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A complex costs dispute involving a global firm has forced a court to untangle competing arbitration and jurisdiction clauses.
Clifford Chance has been locked in a costs dispute with former client EEPL Holdings, a subsidiary of the ASX-listed Equatorial Resources Limited, following its representation in an international arbitration matter involving the Republic of Congo.
A substantial proportion of the invoices issued by Clifford Chance between December 2025 and May 2026 remain unpaid.
The Supreme Court of Western Australia was drawn into the feud after conflicting clauses across Clifford Chance’s retainer raised questions over whether the firm could pursue an arbitration.
Justice Michael Lundberg noted “constructional difficulties” in Clifford Chance’s use of multiple documents, “without employing a hierarchical provision to clarify the order of precedence”.
On the one hand, clause 16 of the Terms of Business contained an optional arbitration regime, which conflicts with clause 16 in the Additional Terms, which states the parties “irrevocably submit to the exclusive jurisdiction” of courts in Western Australia.
On EEPL’s construction of the retainer, there is an “express contractual promise not to arbitrate any disputes”.
Further, EEPL argued the current situation attracted the “orthodox grant of anti-arbitration injunction”, in addition to an order to restrain the breach of contractual promise not to arbitrate, and restrain proceedings which are vexatious.
Justice Lundberg did not find in EEPL’s favour.
While there is a “degree of tension” between the clauses, Justice Lundberg was satisfied the arbitration agreement did not yield to the West Australian exclusive jurisdiction provision.
Working together, the clauses provide for the dispute to be dealt with via arbitration, with West Australian courts having supervisory jurisdiction.
EEPL steered clear of describing the arbitration clause as inoperative, which would have been inappropriate given that language is “more apt to the exposition of a stay application”.
“In any event, the plaintiff’s central contention is one that I must reject given the proper construction of the retainer, on my analysis.
“The retainer does incorporate an arbitration agreement,” he said.
Given that the scope of the arbitration agreement is broad enough to capture the current costs dispute, EEPL’s application for an anti-arbitration injunction was refused.
Citation: EEPL Holdings v Clifford Chance [2026] WASC 368.
