A recent Court of Appeal decision, Tyson International Company Ltd v GIC Re, India, Corporate Member Ltd [2026] EWCA Civ 40, provides valuable clarification on the approach taken by English courts when confronted with conflicting jurisdiction and arbitration provisions contained within layered reinsurance documentation.
Background:
Tyson International Company Ltd (“TICL”) is the Bermudan captive insurer for Tyson Foods, a major US‑based global food producer. In 2021, TICL arranged facultative reinsurance for its property risks with several reinsurers, including GIC Re, India, Corporate Member Ltd (“GIC”).
Two layers of facultative reinsurance were first placed on 30 June 2021 by way of a London Market Reform Contract (the “MRC”). The MRC provided for English governing law and contained a clause granting the courts of England and Wales exclusive jurisdiction over all matters relating to the reinsurance.
On 9 July 2021, this placement was supplemented by the execution of a second set of contracts in the form of the Market Uniform Reinsurance Agreement (the “Certificate”). The Certificate, instead, required disputes to be resolved by arbitration in New York under New York law. They also incorporated three amendments, the second of which stated that the MRC would “take precedence over reinsurance certificate in case of confusion” (the “Confusion Clause”).
A fire at a Tyson Foods facility in Hanceville, Alabama on 30 July 2021 gave rise to a claim under the captive policy. TICL accepted coverage and notified GIC. GIC later purported to rescind its reinsurance participation based on alleged misrepresentation relating to property valuations. TICL commenced proceedings in England relying on the jurisdiction clause in the MRC, while GIC sought to compel New York arbitration under the Certificate.
At first instance, the Commercial Court granted TICL a permanent anti‑suit injunction restraining GIC from pursuing the New York arbitration. In response, GIC appealed to the Court of Appeal.
Parties’ positions and key issues:
GIC’s principal argument was that the Confusion Clause was narrow in scope and applied only to internal drafting inconsistencies within the Certificate itself. GIC also maintained that, even if the clause applied more broadly, the English jurisdiction clause in the MRC and the New York arbitration clause in the Certificate should be read together in a manner that gave effect to both, with the English courts assuming a supervisory role over arbitration in New York.
TICL submitted that the Confusion Clause operated as a genuine hierarchy provision intended to resolve inconsistencies between the two documents. Once invoked, it required the English governing law and exclusive jurisdiction provisions in the MRC to prevail, leaving no room for the New York arbitration clause to operate.
Hence, the key issues for consideration were:
- The proper construction of the Confusion Clause; and
- Whether the English jurisdiction clause in the MRC and the New York arbitration clause in the Certificate could operate together
Analysis:
- The proper construction of the Confusion Clause:
GIC submitted that the Confusion Clause applied only where the Certificate itself contained internal inconsistencies and did not extend to conflicts between the Certificate and the MRC. The Court rejected this interpretation. It held that the natural and commercially coherent meaning of the wording was that it addressed inconsistency arising between the two documents. The MRC and Certificate were executed nine days apart and contained materially different provisions; it was, thus, far more plausible that the clause was intended to identify the document that should prevail where such differences arose.
Critically, the Court also commented that GIC’s narrow construction would be commercially unsound in rendering the clause ineffective when the most obvious form of “confusion” occurred; namely, a contradiction between the documents themselves.
- Whether the English jurisdiction clause and New York arbitration clause could operate together?
GIC argued that even if the MRC prevailed, the English jurisdiction clause could be read as supervisory or auxiliary to New York arbitration. The Court, however, rejected this in finding that the MRC conferred exclusive jurisdiction on the English courts in clear and unqualified terms, while the Certificates mandated binding arbitration in New York. To reinterpret the English clause as merely supervisory would invert the contractual hierarchy expressly agreed through the Confusion Clause and substantially distort the meaning of the exclusive jurisdiction provision.
The permanent anti‑suit injunction was, therefore, correctly granted.
Conclusion:
The decision provides clear confirmation that ordinary principles of contractual interpretation remain paramount in resolving disputes arising from inconsistent reinsurance documentation. The Court emphasised that where parties have chosen express language, particularly as to precedence, the courts will give effect to that language according to its natural and literal meaning. It is not the role of the court to retrospectively correct what may, in hindsight, be commercially disadvantageous to one party, nor to remodel the parties’ bargain by reading fundamentally inconsistent clauses together.
Authors
Michael Robin [1], Partner
Pawinder Manak [2], Trainee Solicitor