity. Accordingly, the exclusivity given by ATEL to TRG in the Framework Agreement meant that the ToBA was to be regarded as a "… matter peripheral or ancillary" to the Framework Agreement and clause 5.5 showed that the agreement was a single composite agreement. Mr Samek maintained that the nature of the Framework Agreement with the ToBA appended to it in a Schedule which was stated to be an "integral part" of "the agreement" meant the overall arrangement was not a suite of two agreements but a single composite agreement.
22. Mr Samek recognised that the existence of conflicting or at least apparently conflicting provisions in the ToBA and the Framework Agreement posed a potential problem for this contention but, in the fourth stage of his submissions, argued that clause 1.4(b) of the Framework Agreement addressed and dealt with the issue of conflict. It is a "no inconsistency" provision. Its first sentence imposed a clear obligation to "modify the [ToBA] … to the extent necessary to reflect the terms hereunder". Its second sentence, which referred to an additional distribution agreement in Italy should ATEL decide to establish a branch in Italy, had no effect on the meaning of the first sentence or on the ToBA because it did not provide for exclusivity. He submitted that, despite its use of the future tense (the parties "shall modify…" the ToBA), clause 1.4(b) was not an unenforceable "agreement to agree" because it provided that the ToBA must reflect the terms of the Framework Agreement, for example as to choice of law and dispute resolution mechanism.
23. The fact that AmTrust was party to the Framework Agreement and that the agreement provided that TRG was to have exclusivity not only for proposals for risks in the Italian market put to ATEL but for all proposals to the AmTrust group was said to be significant. It was argued that this explained the relevance of the terms of the ToBA and why they were needed. TRG only had terms of business with ATEL. It therefore made sense to "import" the terms of the ToBA and "integrate" them into the Framework Agreement to deal with business proposals TRG put to other companies in the AmTrust group.
24. As part of this stage of his submissions, Mr Samek relied on the Fiona Trust presumption about the construction of dispute resolution clauses and the statement by Buckley LJ in Modern Building Wales Ltd. v Limmer & Trinidad Co. Ltd. [1975] 1 WLR 1281, at 1289. He maintained that Fiona Trust shows that the starting point in this case is that the parties are likely to have intended any dispute arising out of their relationship to be decided by the same tribunal. He submitted that the Modern Building Wales case shows that, if there is any conflict between the terms of an agreement into which another document has been imported, the later agreement is dominant and "must prevail". This, he argued, is particularly so where the incorporated contract is, as the ToBA is, largely a standard form contract.
25. The fifth stage of Mr Samek's submissions was simply to point to clause 6 of the Framework Agreement which provided for it to be governed by Italian law, and for arbitration in Milan.
26. The last stage of Mr Samek's submissions in fact fell into two parts. The first is the submission that, to construe "the overall agreement package" as two agreements leads to a number of "totally non-commercial situations and results" which rational commercial contractors would not intend. The second part of the submission is that to construe the package as two agreements produces a conflict between a provision in one contract and a provision in the other dealing with the same subject-matter.
27. As to "totally non-commercial situations and results", Mr Samek illustrated his submission by a number of examples. It suffices to refer to the "change of control" and the revocation of authorisation provisions. Clause 10.1.5 of the ToBA provides that "change of control" is deemed to occur where 25% or more of the stock in the broker is transferred to someone who was not an owner on the effective date of the agreement and that the agreement terminated "immediately without notice" where there is such a change in control. Clause 2.2(b)(i) of the Framework Agreement, however, requires notice. It provides that either party may serve a notice of termination within six months of a change of control in the other party. Clause 10.1.3 of the ToBA provides for immediate termination "without notice" where the Broker has any authority or permission granted to it by the FSA or other regulatory authority withdrawn or altered in a manner materially affecting the Broker's ability to conduct business under the agreement but clause 2.2(b)(ii) of the Framework Agreement entitles ATEL and AmTrust to serve a notice of termination if the TRG Group is no longer authorised to operate as an insurance broker in Italy. It would, submitted Mr Samek be uncommercial to have different requirements and dispute resolution regimes about the same issue. He made similar submissions about differences in the provisions of the ToBA and those in the Framework Agreement about insolvency and liquidation, confidentiality, run-off provisions, and commission.
28. As to conflicting provisions, Mr Samek's main point was that under clause 2.4 of the ToBA there was no obligation on TRG to offer any proposal for insurance to ATEL, whereas clause 1.2 of the Framework Agreement obliges the TRG Group to submit all its insurance proposals for "MedMal" risks exclusively to AmTrust. Another aspect of his submissions based on the exclusivity provisions in the Framework Agreement, was that the obligation in clause 2.2 of the ToBA that nothing in the agreement overrode TRG's obligation to place the interests of its clients before all other considerations did not fit with those provisions. Again, whereas clause 19 of the ToBA stated that third parties had no rights to enforce it, the parties to the Framework Agreement also included AmTrust, and TRG was required to submit proposals to AmTrust.

V. Analysis

29. I shall use the term "the overall agreement package" to describe the arrangements between the parties in the Framework Agreement and the ToBA in a neutral way; that is whether or not they are a single composite contract, two contracts but the ToBA subordinate to the Framework Agreement, or two freestanding contracts. In this section of my judgment, unless otherwise stated references to clauses are to clauses in the Framework Agreement.
30. Before addressing the question before the court, I deal with three preliminary points. They are: (a) the approach of an appellate court to a first instance judgment dealing at the interlocutory stage with a challenge to jurisdiction; (b) the scope of the Fiona Trust "one-stop" "one jurisdiction" presumption that the construction of an arbitration clause should start from the assumption that the parties, as rational businesspeople, are likely to have intended any dispute arising out of their relationship to be decided by the same tribunal; and (c) the approach when considering an overall agreement package consisting of a complete agreement which is appended to a later agreement in the way the ToBA was.
31. (a) The approach of an appellate court when hearing an appeal from a judge who has ruled at the interlocutory stage on a jurisdiction challenge: Mr Samek's response to ATEL's argument (see [6] above) that the authorities establish that an appellate court should be slow to interfere with a first instance judge's assessment of the merits at the interlocutory stage of a jurisdictional challenge is that the cases from The Spiliada [1987] AC 460 to VTB Capital v Nutritech International upon which Mr Downes relied concerned forum non conveniens. They have, he submitted, no application where the issue of jurisdiction is determined by the proper construction of the contractual arrangements, here the Framework Agreement, and not by the evaluation of competing factors in favour of rival jurisdictions in determining which jurisdiction is the appropriate forum. This is because the question of construction is a question of law which an appellate court is well able to determine. Moreover, in these cases the evidence will all be documentary and in principle the appellate court will be in as good a position as the judge to assess it.
32. The reason for circumspection by the appellate court in its approach to a first instance judge's assessment of the merits at the interlocutory stage of a jurisdictional challenge in such cases is not the classic one given by Lord Hoffmann in Biogen Inc v Medeva Plc [1997] RPC 1 at [45], that the first instance judge has heard evidence and is in a better position to assess it. In Cherney v Deripaska [2009] EWCA Civ 849 reported at [2010] 1 All ER (Comm) 456 Moore-Bick LJ (at [29]) stated that the judge who has to take a view on the cogency of the evidence "has only statements and experts' reports on which he is not going to hear cross-examination". The appellate court also has those. There are two justifications given in the authorities for circumspection in such cases.
33. The first justification is that, where the issue is forum non conveniens or where the documentary evidence contains a sharp clash of evidence about the facts, the exercise carried out by the judge is an evaluative one, sometimes with a "predictive" element, and with more than one possible "right" answer. The evaluation of the factors relevant to the determination of the appropriate forum and of disputed evidence is very much the province of the first instance judge: Cherney v Deripaska [2009] EWCA Civ 849, reported at [2010] 1 All ER (Comm) 456 at [10] and [59]. In such cases an appellate court should only interfere where it is clear that an error of principle has been made or that the result falls outside the range of potentially "right" answers.
34. Where the sole issue is the construction of a contract or, as here, the totality of the contractual arrangements, views may differ about the interpretation of contractual terms. But the construction of a contract is not a matter on which there can be more than one "right" answer. See Lewison, The Interpretation of Contracts 5^th ed (2011) 34, which states that "although a contract may potentially have more than one possible meaning, the court can select only one meaning" and (at 35) "the theory that a contract has only one meaning is pervasive". Adapting the words of Diplock LJ in another context,^[2] the unexpressed major premise is that any particular combination of words in contractual documents has one meaning which is capable of ascertainment as being the 'right' meaning by the adjudicator to whom the law gives the responsibility of determining it. That meaning is the one the documents "convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract": Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896 at 912 per Lord Hoffmann.
35. In working out whether an appellate court should show circumspection to the first instance decision about the construction of a contract or the totality of the contractual arrangements, and if so, the degree of circumspection, it should be borne in mind that, at the interlocutory stage, the question is not "what does the contract mean", but who has "much the better of the argument". Although determining the meaning of a contract is a more focussed exercise with fewer factors in play than in the determination of the "appropriateness" of a forum, the process remains an evaluative one. In some cases it includes an assessment of rival witness statements and other evidence about the admissible background, often described as the factual matrix: see Investors Compensation Scheme v West Bromwich Building Society op cit at 912 – 913, as explained in BCCI v Ali [2002] 1 AC 251 at 269, per Lord Hoffmann. Notwithstanding that, it has been recognised that where the question for decision is a question of law that would go to the existence of the jurisdictional gateway, the court will normally decide the issue rather than merely decide whether it is arguable: see VTB Capital plc v Nutritek International Corp. [2012] EWCA Civ 808 reported at [2013] 2 AC 337 at [99] and Google Inc v Vidal-Hall [2015] EWCA Civ 311 at [15].
36. The second justification given for circumspection by appellate courts is more general and has to do with the nature of the appellate function and the role of an appellate court. The basis of our system is that not every issue determined at first instance should be revisited by an appeal court. In EI Dupont De Nemours and Co v ST Dupont (Note) (CA) [2003] EWCA Civ 1368, reported at [2006] 1 WLR 2793 at [94], May LJ discussed the requirement in CPR 52.11(1) that, subject to exceptions, every appeal is limited to a review of the decision of the lower court. He stated that the concept of review in this context engages the merits, but accords appropriate respect to the decision of the lower court, and that there is a spectrum of appropriate respect, depending on the nature of the decision of the lower court. At one end of the spectrum are decisions of primary fact reached after an evaluation of oral evidence and purely discretionary decisions. What May LJ described as "multi-factorial decisions often dependent on inferences and analysis of documentary material" are further along the spectrum. May LJ observed that CPR 52.11(4) expressly empowers the appeal court to draw any inference of fact which it considers justified on the evidence. Questions of law lie at the other end of the spectrum.
37. The "role of an appellate court" reason also appears to have elements of a "rationing of appellate resources" rationale: Zuckerman on Civil Procedure, 3^rd ed., (2013), at 24.4 – 24.7. There are different strands to this. In Fage UK Ltd. v Chobani UK Ltd. [2014] EWCA Civ 5 at [114(iii)] Lewison LJ referred to duplication of the trial judge's role on appeal being a disproportionate use of the limited resources of an appellate court which will seldom lead to a different outcome in an individual case. In "The Spiliada" [1987] 1 AC 460, in the context of forum non conveniens, Lord Templeman's statement (at 465) that appeals should be rare and the appellate court should be slow to interfere with first instance decisions was based on the fact that Commercial Court judges are very experienced in these matters.
38. The rationing elements of this second justification are likely to be particularly relevant where the first instance decision is interlocutory and not conclusive as to the merits, which are to be determined at a later substantive hearing. In the present context, challenges to jurisdiction, the cases make it clear that the interlocutory stage must not become a "trial"^[3] although the same or very similar questions may have to be decided at trial.^[4] That concern is also relevant to consideration of the appellate stage of a jurisdiction challenge because, if less circumspection is shown at the appellate stage of what remains an interlocutory process stage, that may lead first instance judges to an approach which is closer to a determination of the issue than is required by the application of the test, whether formulated as "much the better of the argument" or "the better of the argument".
39. The "rationing of appellate resources" element in the second justification for circumspection has also played a part in other contexts where the appellate court is as well placed as the first instance court to undertake the evaluation. For example, in Re B (A Child) (FC) [2013] UKSC 33, reported at [2013] 1 WLR 1911, a majority of the Supreme Court held that an appellate court considering the assessment of proportionality by the first instance court is not under an obligation to assess it itself by deciding de novo whether the requirements of, in that case, Article 8, were satisfied: see [35] – [36], [83], [85], and [136]. In that case, Lord Neuberger referred to the normal function of an appellate court as a reviewing function rather than reconsidering the issue afresh.
40. Another example is the decision of this court in Aldi Stores Ltd v WSP Group Plc [2007] EWCA Civ 1260, reported at [2008] 1 WLR 748, an appeal from a decision by a trial judge striking out a claim for abuse of process. Thomas LJ, with whom Longmore and Wall LJJ agreed, stated that the decision was one "involving the assessment of a large number of factors to which there can, in such a case, only be one correct answer" but that "nonetheless, an appellate court will be reluctant to interfere with the decision of the judge". He stated that it will generally only do so where the judge has taken into account immaterial factors, omitted to take account of material factors, erred in principle, or come to a conclusion that was impermissible or not open to him.
41. In a jurisdiction challenge there is an important factor pointing against circumspection. It is the factor identified by Christopher Clarke J in Cherney v Deripaska^[5] that in such cases the issue is whether a defendant not ordinarily subject to the jurisdiction of the English court and who does not accept jurisdiction should be compulsorily brought here as a defendant. For that reason, the court in either granting permission to serve out of the jurisdiction or refusing to set aside service out, is exercising an exorbitant jurisdiction over those not within its ordinary reach. Although the discussion in that case was about the justification for the "much the better of the argument" requirement, what Christopher Clarke J stated in that context is also of relevance in considering the appellate role.
42. To conclude, the requirements for service out of the jurisdiction in CPR 6.30 and the jurisdiction of the English Court provide for an evaluation, not a finding. The fact that the nature of the issue upon which jurisdiction depends in this case is one to which there is a single "right" answer taken together with the fact that the court would be exercising an exorbitant jurisdiction over a party which contends that it is not within the ordinary reach of the English court suggest that an appeal court should show less circumspection to the first instance decision than in a forum non conveniens case. But the decision of this court in Aldi Stores Ltd v WSP Group Plc shows that some circumspection is needed even where the decision is one to which there can only be one correct answer.
43. If appellate courts show too little restraint there are likely to be more appeals (cf Lord Templeman's view summarised at [37] above albeit in the context of forum non conveniens). It would be undesirable if the consequence of a less restrained approach by appellate courts was to result in a tendency by first instance judges, in what might be described as "defensive judging", to adopt an approach which is closer to a determination of the issue than is required by the application of the "much the better of the argument" test. As Waller LJ stated in Cherney v Deripaska [2009] EWCA Civ 849 reported at [2010] 1 All ER (Comm) 456 at [6] "disputes as to forum should not become state trials".
44. (b) The scope of the Fiona Trust presumption: In Fiona Trust & Holding Corporation v Primalov [2007] UKHL 40, 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". After asking (at [7]) whether there is any rational basis upon which businessmen would be likely to have different questions about the contract decided by different tribunals, and stating that one would need to find very clear language before deciding that they would have had such an intention, he concluded (at [13])

"[I]n 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 to be decided 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".

45. That case concerned the scope of a single arbitration clause. This case concerns an overall agreement package which contains two express choice of law and jurisdiction clauses, one of English law and jurisdiction, the other of Italian law and arbitration. Mr Samek submitted that, although the present case is not about the scope of a single arbitration clause, the Fiona Trust "one-stop"/"one jurisdiction" presumption remains a useful starting point. In principle, and subject to the qualification in the next paragraph, I agree. As Lord Collins stated in UBS AG v HSH Nordbank AG [2009] EWCA Civ 585, reported at [2009] 2 Lloyd's Rep 272 at [84], where the agreements are all connected and part of one package, "sensible businesspeople would not have intended that a dispute of this kind would have been within the scope of two inconsistent jurisdiction agreements".
46. Where the overall contractual arrangements contain two or more differently expressed choices of jurisdiction and/or law in respect of different agreements, however, the position differs in that one does not approach the construction of those arrangements with a presumption. So, the 14^th edition of Dicey, Morris and Collins on the Conflict of Laws stated:

"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 Credit Suisse First Boston (Europe) Ltd v MLC (Bermuda) Ltd [1999] 1 Lloyd's Rep 767 at 777 that:

"where different agreements are entered into for different aspects of an overall relationship, and those different agreements contain different terms as to jurisdiction, it would seem to be applying too broad and indiscriminate a brush simply to ignore the parties' careful selection of palette".

47. In Sebastian Holdings Inc v Deutsche Bank AG (No 2) [2010] EWCA Civ 998, reported at [2011] 1 Lloyd's Rep 106, a case involving a complex series of eight agreements, Thomas LJ referred with approval (at [42] and [49]) to the passages from Dicey, Morris and Collins and the judgment of Rix J I have set out. He summed up the position as follows:

(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:

"Where a complex financial or other commercial transaction is put in place by means of a number of interlinked contracts, and each has its own provision for the resolution of disputes, the point of departure will be that it is improbable that a jurisdiction clause in one contract, even expressed in ample terms, was intended to capture disputes more naturally seen as arising under a related contract. …Even if the effect is that there will be a risk of fragmentation of the overall process for the resolution of disputes, this is not by itself sufficient to override the construction, and consequent giving of effect to, the complex agreements for the resolution of disputes which the parties have made."

In short, what is required is a careful and commercially-minded construction of the agreements providing for the resolution of disputes. This may include enquiring under which of a number of inter-related contractual agreements a dispute actually arises, and seeking to do so by locating its centre of gravity and thus which jurisdiction clause is "closer to the claim".^[6] In determining the intention of the parties and construing the agreement, some weight may also be given to the fact that the terms are standard forms plainly drafted by one of the parties.

49. There may be a difference between a complex series of agreements about a single transaction or enabling particular types of transactions, and the situation in which there is a single contract creating a relationship which is followed by a later contract embodying a subsequent agreement about the relationship. The agreements in the UBS case about the issues of securities under a collateralised debt obligation transaction which were "all connected and part of one package",^[7] and those in the Sebastian Holdings case enabling over the counter derivative contracts and trading in foreign exchange and equities are examples of the former. The agreements in this case, separated in time by just under six months, are an example of the latter. Where the contracts are not "part of one package", it may be easier to conclude that the parties chose to have different jurisdictions to deal with different aspects of the relationship.
50. (c) The approach to an overall agreement package such as that in the present case: Three cases were relied on by the parties. The first, Modern Building Wales Ltd v Limmer and Trinidad Co Ltd [1975] 1 WLR 1281, was relied on by Mr Samek, see [24] above. It concerned a construction contract contained in a written order from the head contractors to nominated sub-contractors to supply adequate labour, plant and machinery "in full accordance with the appropriate form for nominated sub-contractors (RIBA 1965 edition)". There was in fact no RIBA 1965 edition form, but two trade associations had issued, in 1963, a form of contract, "the green form", which was headed "for use where the sub-contractor is nominated under the 1963 edition of the RIBA form of main contract".
51. It was held that, despite the difference in date, the words in the order were wide enough to import all the clauses in the green form, including the arbitration clause. This was so although there were various matters left in blank on the green form, in particular the completion period and how retention money should be dealt with. Buckley LJ stated (at 1289):

"Where parties by an agreement import the terms of some other document as part of their agreement, those terms must be imported in their entirety, in my judgment, but subject to this: that if any of the imported terms in any way conflict with the expressly agreed terms, the latter must prevail over what would otherwise be imported."

52. Mr Downes relied on two decisions which took a different approach to the Modern Building Wales case. The first is the decision of the majority of the Judicial Committee of the Privy Council in The Yien Yieh Commercial Bank Ltd v Kwai Chung Cold Storage Co Ltd [1989] LRC (Comm) 527, 25 July 1989. The second is that of this court in Yarm Road Ltd v Hewden Tower Cranes Ltd [2003] EWCA Civ 1127, reported at (2003) 90 Con LR 1.
53. In the Yien Yieh case, the question was whether one clause in a contract between a bailor and the bailee warehousing company was inconsistent with another clause. Lord Goff, giving the judgment of the majority, stated that "to reject one clause in a contract as inconsistent with another involves a rewriting of the contract which can only be justified in circumstances where the two clauses are in truth irreconcilable". He stated that this was likely to occur only where there had been some defect of draftsmanship, and that the usual case was "where a standard form is taken and then adapted for a special need, as is frequently done in, for example, standard forms of charterparty adapted by brokers for particular contract". The problem arises when it is discovered that the typed additions cannot live with part of the printed form, "in which event the typed addition will be held to prevail as more likely to represent the intentions of the parties". He continued that:

"Where the document has been drafted as a coherent whole, repugnancy is extremely unlikely to occur. The contract has, after all, to be read as a whole; and the overwhelming probability is that, on examination, an apparent inconsistency will be resolved by the ordinary processes of construction."

54. In the Yien Yieh case, it was held that the apparent inconsistency was resolved by the finding that the function of the first clause was only to indicate which document had to be presented before goods stored would be redelivered and that, so construed, the clause exempting the bailee from responsibility for loss or damage inter alia because of an error of judgment in misdelivering the goods was not inconsistent.
55. Yarm Road Ltd v Hewden Tower Cranes Ltd [2003] EWCA Civ 1127, reported at (2003) 90 Con LR 1, involved the incorporation of two sets of standard form terms into a contract for the hire of five tower cranes made by the hirer's order. One was the model CPA conditions for the hiring of plant. The other was the KCB standard terms and conditions of purchase. The substantive question was whether the collapse of one of the cranes, which occurred during a process called "climbing", adding new sections to the tower, constituted "erection" for the purpose of the model CPA conditions.
56. Answering this question involved considering the relationship of clause 11 of the KCB terms, which provided that the "supplier shall indemnify the purchaser against any loss or damage…arising out of the performance or failure to perform…" and clause 13 of the model CPA conditions, which provided that the hirer was to have general responsibility for loss and damage save where the operation was under the exclusive control of the owner of the crane.
57. Laws LJ rejected the argument, based on the statement of Buckley LJ in the Modern Building Wales case, that the provision in the KCB terms should prevail over the model CPA conditions because it was an express condition and not one that was merely incorporated by reference. He stated (at [41]):

"First, while it is true that the CPA conditions were incorporated by reference, that was done by and on the face of cl16 of the same KCB terms, set out on the back of the order, as included cl11; and these were Yarm's own terms. Secondly, the two sets of conditions can be read consistently if the cl11 indemnity is taken to apply to the extent that the parties have not agreed otherwise, and [relying on the speech of Lord Goff in the Yien Yieh case] such consistency is to be obtained if possible. …Thirdly, such a result is further supported by principle, since whereas the cl11 indemnity is perfectly general, cl13 is dealing with the distribution of contractual responsibility in the specific context of hiring of plant; and the rule, crisply expressed in the Latin maxim generalia non specialibus derogant, is that the general is taken to give way to the specific."

Although Pill LJ and Sir Martin Nourse differed from Laws LJ on the substantive question, they agreed on the interrelationship of the clauses in the KCB standard terms and the model CPA conditions.

58. (d) The question for decision: As is evident from my discussion of what I have described as the three preliminary points, my starting point is more nuanced than that suggested by Mr Samek's invocation of the Fiona Trust presumption and a principle based on the Modern Building Wales case that the terms of an incorporated or imported contract are subordinate to those of the "host" contract.
59. As to the Fiona Trust presumption, since the question for decision is whether there is indeed a single agreement or two freestanding agreements, i.e. whether the Framework Agreement supersedes the ToBA, Mr Samek's submission that the presumption applies assumes the point at issue, since it is only if there is a single agreement superseding the ToBA that it can be said that it does. If the conclusion is that the parties made two contracts at different times which contain jurisdiction agreements for different countries, there is no presumption that the provisions in the more recent contract are intended to capture disputes in the earlier contract even if the effect is a risk of fragmentation of the overall process for the resolution of disputes. As to the Modern Building Wales case, I consider that is of limited assistance. The incorporated "green form" contract in that case was a blank pro forma and not a pre-existing concluded contract, as the ToBA was, albeit on standard form London market terms. Moreover, the scenario in this case is far closer to that considered in Yarm Road Ltd v Hewden Tower Cranes. Thirdly, here, unlike both the Modern Building Wales case and Yarm Road Ltd v Hewden Tower Cranes, the ToBA was a fully operational free-standing contract for almost six months before the parties entered into the Framework Agreement.
60. Although this case does not involve a complex arrangement with a large number of agreements, I have found the approach in the Sebastian Holdings case (summarised at [47] above) useful. The question is whether, giving the Framework Agreement and the ToBA a broad and purposive construction, and taking account of the overall scheme, the jurisdiction and choice of law provisions in clause 6 of the Framework Agreement have superseded those in clause 21 of the ToBA. The matter is not entirely straightforward, but for the reasons below I have reached the clear conclusion that ATEL has satisfied the "good arguable case" requirement, which in this context means "a much better argument", that the reference in clause 6 of the Framework Agreement, which deals with applicable law and arbitration, to "this Agreement" refers only to the Framework Agreement and does not include the scheduled ToBA. Accordingly, this dispute, which concerns TRG's entitlement to withhold premium payments received and not to hold them on trust for ATEL pursuant to clause 6 of the ToBA is, by virtue of clause 21 of the ToBA, subject to English law and the jurisdiction of the English courts.
61. In giving what I hope is a careful and commercially-minded construction to the agreements, I am conscious of the need to accord appropriate respect to the decision of the experienced commercial judge. But the nature of the issue here, the construction of the overall agreement package, a question to which there is, in law, only one correct answer, means that it is appropriate to take a less restrained approach than in, for example, an appeal against a first instance judge's assessment of whether the English court is the appropriate forum.
62. The fact that the Framework Agreement is not a well-drafted contract does not lead to a different approach to construction.^[8] But there may be more scope for resort to the apparent commercial purpose than in a well-drawn contract. Also, it is less likely that a reliable answer will be yielded by detailed linguistic analysis, as opposed to reading the words fairly in the context of the document as a whole in the light of the commercial background.^[9] In interpreting the Framework Agreement and the ToBA, the court's job is to discern the intention of the parties, objectively speaking, from the words used, in the relevant context and against the factual background in which the documents were created. The starting point is the words used and the principle that the commercial parties who agreed the wording intended them to mean what they state in setting out the parties' respective rights and obligations. If there are two possible constructions, the court is entitled to prefer the construction which is more consistent with "business common sense" if that can be ascertained: Rainy Sky SA v Kookmin Bank [2011] UKSC 50 reported at [2011] 1 WLR 2900 at [21] per Lord Clarke.
63. Mr Samek argued that the consequences of the construction for which ATEL contended were non-commercial. Why should the parties agree two different provisions about, for example, the effect of "change of control" or the revocation of regulatory authorisation? Moreover, how could the absence of an obligation on TRG under the ToBA to offer any proposal for insurance to ATEL be squared with clause 1.2 of the Framework Agreement obliging it to submit all its insurance proposals for MedMal risks in the Italian market exclusively to AmTrust? Mr Downes, on the other hand, emphasised that, if the parties had wanted to supersede the ToBA's dispute resolution provisions, they could have done so either by expressly amending the jurisdiction clause in the ToBA or by stating that clause 6.3 of the Framework Agreement applies to the ToBA, but they did not.
64. A degree of caution must be applied to both these stances. Caution is required when considering whether the consequence of a particular construction is "non-commercial". In BMA Special Opportunity Hub Fund Ltd v African Minerals Finance Ltd [2013] EWCA Civ 416 at [24] Aikens LJ agreed with the observation of Briggs J (as he then was) in Jackson v Dear [2012] EWHC 2060 (Ch) at [40], reported at [2014] 1 BCLC 186, that "'commercial common sense' is not to be elevated to an overriding criterion of construction", and added that "still less should the issue of construction be determined by what seems like 'commercial common sense' from the point of view of one of the parties to the contract". It is thus not of great assistance where there are reasonable arguments both ways as to the construction of the contract. As to Mr Downes' position, it is not of much assistance to argue that the parties could have made the position clear by appropriate wording because this can always be said when parties differ on the meaning of a contract.^[10]
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.

(2) Mr Samek's approach contemplates radical changes to the ToBA and the foundation of the parties' relationship achieved in an indirect and opaque way.

(3) The ToBA, which is on standard London market terms and includes provision for the creation of a trust account in favour of ATEL for premiums received by TRG, has a close connection with English law. The effect of TRG's submissions, if correct, would be that the applicable law would be changed from English law to Italian law which does not recognise the trust as such, not only in relation to future transactions and disputes but in respect of disputes about transactions entered into in the almost six months before the Framework Agreement was made. On the construction advanced by TRG, the Framework Agreement would effect a substantial change in the foundation of the parties' relationship in relation to business pre-dating it. As Mr Downes observed and the judge stated (at [50(12)]), TRG's case contemplates that disputes that were previously rationally chosen by the parties to be determined in England should now be determined in Italy.

(4) Looking at the Framework Agreement as a whole, while it uses the term "this Agreement" in clauses 1.4, 2.1 – 2.3, 3, 5.1 – 5.3, 5.7 – 5.9, 6 and 7, it refers in four provisions (respectively clauses 1.4(c), 2.2(c)(i), and 3(a) and (d)) to "all agreements", "this Agreement or any other agreement", "the Agreements, including the [ToBA]" and "the Agreement and/or the ToBA".

66. I turn to the three provisions of the Framework Agreement upon which Mr Samek particularly relied. First, clause 1.4(b). In my judgment, if the two sentences of that clause are read together, the clause does not assist TRG. It appears to be concerned with modifications to the ToBA that would be necessary as a result of the exclusivity given to TRG if ATEL decided to pursue business in Italy by establishing a branch there. The clause is a forward-looking one and is, in my judgment, consistent with the view that the ToBA continued as a separate agreement.
67. The strongest support for TRG's position comes from clauses 5.5 and 5.9, particularly the reference in clause 5.9 to the Schedule being an "integral part" of "this Agreement" (emphasis added). However, the fact that the wording of clause 5.5 is "this Agreement, including its Schedule" suggests that elsewhere in the Framework Agreement (including clause 6) the phrase "this Agreement" does not include the ToBA. It appears that what is being excluded at this stage are agreements outside what I have described as the overall agreement package. It is such agreements which are not to have contractual effect. As to clause 5.9, "integral" means "necessary to make a whole", "essential" or "fundamental". That is, however, as consistent with the Schedule, that is the ToBA, having equal standing with the Framework Agreement, as with the Framework Agreement superseding it.
68. Clauses 5.5 and 5.9, moreover, must be considered against the background of the entirety of the Framework Agreement. When that is done, in my judgment, the result is inconsistent with TRG's case that from the time of the Framework Agreement, the ToBA ceased to exist as a separate agreement. I have referred to the specific references to the ToBA in clauses 1.4(b) and 3(a) and (d) of the Framework Agreement. Clauses 2.3 and 3, which deal with the consequences of termination of "this Agreement", can only refer to the Framework Agreement. That is because of the explicit provision in clause 3(a) that a termination of the Framework Agreement results only in a termination of the exclusivity provisions and requires the agreements, including the ToBA, to "be modified", something that could only happen if the agreement had continued to exist during the currency of the Framework Agreement and would continue to exist after its termination. Mr Samek did not provide a satisfactory explanation about how, if the ToBA had been superseded by the Framework Agreement, this would happen. He also did not explain whether the result would be that the English law and jurisdiction provision would revive or whether the change to Italian law and arbitration would continue although the Framework Agreement had been terminated. Moreover, clause 3(d) contemplates the termination of not only "the Agreement", but also "and/or the ToBA". The "and/or" is inconsistent with the argument that the ToBA was superseded. It also sits very uneasily with the contention that the provisions of the ToBA are subordinate to those of the Framework Agreement.
69. I turn to the arguments based on different provisions covering the same matter and a conflict between clause 2.4 of the ToBA and clause 1.2 of the Framework Agreement: see [28] above. Approaching the construction of the agreements in the way indicated in the Yien Yieh case and Yarm Road Ltd v Hewden Tower Cranes Ltd (see [53] – [57] above), I consider that there is no inconsistency with different clauses covering similar or the same ground in respect of different parts of the relationship dealt with in different agreements. The approach summarised by Thomas LJ in the Sebastian Holdings case (see [47] above) also shows that it is not correct to say that commercial contractors could not contemplate different dispute resolution provisions in such circumstances.
70. I accept Mr Downes' submission that any apparent conflict between clause 2.4 of the ToBA and clause 1.2 of the Framework Agreement is resolved once one analyses the position as an agreement dealing with the basic brokerage position and a later agreement granting exclusivity to TRG and obliging TRG to submit all its insurance proposals in the Italian market exclusively to AmTrust. Mr Samek's submission that there is a direct conflict proceeds on the premise that they are in a single agreement about the same subject matter. But, the provision in the ToBA that TRG is "under no obligation" to offer any proposal to ATEL simply falls away in relation to Italian MedMal business as a result of the later agreement, in particular clause 1.4(b). It does not follow from that that other provisions of the ToBA also fall away or that it is "necessary" that clause 21 falls away. Issues relating to exclusivity are issues governed by the Framework Agreement and thus covered by the choice of Italian law and Italian arbitration in clause 6 of the Framework Agreement but issues concerning commission remain governed by clause 21 of ToBA.
71. To conclude, the ToBA was a standard London market brokerage agreement dealing with the placement of business by TRG with ATEL, and for which ATEL was to pay commission to TRG. The Framework Agreement was one in which ATEL gave TRG exclusivity in the Italian market, for which TRG paid ATEL. It thus dealt with a different aspect of the parties' relationship. In the context of an agreement providing for exclusivity, it is not surprising that the parties included other members of the AmTrust group. This is because otherwise ATEL and the AmTrust group might have been able to circumvent the exclusivity for which TRG was paying. In these circumstances, I am satisfied that ATEL has much the better of the argument that the jurisdiction and choice of law provision in clause 21 of the ToBA applies to the dispute between the parties about the retention by TRG of premiums received. I would therefore dismiss this appeal.

Lord Justice Christopher Clarke:

72. I agree that, in a case such as this, while a degree of circumspection on the part of an appeal court is called for, the court should be less restrained than it would be in other cases. The characteristics of the case to which I refer are (a) that the point at issue has only one "right" answer; (b) that the question is one of the construction of a written agreement, the making of which is not in issue; (c) that there is no significant dispute about the background facts; and (d) that, if the English court is held to have jurisdiction, that question will not be looked at again at trial.
73. As to (a), whilst a determination as to who has the better side of the argument is an evaluative exercise, it is not the exercise of a discretion. As to (b) the construction of an agreement is, in English law terms, a question of law, although factual questions as to meaning and background may have to be decided first. It is not, itself, a question of "pure" law (which an appeal court would be likely to determine at an interlocutory hearing where jurisdiction was in issue) although the principles on which agreements are to be interpreted may be regarded as such. The ToBA is subject to English law. The Framework Agreement is governed by Italian law, which, in an English Court, is a question of fact. But no evidence has been given that under Italian law the approach to interpretation is any different to that applicable under English law.
74. As to (d), the rationale for the so called Canada Trust gloss is that, in cases to which it applies, (i) the defendant is not within the jurisdiction and will not be made subject to it unless the balance of the argument is in favour of the claimant; and (ii) once the court exercises jurisdiction over him, the question of jurisdiction will not be considered again. Thus, in the present case, even if at trial the court determines that the claim falls within the purview of the Framework Agreement and is subject to Italian law, the action will not cease. It is these considerations which mandate the gloss.
75. As Waller LJ said in Canada Trust:

"The civil standard of proof has itself a flexibility depending on the issue being considered and the concept "good arguable case" has a similar flexibility. It is natural for example in a case concerned with a contract where the jurisdiction depends on whether the breach took place within the jurisdiction, but where the issue to be tried will be whether there was a contract at all, not to wish to give even the appearance of pre-trying the central issue, even though the concept of being satisfied must apply both to the existence of the contract and the place of the breach. It is equally natural for the court in the process of being satisfied to scrutinise most jealously that factor which actually provides jurisdiction. It is equally natural that where the foundation of jurisdiction is domicile i.e. an issue that will not arise at the trial, that particular scrutiny of the material available takes place in the context of the limitations applied to an interlocutory process."

76. In a case such as the present these considerations also justify a less restrained appellate approach. The jealousy of the scrutiny carries to some extent into the appeal process. In other cases the first instance judge may have to reach a view e.g. as to where the agreement was made or broken, where the defendant is domiciled, or as to which forum is the most convenient. In respect of such matters, the appellate court will be reticent in reaching a contrary view.
77. In the present case, for the reasons given by my Lord, I am satisfied that, in relation to the poorly drafted Framework Agreement and the earlier TOBA, the claimants have much the better of the argument and that the judge was not in error in so deciding.

Lord Justice Elias:

78. I agree with both judgments.
Appendix: The relevant contractual provisions

The Terms of Business Agreement

79. The material provisions of the ToBA are:

"2. Scope

2.1 The purpose of this Agreement is solely to set out the rights and obligations of the Parties only in respect of the matters specifically addressed in the Agreement. To the extent that any matters relating to the relationship between the Parties are not expressly addressed in this Agreement and/or are dealt with the underlying contract for or of Insurance Business or the terms of any Slip, or Binding Authority…they remain unaffected and unaltered by this Agreement. …

2.2 Nothing in this Agreement overrides the Brokers duty to place the interests of its client before all other considerations nor shall this Agreement override any legal or regulatory requirements…which may apply to the Broker, the Insurer, or the placing of any Insurance Business.

…

2.4 Each proposal for Insurance Business…will be accepted or declined by the Insurer at its sole discretion. The Broker is under no obligation to offer any proposal for Insurance Business or renewal of any existing Insurance Business to the Insurer.

…

5. Remuneration

5.1 Commission shall be agreed between the Parties, and shall be set out in the relevant Slip.

5.2 The Broker may deduct the Commission upon receipt of the Premium…

6. Premiums and Claims

6.1 Except where stated in 6.2, where the Broker holds:-

(a) premium due to be paid to the Insurer;

(b) return premium due to be paid to the Broker's client; or

(c) claims monies due to be paid to the Broker's client,

the Broker shall hold such monies as the agent of the client…

6.2 Where the Broker holds monies:-

(a) described in clause 6.1 above as coverholder or as placing broker for a coverholder; or

(b) for onwards payment to agents or representatives of the Insurer in respect of claims adjustment, legal and similar professional fees,

then the Broker shall hold such monies as agent and trustee of the Insurer.

…

10. Termination

10.1 This agreement shall terminate:-

10.1.1 at any time by one party giving written notice of termination to the other;

10.1.2 immediately, without notice, should either Party become the subject of voluntary or involuntary rehabilitation or liquidation proceedings…or become the subject of an action in bankruptcy or make or propose any composition with its creditors…

10.1.3 immediately, without notice, should the Broker have any authority or permission granted to it by the FSA or other relevant regulatory authority withdrawn or altered in such a manner as materially to affect in any way the Broker's ability to introduce, arrange, conclude, administer, perform or otherwise be involved with any Insurance Business which is carried out between the Parties under this Agreement;

…

10.1.5 immediately, without notice, where there is a 'change in control' of the Broker. 'Change in control' of the Broker's business will be deemed to have occurred if 25% or more of the stock evidencing ownership of the Broker is transferred to a person that was not the owner of such stock on the effective date of this Agreement.

10.2 Following termination:-

…

10.2.2 the Broker will make all reasonable efforts to provide the Insurer with contact details for any Insured or other Party with whom the Insurer has contracted in the conduct of Insurance Business where:

10.2.2.1 the Broker has acted as the agent of the Insurer; and

10.2.2.2 where such information is reasonably required for the Insurer to carry out its obligations in relation to Insurance Business concluded in accordance with this Agreement.

12. Confidentiality

Each of the Parties will treat information received from the other relating to this Agreement and to the Insurance Business as confidential and will not disclose it to any person not entitled to receive such information except as may be necessary to fulfil their respective obligations in the conduct of the Insurance Business and except as may be required by law or regulatory authority.

…

19. Rights of Third Parties

A person who is not a Party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. This clause shall not affect any right or remedy of a third party which exists or is available apart from that Act.

…

21. Jurisdiction and Choice of Law

This Agreement shall be construed according to English law and any disputes arising under it shall, subject to the provisions of clause 20 above [commitment to seek to resolve disputes without the need of litigation by mediation or otherwise] be determined in the English Courts."

The Framework Agreement

80. I summarised the material parts of the recitals to the Framework Agreement at [9] above. I now set out its material provisions.
81. Clause 1 provides:

"1. SCOPE OF THIS AGREEMENT AND UNDERTAKINGS OF THE PARTIES

1.1 AmTrust agrees it shall accept insurance proposals in respect of MedMal insurance risks in the Italian market only if such insurance proposals have been submitted to AmTrust by the TRG Group both in the event that ATEL operates in Italy under the freedom of services regime and in the event (to the maximum extent permitted by applicable law) it operates under the freedom of establishment regime… .

1.2 The TRG Group agrees to submit all its insurance proposals for MedMal risks in the Italian market exclusively to AmTrust. AmTrust shall have the authority in its sole discretion, to accept or decline any risks submitted by the TRG Group.

1.3 As a remuneration for the services rendered directly to ATEL, TRG, in the name and on behalf of ATEL, will pay to the service company nominated by ATEL, an amount equal to 6% of the gross premium before insurance premium tax…collected with reference to the Italian MedMal insurance risks underwritten by ATEL and/or AT Group from January 1 2011. …

1.4 The Parties acknowledge that:

(a) until the signing date of this Agreement, TRG has operated – and shall hence continue to operate – as a broker for the placement of (mainly but not only) Medical Malpractice insurance business in Italy (the TRG Business) to ATEL;

(b) ATEL and TRG shall modify the Term of Business Agreement (TOBA) currently in force between them to the extent necessary to reflect the terms hereunder. In particular, should ATEL decide to pursue business in Italy by establishing a branch, the Parties hereby commit to enter into an additional distribution agreement for MedMal insurance risks in Italy.

(c) The Parties shall ensure that all agreements and their respective procedures are and remain compliant with all applicable law and regulations."

82. Clause 2 of the Framework Agreement deals with the term of the agreement and provisions for termination. Clauses 2.1 – 2.3 refer to "this Agreement". Clause 2.2 provides that "this Agreement" shall be automatically terminated pursuant to Article 1456 of the Italian Civil Code when a termination notice is served by either party. TRG is entitled to serve such a notice if ATEL is no longer authorised or capable of underwriting insurance policies, there is a change of control of ATEL (provided the notice is given within 6 months), court decisions affect the AmTrust Group's capacity to operate as an insurer (provided that notice is given within 6 months of the event), and ATEL, AmTrust or other companies in the group do not comply with the exclusive right of commitment in clause 1.1. ATEL and/or AmTrust is entitled to serve a notice in the event of a change of control in TRG (provided the notice is given with 6 months of the event), the TRG Group no longer being authorised to operate as an insurance broker in Italy, the TRG Group not complying with the exclusive right commitment in clause 1.2, or adverse court decisions affecting the TRG Group's ability to operate as an insurance broker (provided the notice is given within 6 months). Either party is entitled to serve a termination notice in the event of a material breach of any obligation of the other party "under this Agreement or any other Agreement between the Parties not remedied within the following twenty (20) days", insolvency, winding-up, voluntary or mandatory application for composition with creditors or any other application for bankruptcy or insolvency procedures relating to the other party.
83. Clause 3 provides:

"3. CONSEQUENCES OF TERMINATION

Upon the termination of this Agreement for any reason whatsoever, without prejudice to the Parties rights:

(a) The exclusivity provisions between the parties will terminate. The Agreements, including the TOBA shall be modified with effect as of the date of termination of this Agreement. TRG and the service company designated by ATEL in Section 1.3 each shall be entitled to the commissions due in accordance with clause 1.3 to each party in respect of each policy which falls under the Agreement until the natural expiry of each policy (including any contractual extension periods ('the run off period').

(b) the Parties shall procure that for a period of twenty-four (24) months starting from date of termination of this Agreement, no solicitation of the respective employees takes place.

…"

84. Clause 3(d) provides inter alia that "the Parties acknowledge that no compensation would be due under Italian agency law in respect of the termination of the Agreement and/or the ToBA".
85. Clause 5 is headed "Miscellaneous". Clauses 5.1 – 5.3 refer to "this Agreement". Clause 5 also provides:

"5.5 This Agreement, including its Schedule, constitutes the entire agreement between the Parties with respect to the transactions contemplated herein, and supersedes any prior understanding, whether written or oral, with respect to such transactions or any other matter peripheral or ancillary thereto.

…

5.8 Each Party shall bear all costs and expenses (including legal, accounting or other purposes expenses) incurred in connection with the negotiation, preparation, execution and performance of this Agreement.

5.9 The recitals hereto and its Schedule are an integral part of this Agreement.

…"

86. Clause 6 provides:

"6. APPLICABLE LAW AND ARBITRATION

6.1 This Agreement shall be governed by, and construed and enforced in accordance with Italian law.

…

6.3 [A]ny dispute out of or in connection with this Agreement shall be finally settled by an arbitration panel composed of three (3) arbitrators…

6.4 The arbitrators shall apply Italian law.

6.5 The seat of the arbitration shall be Milan."

87. Clause 7 concerns information to the public and confidentiality. It provides:

"7.1 All information relating to contents of this Agreement and/or any information relating to each of the Parties which any of the Parties may learn or has learned since the commencement of negotiation of this Agreement (the Confidential Information) shall be kept confidential for a term of 3 (three) years following the termination of this Agreement for any reason. Each of the Parties shall not use or disclose the Confidential Information (except for use required to fulfil the provisions of this Agreement during the term thereof) and it shall take all necessary steps to preserve such confidentiality and secrecy in all respects. …

7.2 The Parties agree that any press release or public announcement concerning this Agreement…shall be jointly discussed and agreed upon."

88. Clause 8 provides:

"8. SCHEDULE

Schedule 1 – TOBA agreement."

Note 1    See Canada Trust Co v Stoltzenburg (No 2) [1998] 1 WLR 547 at 555 per Waller LJ, set out at [16(2)] below. In Joint Stock Co “Aeroflot Russian Airlines” v Berezovsky [2013] EWCA Civ 784, reported at [2013] 2 Lloyd’s Rep. 242 Aikens LJ at [50] stated that too much emphasis on the word “much” would simply lead to the error of imposing too high a standard of proof at the interlocutory stage. The distinction is not material to the result in the present case.    [Back]

Note 2    Slim v Daily Telegraph Ltd [1968] 2 QB 157, at 171    [Back]

Note 3    See Canada Trust v Stoltzenburg (No 2) [1998] 1 WLR 547 at 555, discussed in Konkola Copper Mines plc v Coromin Ltd [2006] EWCA Civ 5, reported at [2006] 1 Lloyd’s Rep. 410 at [81] and [96] , Cherney v Deripaska [2008] EWHC 1530 (Comm), reported at [2009] 1 All ER (Comm) 333 at [18] – [25], [40] – [42] and [44], affirmed [2009] EWCA Civ 849 and Antonio Gramsci SS Corp. v Lembergs [2013] EWCA Civ 730, reported at [2014] BCLC 581 at [15] – [17].    [Back]

Note 4    Joint Stock Co “Aeroflot Russian Airlines” v Berezovsky above, n.1.    [Back]

Note 5    [2008] EWHC 1530 (Comm) reported at [2009] 1 All ER (Comm) 1138 at [41], aff’d [2009] EWCA Civ 849 reported at [2010] 1 All ER (Comm) 456.    [Back]

Note 6    Credit Suisse First Boston (Europe) Ltd v MLT (Bermuda) Ltd [1999] 1 Lloyd’s Rep 767 at 777; UBS AG v HSH Norbank AG [2009] EWCA Civ 585, reported at [2010] All ER (Comm) 727 at [94].    [Back]

Note 7    UBS AG v HSH Norbank AG [2009] EWCA Civ 585, reported at [2010] All ER (Comm) 727 at [84] per Lord Collins.    [Back]

Note 8    See Mitsui Construction Co Ltd v Attorney-General of Hong Kong (1986) 33 Build LR 1 at 14    [Back]

Note 9    See Ravennavi SPA v New Centuries Shipbuilding Co Ltd [2007] EWCA Civ 58 at [12]    [Back]

Note 10    See the cases referred to in Lewison, The Interpretation of Contracts, 5th ed, 67 – 70.    [Back]