Hashwani & Ors v OMV Maurice Energy Ltd

Where related contracts contain more than one arbitration provision, the existence of concurrent provisions does not invalidate or automatically displace either provision. The court must construe the contractual language and determine whether the particular claim falls within the relevant arbitration agreement.

A specific agreement does not supersede a general agreement unless the contractual terms show that result. Where a contract incorporates another arbitration clause mutatis mutandis, the clause may operate in the expanded contractual setting created by later assignments. Under s.72 of the Arbitration Act 1996, the court may determine jurisdiction itself where the position is clear, but may leave the issue to the arbitrators where an arbitration will occur in any event and the claims are closely connected.

The claim arose from oil and gas exploration agreements concerning a Pakistani concession. OMV commenced ICC arbitration against OPL and ZPCL for unpaid cash calls and related relief. OPL and ZPCL challenged the ICC’s jurisdiction under s.72 of the Arbitration Act 1996. OMV sought a stay, including under s.9, contending that the ICC arbitration clause in the Petroleum Concession Agreement, incorporated into the Joint Operating Agreement, applied.

The central issues were whether the ICC clause applied to OMV’s claim against OPL, another foreign Working Interest Owner, and whether it also applied to OMV’s claim against ZPCL, a Pakistani Working Interest Owner.

1. OMV and OPL. The claim against OPL was a dispute between foreign Working Interest Owners inter se and plainly fell within Article 28 of the Petroleum Concession Agreement, incorporated into the Joint Operating Agreement by Article 17. The arbitration agreement was valid for the purposes of s.72.
2. The Farmout Agreement did not supersede or oust the Joint Operating Agreement or the Petroleum Concession Agreement. Even if the dispute fell within both arbitration provisions, that did not invalidate or displace the ICC clause. The existence of two potentially applicable arbitration provisions did not require the court to select the more appropriate provision by reference to an analogy with forum conveniens.
3. OMV and ZPCL. Although ZPCL was a Pakistani Working Interest Owner, Article 17 had to be read mutatis mutandis after ZPCL became a party to the Joint Operating Agreement and the Petroleum Concession Agreement. That construction gave practical effect to the words mutatis mutandis and avoided treating the dispute as one governed by the domestic arbitration proviso applicable to disputes between Pakistani parties.
4. The court could either decide that the ZPCL claim clearly fell within the ICC’s jurisdiction or leave the issue to the ICC arbitrators. In view of the closely connected claims and the fact that the OPL claim would in any event proceed before the ICC, it was sensible to leave the ZPCL jurisdiction question to the arbitrators. To that extent, the s.72 application failed.

First-instance decision. No prior appellate decision was stated in the judgment.