Al Mana Lifestyle Trading L.L.C & Ors v United Fidelity Insurance Company PSC

A jurisdiction clause in an insurance policy may provide a true non-exclusive alternative between the courts of the country of issue and the courts of England and Wales. The expression “in accordance with” does not, without more, make local jurisdiction exclusive. There is no general presumption that a choice of governing law makes jurisdiction exclusive, particularly where more than one forum is identified and the contract is an insurance policy. An agreed English forum should ordinarily be respected unless strong reasons justify declining jurisdiction.

The claimants brought claims under 17 multi-risks insurance policies for alleged Covid-19 business interruption losses. The policies were issued in the UAE, Qatar and Kuwait and contained an “Applicable Law and Jurisdiction” clause referring first to the law and jurisdiction of the country of issue and otherwise to England and Wales jurisdiction.

The defendants applied to set aside service out of the jurisdiction or, alternatively, to have the English court decline jurisdiction. The central issues were whether the clause conferred exclusive local jurisdiction, a non-exclusive choice between the local courts and England and Wales, or only a conditional fallback jurisdiction; and whether forum non conveniens considerations justified declining jurisdiction.

1. The clause was difficultly drafted, but its better construction was that it conferred non-exclusive jurisdiction on the courts of the country where each policy was issued and, alternatively, on the courts of England and Wales. The word “otherwise” did not necessarily introduce a conditional fallback. Such a construction would require an unstated trigger, which the clause did not identify.
2. The authorities concerning “subject to” or similar mandatory wording were materially different. They concerned a single identified forum, or an unrestricted exclusive/non-exclusive dichotomy. They did not establish a presumption that a clause was exclusive where two limited alternative forums were named. “In accordance with” was not synonymous with “subject to”.
3. The commercial context supported a true alternative. The policies formed a suite covering operations in several jurisdictions, and a neutral forum could avoid fragmented proceedings.
4. A jurisdiction agreement in favour of England, whether exclusive or non-exclusive, should be respected unless there are strong reasons not to do so. A non-exclusive agreement creates a strong prima facie case that England is a forum conveniens. Foreseeable matters such as foreign governing law, the parties’ locations and the location of evidence generally carry limited weight.
5. The defendants failed to establish strong reasons. The applications to set aside service and to decline jurisdiction were dismissed.

First-instance decision. No earlier appellate decision is stated in the judgment.