This is what Microsoft tried to do in its claim against two Sony companies (“Sony”) for alleged breaches of competition law in acting as a cartel with a number of other companies to keep artificially high the price of Li-Ion batteries. Sony had agreed to supply these batteries to Microsoft under a supply agreement which contained an ICC arbitration clause. 

If the alleged behaviour was true, then Sony was in clear breach of the supply contract, as well as being liable in tort (i.e. a non-contractual wrong) for infringing competition law. Sony therefore could have sued Sony for both breach of contract and the tortious claims. The English courts assume that parties to an arbitration or jurisdiction agreement, as rational business people, are likely to have intended any dispute arising out of the relationship into which they have entered to be decided by the same tribunal, and so all these claims would fall to be arbitrated. This would have meant that Microsoft would not have been able to sue Sony in court, and also that Microsoft would have had problems suing in England the other companies involved in the alleged cartel, since they were all based out of the jurisdiction. If Microsoft had been able to sue Sony (who were UK-domiciled) then it would have had a stronger argument for being able to sue those other defendants in England as well, on the basis that they were necessary and proper parties to the claim against Sony. 

Microsoft tried to avoid the arbitration clause by not bringing any contractual claims against Sony at all, only tortious claims, and when Sony applied to have the proceedings stayed against them under section 9 of the Arbitration Act 1996 on the basis that the parties had agreed to arbitrate disputes, they tried to argue that the arbitration agreement did not apply if no contractual claims are being made. 

The court, however, rejected this argument and granted the stay. It held that the fact that the contractual claims had not been pleaded was irrelevant, as otherwise it would be easy for a claimant to circumvent the scope of an arbitration or jurisdiction clause simply by selectively pleading or not pleading certain claims, and that it would be an “extraordinary outcome” if because a contractual claim had not been pleaded, a ‘parallel’ tortious claim arising out of the same facts and with a scope defined by that contract would fall outside the arbitration or jurisdiction clause. 

The judgment of the case can be found here