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The judge held that “I consider that to be both the natural and the commercially sensible construction of Stellar’s endorsement as guarantor of the COA arbitration clause. It is commercially sensible because the parties were entering into a tri-partite relationship enshrined in a single contractual document and would reasonably be expected to intend that all disputes arising out of that relationship be dealt with in a like manner.”
The judge considered this to accord with the opinion of Lord Hoffmann in Fiona Trust v Privalov .<ref name="test">[http://www.example.org Link text],additional textIn Fiona Trust v Privalov (sub nom Premium Nafta v Fili Shipping) [2007] UKHL 40, Lord Hoffmann stated: “In my opinion the construction of an arbitration clause should start from the assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out the relationship into which they have entered or purported to enter to be decided by the same tribunal. The clause should be construed in accordance with this presumption unless the language makes it clear that certain questions were intended to be excluded from the arbitrators’ jurisdiction.”.</ref> because “similar considerations apply by analogy here”.
Against this position the principal argument of Stellar was that “to incorporate an agreement to arbitrate requires clear and indeed express words”. Stellar relied in particular on Habas v Sometal (which concerned incorporation of arbitration clauses/agreements into contracts and placed a restrictive approach on incorporation in ‘two contract’ cases)2. Stellar submitted that the present case was a ‘two contract’ case and that there were no apt words of incorporation here to satisfy the relevant test.
