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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Destin Trading Inc v Saipem SA [2025] EWHC 668 (Ch) (24 March 2025) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2025/668.html Cite as: [2025] EWHC 668 (Ch)

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IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (Ch D)

		24 March 2025

Andrew Lenon KC:

Introduction

1. The Defendant ("Saipem") has applied for a stay under section 9 of the Arbitration Act 1996 ("the 1996 Act") of parts of a claim brought by the Claimant ("Destin") on the ground that they are matters to be referred to arbitration pursuant to prior arbitration agreements made between the parties. Destin resists the application on the basis that the entirety of its claim is encompassed by a jurisdiction clause in a settlement agreement which superseded the arbitration agreements.

Factual Background

2. Saipem is a French engineering company and part of the Saipem Group, which is owned and controlled by Saipem SpA, a company listed on the Italian stock exchange. Saipem provides project management, infrastructure and plant services to the offshore oil and gas industries and activities in Africa.
3. Destin is a Panamanian company which carries on the business of providing management and logistical services, including the chartering of vessels and related equipment, to partners engaged in inter alia the offshore oil and gas industry in Africa.
4. Destin and Saipem had a longstanding partnership in jointly delivering services to clients in the oil and gas industries in Africa, with Destin providing marine vessels and other equipment and services to Saipem in connection with Saipem's offshore oil projects.
5. In 2011 and 2012 the parties entered into a series of Memoranda of Understanding relating to various projects. In September and October 2012 they concluded three more specific Frame Agreements concerning certain of these projects. Each of the Frame Agreements provided that the parties were bound by Saipem's General Terms and Conditions for Agreement Documents ("GTCs"). The GTCs incorporated ICC arbitration clauses providing for ICC arbitration seated in London.
6. Initially all went well with Saipem making payments to Destin and Destin providing services to Saipem. However a dispute arose over the amount owed to Destin. Destin's case is that it had been paid US$15,353,097.48 but had delivered services under one of the Frame Agreements which related to a project referred to as the Congo River Crossing Project ("the Congo River Frame Agreement") worth US$22,158,118.47. Saipem did not accept that there was any shortfall in payments.
7. On 5 November 2013 the parties entered into a settlement agreement ("the Settlement Agreement") under which the parties settled Destin's claim, gave a mutual release of claims and terminated the Frame Agreements. There was also a clause providing for the Courts of England and Wales to have exclusive jurisdiction to settle any dispute arising out of or in connection with the Settlement Agreement.
8. The reasons for entering into the Settlement Agreement are disputed. Destin contends that Saipem wished to enter the Settlement Agreement as a response to investigations by Algerian and Italian authorities into accusations of corrupt activities by Saipem, in order to demonstrate that it was making a break with its former activities. Destin alleges that it was induced to enter the Settlement Agreement by fraudulent or negligent misrepresentations by Saipem to the effect that, in exchange for entering into the Settlement Agreement, Saipem would award Destin further contracts for years to come. Destin contends that as a result of the misrepresentations it alleges, it is entitled to rescission of the Settlement Agreement and that it is further entitled to payment of certain amounts that would have been due to it pursuant to the Congo River Frame Agreement, but for the Settlement Agreement.
9. Saipem contends that it entered into the Settlement Agreement because it wished to terminate the Frame Agreements and that the Settlement Agreement had nothing to do with any investigations into its activities. It denies that any of the alleged representations were ever made and specifically denies that any representations were made as to any future awards of contracts.

Contractual provisions

(i) The Frame Agreements

10. Clause 1 of each of the Frame Agreements defined the "Agreement Documents" as including both the Frame Agreement itself and the GTCs.

(ii) The GTCs

11. The GTCs included the following provisions:

30 SURVIVAL OF PROVISIONS

Those provisions of the AGREEMENT DOCUMENTS which by their nature extend beyond the completion of the SERVICE(S) shall survive any expiration, cancellation or termination of the AGREEMENT DOCUMENTS and/or WORK ORDER.

…

50 SETTLEMENT OF DISPUTES

…

50.2 Unless otherwise stated in the AGREEMENT, all disputes arising out of or in connection with the AGREEMENT DOCUMENTS which are not settled amicably under the preceding paragraph of this Clause within forty-five (45) Calendar Days after receipt of the above-mentioned written request, shall be submitted by either PARTY to arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce by three (3) arbitrators appointed in accordance with the said rules.

50.3 Unless otherwise stated in the AGREEMENT, the arbitration proceeding shall be held in London (United Kingdom) and conducted in the English language.

51 GOVERNING LAW

Unless otherwise stated in the AGREEMENT, the AGREEMENT DOCUMENTS shall be governed by and construed in accordance with the provisions of the Laws of England …

(iii) The Settlement Agreement

12. The Settlement Agreement includes the following provisions:

WHEREAS:

….

(G) Disputes have arisen between the Parties with respect to the amounts due to Destin and Saipem have consequently halted any and all payments in excess to USD 15.353.097,48 ("Paid Amount"), being the Paid Amount the sum of the above mentioned Advance Payments and the amounts paid under [the Congo River FA].

(H) The Parties now desire to enter into this Settlement Agreement ("Settlement Agreement" or "Agreement") in order to reach a full and final agreement with respect to the amount due to Destin for the services performed.

…

1. The Parties agree that this Settlement Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes any prior written or oral communication between them

2. Destin represents and warrants that they have satisfied all their obligations towards the Owners and that the Owners do not have any outstanding demand and/or claims towards Destin and/or Saipem. Saipem declares they have received the original Letters of Undertaking (or similar confirmation that they have considered as expired) that were issued to the Owners to Saipem

3. Saipem confirms and Destin accepts that the amount of 15 152 114.81 USD only (the 'Final Amount') constitutes the full and final compensation for all services performed by Destin under FA [i.e. Frame Agreement] no 5000018159

3.1 Saipem and Destin agree that the Advance Payment equal to 7 000 000 USD paid under FA no. 5000018213 will be retained by Destin and accrued as partial compensation of the Final Amount

3.2 Destin agrees to raise to Saipem and Saipem agrees to accept a Credit Note ('Credit Note') in amount of USD 7 000 000 to set off the balance of the Invoiced Amount against the Final Amount

3.3 Destin further agrees to pay back to Saipem, and Saipem agrees to accept, the amount of USD200 982,67 ('Back Payment') being the difference between the Paid Amount and the Final Amount)

4. The Parties agree that the issuance of the Credit Note and the payment of the Back Payment shall constitute and be deemed as full and final settlement of all claims by either Party in connection with any and all services performed by Destin under FA no 5000018159. The MOUs having expired at the dates indicated in the premises, the Parties agree that also the FAs are hereby terminated and shall be considered null and void To such a respect, each Party agrees to hereby release and forever discharge the other Party from any demand and/or claims connected and/or related to the performance or non­performance of the MOUs and/or the FAs that the former Party may have against the latter Party whether those demands and/or claims are known or unknown by the concerned Party at the date of this Agreement.

….

10 The Parties irrevocably agree that the Courts of England and Wales shall have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement).

The Particulars of Claim

13. Destin filed its Particulars of Claim on 17 July 2024. After setting out the factual background and the alleged misrepresentations, the Particulars set out the relief claimed as follows:

32. By reason of Saipem's misrepresentation, Destin is entitled to rescind and has rescinded the Settlement Agreement, alternatively Destin hereby rescinds the Settlement Agreement.

33. By reason of Saipem's misrepresentation, Destin is entitled to and claims:

33.1. a declaration that it has validly rescinded the Settlement Agreement; alternatively

33.2. an order setting aside the Settlement Agreement ab initio; and, in either case

33.3 an order for the restitution of all sums due to Destin in consequence of the rescission of the Settlement Agreement, namely the sum of US$7,006,003.66 to which it was entitled (and which Saipem owed to Destin) immediately prior to the Settlement Agreement.

34. By reason of Saipem's misrepresentations, Destin has suffered loss and damage:

34.1 But for the misrepresentation Destin would not have entered into the Settlement Agreement, and Destin would have been entitled. to (and Saipem would. have continued to owe Destin) the sum of US$7,006.003.66 under the unpaid Invoices, which sum Destin is entitled to and claims. That sum amounts to approximately £5,372,743.39 at the date hereof (17 July 2004) and is expressed in USD because that was the currency of the FAs and the main currency in which Destin incurs costs and bills counterparties.

34.2. In order to comply with the FAs and to be in the position to satisfy the commitment assumed in the FAs, Destin had invested in infrastructure and employees which investment was wasted and which Destin is entitled to recover and claims.

34.3. Further, but for the misrepresentation and the Settlement Agreement the FAs would have continued in force and Destin would have profited thereunder. Accordingly, Destin is entitled to and claims for the loss of profit that it would have made under the FAs for the reminder of the terms if they had not been terminated.

35. Further, Destin is entitled to and claims compound, alternatively simple, interest pursuant to the Court's inherent/equitable jurisdiction, alternatively pursuant to section 35A of the Senior Courts Act 1981, on all sums found due to it, at such rate and for such period as the Court thinks fit.

The 1996 Act

14. The 1996 Act includes the following provisions:

7 Separability of arbitration agreement.

Unless otherwise agreed by the parties, an arbitration agreement which forms or was intended to form part of another agreement (whether or not in writing) shall not be regarded as invalid, non-existent or ineffective because that other agreement is invalid, or did not come into existence or has become ineffective, and it shall for that purpose be treated as a distinct agreement

9 Stay of legal proceedings.

(1) A party to an arbitration agreement against whom legal proceedings are brought (whether by way of claim or counterclaim) in respect of a matter which under the agreement is to be referred to arbitration may (upon notice to the other parties to the proceedings) apply to the court in which the proceedings have been brought to stay the proceedings so far as they concern that matter.

…

(4) On an application under this section the court shall grant a stay unless satisfied that the arbitration agreement is null and void, inoperative, or incapable of being performed.

The Application

15. By its application, Saipem seeks a stay pursuant to section 9(1) of the claims made at paragraphs 33.3, 34 and 35 of the Particulars of Claim ("the Monetary Claims") on the following grounds:

15.1 The Monetary Claims arise out of or in connection with the Frame Agreements under which the parties expressly agreed that all disputes in connection with or arising out of the same (and that were not settled amicably) were to be referred to arbitration ("the Arbitration Agreements").

15.2 The Monetary Claims fall squarely within the scope of the Arbitration Agreements and, accordingly, should never have been brought before the English court and are liable to be stayed.

16. Saipem's submissions in support of its stay application were, in summary, as follows:

16.1 The decision whether matters before the court are to be referred to arbitration involves a two-stage process. First, the court must determine what, in substance, are the relevant matters which the parties have raised or foreseeably will raise in the court proceedings. Secondly, the court must determine in relation to each such matter whether it falls within the scope of the arbitration agreement; see Mozambique v Privinvest [2023] UKSC 32 at paragraph 72 per Lord Hodge DP.

16.2 The Monetary Claims, that it is say claims for (i) an order for sums which Destin says are due to it pursuant to invoices issued by it under one of the Frame Agreements, (ii) recovery of amounts said to have been invested by Destin in order to comply with the Frame Agreements, (iii) loss of profits which Destin says it would have made under the Frame Agreements, and (iv) interest on all of these amounts, are all matters in connection with or arising out of the Frame Agreements and thus within the Arbitration Agreements applicable to them.

16.3 The Monetary Claims are therefore subject to a mandatory stay in favour of arbitration pursuant to section 9 (1) of the 1996 Act unless Destin can establish that that the Arbitration Agreements have been rendered inoperative by the jurisdiction clause at Clause 10 of the Settlement Agreement.

16.4 Destin has failed to establish Clause 10 of the Settlement Agreement, correctly construed, would survive the rescission of that Agreement so as to be capable of applying to the Monetary Claims. The words "in connection with this Agreement" in Clause 10 are referring exclusively to the Settlement Agreement and do not reach back to the Agreement Documents.

17. Destin's case in opposition to the stay application was, in summary, as follows:

17.1 The Monetary Claims fall comfortably within the exclusive jurisdiction clause at Clause 10 of the Settlement Agreement. The claims are essentially for damages in deceit arising out of misrepresentations made in relation to the Settlement Agreement and are accordingly "a dispute arising out of or in connection with" the Settlement Agreement.

17.2 Further, on its correct construction, the exclusive jurisdiction clause at Clause 10 of the Settlement Agreement superseded the Arbitration Agreements in the Frame Agreements. The Settlement Agreement expressly "terminates" the Frame Agreements and considered them "null and void". The obvious conclusion is that the parties no longer intended to rely on the Arbitration Agreements.

Legal background

18. There was a marked divergence in the parties' respective approaches to the relevant case law.
19. Destin submitted that the authorities support a general principle, applicable to this case, that a dispute resolution clause in a settlement or termination agreement is to be construed on the basis that the parties are likely to have intended it to supersede a different dispute resolution clause in a prior agreement and that the jurisdiction agreement in the Settlement Agreement was therefore to be construed as embracing all the claims in the Particulars of Claim. The principle relied on by Destin is recognised by legal commentators including the editors of Russell on Arbitration (at [2-075]):

"… where a subsequent agreement is settling disputes under, or terminating, a prior agreement … and where the subsequent agreement contains a new and competing dispute resolution clause, that clause should be construed on the basis that the parties are likely to have intended that it should supersede the clause in the earlier agreement and apply to all disputes arising out of both agreements."

20. The leading case on the application of this principle is the decision of Popplewell J (as he then was) in Monde Petroleum v Westernzagros Limited [2015] 1 Lloyd's Rep 330 ("Monde") which Destin submitted had a striking similarity to the present case. The essential facts were that the parties had operated a consultancy agreement containing an ICC arbitration clause. Disputes arose when the defendant principal (Westernzagros) ceased making payments under and then repudiated the consultancy agreement, with the consultant (Monde) seeking payment of outstanding invoices. The parties settled those disputes under a termination agreement ("the Termination Agreement") containing the following provisions:

Clause 3.3:

"This Agreement shall be governed by and construed in accordance with the laws of England and Wales. The parties herein irrevocably attorn to the exclusive jurisdiction of the courts of England and Wales.'

Clause 3.5 :

'This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and shall supersede any and all prior negotiations and

understandings.'

21. Monde subsequently brought a court claim to rescind the Termination Agreement for duress and misrepresentation and for damages representing what it would have earned under the terminated consultancy agreement. It also commenced protective arbitration proceedings claiming damages for the wrongful termination of the consultancy agreement in case it was wrong in its primary position. Both the court and the arbitral tribunal held that the jurisdiction clause in the Termination Agreement applied to the whole of Monde's claim and that it entirely superseded the arbitration agreement in the prior consultancy agreement.
22. After referring to the presumption in favour of one-stop adjudication established in Fiona Trust & Holdings v Privalov [2007] UKHL 40 ("Fiona Trust"), Popplewell J held as follows:

38.  The presumption in favour of one-stop adjudication may have particular potency where there is an agreement which is entered into for the purpose of terminating an earlier agreement between the same parties or settling disputes which have arisen under such an agreement. Where parties to a contractual dispute enter into a settlement agreement, the disputes which it can be envisaged may subsequently arise will often give rise to issues which relate both to the settlement agreement itself and to the previous contract which gave rise to the dispute. It is not uncommon for one party to wish to impeach the settlement agreement and to advance a claim based on his rights under the previous contract. In such circumstances rational businessmen would intend that all aspects of such a dispute should be resolved in a single forum. Where the settlement/termination agreement contains a dispute resolution provision which is different from, and incompatible with, a dispute resolution clause in the earlier agreement, the parties are likely to have intended that it is the settlement/termination agreement clause which is to govern all aspects of outstanding disputes, and to supersede the clause in the earlier agreement, for a number of reasons. Firstly it comes second in time and has been agreed by the parties in the light of the specific circumstances which have given rise to the disputes which are being settled and/or the circumstances leading to the termination of the earlier agreement. Secondly it is the operative clause governing issues concerning the validity or effect of the termination/settlement agreement and therefore the only clause capable of applying to disputes which arise out of or relate to the termination/settlement agreement. Thirdly, in considering any dispute about the scope or efficacy of a settlement or termination agreement, the tribunal is likely to have to consider the background, of which an important element will often be the circumstances in which the dispute arose and the rights of the parties under the earlier contract. There will therefore often arise a risk of inconsistent findings if the tribunal addressing the validity or efficacy of the termination/settlement jurisdiction is not seised of disputes arising out of the earlier contract and the latter fall to be determined by a different tribunal.

39.  In such circumstances, therefore, the dispute resolution clause in the termination/settlement agreement should be construed on the basis that the parties are likely to have intended that it should supersede the clause in the earlier agreement and apply to all disputes arising out of both agreements. Whether it does so in any particular case will depend upon the language of the clause and other surrounding circumstances.

….

40. The risk of fragmentation which is inherent in any other approach is well illustrated by the circumstances of this case. Mr Isaacs QC accepted that the only forum in which the issue of the validity of the Termination Agreement could be resolved was the Commercial Court proceedings. The claims for misrepresentation and duress include issues as to what rights Monde had under the CSA at the date of the Termination Agreement because they are an integral part of Monde's quantification of its loss. If WZL's argument were right, the liability issues would have to be determined in the Commercial Court and the loss issues in arbitration. Mr Isaacs suggested that the loss issues would have to be dealt with first because if there were no loss, the claims for misrepresentation and duress could not succeed. But the reverse is equally true: the claim would fail if Monde were right on the loss issues but could not validly impugn the Termination Agreement for misrepresentation or duress. There is no obvious reason why the liability issues to be determined in the Commercial Court should await resolution of the loss issues in an arbitration, and good reason why they should not: the parties are to be presumed to have wanted their disputes resolved by a single tribunal as swiftly as possible. Such fragmentation is productive of increased expense and delay. Moreover it gives rise to a risk of inconsistent findings because the Commercial Court will have to consider evidence from the same individuals about the operation of the CSA and the circumstances of its termination in order to resolve the liability issues of misrepresentation and duress as would have to be considered by an arbitration tribunal in determining the status of the parties' rights under the CSA at the date of the Termination Agreement. … were, and making an assessment of the evidence of Mr Al-Fekaiki on those issues. … The possibility of inconsistent findings is self evident. Further, even if the issues were capable of being neatly allocated to two sets of proceedings, and even if there were no risk of conflicting rulings, the parties would not ordinarily be taken to have intended the increased cost, inconvenience and delay in having to litigate separate aspects of the same dispute in two different forums.

…

44. A termination or settlement agreement which contains no new dispute resolution clause is unlikely to be treated as a direct impeachment of an arbitration clause in an earlier agreement, in the absence of clear language, because it is directed merely at a challenge to the continued substantive rights under the matrix agreement, not the separate arbitration agreement within it. But a new and inconsistent dispute resolution provision will raise the presumption that the parties intended to impeach not just the earlier agreement but also the dispute resolution agreement within it and so go directly to impeach the arbitration agreement. This is not a failure to give effect to the doctrine of separability, but the reverse: it recognises that a dispute resolution provision in the second agreement raises a presumption that the parties intended to address the separate arbitration agreement within the earlier agreement because both clauses are concerned with how and where disputes are to be resolved and in this respect are in conflict.

23. Monde was followed in C v D1, D2, D3 [2015] EWHC 2126 (Comm), a decision of Carr J (as she then was). The material facts of that case were that the parties had entered a production sharing contract ("PSC") containing an arbitration agreement providing for an ICC arbitration in Paris. Subsequently the parties entered into a sale and purchase ("the SPA") which, though it did not terminate the parties' relationship, was, in Carr J's words (at [111]):

… a central and important step towards termination. It was part of the exit package. Its purpose was to achieve termination and termination was what was contemplated.

24. The SPA contained an arbitration agreement providing for an LCIA arbitration in London. An arbitration award was issued pursuant to the arbitration clause in the SPA which contained findings as to breaches of the PSC. The claimant challenged these findings on the ground that they were outside the scope of the arbitration agreement in the SPA. After citing the authorities including Monde, Carr J summarised the relevant principles including the following (at [104]):

c) in general, parties to an arbitration agreement do not intend that disputes under that agreement should be determined by different tribunals ("the Fiona Trust presumption") This presumption may apply where there are multiple related agreements between the parties. If there are inconsistent arbitration agreements, it may be necessary to identify where the centre of gravity lies and which agreement lies at the commercial centre of the transaction (or is closer to the claim), or under which series of agreements the dispute essentially arises. …

e) where there is an agreement subsequently entered into by the parties for the purpose of terminating the commercial relationship created by an earlier agreement, the Fiona Trust presumption may apply with particular potency.

25. Applying these principles, Carr J found that the "centre of gravity" of the disputes lay in the SPA not the PSC and that, on the proper and commercial construction of the arbitration clause in the SPA, it was intended to include claims for breaches of the PSC.
26. In Yegiazaryan v Smagin [2016] EWCA Civ 1290 the issue was as to whether an arbitration clause in a shareholders agreement was intended to resolve difficulties between the parties that had arisen under earlier agreements to which the Claimant was not a party. Beatson LJ, approving the decision in Monde, concluded that the arbitration clause was intended to do so:

[44] Finally, but importantly, there is a strong presumption that businesspeople who are parties to a contract containing a dispute resolution clause intend all disputes arising out of their legal relationship to be resolved in the forum designated by that clause: see Fiona Trust and Holding Corp v Privalov [2007] UKHL 40, [2007] 2 All ER (Comm) 1053. The presumption is particularly strong where, as in this case, the dispute-resolution clause is in a contract entered into to resolve disputes under an earlier contract: see Monde Petroleum SA v WesternZagros Ltd [2015] EWHC 67 (Comm), [2015] 1 Lloyd's Rep 330

27. Destin submitted that the reasoning in Monde applied with equal force to the facts of the present case and that, in construing Clause 10 of the Settlement Agreement, it was to be inferred that the parties, as rational businesses, would have intended that Clause 10 would govern all aspects of the parties' relationship, including disputes relating to the Settlement Agreement and disputes relating to the Frame Agreements.
28. In response, Saipem submitted that the court is not bound by any general principle that a dispute resolution clause in a settlement agreement supersedes a prior dispute resolution clause. Whether or not a dispute resolution clause has such an effect turns on the construction of the language used by the parties in any given case. Saipem referred to the observation of Lord Hodge DP in Mozambique v Privinvest [2023] UKSC 32 at [50] that "no judicial summary of the law should be treated as if it were a statutory text" and a similar observation of Lord Leggatt in Unicredit Bank GmbH v RusChemAlliance LLC [2024] UKSC (at [38]):

It is in any case a mistake, all too frequently made, to treat sentences and phrases in a judgment as if they had textual authority in the same way as an Act of Parliament. As Sir George Jessel MR said succinctly in Hood v Newby (1882) 21 Ch D 605, 608: "You must always look to what was being discussed by the judges as well as to the words used." It should also be remembered that, as the Earl of Halsbury LC said in Quinn v Leathem [1901] AC 495, 506, "every judgment must be read as applicable to the particular facts proved, or assumed to be proved" and "a case is only an authority for what it actually decides".

29. Saipem sought to distinguish Monde on the basis that the jurisdiction clause in that case was materially different from the jurisdiction clause in the present case since it was silent as to the subject matter of what was to be submitted to the exclusive jurisdiction of the courts of England and Wales and was not limited to "disputes arising out or in connection with the Termination Agreement" as Clause 10 was. Furthermore it used the verb "attorn" which Popplewell J considered was "suggestive of a transfer of jurisdiction" and not merely a conferment of jurisdiction, indicating that the parties had positively attorned to the jurisdiction and had not limited that jurisdiction to defined disputes.
30. Moving away from Monde, Saipem submitted that the key principles relevant to the application of section 9 were those summarised by Lord Hodge in Mozambique v Privinvest:

[72] First, as I have stated … the court in considering such an application [to stay proceedings pursuant to Section 9] adopts a two-stage process. First, the court must determine what the matters are which the parties have raised or foreseeably will raise in the court proceedings, and, secondly, the court must determine in relation to each such matter whether it falls within the scope of the arbitration agreement.

[73] In carrying out this exercise the court must ascertain the substance of the dispute or disputes between the parties. This involves looking at the claimant's pleadings but not being overly respectful to the formulations in those pleadings which may be aimed at avoiding a reference to arbitration by artificial means. The exercise involves also a consideration of the defences, if any, which may be skeletal as the defendant seeks a reference to arbitration, and the court should also take into account all reasonably foreseeable defences to the claim or part of the claim.

31. Saipem submitted that, whereas the claim for rescission of the Settlement Agreement depended on allegations of misrepresentations concerning the basis for entering into the Settlement Agreement, the Monetary Claims depended on the position of the parties under the Frame Agreements if they were reinstated. They were in substance claims under the Frame Agreements and were within the scope of the Arbitration Agreements.
32. Saipem further submitted that, whilst the starting point for the construction of an arbitration agreement is the presumption in favour of one-stop adjudication established by the House of Lords in Fiona Trust, the position differs where the overall contractual arrangements contain two or more different choices of jurisdiction in respect of different agreements. Saipem referred to dicta in a number of authorities addressing the issue of competing dispute resolution clauses:

32.1 In Deutsche Bank AG v Sebastian Holdings Inc [2010] EWCA Civ 998, [2011] 2 All ER (Comm) 245 at [39] and [40] the Court of Appeal held that in construing a jurisdiction clause, a broad and purposive construction must be followed and that an agreement which was part of a series of agreements should be construed by taking into account the overall scheme of the agreements and reading sentences and phrases in the context of that overall scheme.

32.2 In AmTrust Europe Ltd v Trust Risk Group SpA [2015] EWCA Civ 437 the issue was whether the English court had jurisdiction pursuant to a choice of jurisdiction in a standard form terms of business agreement or whether the parties were bound by an arbitration agreement in a subsequent framework agreement providing for disputes to be referred to arbitration in Milan. Beatson LJ, with whom the other members of the Court of Appeal agreed, after referring to the Fiona Trust one-stop adjudication presumption, held as follows:

[46] Where the overall contractual arrangements contain two or more differently expressed choices of jurisdiction and/or law in respect of different agreements, however, the position differs in that one does not approach the construction of those arrangements with a presumption. …

…

[48] …. In short, what is required is a careful and commercially-minded construction of the agreements providing for the resolution of disputes. This may include enquiring under which of a number of inter-related contractual agreements a dispute actually arises, and seeking to do so by locating its centre of gravity and thus which jurisdiction clause is 'closer to the claim'; Credit Suisse First Boston (Europe) Ltd v MLC (Bermuda) Ltd [1999] 1 All ER (Comm) 237 at 251; UBS AG v HSH Norbank AG [2010] 1 All ER (Comm) 727 at [94].

[49] ..Where the contracts are not 'part of one package', it may be easier to conclude that the parties chose to have different jurisdictions to deal with different aspects of the relationship.

32.3 In BNP Paribas SA v Trattamento Rifuti Metropolitani SpA, [2019] EWCA Civ 768 the parties had entered into agreements with different jurisdiction clauses, Hamblen LJ with whom the other members of the Court of Appeal agreed, confirmed that, in cases where the contractual arrangements contain two different jurisdiction clauses:

[68] The starting presumption will therefore be that competing jurisdiction clauses are to be interpreted on the basis that each deals exclusively with its own subject matter and they are not overlapping, provided the language and surrounding circumstances so allow…

[70] The most obvious subject matter of a generally worded jurisdiction clause contained in a contract is that it is to capture claims made under that contract, not some other contract, more especially another contract containing its own jurisdiction clause or other dispute resolution provision.

32.4 In Privinvest Lord Hodge DP referred to the reasoning of Popplewell J in Sodzawiczny v Ruhan [2018] EWHC 1908, noting that a risk of fragmentation of proceedings is implicit in the wording of section 9 and is a consequence of the consensual nature of arbitration agreements and may simply be the inevitable result of upholding the parties' bargain.

33. Based on its reading of these authorities, Saipem submitted that, the words "in connection with this Agreement" in Clause 10 were referring exclusively to the Settlement Agreement and did not reach back to the Agreement Documents listed in the Frame Agreements which have their own dispute resolution clause which survive termination of the Frame Agreements by virtue of Clause 30 of the GTCs and section 7 of the 1996 Act. Saipem submitted that the ordinary meaning of Clause 10 is complemented by considerations of commercial logic. Experienced commercial parties in the position of Destin and Saipem would have intended that technical and detailed disputes concerning the subject matter at issue in the Frame Agreements would be submitted to arbitration with the confidentiality and technical expertise that come with ICC arbitration seated in London. By contrast, the parties had chosen the exclusive jurisdiction of the English court for deciding a debt claim under the Settlement Agreement being the kind of dispute likely to arise under that Agreement. There was no obvious commercial logic as to why the parties would have intended to deprive themselves of the advantages of arbitration if, for some reason, claims under the Frame Agreements turned out not to have been settled.

Discussion

34. It was common ground between the parties that the issue of whether or not the Monetary Claims in the Particulars of Claim are within the scope of Clause 10 the Settlement Agreement turns ultimately on the correct construction of the parties' contractual provisions rather than on the application of a hard and fast principle that dispute resolution clauses in a subsequent settlement or termination agreement supersede a dispute resolution clauses in an earlier agreement.
35. Monde is, nevertheless, clear authority for the proposition that dispute resolution clauses in a settlement or termination agreement should generally be construed on the basis that they are intended to have a superseding or overriding effect, for the reasons explained by Popplewell J. The factors underlying the Fiona Trust presumption in favour of one-stop adjudication, in particular the desirability of having all questions arising out of parties' legal relationship determined by a single tribunal, are reinforced where parties have agreed on a dispute resolution clause in a settlement/termination agreement. In this situation, it may be readily inferred that the parties intended that the dispute resolution clause in the settlement/termination agreement would replace and supersede a dispute resolution clause in an earlier agreement. The later clause is the only operative clause concerning disputes arising out of the settlement/termination agreement; it has been agreed to in the light of the disputes arising under the earlier agreement; there will be a risk of inconsistent decisions if disputes arising out of an earlier agreement are determined by a different tribunal. The parties are terminating their prior agreement and replacing it with new rights and obligations for the future. In the words of Carr J in C v D, it is likely that the centre of gravity of the relationship has changed and become a relationship centred on the settlement/termination agreement.
36. Saipem's submission that Monde is distinguishable from the present case was not compelling. The central issue in Monde, as in the present case, was as to whether monetary claims referable to the parties' earlier agreement were within the scope of the jurisdiction clause in the parties' settlement/termination agreement rather than being subject to an arbitration clause in the earlier agreement. As in Monde, Clause 10 was expressed to be an "exclusive" jurisdiction clause and therefore to be construed as excluding, rather than sitting alongside, any other dispute resolution agreement between the parties. As in Monde, there was an entire agreement clause which suggested that the parties had in mind that the jurisdiction clause would include disputes as to rights under the parties' prior contractual arrangements because such rights were the subject matter of the Settlement Agreement (see Clauses 3 and 4). Whilst the jurisdiction clause in Monde was differently worded from Clause 10, the difference does not advance Saipem's case. Rather than being silent as to the subject matter of what was to be subject to the court's jurisdiction, as the clause in Monde was, the wording of Clause 10 makes clear that it has the widest possible scope ("any dispute"). It plainly covers disputes about what rights were extant in the Frame Agreements at the time of termination since such disputes would arise out of or in connection with the subject matter of the Settlement Agreement. Similarly to the Termination Agreement in Monde, the Settlement Agreement expressly "terminates" the Frame Agreements and considers them "null and void" making clear that the parties did not intend the dispute resolution clause in the GTCs to survive.
37. Saipem's argument that there was a commercial rationale for the parties' choice of arbitration in the GTCs which would be rendered nugatory if the jurisdiction clause is treated as having superseding effect was also run in Monde (see paragraph [30]). The argument fails to take account of the obvious commercial rationale for including an exclusive jurisdiction clause in a relationship-ending agreement which is intended to wrap up in one place the parties' future rights and obligations and avoid the risk of a fragmented dispute resolution process.
38. The authorities relied on by Saipem (see paragraph 32 above) were concerned with the allocation of disputes between competing dispute resolution provisions. They were not concerned with the construction of a dispute resolution clause in a settlement or termination agreement. Such a dispute resolution clause is in a special category, as explained in Monde. For this reason, these authorities did not provide any real support for Saipem's application.
39. In short, I consider that the Monetary Claims are within the scope of Clause 10 of the Settlement Agreement, that they were properly brought before the court in these proceedings and that there is no ground for staying those claims pursuant to Section 9(1) of the 1996 Act. The Arbitration Agreements are inoperative for the purposes of section 9(4) of the 1996 Act.
40. Moreover, even if the court were to approach Saipem's stay application on the basis of the two-stage process laid down in Mozambique v Privinvest ...see paragraph 30 above), as Saipem submitted that it should, rather than by reference to Monde, the outcome of the stay application would be no different. The first stage in the process is the identification of the substance of the dispute between the parties. Saipem accepted that the claim for rescission/setting aside was within Clause 10 but contended that the Monetary Claims were claims under the Frame Agreements and therefore outside Clause 10. This mischaracterises the nature of the Monetary Claims which are, in substance, claims for damages for deceit inducing the Settlement Agreement. Whilst the claims are for the value of what Destin lost under the Frame Agreements, the claims are not claims under the Frame Agreements. The legal source of the Monetary Claims is the Settlement Agreement and the general law of deceit, not the Frame Agreements. It follows that the Monetary Claims are not matters that have to be referred to arbitration.

Conclusion

41. Saipem's stay application is dismissed.