Kabab-Ji in England: agreement law and a non-signatory company

The case and agreement

On 27 October 2021 the UK Supreme Court decided Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait), [2021] UKSC 48. Kabab-Ji had contracted with Al Homaizi, which became a subsidiary of Kout Food Group following reorganisation. The franchise agreement selected English law, ICC arbitration in Paris and written formalities for changes.

The disputed questions

Arbitration was commenced solely against KFG, which maintained that it had not entered either the contract or arbitration agreement. A majority of the tribunal found it bound and awarded payment. English enforcement proceedings required identification of the law governing party status, assessment of the written-modification provisions, and a decision whether refusal was possible without a full further evidentiary hearing.

The Court’s precise holdings

Paragraph 53 confirms English law as governing whether KFG became a party to the arbitration agreement. Paragraph 75 finds no real prospect of establishing that position at a later hearing, having considered the contractual requirements and asserted estoppel. This was a conclusion about the particular agreement and evidence, not a prohibition on every form of non-signatory participation.

Paragraphs 80–82 explain that summary judgment can be appropriate while leaving the legal burden of establishing a refusal ground on the party resisting enforcement. Paragraphs 92–93 uphold refusal of recognition and enforcement and dismiss Kabab-Ji’s appeal. The English court did not annul the Paris award.

France and subsequent legislative change

The French decision of 2022 left the refusal to annul the same award intact. An award’s continuing existence at its seat therefore did not predetermine the result in another enforcement country. The contrasting outcomes reflect specific legal approaches and different objects of judicial review.

Current choice-of-law analysis must consider the Arbitration Act 2025, section 6A and transitional section 17(4). The new rule cannot be ignored, but neither should every Kabab-Ji holding be described as automatically displaced: that case concerned Part III and section 103(2)(b), whereas section 6A was inserted into Part I. Establish the relevant provision’s scope and the commencement dates of proceedings.

Practical significance

Examine the agreement’s governing law, the persons it binds and contractual requirements for amendments as separate matters. Corporate affiliation does not replace evidence of consent. Comparing original documents with the applicable-law framework avoids inferring jurisdiction merely from a group name or commercial involvement in performance.