Tyson International Insurance Company Ltd v GIC Re, India, Corporate Member Ltd [2026] EWCA CIV 40: Anti-suit injunctions, exclusive jurisdiction clauses and arbitration agreements

On 5 February 2026, the Court of Appeal handed down judgment in Tyson International Insurance Company Ltd v GIC Re, India, Corporate Member Ltd [2026] EWCA CIV 40, upholding the grant of the claimant’s permanent anti-suit injunction restraining the defendant reinsurer from proceeding with New York arbitration.

The underlying dispute, now continuing in the English Commercial Court, arises out of a large facultative reinsurance programme where the claimant Bermudan captive insurer placed coverage with, amongst others, the defendant reinsurer by the execution of two Market Reform Contracts (the “MRCs”), the standard contract form used by the London reinsurance market, followed by the execution of two reinsurance certificates (in a form referred to as the Market Uniform Reinsurance Agreement, more commonly adopted in the US market) (the “Certificates”).

The MRCs included English choice of law exclusive jurisdiction clauses while the Certificates included New York Arbitration agreements. Further, each Certificate was endorsed by the parties with language providing that the MRC was to “take precedence over the [Certificate] in case of confusion” (the “Confusion Clause”).

The dispute before the Court of Appeal concerned whether the underlying coverage dispute should be heard by the English Commercial Court, pursuant to the exclusive jurisdiction clauses (as contended by the claimant), or in New York seated arbitration pursuant to the New York arbitration agreements (as contended by the defendant).

At first instance, Mr Nigel Cooper KC (the “Judge”) determined the matter in favour of the claimant, dismissing the defendant’s jurisdiction challenge under s.9 of the Arbitration Act 1996 and granting the permanent anti-suit injunction sought by the claimant (continuing the anti-suit injunction previously granted on an urgent ex parte basis by Foxton J).

Permission to appeal was given by Popplewell LJ on two grounds:

• The Judge erred in his construction of the Confusion Clause. He should have found that it only applied if the relevant provision in the Certificates was uncertain in its meaning, which the New York arbitration agreement was not.

• The Judge erred in failing to conclude that the two clauses could be reconciled by giving priority to the later arbitration agreement and reading the English jurisdiction clause as giving the English Court auxiliary or supervisory jurisdiction over the New York arbitration.

The Court of Appeal (Nugee LJ, with whom Asplin and Miles LJJ agreed) upheld the Judge’s decision, dismissing both grounds of appeal. 

As for the first ground of appeal, the Court found that on both the natural meaning of the words used, and as a matter of commercial common sense, the Confusion Clause operated essentially to the same effect as a typical hierarchy clause, requiring the MRCs and Facultative Certificates to be read together, with the terms of the former prevailing in case of “confusion”  between the two  (with “confusion” being found to include “the confusing state of affairs brought about by having two different provisions dealing with the same subject-matter”).

As for the second ground of appeal, the Court observed that where the parties’ agreement included an inconsistency or hierarchy clause, the assumption that there is no inconsistency between the terms agreed does not apply (a cannon of construction usually otherwise deployed when potentially inconsistent terms are being considered). Rather, and while observing that it would equally be wrong to approach the question of construction with a predisposition to find inconsistency, the Court (citing guidance given by Bingham LJ in Pagnan SpA v Tradax Ocean Transportation SA [1987] 3 All ER 565) determined that the question of construction in such circumstances is to approach the documents “in a cool and objective spirit” to see whether there is inconsistency or not.  Adopting this approach, the Court dismissed the defendant’s argument that the competing forum provisions could be read consistently, finding that the exclusive jurisdiction clauses and arbitration agreements were “flatly inconsistent” and that the defendant’s contended construction (to the effect that the English exclusive jurisdiction clauses conferred only a limited supervisory jurisdiction) essentially inverted the bargain struck by the parties as it would in fact give precedence to the Certificates over the MRCs.

James Partridge (led by Timothy Killen of 3 Verulam Buildings) appeared for the successful respondent, instructed by Reed Smith LLP.

Mr Peter MacDonald Eggers KC and Mr Tim Jenns appeared for the appellant, instructed by RPC.

Read more about James’ practice here.

To read the full judgment please click here.