Agreements to arbitrate: incorporation

Where a contract contains different dispute resolution provisions, it is a settled principle that the court will try to construe the provisions consistently rather than giving rise to a conflict. Thus, where a contract contains both an arbitration clause and a jurisdiction or service of suit clause, the general approach in England is to regard arbitration as the primary means of dispute resolution, with the reference to the court being treated as confined to: curial support for the arbitration; enforcement of any award; or providing a fallback in the event that the parties agree to waive the arbitration clause.

That was the approach adopted by Knowles J in Catlin Syndicate Ltd v Weyerhaeuser Co [2018] EWHC 3609 (Comm). The case was complicated by the fact that the arbitration clause had been incorporated from another contract involving a different party, and the English cases have tended to shy away from treating generally incorporating words as extending to arbitration. However, Knowles J, without referring to any authority whatsoever, gave primacy to an incorporated arbitration clause over what looked to be a self-contained jurisdiction provision in the form of a “Service of Suit Clause”.