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Kerish International Motors Agency v Opel Automobile GmbH
Factual and Procedural Background
The Appellant is a Palestinian company carrying on business as an automobile dealer in The City. The Respondent is an automobile manufacturer. By a "Dealer Sales and Services Agreement" dated 16 March 2012 (governed by English law with a London Commercial Court jurisdiction clause) the Respondent appointed the Appellant as a non‑exclusive dealer for the Palestinian National Authority territory. The Respondent gave notice on 21 February 2019 terminating the Agreement with effect from 28 February 2020 under Article 18.2.
The Appellant sued in the London Circuit Commercial Court seeking indemnification or compensation under Palestinian Law No. 2 of 2000 ("the Commercial Agents Law") in reliance on clause 19.1 of the Agreement, which provided compensation if termination on notice was "expressly mandated by national law." The trial judge (Judge Quest) after a five‑day trial dismissed the claim, holding that "national law" meant Palestinian law but that the Appellant was not a commercial agent within the scope of the Commercial Agents Law. The judge found that, had the Appellant been a commercial agent, it would have been entitled to compensation and rejected the Respondent's argument that the termination was for a serious reason.
The Appellant obtained leave to appeal on the issue of whether it was a commercial agent. A preliminary question arose concerning whether English courts could give effect to Palestinian law in the circumstances of state recognition; the parties sought a statement from His Majesty's Government, and the recognition issue was resolved. The Respondent filed a Respondent's Notice seeking to challenge the trial judge's finding that "national law" meant Palestinian law, but the Court of Appeal did not determine that point on the appeal and proceeded on the assumption (for the purposes of disposing of the appeal) that "national law" meant Palestinian law.
Legal Issues Presented
- Whether the expression "national law" in clause 19.1 of the Agreement meant English law (the governing law of the contract) or Palestinian law.
- If "national law" meant Palestinian law, whether the Appellant fell within the definition of a commercial agent under Palestinian Law No. 2 of 2000 and accordingly was entitled to compensation under that statute.
- Whether the appeal should be remitted to the trial judge for further consideration in light of anticipated or pending decisions of Palestinian courts (remission application).
Arguments of the Parties
Appellant's Arguments
- The Agreement had been registered with The Ministry of National Economy as a commercial agent agreement, and that registration should be given significant weight.
- The trial judge erred in his interpretation and application of Palestinian and Jordanian authorities (including the meaning of translation choices such as "on behalf of" v "for the account of").
- Ownership and resale of goods did not preclude commercial agent status; Article 14 of the Commercial Agents Law (obliging purchase of stock on termination) indicated ownership need not be decisive.
- The judge gave undue weight to contractual clauses (notably clauses corresponding to Article 4.11 and 4.12) that purported to negate agency or describe the Dealer as an independent business.
- The judge was wrong to construe "profit margin" as implying a profit share rather than a profit made by buying and reselling goods.
- The Appellant sought remission to await anticipated decisions of the Palestinian Court of Appeal and Court of Cassation in related cases which might affect the Palestinian law issue.
Respondent's Arguments
- The trial judge was entitled to prefer the evidence of the Respondent's expert on Palestinian law and to conclude the Appellant was not a commercial agent within the meaning of the Commercial Agents Law.
- Registration by The Ministry was not determinative and the Ministry did not conduct consistent or rigorous examination of agreements.
- The terms and operation of the Agreement (including express rights to buy, sell and resell in the Dealer's name, dealer obligations, purchase requirements, control over pricing and profits and express disclaimers of agent status) supported the conclusion that the Appellant acted in its own name and for its own account.
- The Respondent opposed remission: the fresh and prospective Palestinian decisions were unlikely to be determinative for the present appeal, their timing was uncertain and remission would cause disproportionate delay and prejudice to finality.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Deutsche Bank AG London Branch v Receivers [2021] UKSC 57, [2023] A.C. 156 | Guidance on seeking statements from His Majesty's Government about recognition and related policy issues. | Referenced as authority for obtaining HMG's position on recognition of Palestine before proceeding with foreign law questions. |
| Caglar v Billingham (Inspector of Taxes) [1996] STC (SDC) 150 | Authority relating to policy considerations when courts are asked to give effect to foreign laws where state recognition/policy issues arise. | Cited in relation to whether it would be contrary to HMG policy for English courts to give effect to Palestinian law. |
| Perry v Lopag Trust Reg [2023] UKPC16 [2023] 1 WLR 3494 | Summary of appellate approach to findings on foreign law and the special character of such findings. | Adopted as the starting point for the court's analysis of how appellate courts should approach findings on foreign law. |
| FAGE UK Ltd v Chobani UK Ltd [2014] FSR 29 | Principles limiting appellate interference with trial findings; "island hopping" metaphor for appellate review. | Used to illustrate the limited role of an appellate court when reviewing trial findings, particularly on expert evidence. |
| Maso Capital Investments Ltd v Trina Solar Ltd [2025] UKPC 48 | Appellate restraint: findings of fact will not be overturned absent identifiable error or if plainly wrong. | Applied in explaining that the appellate court should be slow to intervene in trial findings on foreign law unless plainly wrong. |
| Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642; [2003] 1 WLR 577 | Standard on appellate review of factual findings and concurrent findings of fact. | Referred to as part of the established authorities supporting restraint on appeal. |
| Henderson v Foxworth Investments Ltd [2014] UKSC 41; [2014] 1 WLR 2600 | Authority on appellate approach to findings of fact. | Included among authorities supporting the restrictive appellate approach. |
| Volcafe Ltd v Cia Sud Americana de Vapores SA [2018] UKSC 61; [2019] AC 358 | Appellate deference to trial judge's fact findings. | Relied on in the court's survey of authorities on appellate restraint. |
| JSC BTA Bank v Ablyazov [2018] EWCA Civ 1176; [2019] BCC 96 | Support for deference to trial judge in evaluating complex evidence. | Listed among cases illustrating appellate reluctance to re‑weigh trial evidence. |
| Perry v Raleys Solicitors [2019] UKSC 5; [2020] AC 352 | Authority on appellate review of factual findings and expert evidence. | Referenced as part of the corpus of authorities on appellate approach to foreign law and expert evidence. |
| Volpi v Volpi [2022] EWCA Civ 464; [2022] 4 WLR 48 | Illustration of appellate restraint on findings of fact. | Included in the list of authorities supporting the court's approach. |
| Piglowska v Piglowski [1999] UKHL 27; [1999] 1 WLR 1360 | Trial judge's expressed findings contain a "penumbra of imprecision"; appellate courts should respect that. | Cited for the proposition that transcripts cannot capture all nuances of oral evidence and judge evaluation. |
| McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477 | Importance of the trial judge's total familiarity with the evidence. | Used to support the trial judge's advantage over an appellate court in assessing evidence. |
| Byers v Saudi National Bank [2022] EWCA Civ 43; [2022] 4 WLR 22 | In cases at the extreme end of foreign law disputes appellate courts must not substitute their own interpretation for expert evidence. | Relied upon to reject the Appellant's invitation to reinterpret foreign texts independent of expert evidence. |
| Banco Intesa Sanpaolo SpA v Commune di Venezia [2023] EWCA Civ 1482; [2024] Bus LR 228 | Distinction between evidence as to foreign law and its application to facts. | Considered but held inapplicable as a meaningful distinction in this case where meaning and application were intertwined. |
Court's Reasoning and Analysis
The court began by identifying the remaining issues on appeal: (1) the meaning of "national law" in clause 19.1 and (2) if it meant Palestinian law, whether the Appellant was a commercial agent under the Commercial Agents Law. The court proceeded on the assumption that "national law" meant Palestinian law without deciding the Respondent's Notice point.
The court reviewed the trial judge's handling of expert evidence on Palestinian law. It summarised the applicable appellate principles (drawing on Perry v Lopag and related authorities): findings about foreign law are findings of fact of a special kind; where the foreign system and texts are unfamiliar and experts disagree the trial judge's advantage in assessing oral evidence is considerable and appellate intervention is justified only if the trial judge's conclusion is plainly wrong or based on an identifiable legal error.
The court observed that the issue in this case lay at the end of the spectrum where the trial judge was heavily dependent on expert evidence (translation of Arabic texts, Palestinian and Jordanian authorities). The trial judge had heard and assessed competing experts (Dr Husseini for the Appellant and Mr Attereh for the Respondent) and had given reasons for accepting Mr Attereh's evidence by reference to the parties' experts, relevant Palestinian and Jordanian cases and the terms and operation of the Agreement.
Applying the appellate standard, the court examined the Appellant's grounds of appeal in turn and found no basis to conclude the trial judge was plainly wrong. Key elements of the judge's reasoning which the court endorsed included:
- Registration of the Agreement with The Ministry was not determinative; the judge was entitled to treat registration as a factor of limited weight in light of evidence about The Ministry's practices and other case law.
- The judge permissibly accepted the Respondent's expert's interpretation of Palestinian and Jordanian decisions distinguishing commission agents and commercial agents and treating resale in one's own name and for one's own account as inconsistent with commercial agency in the relevant cases.
- Ownership and resale of goods were properly treated as relevant (but not necessarily conclusive) factors: the judge saw ownership as reflecting the nature of the arrangement (buying and reselling for one's own account) which Palestinian and Jordanian authorities had treated as inconsistent with commercial agency.
- Contractual provisions (notably clauses equivalent to 4.11 and 4.12) stating that the Dealer was not an agent and that the Dealer was an independent business were legitimate indicia to consider under Palestinian law and were correctly weighed as part of a multi‑factorial assessment.
- The judge did not err in his treatment of the phrase "profit margin" in Article 1 of the Commercial Agents Law given the broader evidential context and expert testimony.
On the issue of remission, the court analysed the sequence of fresh and prospective Palestinian decisions and the timing estimates. It concluded that the anticipated decisions were speculative in their assistance to the present appeal, their timing was uncertain (potentially measured in years), and remission to await them would cause disproportionate delay, prejudice finality and be contrary to efficient use of court resources. The court therefore rejected the Appellant's application for remission.
Holding and Implications
Holding: The appeal is DISMISSED and the Appellant's application to remit the Palestinian law issue to the trial judge is refused.
Implications: The direct effect is that the trial judge's judgment dismissing the Appellant's claim (on the basis that the Appellant is not a commercial agent under the Palestinian Commercial Agents Law) stands. The court emphasized that no intervening decision of the Palestinian courts relied on by the Appellant was sufficient to justify remission and that the appellate standard of review required deference to the trial judge's assessment of expert evidence. The opinion does not purport to establish a new principle of domestic common law beyond application of established appellate restraint in foreign‑law fact situations.
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