Tyson International Company Limited v Partner Reinsurance Europe SE

A later contract can replace earlier forum-selection and governing-law clauses where the parties’ objective common intention, assessed in context, supports that result. Express words of variation are unnecessary. Earlier contract-change formalities do not necessarily govern a separate later agreement. Market forms and customary practice cannot impose an immutable legal character on the documents. Where the later agreement provides for arbitration of the dispute, the court must stay proceedings under the Arbitration Act 1996. Anti-suit relief remains discretionary, and unexplained delay may bar it.

Tyson International Company Limited v Partner Reinsurance Europe SE concerned two reinsurance contracts covering the same risk, period and parties. The first, a Market Reform Contract, provided for English law and exclusive English jurisdiction. The later Market Uniform Reinsurance Agreement provided for New York law and arbitration.

The respondent sought a stay under section 9 of the Arbitration Act 1996 after the applicant commenced English proceedings concerning avoidance of the reinsurance. The applicant sought an anti-arbitration injunction under section 37 of the Senior Courts Act 1981. The central issue was whether the later agreement replaced the earlier forum-selection and governing-law provisions.

The respondent’s section 9 stay application was granted. The applicant’s anti-arbitration injunction application failed.

1. Effect of the later agreement. The later agreement was contemplated in advance, separately signed, described as an agreement, and contained all operative terms needed for a reinsurance contract. Objectively assessed, it replaced the earlier English jurisdiction and governing-law provisions with New York arbitration and New York law. The short interval between the contracts, commercial unusualness, and absence of express words such as vary or supersede did not prevent that conclusion.
2. Market practice and contractual formalities. The habitual use of market forms could not dictate the legal effect of the documents in this case. The court rejected the suggested fixed market custom. The earlier change-of-contract provisions did not contra-indicate the parties’ intention, because the parties had entered into a further contract rather than attempting an endorsement under the earlier contract. The court also noted that problems concerning oral variations were not engaged, referring to MWB Business Exchange Centres Ltd v Rock Advertising Ltd [2018] UKSC 24; [2019] AC 119.
3. Implied rescission. The later agreement was necessarily inconsistent with continued reliance on the earlier agreement. The court considered that this might amount to implied rescission of a separable jurisdiction agreement, citing Frangou v Frangos [2023] EWCA Civ 1320, but held that this analysis was unnecessary because variation was sufficient.
4. Stay. The parties had agreed to refer the relevant dispute to New York arbitration. The court therefore stayed the English proceedings under section 9 of the Arbitration Act 1996. There was no need to reconcile the two clauses; the later clause supplanted the earlier one.
5. Anti-arbitration relief. Since the New York arbitration was contractually authorised, there was no unlawful, vexatious or abusive conduct justifying relief under section 37 of the Senior Courts Act 1981. Alternatively, the court considered that the applicant’s unexplained six-month delay would have justified refusing relief. The promptness principles in The Angelic Grace [1995] 1 Lloyd's Rep 427 and the comity considerations discussed in Ecobank Transnational Inc v Tanoh [2015] EWCA Civ 1309; [2016] 1 WLR 2231 were considered. Permission to appeal was indicated as likely to be granted if sought.

First-instance decision. The judge was minded to grant permission to appeal if sought, in view of the novel contractual and anti-arbitration issues.