English CA Holds Non Signatory Entitled to Enforce Arbitration Agreement on Agency Principles

In Filatona Trading v Navigator Equities [2020] EWCA Civ 109, the English Court of Appeal considered and upheld the judgment of the High Court allowing a party who did not sign an agreement to enforce rights under it, including the right to arbitrate, on the basis that an agent had entered into the agreement on the non-signing party’s behalf.

The Court found that the principal was able to enforce the agreement and so the LCIA arbitration initiated by the principal was validly commenced stating [101]:

“Whether a contract ‘unequivocally and exhaustively’ defines the parties or whether the rights of a disclosed and identified principal have been ‘clearly excluded by the terms of the contract’, may be regarded as two ways of asking the same question; either way there is a heavy burden of persuasion on a party who seeks to argue that a known and identified principal is to be excluded from a contract. … I am satisfied that there is nothing in the background or the contractual terms sufficient to demonstrate a clear intent to exclude [the relevant individual] from exercising his rights or incurring obligations…”

Read the review of this case by Herbert Smith Freehills.

About Phillip Rompotis

Phillip practices as a barrister and arbitrator in Hong Kong. He has over 25 years’ litigation and arbitration experience in commercial disputes relating to construction & engineering, financial services, joint venture & shareholders agreements, technology, trusts, property and landlord & tenant. He is a Fellow of the Chartered Institute of Arbitrators, the Hong Kong Institute of Arbitrators, the Singapore Institute of Arbitrators, the Malaysian Institute of Arbitrators, and a member of various lists/panels of arbitrators.

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