Clifford Chance LLP v Société Générale SA

A framework agreement between a bank and one entity within an international law firm does not, without clear wording or authority, bind every related entity or incorporate its choice of law and jurisdiction clause into individual retainers worldwide. An implied solicitor-client retainer may arise from instructions, acceptance and conduct, and its governing law is determined under the applicable conflicts rules. A foreign exclusive-jurisdiction clause may be withheld exceptional effect where it would fragment genuinely related proceedings. A forum non conveniens stay requires the foreign forum to be available and clearly or distinctly more appropriate.

Société Générale sought to challenge the English court’s jurisdiction over declarations sought by Clifford Chance LLP and Clifford Chance Europe LLP in relation to a proposed professional negligence claim arising from the handling of the Goldas Dispute. The bank relied principally on exclusive jurisdiction clauses in framework agreements referring disputes to the High Court of Paris, and alternatively sought a stay on forum non conveniens grounds.

The Goldas claims had been struck out in the High Court on 3 April 2017 ([2017] EWHC 667 (Comm)) and that decision was upheld by the Court of Appeal on 15 May 2018 ([2018] EWCA Civ 1093). The central issues were whether the framework agreements bound CC LLP, whether their jurisdiction provisions governed the relevant retainer, and whether France was clearly or distinctly the more appropriate forum.

Application dismissed. Société Générale had not established that the English proceedings fell within the Paris jurisdiction clauses, and France was not clearly or distinctly the more appropriate forum.

1. CC LLP was the entity instructed in the Goldas Dispute. The 2003, 2006 and 2009 framework agreements named CC Europe as the Clifford Chance contracting party. Their global provisions were consistent with CC Europe undertaking that other Clifford Chance entities would follow agreed procedures and rates, without making those entities parties to the agreements. Acceptance of fees at agreed rates and compliance with reporting requirements did not incorporate the framework agreements or their jurisdiction clauses into CC LLP’s retainer.
2. The 2012 and 2015 wording that CC Europe acted on behalf of all Clifford Chance offices did not establish that CC Europe had actual authority to bind CC LLP. Nor had Société Générale shown a plausible evidential basis for apparent mandate under Article 1156 of the French Civil Code. Subsequent compliance with rates and reporting obligations was equally consistent with CC LLP honouring undertakings made by CC Europe.
3. Even if CC LLP had been bound by the later framework agreements, their French law and Paris jurisdiction provisions governed the overarching relationship with CC Europe and the local Paris relationship. They did not clearly govern individual retainers of CC LLP worldwide, particularly an existing retainer for English litigation. CC Europe was bound by the clauses, but there was no genuinely arguable substantive claim against it. Preventing CC Europe from proceeding in England would fragment the proceedings, providing exceptional reasons to refuse a stay.
4. An implied retainer likely arose when CC LLP accepted Société Générale’s instructions. Under the Rome Convention, the retainer was governed by English law: it was a service contract, the provider was habitually resident in England, and the work concerned English litigation.
5. Under Spiliada Maritime Corp v Cansulex Ltd [1987] A.C. 460, Société Générale had to show that France was available and clearly or distinctly more appropriate, subject to the further justice limb. It failed to do so. The relevant events, documents, witnesses, English law and English litigation were principally connected with England. The French courts were therefore not the clearly more appropriate forum.