SEA2011 Inc v ICT Ltd

In a jurisdictional challenge under section 67 of the Arbitration Act 1996, the court must determine contractual identity and the existence of an arbitration agreement by applying ordinary principles of construction and contractual inference. A company may be identified despite a mistaken name where the contract contains a clear mistake and the correction required to give effect to the parties’ objective intention is clear. Where parties continue to perform an existing commercial relationship after a change in legal personality, the court may infer a new contract on the earlier terms, including its arbitration clause. The scope of an arbitration reference is construed commercially and is not a procedural straightjacket. It may be widened by implication, and a legal analysis supporting the pleaded contractual claim may fall within the reference even if the notice describes the contractual mechanism inaccurately.

The claimant challenged two partial awards under section 67 of the Arbitration Act 1996. The underlying dispute arose from a sales agency agreement dated 28 January 2011, which named SEA Inc as principal and ICT Ltd as agent and contained a London arbitration clause.

The claimant raised three jurisdictional objections: that ICT Ltd was not the contracting agent because its registered name was then IN Ltd; that SEA2011 Inc was not the named principal; and that the notice of arbitration referred to an assignment rather than the implied contract relied on before the arbitrator. The court reheard the jurisdictional issues following Dallah Real Estate & Tourism Holding Co v Pakistan [2010] UKSC 46.

1. Rehearing and contractual identity. The section 67 challenge was a rehearing of jurisdiction. The court rejected the first challenge. There was a clear mistake in naming “ICT Ltd”, since no United Kingdom company had that name or the stated registered office when the agreement was made. Applying ordinary principles of construction, the reference was corrected to “IN Ltd trading as ICT”, with consequential corrections to the description of incorporation and trading address. The relevant question was the meaning conveyed to a reasonable person with the parties’ background knowledge. The existence of the Isle of Man company was legally irrelevant because it was unknown and did not fit the contractual description.
2. Implied contract. After SEA2011 Inc took over SEA Inc’s business, the parties continued for about three years to perform the sales agency relationship in the same practical manner. They referred to the agreement, its commission provisions and its termination. Their conduct objectively manifested consent to a contractual relationship on the terms of the earlier agreement. The minor change of name in the 2012 email did not communicate a change in legal personality.
3. Arbitration clause. The arbitration provision was part of the implied contract. Its incorporation was assessed normally and commercially. There were no circumstances requiring a presumption against incorporation: the clause was known, required no modification and imposed no unduly onerous obligation. The fact that an arbitration clause is ancillary and constitutes a separate agreement did not impose a special evidential rule.
4. Scope of reference. The notice of arbitration, construed in context, covered the implied-contract analysis. Alternatively, the parties had impliedly agreed to widen the reference. The principle that arbitrators may determine only matters properly referred to them did not operate as a straightjacket.
5. Disposition. The court refused to set aside the partial awards and refused to declare that the arbitrator lacked jurisdiction. The claim was dismissed.