Jurisdiction agreement incorporated from one document into another

Article 23(1 )(c) may also point the way to a sensible analysis of the problems which arise when it is alleged that there has been an incorporation of an agreement on jurisdiction for the courts of a Lugano State from one contract into another, so that it may be said that there has been agreement of the jurisdiction of the court in question. Of course, if a contract made by the parties makes reference to a jurisdiction agreement in another document, which is still accessible, the signing of the contract will serve as the agreement of the parties to be bound by it. But in some other fields of commercial activity it will be done differently. For example, in the field of insurance and reinsurance a contract may provide that ‘all terms’ are tobe ‘as original’. If the ‘original’ contract contained an agreement on jurisdiction, it may be argued that these general words of incorporation fetch and carry that agreement on jurisdiction from the first contract, and drop it into the second. In English“ domestic law it used to be said that words of such generality do not routinely incorporate the agreement on jurisdiction into the new contract. Several reasons were given for this. For one, it may be said that the jurisdiction agreement is ancillary to the subject matter of the contract, which is the ‘risk’, and not germane to it,^[1] and that more specific reference to the jurisdiction agreement was needed to achieve its incorporation. There may also be a problem if the clause in the first contract between A and В would, if copied verbatim, make little sense in the second contract between В and C. Such reasoning may be used to explain why a bill of lading, which purports in general terms to incorporate the terms of the charterparty into the bill, may not incorporate a jurisdiction or arbitration agreement from that charterparty: incorporation from one contractual document to another is easier where the parties to each are the same. However, such objections now appear to be somewhat diluted.

While this may be well understood as a matter of the common law of contract, it is not so certain that the rules of the common law (or, if it is alleged that the bill or reinsurance is governed by a foreign law, the rules of the private international law) provide a satisfactory answer. For it may be that the question whether a jurisdiction provision has been incorporated into a contract, so that a party to that contract may be said to have agreed to it, is actually an issue on which Article 23(1) frames the analysis. It may be shown that a contract term has been incorporated from one document into another, but that is not the precise point: the question is whether the party to be bound has agreed, in writing or in other effective form, to the jurisdiction of the court in question, and the law on incorporation of terms into contracts has little to do with it. Of course, if this form of incorporation is practised in the particular trade, and satisfies the further requirements of Article 23(1 )(c), this may be effective to establish the validity of the agreement.

A similar question may arise if it is argued that a jurisdiction agreement made in (or when the parties made) one contact may also apply to a dispute arising under a later, separate, contract which is connected to the earlier one. The answer has to be found by asking whether the parties would have expected a dispute arising from the second contract to be governed by the earlier jurisdiction, or would be taken by surprise by the suggestion. There does not appear to be a bright line answer; it will depend on the facts and on the interconnectedness of the contracts.

The recent approach of the English courts to such questions, at least, has been to regard the question as one on which what is now Article 23 provides the answer, but to interpret the requirements of Article 23 in this context as requiring it to be shown that there was ‘a clear and precise determination that the jurisdiction clause was the subject of consensus’. This may not be exactly how Article 23 puts it, but it may well be what it means; and a test framed in these words has the potential to find the common ground beneath the common law approach and that set out in Article 23.

• [1] In principle it may be different if the second contract is governed by something other than English law. 2 Crédit Suisse v Association Générale d'Enterprises [1997] CLC 168; AIG Europe (UK) Ltd v The Ethniki [2000] 2 All ER 566; A1G Europe SA v QBE International Insurance Ltd [2001 ] 2 Lloyd’s Rep 268; Assicurazioni Generali SpA v Ege Sigorta AIS [2002] Lloyd’s Rep IR 480; Evialis v SIAT [2003] EWHC 863 (Comm), [2003] 2 Lloyd’s Rep 377; Siboti KIS v BP France SA [2003] EWHC 1278 (Comm), [2003] 2 Lloyd's Rep 364; IVelex AG v Rosa Maritime Ltd [2003] EWCA Civ 938, [2003] 2 Lloyd's Rep 509; 7E Communications Ltd v Vertex Antennentechnik GmbH [2007] EWCA Civ 140, [2008] Bus LR 472; Africa Express Line Ltd v Socofi SA [2009] EWHC 3223, [2010] 2 Lloyd's Rep 181; Habaç Sinai ve Tibbi Gazlar istihsal Endiistrisi AS v Sometal SAL [2010] EWHC 29 (Comm), [2010] Bus LR 880. 3 Or arbitration. 4 For example, IVe/ex AG v Rosa Maritime £/