R + V Versicherung AG v Robertson And Co SA

For Article 23 of the Lugano Convention, a jurisdiction agreement must be clearly and precisely demonstrated, and the writing requirement exists to provide clear proof of consensus. The agreement is an autonomous concept of EU law and is assessed objectively. It may be evidenced by several documents and need not emanate from the party said to be bound.

There is no general rule that incorporation by reference is effective only for standard terms. The court must construe the language in its commercial context and decide whether the parties objectively intended to incorporate the jurisdiction clause. In a joint instruction, proceeding on the same contractual terms may provide powerful evidence of that intention.

R + V Versicherung AG, a German reinsurer, sought to maintain English proceedings against Robertson and Co. SA, a Swiss loss adjuster, concerning services provided after R + V joined an instruction originally given by AIG.

R + V relied on an exclusive English jurisdiction clause in a Master Agreement between Robertson and an AIG company. Robertson disputed that the Master Agreement governed its relationship with R + V and applied to set aside service for want of jurisdiction. The issue was whether R + V had the better of the argument that Article 23 of the Lugano Convention applied.

1. The application to set aside service was dismissed. At the jurisdiction stage, R + V had to show a good arguable case, meaning the better of the argument, that the parties had agreed an exclusive English jurisdiction clause under Article 23 of the Lugano Convention.

2. The court adopted the established principles that the writing requirement provides clear proof of the jurisdiction agreement; consensus must be clearly and precisely demonstrated; the existence of the agreement is an autonomous question of EU law; and the agreement is assessed objectively. Domestic arguments that the underlying contract was void or invalid did not generally determine the issue, subject to possible bad faith. A separability-like approach applied.

3. The required writing could consist of several documents. It need not be a single document or emanate from the party sought to be bound. A written confirmation received without timely objection could be sufficient evidence of an earlier oral agreement.

4. No rule or presumption restricted incorporation by reference to standard trading terms. The question was one of construction in the commercial context. The authorities concerning incorporation from wholly different contracts, including reinsurance and charterparty examples, did not establish a general rule and were materially distinguishable.

5. The contemporaneous meeting notes, emails and the Master Agreement provided the better of the argument that R + V, Robertson and AIG agreed to proceed on the Master Agreement’s terms, subject to agreed variations concerning chargeable rates, quarterly budgets and cost sharing. The documents objectively supported a joint instruction on the same terms as AIG’s instruction.

6. At this interlocutory stage the court was not finally determining incorporation. The subsequent court could reach a different conclusion, but the evidence was sufficient for the purposes of Article 23. Robertson’s lis alibi pendens argument had been abandoned.

First-instance application in the High Court concerning service and jurisdiction. No earlier decision is stated in the judgment.