Tyson International Company Ltd v GIC Re, India, Corporate Member Ltd

Where parties execute successive reinsurance documents containing different dispute-resolution provisions, a clause giving the earlier document precedence in case of confusion ordinarily operates as a hierarchy clause. It applies where the documents create a confusing difference, including incompatible choices of court and arbitration, rather than only where the later document is internally unclear. The court must construe the documents objectively and give effect to the agreed hierarchy. Although courts should try to reconcile arbitration and jurisdiction clauses, that approach cannot invert the parties’ bargain or reduce an exclusive jurisdiction clause to a merely supervisory role where the hierarchy clause gives priority to it. If the provisions are genuinely inconsistent, the agreed priority clause should be applied.

Tyson International Company Ltd had reinsured its captive insurance business with GIC Re under two Market Reform Contracts signed on 30 June 2021. The MRCs provided for English law and exclusive English jurisdiction. Nine days later, the parties agreed Facultative Certificates on the MURA form, containing New York law and arbitration clauses, together with a clause stating that the RI slip should take precedence over the reinsurance certificate in case of confusion.

After a fire loss, GIC purported to rescind the reinsurance for alleged misrepresentation. The Commercial Court held that the Confusion Clause made the MRCs prevail and that the clauses were irreconcilable, granting a permanent anti-suit injunction: [2025] EWHC 77 (Comm). GIC appealed, contending that the Confusion Clause concerned only internal uncertainty in the Certificates and that the English jurisdiction clause could operate as an auxiliary or supervisory jurisdiction clause over New York arbitration.

The appeal was dismissed. Lord Justice Nugee gave the judgment, with Lady Justice Asplin and Lord Justice Miles agreeing.

1. Construction of the Confusion Clause. The clause’s effect, where engaged, was to make the MRC the dominant contractual document. “Confusion” naturally included the confusing situation produced when provisions in the MRCs and Certificates dealt differently with the same subject matter. The wording and commercial context strongly favoured that construction. The parties had used two standard forms and had adopted a similar contractual hierarchy in the preceding policy year. GIC’s construction would make the MRC revive only in an ill-defined class of cases involving internal inconsistency in the Certificate, potentially replacing both Certificate provisions with a third provision from the MRC. That made little commercial sense.
2. The individually negotiated premium date created a theoretical conflict, but it was not sufficiently practical to displace the construction. The cancellation amendment qualified or modified the MRC provision rather than contradicted it. A term is inconsistent only where it conflicts with another term so that effect cannot fairly be given to both, applying Pagnan [1987] 3 All ER 565.
3. Reconciliation of the clauses. The related Partner Re decisions were distinguishable because the later Certificates contained no wording giving priority to the earlier MRCs: Tyson International Co Ltd v Partner Reinsurance Europe SE [2023] EWHC 3243 (Comm); [2024] EWCA Civ 363. Authorities such as ACE Capital [2008] EWHC 1843 (Comm) and Sul América [2012] EWHC 42 (Comm) show that arbitration and exclusive jurisdiction clauses in one document may be reconciled by giving the jurisdiction clause a limited auxiliary or supervisory role. That approach does not override an express hierarchy clause.
4. The MRCs gave the English courts exclusive jurisdiction over all matters relating to the insurance. The later Certificates required New York arbitration. Those provisions were flatly inconsistent. Treating the English clause as merely supervisory would give priority to the Certificates and invert the bargain established by the Confusion Clause. The Commercial Court was therefore right to hold the provisions irreconcilable and to grant the permanent anti-suit injunction.

• Court of Appeal (Civil Division) — The appeal from [2025] EWHC 77 (Comm) was dismissed. The permanent anti-suit injunction was upheld.
• High Court, Commercial Court — The court held that the Confusion Clause gave precedence to the MRCs and that the English jurisdiction clause and New York arbitration agreement were irreconcilable. It granted a permanent anti-suit injunction: [2025] EWHC 77 (Comm).