High Court Upholds Expert Determination Clauses in Premier Oil v Shell Dispute

Citation: [2023] EWHC 3269 (Comm)
Judgment on

Introduction

The case of Premier Oil UK Limited v Shell International Trading and Shipping Company Limited before the High Court’s Commercial Court is an instructive example of a dispute regarding the interpretation and application of expert determination clauses within commercial contracts. The analysis of this judgment reveals important legal principles relating to the role and powers of a referee or expert in contractual disputes, specifically in the context of determining an alternative source of price information after a significant change in methodology by a third-party publisher. This article delves into the key topics discussed, elucidating the legal principles applied by Mr. Nigel Cooper KC.

Key Facts

Premier Oil UK Limited (Premier) and Shell International Trading and Shipping Company Limited (Shell) encountered a disagreement over the jurisdiction of a referee under two contracts concerning the sale of crude oil. The dispute arose after Platts materially changed the methodology used to calculate the Urals Assessment, affecting the agreed pricing structure under both the Schiehallion and Clair oilfield contracts. Unable to reach an agreement on an alternative pricing source, the parties sought the court’s assistance to determine the referee’s instructions and whether specific guidance was required on the proper interpretation of the empowering clauses.

The court applied the following principles:

  1. Expert Determination Construction: Contractual clauses appointing an expert (or referee) are construed using ordinary principles of contractual construction.

  2. Non-Interference with Expert Decision: The court generally should not interfere with an expert’s decision on matters within their remit unless the decision is tainted by fraud or collusion.

  3. Court’s Jurisdiction over Expert’s Principles or Procedures: The court can review an expert’s application of agreed principles or procedures and set aside decisions made contrary to such agreements, as the expert would be acting outside their authority.

  4. Court’s Review of Expert’s Conclusions on Contract Construction: Experts can reach conclusions on contract construction, but the court has the ultimate jurisdiction to review such conclusions.

  5. Intervention before Expert’s Completion: Typically, the court does not intervene before an expert has completed their task, barring strong grounds suggesting a probable mistake, to avoid unnecessary costs and waste of time.

  6. Court’s Discretion: The decision to intervene in advance of the expert’s determination lies at the court’s discretion based on whether the issue is real (non-hypothetical) and whether it is in the interests of justice and convenience.

  7. Evidential Difficulties: A party facing challenges in proving an expert overstepped their mandate is not a valid reason to seek preemptive court ruling; parties should accept the risks inherent in their chosen dispute resolution mechanism.

  8. Preservation of Original Agreement: The court avoids rewriting the agreed dispute resolution mechanism, reflecting parties’ intentions at the time of contracting.

Outcomes

After considering these principles, the judge, Mr. Nigel Cooper KC, decided not to give advance guidance to the referee. The only declaratory relief granted affirmed that the scopes of the referee’s decision-making powers were dictated by the respective contractual clauses - clause 8.4 for the Schiehallion Contract and clause 8.2 for the Clair Contract. The court refrained from providing further interpretation, allowing the referee to proceed with his determination based on the agreed contractual provisions.

Conclusion

The judgment in Premier Oil UK Limited v Shell International Trading and Shipping Company Limited elucidates the careful balancing act courts must perform when considering intervention in expert determinations within commercial contracts. While the court has the power to intervene and interpret contractual provisions, it often defers to the procedures agreed upon by the parties, emphasizing the primary role of the appointed experts or referees in resolving disputes. This case reaffirms the principle that courts will not usurp an expert’s role unless there is a pressing need, safeguarding the autonomy of contractual dispute resolution mechanisms and the intentions of sophisticated commercial entities.

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