'Battle Of The Forms''first Shot, Framework Agreements And Jurisdiction Clauses - TRW V Panasonic [2021] EWCA Civ 1558

• Published date: 19 November 2021
• Law Firm: Quadrant Chambers
• Author: Mr Chirag Karia QC

First published on LexisNexis on 5 November 2021

While the 'last shot' usually wins the contractual 'battle of the forms' to determine which party's standard terms govern the contract concluded, in TRW v Panasonic, the Court of Appeal held that, exceptionally, the seller's 'first shot' had won the battle by creating an overarching 'master' agreement governing all subsequent purchases by the buyer. The court also rejected (obiter) the buyer's argument that that overarching agreement was unsupported by consideration, drawing an analogy with public procurement and framework agreements, which have been held to be binding and never challenged for lack of consideration. Written by Chirag Karia QC

TRW Ltd v Panasonic Industry Europe GmbH and another [2021] EWCA Civ 1558

What are the practical implications of this case?

This decision demonstrates that the party firing the 'last' shot, ie the last party to send its standard terms to its counterparty before performance-will not always win the battle to determine which party's standard terms govern. Instead, by carefully drafting its standard terms to prevent any other terms from applying, and crucially, securing the agreement of its counterparty to those terms at the outset, the party firing the 'first' shot can prevail. This case further demonstrates the prejudice that...