Court of Appeal for Ontario

Date: January 11, 2018 Docket: C63243

Judges: Doherty, LaForme, and Miller JJ.A.

Parties

Between

Trade Finance Solutions Inc. Plaintiff (Respondent)

and

Equinox Global Limited and Lloyd's Underwriters Defendants (Appellants)

Counsel

For the Appellants: Ryan Morris and John Mather

For the Respondent: Alan D'Silva and Mark Walli

Hearing and Appeal

Heard: September 22, 2017

On appeal from: The order of Justice Grant R. Dow of the Superior Court of Justice, dated December 30, 2016.

Subject Matter

CIVIL – Contractual interpretation – insurance policy – arbitration clause – legal test for stay in favour of arbitration – International Commercial Arbitration Act

Judgment

LaForme J.A.:

OVERVIEW

[1] This appeal involves the proper effect to be given to an international insurance agreement that contains both an arbitration provision and an "Action Against Insurer" clause. It considers whether an Ontario action brought by an insured for breach of that agreement must be stayed and referred to arbitration.

[2] In the circumstances of this case, I agree with the appellants, Equinox Global Limited and Lloyd's Underwriters (the "Insurers") that the action against them must be stayed and referred to arbitration in London, England. There are two reasons for this.

[3] First, when the insurance policy is interpreted objectively, in a manner that gives meaning to all of its terms, mandatory arbitration in London, England was agreed to by the parties as the sole method of dispute resolution.

[4] Second, Ontario has chosen to adopt the UNCITRAL Model Law on International Commercial Arbitration (the "Model Law").[1] That law requires a court before which an action is brought in a matter that is the subject of an arbitration agreement to refer the parties to arbitration if it is arguable that: (i) the arbitration agreement is binding on the parties; and (ii) the claims at issue fall within the scope of the agreement. I conclude that this law applies.

[5] I would allow the appeal and stay the within action, referring the parties to arbitration in London, England.

BACKGROUND

[6] The respondent, Trade Finance Solutions Inc. (TFS) is an Ontario company having its head office in Ontario. It is in the business of providing short term financing and trade credit to small and medium size businesses. For a fee, it will immediately advance funds to the contracting business in return for that business assigning its receivables to TFS which gets paid over time (referred to as "factoring"). While TFS is based in Toronto, it does business globally. Much of its business appears to occur in North America, primarily in Canada and in Florida.

[7] Because not all invoices get paid, or problems arise in payment, TFS obtains "trade credit" insurance on its factored accounts, which is available from Equinox Global Limited. Equinox is headquartered in London, England.

[8] TFS retained an insurance broker in Ontario, as well as in England, to assist in securing an insurance policy to provide the required coverage. Equinox was approached and asked to provide insurance on an expedited timeline: TFS's existing trade credit policy was set to terminate in approximately 26 days.

[9] Most of the negotiation between TFS, its agents, and Equinox took place by email communication, and concerned a document entitled "Schedule", which sets out terms specific to the policy, including the effective date, identity of insured, policy limits, and premium. It also included certain "endorsements" dealing with a number of related topics. There was also a standard form "excess of loss insurance contract" (the "base policy") containing terms about TFS's and Equinox's mutual responsibilities under the insurance contract. This base policy was incorporated into the Schedule by reference, and conveyed to TFS and its brokers early on in the process.

[10] A contract of insurance was subsequently issued with Equinox and Lloyd's Underwriters. Equinox signed and stamped the "Schedule", and TFS agree to bind the policy, subject to certain amendments which were ultimately made.

[11] Clause 8(j) of the base policy contains the following arbitration provision:

This policy shall be governed by the laws of England and Wales. Any dispute arising in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules,[2] which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be three. The seat, or legal place of, the arbitration, shall be London. The language used in the arbitral proceedings shall be English.

[12] The following are some of the more relevant endorsements and declarations:

• An "insuring in Canada a risk" endorsement providing that the policy was issued in the course of Lloyd's business in Canada;

• A complaint protocol endorsement providing TFS with rights to lodge complaints with Lloyd's in Montreal and with various Ontario and federal regulatory agencies;

• A consumer rights endorsement providing that TFS's rights were grounded in the insurance contract and the laws of its province (Ontario); and

• An "Action Against Insurer" provision in the declarations providing that, "[i]n any action to enforce the obligations of the Underwriters they can be designated or named as 'Lloyd's Underwriters" and that the "[s]ervice of such proceedings may validly be made upon the Attorney In Fact in Canada for Lloyd's Underwriters" in Montreal.

[13] All of the endorsements state that they prevail over any conflicting wording in the underlying policy. On its face, there is said to be a conflict between the arbitration clause in the base policy and the Action Against Insurer endorsement.

[14] Ultimately, TFS made several claims for loss under the policy. In response, the Insurers identified a number of "concerns" related to the claim, and made requests for further information relating to them. TFS viewed the response by the Insurers as an attempt to frustrate the claims process.

[15] TFS commenced an action against the Insurers in Ontario for losses under the insurance contract. Its statement of claim alleges breach of contract, unjust enrichment, and punitive damages. In response, the Insurers asserted that any dispute relating to the insurance contract had to be submitted to arbitration under the LCIA rules, in accordance with clause 8(j). Accordingly, the Insurers brought a motion to stay, which was dismissed below and is the subject of this appeal.

THE MOTION JUDGE'S DECISION

[16] The motion judge refused to stay TFS's action. In his view, both the arbitration clause and the "Action Against Insurer" clause provided for alternative, optional methods of dispute resolution. He was not prepared to agree with TFS's submission that the "Action Against Insurer" clause effectively excluded the arbitration clause as part of the contract. Neither did he accept the Insurers' argument that the Action Against Insurer endorsement clause was a mere service of suit clause, in that it simply designated the party who would accept "service of process" on behalf of the insurer. He held that the words were wider than that purpose, and that the parties could easily have inserted wording making any such intent clear, as had occurred in Oppenheim v. Midnight Marine Limited, 2010 NLCA 64, 325 D.L.R. (4th) 254.

[17] The motion judge also rejected the Insurers' argument that art. 8 of the Model Law contained the appropriate test for granting a stay. Reading the contract as a whole, he said, provided two alternative methods of dispute resolution: (i) international arbitration pursuant to clause 8(j) of the base policy, and (ii) domestic proceedings pursuant to the Action Against Insurer endorsement. Given this, he concluded the Model Law did not apply because its application was limited to situations where the parties have agreed to arbitration as the sole method of dispute resolution.

[18] The motion judge's conclusion on the application of the Model Law was, he said, supported by s. 123 of Ontario's Insurance Act, R.S.O. 1990, c. I.8, which provides that insurance delivered to an insured person resident in Ontario is deemed to be a contract made in Ontario. Therefore, the insurance contract, being an Ontario contract, required the inclusion of the "Insuring in Canada a risk" endorsement, which in turn provided that the endorsement would prevail in the face of a conflict between it and the base policy.

[19] In the motion judge's opinion, although the parties had agreed to an arbitration clause in the base policy, they had also agreed to "Canadianize" the insurance contract by allowing domestic actions against the insurer under the Action Against Insurer provision. To prevent clause 8(j) from being rendered ineffective, he further held that the arbitration clause's use of the word "shall", should be changed to "may".

THE ISSUES

[20] The Insurers submit that the motion judge in this case committed two errors of law, namely:

I. He did not apply the correct principles of contractual interpretation so as to give meaning to all of the insurance policy's terms. Instead, he altered the wording of the policy to provide for a dual-track dispute resolution process contrary to the objective terms of the agreement.

II. He did not apply the correct legal test for a stay under the International Commercial Arbitration Act, R.S.O. 1990 c. I.9 (the "ICAA") and the Model Law. That Act and the jurisprudence interpreting it provides that a stay should be granted if it is "arguable" that a dispute falls within the terms of an arbitration agreement.

[21] The Insurers submit that should this court find the motion judge to have committed one of the errors alleged, this court should stay the action and refer the parties to arbitration in England.

ANALYSIS

[22] The Insurers argue that the existence of an arbitration clause in the contract demands that questions about the proper forum for dispute resolution, as well as the underlying dispute, ought to be determined by the arbitrator, pursuant to the "competence-competence" principle.

[23] Generally speaking, the approach in Ontario is that in cases where the "existence or validity of the arbitration agreement" is not clear (i.e. the agreement is arguably, but not clearly: (a) null and void; (b) inoperative; or (c) incapable of being performed) it is preferable for the arbitrator to decide the issue: Dalimpex Ltd. v. Janicki, 64 O.R. (3d) 737 (Ont. C.A.), at paras. 21-22. Thus, it would seem that an answer to issue two could be dispositive of this appeal.

[24] On my reading of the decision below, the motion judge held that the arbitration provision was clearly inoperative in the circumstances, because the contract contemplated both arbitration in England and a civil action in Ontario as optional methods of dispute resolution. TFS having chosen to commence an action in Ontario, it could not be said that the dispute was subject to the arbitration clause, or that the arbitration clause was operative in the circumstances. The motion judge's modification of the arbitration provision's language re-enforced this conclusion.

[25] In order to review this decision, it is necessary to re-visit the interpretation of the insurance contract. This is because if the motion judge's interpretation of the contract is correct, then the parties did not agree to submit the dispute in question to mandatory arbitration, and it is possible that a stay of proceedings is inappropriate in the circumstances.

[26] I note that Lauwers J.A., in the recent case of Haas v. Gunasekaram, 2016 ONCA 744, 62 B.L.R. (5th) 1 at para. 17, created an analytical framework[3] applicable to motions to stay proceedings under the Arbitration Act, 1991, S.O. 1991, c. 17, which may also be applicable to such motions under the ICAA. But I need not adopt this framework in this case. Its application was not argued, and this appeal effectively turns on a single issue: whether there was arguably an operative arbitration agreement in the contract.

[27] It appears to me that none of the parties to this dispute take any serious issue with this approach. Consequently, I intend to decide the two issues as proposed by the Insurers, responded to by TFS, and as decided by the motion judge.

(1) The Standard of Review

[28] The standard of review for the issues involved in the interpretation of the insurance policy in this case is, in my view, correctness.

[29] The motion judge committed an extricable error of law in his interpretation of the policy. Specifically, notwithstanding rehearsing the well-established principle of contractual interpretation that courts must, if possible, adopt an interpretation that renders each of its terms effective, he failed to actually apply that principle. As a result, a correctness standard applies: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 53; Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2017 ONCA 293, 135 O.R. (3d) 241 at paras. 71-76.

[30] Also, the motion judge's interpretation of the Action Against Insurer Clause conflicts with other decisions in Canada and elsewhere, creating uncertainty in the law about how similarly worded insurance policies ought to be interpreted. The provisions at issue in this case seem to appear frequently in cases involving U.K.-based insurers.[4] In my view, this case raises an issue that will have an impact beyond the parties to the dispute. This court, therefore, should review the decision on a standard of correctness to address the uncertainty it has created in the law: Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23, at para. 46, and Biancaniello v. DMCT LLP, 2017 ONCA 386, 411 D.L.R. (4th) 367, at paras. 20-22.

[31] The standard of review applicable to the motion judge's interpretation of the Model Law and ICAA, as an issue of law, is also correctness: Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135, at para. 33.

(2) Did the Motion Judge Correctly Interpret the Contract?

[32] On the motion, TFS argued that the arbitration clause in the base policy was rendered "inoperative" by the endorsements and declarations. The motion judge essentially agreed and held that, while there was an agreement to an arbitration clause in the base policy, there was also agreement to allow domestic actions against the insurer under the Action Against Insurer endorsement.

[33] In reaching his decision, the motion judge gave two reasons: (i) the "Action Against Insurer" endorsement was not limited to a mere service of suit clause; and (ii) part of the Canadianization of the policy was to allow actions against the insurer "to enforce the obligations of the Underwriters". I disagree.

[34] The general principles of contractual interpretation are straightforward: "the court construes the contract as a whole, in a manner that gives meaning to all of its terms, and avoids an interpretation that would render one or more of its terms ineffective": Salah v. Timothy's Coffees of the World Inc., 2010 ONCA 673, 74 B.L.R. (4th) 161, at para. 16. The motion judge, at para. 8, expressed an appreciation of these principles and said he was proceeding with his analysis accordingly.

[35] With respect, although the motion judge expressed the correct legal principles, he was in error when he interpreted the Action Against Insurer endorsement clause as an alternative dispute resolution provision. It was unnecessary and an error for him to "widen" the meaning to the Action Against Insurer endorsement clause and turn it into an alternative dispute resolution provision in order to give it effect. This is because the plain language of the clause can be given meaningful effect without conflicting with the mandatory language of the arbitration clause, thereby giving effect to all of the terms of the insurance policy.

[36] I conclude that the Action Against Insurer endorsement does not clearly provide for an alternative right of the insured to commence a domestic action against the Insurers. As I will explain, it is arguably a service of suit clause, which I will define in more detail below. As a result, it cannot be said that the arbitration provision was clearly inoperative on the facts of this case.

[37] The Action Against Insurer clause in this case provides as follows:

In any action to enforce the obligations of the Underwriters they can be designated or named as "Lloyd's Underwriters" and such designation shall be binding on the Underwriters as if they had each been individually named as defendant. Service of such proceedings may validly be made upon the Attorney In Fact in Canada for Lloyd's Underwriters, whose address for such service is 1155 rue Metcalfe, Suite 2220, Montreal, Quebec H3B 2V6.

[38] The motion judge rejected the Insurers' argument that the Action Against Insurer provision can be interpreted as referring to service of actions to compel arbitration or enforce an arbitral award. TFS argues that this suggested interpretation would render the plain language of this clause completely ineffective, as the motion judge found at para. 13. As already noted, I do not accept the submission of TFS.

[39] The Insurers contend that the Action Against Insurer clause is actually a service of suit clause. That is, the clause simply defines the circumstances under which the insurer will accept service of a suit, if that insurer is out of the jurisdiction or constitutes a syndicate of many individual insurers. I agree with the Insurers.[5]

[40] The word "action" and the word "defendant", when they appear in a clause about the identification and service of underwriters in the context of claims for breaches of the obligations under the insurance agreement, do not necessarily refer to a civil action, or to a defendant in a civil action. They can easily be read as referring to any proceeding in which a claim is made against the underwriters. An arbitration is a proceeding in which a claim is advanced against the underwriters. The reference to the underwriters as "defendant" is a description of their role in the proceeding.

[41] Indeed, even if "action" and "defendant" do refer to a civil action, the Action Against Insurer endorsement does not conflict with the mandatory arbitration clause. Notwithstanding the latter's operation, there are still civil actions available to TFS: actions to determine jurisdiction or compel arbitration, actions to enforce arbitral awards, and appeals of arbitral awards are all examples of such actions.

[42] Further supporting this conclusion is the fact that the Action Against Insurer clause says nothing about where or how claims to enforce obligations under the agreements are to be determined. As pointed out in oral argument, the provision does not even deal with all of the potential defendants to an enforcement claim (i.e. Equinox). The plain wording of the endorsement does not need to be "widened" into an alternative dispute resolution process in order for it to have meaning and be effective.

[43] TFS argues that it insisted that Equinox "Canadianize" the policy (i.e. issue the policy in Ontario and ensure compliance with Canadian insurance regulations), "intending and believing" that doing so would permit it to sue in court. But contractual interpretation does not turn on these types of subjective expectations: Salah, at para. 16. TFS admits that neither party specifically raised the issue of how, when, or where dispute resolution would take place. The plain wording of the insurance contract is clear and unambiguous.

[44] Similar clauses were at issue in Ace Capital Ltd. v. CMS Energy Corp., [2008] E.W.H.C. 1843 (Comm.), 2 C.L.C. 318 and Midnight Marine. In both cases the court held that the Action Against Insurer clause and a mandatory arbitration clause did not conflict and that both clauses could be given meaningful effect without nullifying or otherwise modifying the arbitration clause.

[45] In Ace Capital, there was no conflict because even if the mandatory arbitration clause was given full effect, there were certain civil actions which could still be brought. This could include: to compel arbitration, to declare the validity of an award, to enforce an award, or to confirm the jurisdiction of US courts on the merits in the event that the parties agree to dispense with arbitration. The Action Against Insurer clause would apply to those civil proceedings. That court premised its decision, in part, upon the principle that "[a] clause should not be rejected unless manifestly inconsistent with or repugnant to the rest of the agreement." (at para. 70).

[46] In Midnight Marine the relevant clause in the insurance policy under consideration was headed, "Service of Suit Clause (Canada) – (Action against Insurer)". The clause itself was materially identical to that in this case. Relying on Ace Capital, Barry J.A. concluded that the mandatory arbitration clause and the service of suit provisions did not conflict. At para. 56, he held that the service of suit (Action against Insurer) clause could be given meaningful effect without nullifying or otherwise modifying the arbitration clause:

A meaningful scope may be given to the Service of Suit Clause, without concluding it nullifies the exclusive (in the first instance) jurisdiction of English arbitrators and courts provided for by Clause I. The Service of Suit Clause may still be applied to actions seeking to declare the arbitrable nature of a dispute, to compel arbitration, to declare the validity of an award, or to enforce an award.

[47] In our case — just as it was in Ace Capital and Midnight Marine — after interpreting the insurance contract as a whole, it is possible to give meaningful effect to both the mandatory arbitration clause and the Action Against Insurer clause. Interpreting it this way gives meaning to all of its terms, and avoids an interpretation that would render the mandatory arbitration clause merely optional and thus ineffective. In contrast, the motion judge's interpretation required the modification of the wording of the arbitration clause, which was accomplished by changing the word "shall" to "may".

[48] In sum, the arbitration provision was at least arguably operative in the circumstances. The motion judge failed to give effect to the mandatory language of the arbitration clause that provides that any dispute under the policy "shall be referred to and finally resolved by arbitration". In finding that the Action Against Insurer clause allowed TFS to also commence court proceedings in Ontario, the motion judge erroneously nullified this mandatory language. He was in error in doing so.

[49] For these reasons, I would allow this ground of appeal.

(3) Did the Motion Judge Correctly Consider the ICAA and the Model Law?

[50] For context, it should be kept in mind that alternative dispute resolution mechanisms, including arbitration, are among the means the international community has adopted to increase efficiency in economic relationships: Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801, at para. 1. And, unless there is legislative intervention, the courts will generally give effect to the terms of a commercial contract freely entered into, including an arbitration clause: Seidel v. TELUS Communications Inc., 2011 SCC 15, [2011] 1 S.C.R. 531, at para. 2. It is a well-settled policy in Canada to enforce arbitration agreements and forum selection clauses.

[51] On the motion, the Insurers argued that the ICAA mandates that the Model Law governs this dispute. As already noted, the motion judge rejected the application of the Model Law saying, at para. 11:

In my view, this is for situations where the parties to the agreement have agreed to arbitration as the sole method of proceeding and not where the parties have also agreed or contemplated an alternative, being "an action to enforce the obligations of the Underwriters".

[52] In the motion judge's opinion, "the contract read as a whole provides for alternative methods of proceeding, that is by arbitration pursuant to Clause 8j) and by an action under the Declarations endorsement which clearly states and contemplates an "action to enforce the obligations of the Underwriters"."

[53] I have already concluded that the insurance policy did in fact provide for mandatory arbitration as the sole method of resolving disputes under the policy. It might seem, therefore, that such a conclusion resolves this appeal without the need to address this issue. However, given its importance to international commercial agreements, I believe it is helpful to clarify the law in this regard.

[54] In my view, to the extent that the motion judge held that arbitration must be the sole method of dispute resolution agreed to between the parties in order to attract the operation of the Model Law, doing so was wrong in law. Simply stated, the Model Law is not restricted in its application to international commercial agreements that provide for arbitration as the sole method of dispute resolution. While I agree that a purely optional arbitration provision does not necessarily attract the application of art. 8 of the Model Law, an agreement by the parties to submit certain, but not all disputes in a contract to arbitration does attract its application. This conclusion is supported by the jurisprudence and consistent with a plain reading of the ICAA and the Model Law.

[55] First, the Model Law specifically contemplates arbitration agreements whereby parties only agree to submit certain disputes to arbitration. It defines "arbitration agreement" as

an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

Implicit in this definition is the notion that certain disputes under the contract may be resolvable by methods other than arbitration, like civil action or mediation.

[56] Second, there are cases from this province applying the Model Law to contractual arbitration clauses contemplating the submission of a circumscribed set of disputes under a contract to arbitration: Jean Estate v. Wires Jolley LLP, 2009 ONCA 339, 96 O.R. (3d) 171, per Juriansz J.A. writing in concurrence, and 1338121 Ontario Inc. v. FDV Inc., 2011 ONSC 3816, 92 B.L.R. (4th) 1.

[57] Third, the Model Law may apply to an arbitration agreement even if the right of arbitration is merely optional. If the parties agree that arbitration is an optional method of dispute resolution, and one of the parties chooses to commence arbitration, there is no reason why art. 8 of the Model Law should not apply to stay any duplicative court actions in Ontario. Since, after electing to commence an arbitration, the parties agreed to respect that choice, and at that point it may be said that the parties have agreed to submit the dispute to arbitration.

(4) The Remaining Issues

[58] On the motion and again on appeal, TFS asserted that the arbitration agreement should not be enforced because it is clearly null and void. It is null and void, it says, because s. 124(1) of the Insurance Act, R.S.O. 1990, c. I.8 states that no term of an insurance contract is valid or admissible in evidence to the prejudice of the insured unless it is "set out in full in the policy or by writing securely attached to it when issued." TFS argues that when Equinox emailed them the final set of signed policy documents to issue the contract, the email only contained the Schedule, and not the base policy.

[59] In Sam's Auto Wrecking Co. v. Lombard General Insurance Co. of Canada, 2013 ONCA 186, 114 O.R. (3d) 730 the parties had amended their insurance contract by issuing an endorsement that referred to policy wording located in documents possessed by the insured and its broker. Laskin J.A. held that the amendment was valid and complied with s. 124(1) of the Act. Similarly, in this case, the base policy was in the possession of TFS and its brokers on the date they agreed to bind the contract. Accordingly, in my view, the arbitration clause is not clearly void and this issue should be left to the arbitrator: Dalimpex, at paras. 21-22.

[60] Finally, TFS argues that s. 123 of the Insurance Act, R.S.O. 1990, c. I.8 mandates that Ontario law apply to contracts of insurance made in Ontario. In its view, this statutory provision conflicts with clause 8(j) in that the latter purports to make the contract subject to the laws of England and Wales. The question of whether the arbitration agreement controls the determination of the proper forum to resolve the dispute is distinct from the question of what law should be applied in determining the dispute. Given my decision that the arbitration provision applies, it will be for the arbitration panel to determine the appropriate law to apply.

DISPOSITION

[61] For the reasons given, I would allow the appeal and stay the action, referring the parties to arbitration before three arbitrators seated in London, England pursuant to the terms of the insurance contract.

[62] Pursuant to the parties' agreement I would award the Insurers their costs of this appeal in the amount of $25,000 inclusive of disbursements and HST. Further, I would award the Insurers their costs of the motion below, which is to be the same amount awarded to TFS by the motion judge.

Released: January 11, 2018

"H.S. LaForme J.A."

"I agree. Doherty J.A."

"I agree. B.W. Miller J.A."

Footnotes

[1] The Model Law was adopted in the International Commercial Arbitration Act, R.S.O. 1990, c I.9, and subsequently the International Commercial Arbitration Act, 2017, S.O. 2017, c 2, Sch. 5.

[2] The LCIA (the London Court of International Arbitration) is an institution based in London, England that provides international arbitration services pursuant to its own rules and procedures, which it promulgates.

[3] Justice Lauwers suggested that judges take the following approach when considering a stay under the Arbitration Act:

(1) Is there an arbitration agreement?

(2) What is the subject matter of the dispute?

(3) What is the scope of the arbitration agreement?

(4) Does the dispute arguably fall within the scope of the arbitration agreement?

(5) Are there grounds on which the court should refuse to stay the action?

[4] See, for example, Ace Capital Ltd. v. CMS Energy Corp., [2008] E.W.H.C. 1843 (Comm.), 2 C.L.C. 318 and Oppenheim v. Midnight Marine Limited, 2010 NLCA 64, 325 D.L.R. (4th) 254.

[5] I note that modern iterations of "service of suit" clauses take many forms. Some broader examples of these clauses are akin to choice of law and jurisdiction clauses (see, for example, Dinallo v. Dunay Insurance Co., 672 F. Supp. 2d 368, at 370 (S.D.N.Y. 2009), cited in Masters, L. et al., Insurance Coverage Litigation, 2d. ed., (Aspen Publishers, 1999), at ss. 6.03[B] at 6-25) while narrower examples of these clauses, like the one in this case, simply define the circumstances under which an insurer will accept service of a suit.