Tyson International Company Limited v GIC, RE, India, Corporate Member Limited

Where successive reinsurance documents contain competing dispute-resolution provisions, the court must construe them as a whole and give effect to any contractual hierarchy clause. A facultative certificate may be a later, binding contract which supersedes an earlier Market Reform Contract. However, a clause providing that the earlier contract takes precedence in case of confusion or inconsistency may restore the earlier jurisdiction clause.

Arbitration clauses should generally be construed broadly, and courts should seek, where possible, to give effect to arbitration. That principle cannot justify rewriting irreconcilable provisions or ignoring an express precedence clause. Where an exclusive English jurisdiction clause and a New York arbitration clause cannot sensibly operate together, the contractually prevailing clause governs.

The claimant, a Bermuda captive insurer, sought final anti-suit or anti-arbitration relief after the defendant reinsurer commenced proceedings and arbitration-related steps in New York. The defendant sought a stay under section 9 of the Arbitration Act 1996, and challenged the jurisdiction of the English court.

The parties had first agreed Market Reform Contracts containing English law and exclusive English jurisdiction provisions. They later agreed facultative certificates on the MURA form containing New York law and arbitration provisions. The certificates also stated that the reinsurance slip was to take precedence over the certificate in case of confusion. The central issues were the contractual relationship between the documents, the effect of the confusion clause, and whether the competing dispute-resolution provisions could be reconciled.

1. Stay and anti-suit relief. The application for a stay under section 9 of the Arbitration Act 1996 was refused. Final anti-suit relief was granted, including relief requiring revocation of the defendant’s appointment of its party arbitrator.

2. Determination of the arbitration issue. The court could determine on the written evidence whether a concluded arbitration agreement existed. The issue principally concerned contractual construction, and neither party identified evidence likely to alter that determination. The defendant therefore had to establish, on the balance of probabilities, a concluded arbitration agreement covering the dispute.

3. Status of the facultative certificates. Subject to the confusion clause, the facultative certificates were contractual documents which superseded the MRCs. They were self-standing reinsurance contracts, expressly contractual in form, accepted through the placing platform, and subject to an entire agreement clause. The certificates clause in the underlying policy did not prevent the parties replacing an earlier contract by later contractual terms contained in a document described as a certificate.

4. Construction of the confusion clause. The reference to confusion covered inconsistency between the MRCs and the facultative certificates. Read as a whole, the clause provided that the MRCs took precedence where such inconsistency existed. The court rejected a construction confined to uncertainty within the later certificates.

5. Irreconcilable dispute-resolution provisions. The English exclusive jurisdiction clause and the New York arbitration provisions were irreconcilable. The arbitration clause required New York arbitration as a condition precedent to any action and applied New York law, whereas the MRCs required English law and exclusive English jurisdiction. Reading the provisions together as a Scott v Avery clause or as conferring supervisory jurisdiction on the English courts would deprive the jurisdiction clause of any sensible purpose and would contradict the agreed hierarchy.

6. The principles favouring arbitration and a single tribunal remained relevant, but they could not override the ordinary rules of contractual construction or the express precedence clause. The injunction was granted finally, with liberty to apply limited to matters such as unforeseen material changes, misleading the court, abuse of process or material change in the law.

First-instance decision. The judgment records earlier decisions in related proceedings, including Tyson International Company Limited v Partner Reinsurance Europe SE [2023] EWHC 3243 (Comm) and the Court of Appeal decision [2024] EWCA Civ 363, but those were separate proceedings against another reinsurer.