By Tarun Mishra and Shambhawi Tiwari.
Tarun Mishra and Shambhawi Tiwari are 3rd-year B.A., LL.B. (Hons.) students at the National University of Study and Research in Law (NUSRL), Ranchi.
Is your signed contract truly the final authority? This post examines the Paris Court of Appeal’s explosive 2025 ruling in Keppel Seghers v. Ashghal. By prioritizing parties’ “common intention” over formal “Priority of Documents” clauses, the Court established that daily conduct can override written text. The article contrasts this French approach with the strict textualism of English and Singaporean jurisdictions. It further warns that mere silence in project management can now forge binding arbitration agreements, forcing a rethink of international contract drafting and enforcement strategies.
Keywords: International Commercial Arbitration, Contract Interpretation, Common Intention, Implied Arbitration Agreement, Parties’ Conduct
At the heart of international commercial disputes adjudication is a paradox: arbitration is a consensual mechanism and a creation of the parties’ will, but most of the time, the realization of that will is hardly distinguishable from the urgencies of complicated commercial dealings. Traditionally, across legal systems, the inclination has been to closely identify the written text with the “four corners” of the contract from which consent at the most could be inferred. The strict enforcement of formalities creates friction with progressions in relationships that emerge over time in long-term infrastructure projects which, by their nature, are assembled around conduct rather than the original written text, leaving the written text a relic of fossils.
The decision of the Paris Court of Appeal has been the subject of considerable scholarly and professional discourse ever since it was rendered on 17 November 2025, in the case of Keppel Seghers Engineering Singapore Pte Ltd v. Public Works Authority of Qatar (Ashghal) is a major shift in this jurisprudential area. The Paris Court of Appeal ( hereinafter “the Court”), by annulling the International Chamber of Commerce (“ICC”) award which had declined jurisdiction on the ground of a strict reading of a “priority of documents” clause, has gone far to confirm that the “common intention” (commune volonté) of the parties takes precedence over contractual formalism.
This ruling puts into question the effectiveness of typical “hierarchy of documents” clauses that have been an unquestioned standard in the construction industry, and as a result, lead to a considerable difference in the respective approaches of main arbitral seats to the issue of law.
Paris is progressively adopting a practice-oriented approach for confirming arbitration agreements whereas judicial authorities in London and Singapore are still struggling to reconcile the contradictory relationship between text and context and consequently they very often come to completely different conclusions on the same facts.
To understand the doctrinal significance of the ruling in the case, it is necessary to go back to the tangled web of contractual arrangements that created the deadlock on jurisdiction. The dispute that is at the heart of the jurisdictional deadlock did not appear very quietly; it occurred in the hazardous sphere of public infrastructure in Qatar.
The issue involves a contract between Keppel Seghers Engineering Singapore Pte Ltd (“Keppel”) and the Public Works Authority of Qatar (“Ashghal”) for the design, construction, and operations of a large wastewater treatment plant (Para 1). The business association was regulated by a complicated set of documents, among which were “Particular Conditions” negotiated for the project and standard “General Conditions” imposed by Ashghal (Para 2). One of the most significant elements in the General Conditions was a standard dispute resolution clause that gave exclusive jurisdiction to “competent Qatari courts” (Para 2).
However, the parties exchanged drafts contemplating arbitration during pre-contractual negotiations (Paras.3-5, 37-38). They did not clearly state in the final contract that the arbitration agreement would override the litigation clause in the General Conditions (Para 36). Moreover, a “Priority of Documents” clause indicated that the General Conditions would prevail over the other non-integrated document (Para 68).
After the contract had been terminated, Keppel brought a case to the ICC arbitration in 2023 (Para 10). The panel, located in Paris, took a very literal interpretation of the text and refused to accept that it had jurisdiction (Para 13). In its view, the “Priority of Documents” clause was the one that was most close to being used and the General Conditions (which prescribe court proceedings) were of a higher level than the documents that Keppel had referred to (Para 13). Keppel subsequently challenged this award before the Paris Court of Appeal (Para 14).
The main judicial problem revolved around the issue of the parties’ conduct being able to create an implied binding arbitration agreement that would have precedence over a conflicting written clause dealing with jurisdiction in a signed contract. The Court was to decide whether “shared intention” is just a means of clarifying vague points or a higher substantive norm that can replace formal contractual hierarchies.
The decision of the Paris Court of Appeal is a prime illustration of the “French School” of international arbitration that uses a substantive rule (règle matérielle) instead of a conflict-of-laws analysis. The Court emphasized that the arbitration clause is a separate juridical entity from the main contract and its existence is verified “under French mandatory rules and international public policy only, ascertained from the common intention of the parties.”
The Court’s reasoning was anchored to the good faith principle which stipulates that a party cannot deny a commitment to which it is estopped even if such a commitment was created by actions, provided that the other side has relied on it. Furthermore, employing the principle of effet utile (effectiveness) the Court took the view that the intricate and negotiated references for arbitration were intended for practical use unlike the standard litigation clause.
Thus, the Court even disregarded the “Priority of Documents” clause, contending that the existence of the litigation clause in the general terms “did not influence” the existence of the arbitration agreement which was to be inferred from the parties’ mutual intention.”
The Keppel Seghers case illustrates a growing division between the conduct-based approach of France and the other principal jurisdictions where textualism is applied rigorously.
In England & Wales, In stark contrast to Paris, English courts maintain that where a hierarchy clause resolves a conflict, it must be enforced. The 2025 decision in Tyson International Company Ltd v GIC Re, India EWHC 77 illustrates this.
An English Commercial Court issued an anti-arbitration injunction as a result of a “hierarchy clause” in the contract that referred the matter to the document containing a clause giving jurisdiction to the court in case of conflict between the arbitration clause. According to English law, the written hierarchy is final, and conduct will hardly change express terms.
In India, Indian jurisprudence has travelled a similar path as France but through statutory interpretation. In the landmark Glencore International AG v. Shree Ganesh Metals (August 2025) case, the Supreme Court of India made it clear that the arbitration agreement was in effect even though the respondent had not signed the contract. The Court ruled that the exchange of correspondence and performance of the contract (accepting goods) satisfied the “in writing” requirement of Section 7 of the Arbitration Act.
In Singapore, DMZ v DNA SGHC 31, exemplifies the High Court’s reaffirmation of the concept of party freedom under the written regulations selected by the parties.
Although Singapore law permits arbitration agreements to be in any form, the judiciary usually demands that the actions be solidified in a written document. Singapore courts, when encountering disputing clauses, undertake meticulous interpretation as opposed to a wide “common intention” exception, frequently supporting the particular written provisions unless the opposing evidence is very strong.
The decision in Keppel Seghers v. Ashghal carries significant practical consequences for parties engaged in international commercial arbitration, particularly those that have selected Paris as their arbitral seat. These consequences warrant careful analysis across three interrelated domains: contract drafting, conduct during contract performance, and enforcement.
From a drafting perspective, the decision serves as a pointed reminder that “Priority of Documents” clauses cannot be treated as self-executing protective mechanisms in the French legal order. Where parties genuinely intend to exclude arbitration or confine dispute resolution to a particular forum, that intention must be expressed with clarity and consistency throughout the contractual documentation. It is no longer sufficient to rely on a hierarchical clause alone; parties must ensure that their written instruments do not contain competing references to arbitration, whether in correspondence, meeting records, or ancillary documents, which could subsequently be construed as evidence of a common intention to arbitrate.
On the question of conduct, the decision must be read with appropriate doctrinal precision. The Court did not hold that any unanswered reference to arbitration in correspondence will, of itself, give rise to a binding arbitration agreement. Rather, the Court assessed silence and non-objection as evidentiary factors within a broader analysis of the parties’ common intention, informed by the cumulative weight of pre-contractual negotiations, the structure of the final contract, and conduct during performance. This approach is consistent with principles of good faith interpretation and the doctrine of effect utile as applied in French international arbitration law. Practitioners should therefore understand the decision as requiring active vigilance: where a counterparty invokes arbitration in written communications and the existing contractual framework provides otherwise, a timely and unequivocal objection is essential to preserve one’s position.
Silence, particularly when combined with conduct consistent with the arbitral mechanism referenced, may be attributed significant evidentiary weight by a French court.
The enforcement dimension of this decision deserves equally careful consideration. While the Paris Court of Appeal annulled the ICC award for lack of jurisdiction and thereby paved the way for fresh arbitral proceedings, the enforceability of any resulting award in Qatar remains a distinct and uncertain question. A respondent domiciled in Qatar may invoke Article V(1)(a) of the New York Convention, arguing that the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made. If Qatari courts apply their domestic law to assess the validity of the arbitration agreement, particularly given the uncorrected presence of Clause 20.4 in the General Conditions, the prospects of enforcement in Qatar may be limited regardless of the outcome in Paris.
This dynamic illustrates a broader strategic concern for seat selection: a seat that is favourable to the recognition of conduct-based arbitration agreements may produce awards that are difficult to enforce in jurisdictions with stricter formality requirements. Parties operating across such jurisdictions should account for this asymmetry at the drafting stage, giving careful thought to the alignment between their chosen seat, the governing law of the arbitration agreement, and the likely place of enforcement.
Regarding the position in Singapore, DMZ v DNA SGHC 31 reflects the Singapore High Court’s continued emphasis on party autonomy within the framework of the written rules chosen by the parties, a position that reflects a considered and distinct jurisprudential approach rather than an inflexible one. The divergence between the French and Singaporean approaches underscores the importance of jurisdiction-specific drafting strategies, particularly for parties whose projects span multiple legal systems.
The 17 November 2025 decision in Keppel Seghers v. Ashghal reaffirms the foundational principle of the French school of international arbitration: that the common intention of the parties, as evidenced by their conduct, may prevail over a rigid application of contractual formalism.
By declining to give determinative effect to the “Priority of Documents” clause, the Paris Court of Appeal confirmed that pre-contractual and post-contractual conduct, including correspondence and performance, constitutes relevant and admissible evidence in identifying the existence and scope of an arbitration agreement. It must, however, be emphasised that this approach is not without doctrinal limits.
Such findings remain inherently fact-sensitive and are contingent upon clear and consistent evidence of mutual intent, the application of seat-specific rules of contractual interpretation, and principles analogous to reliance and estoppel. Moreover, practitioners must remain mindful that a finding of jurisdictional validity before a French court does not guarantee enforceability in all jurisdictions, particularly those adhering to stricter formality requirements. For drafting and project governance purposes, this decision underscores the importance of ensuring consistency between the formal contractual hierarchy and the parties’ actual conduct throughout the life of a project, as divergence between the two may give rise to unintended jurisdictional consequences.
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