At its core, this appeal raises a single issue of contractual interpretation. The clause to be construed is a non-assignment clause in a contract dated 6 March 2015 for the sale of two Falcon maritime surveillance aircraft and spares (the aircraft) from Dassault in France to Mitsui Bussan Aerospace Co. Ltd. (MBA) in Japan (the sale contract). The sale contract was governed by English law. The aircraft were, however, to be sold on by MBA to the Japanese Coast Guard under a purchase contract of the same date governed by Japanese law (the sub-sale contract).
The proper interpretation of article 15 arose because Dassault challenged the jurisdiction of the arbitrators (Lord Lawrence Collins, Joe Smouha KC and Simon Crookenden KC) in an ICC arbitration in London initiated by MSI against Dassault in mid-2021. MBA had entered into a contract of insurance with MSI on 30 September 2017 (the insurance contract) to insure the risk of it (MBA) being held liable to the Japanese Coast Guard for late delivery of the aircraft. The aircraft were indeed delivered late. MBA duly claimed against MSI under the insurance contract. On 11 May 2020, MSI duly paid approximately JPY 1.8 billion (in respect of agreed liquidated damages due under the sub-sale contract) to the Japanese Coast Guard.