Kerish International Motors Agency v Opel Automobile GmbH

The Respondent (‘Opel’) is a well-known automobile manufacturer. The Appellant (‘Kerish’) is a Palestinian company, carrying on business as an automobile dealer in Ramallah in the West Bank. Following the expiry of an earlier agreement made in 1998, Opel appointed Kerish as its non-exclusive distributor in the Palestinian National Authority territory by a “Dealer Sales and Services Agreement” dated 16 March 2012 (‘the Agreement’). The Agreement was governed by English law and had a London Commercial Court jurisdiction clause. On 21 February 2019 Opel terminated the Agreement by notice with effect from 28 February 2020 pursuant to Article 18.2, which entitled either party to terminate without cause on not less than 12 months’ notice.

Kerish brought proceedings against Opel in the London Circuit Commercial Court seeking a declaration that it was entitled to indemnification and/or compensation as a commercial agent in accordance with the provisions of Palestinian Law No. 2 of 2000 (‘the Commercial Agents Law’) in reliance on clause 19.1 of the Agreement which provided in relevant part that in the event of a termination on notice, Kerish had a right to compensation or indemnification from OPEL resulting from the termination if “expressly mandated by national law.” Article 15 of the Commercial Agents Law provides for a commercial agent (as defined) to be entitled to fair compensation if the agent’s agreement is terminated or not renewed by the principal for a “non-serious reason”.

Following a five day trial Mr David Quest KC sitting as a Deputy High Court Judge (‘the Judge’) dismissed the claim for reasons set out in a judgment dated 7 May 2024 (‘the Judgment’). He held that “national law” in clause 19.1 meant Palestinian law, rejecting Opel’s submission that it referred to English law as the governing law of the contract; but rejected Kerish’s claim to be entitled to compensation under the Commercial Agents Law on the grounds that Kerish was not a commercial agent within the scope of that Law. The Judge held that had it been a commercial agent it would have been entitled to compensation, rejecting Opel’s argument that the termination was “for a serious reason” (in respect of which there is no Respondent’s Notice).

Kerish appeals against the finding it was not a commercial agent within the meaning of the Commercial Agents Law. When giving leave, Males LJ drew attention to a potential question as to whether the Court could give effect to Palestinian law in the light of the “one voice” principle and his understanding that His Majesty’s Government (‘HMG’) had not then recognised Palestine. That led to the hearing of the appeal on 16 July 2025 being adjourned in order for the parties to seek a statement from HMG whether it recognised Palestine (see Deutsche Bank AG London Branch v Receivers [2021] UKSC 57, [2023] A.C. 156), and if not whether it would be contrary to the policy of HMG for the English Courts to give effect to Palestinian law as applied by Palestinian Courts in commercial dealings in the context of a contractual dispute (see amongst other cases Caglar v Billingham (Inspector of Taxes) [1996] STC (SDC) 150 at [121]). A letter from the Foreign Commonwealth & Development Office dated 1 September 2005 answered both questions in the negative, and shortly thereafter HMG recognised Palestine. No issue remains in relation to the recognition of Palestine. By a Respondent’s Notice Opel seeks to overturn the Judge’s finding that “national law” means English Law as the governing law of the contract.

Accordingly the remaining issues arising on the appeal were, in logical order (1) whether “national law” in clause 19.1 meant English or Palestinian law; and (2) if Palestinian Law, whether the Judge’s conclusion that Kerish was not a commercial agent within the scope of the Commercial Agents Law should be overturned. Shortly before the hearing Kerish applied for the case to be remitted to the Judge to await and consider further decisions anticipated from the Palestinian Courts. Having heard the application we announced our decision to reject it for reasons to be given in a reserved judgment. I address below my reasons for joining in that decision.

At the conclusion of the argument advanced by Mr Sinclair KC on behalf of Kerish in support of the appeal we announced that we did not need to hear from Opel on the Respondent’s Notice point which would not arise, unless it wished to seek to persuade us to address and decide it. Mr George KC and Ms Suri (who was due to address the point) confirmed that they did not wish to do so. Accordingly in this judgment I address the grounds of appeal on the assumption that “national law” in clause 19.1 means Palestinian law, without determining whether the Judge was right to reach that conclusion.

The Judge heard expert evidence on the various issues of Palestinian law from Dr Husseini on behalf of Kerish and Mr Attereh on behalf of Opel, both of whom he found were well qualified to give evidence on the issues.

The relevant provisions of the Commercial Agents Law were translated from the Arabic by translators on each side. There was a dispute as to the correct translation of the critical article of the Law, Article 1, which defined a Commercial Agent as:

“A natural or juridical person who has the right, under an agreement, to sell or distribute or promote goods and products or provide services in Palestine on behalf of a producer or supplier in return for a commission or profit margin.”

The translation dispute was over the expression “on behalf of”: Mr Attereh said that the sense of the Arabic was better rendered by “for the account of”. The Judge determined that this was a dispute which did not need to be resolved as a matter of translation because the parties were not only in dispute about the translation but also about what the rival expressions meant, and what the sense of the wording was as it would be applied by Palestinian Courts, on which he had the rival views of Dr Husseini and Mr Attereh. That was a sound approach.

Both Dr Husseini and Mr Attereh agreed that decisions of the Jordanian Courts were persuasive in Palestinian jurisprudence. This arises from the fact that the West Bank was administered by Jordan from 1950 until it was lost to Israel in the Six Day War in 1967. The Palestinian National Authority was established in 1994 pursuant to the Oslo Accords and began to pass its own legislation in the territory. The Jordanian Commercial Law (No 2) of 1966 (‘the 1966 Commercial Law’) remained in force in the West Bank after 1994 and continues in force there alongside the Commercial Agents Law of 2000. There is also a Jordanian Commercial Agents Law, Law No 28 of 2001, which has a number of similarities to the Palestinian Commercial Agents Law of the previous year, but defines a commercial agent in markedly wider terms.

The Commercial Agents Law required commercial agents agreements to be registered with the Ministry of National Economy. The Agreement between Opel and Kerish was so registered, and the Ministry issued certificates of registration.

The Agreement comprised Recitals and 23 detailed clauses spread over 42 pages, and further annexes running to over 100 further pages. The Recitals recorded that Opel and Kerish desired to promote the sale of Opel vehicles, parts, accessories and after sales services for Opel vehicles; and that Opel wished to appoint Kerish to be its Opel dealer with responsibility for the sales of vehicles parts and accessories and services in the Palestinian National Authority areas from its premises at Kerish Motor Mall outside Ramallah. The appointment was on a non-exclusive basis on both sides. Opel was free to appoint other dealers or make direct sales within the territory; and Kerish was free to (and did) act as a dealer for other brands of vehicles. Articles 4.3 to 4.4 set out the parties’ respective key rights and responsibilities thereunder as follows (where, here as throughout the Agreement “Dealer” refers to Kerish):

“4.3

GRANT OF RIGHTS

OPEL NSC hereby grants DEALER the right to:

4.3.1

buy and sell the MOTOR VEHICLES identified in the MOTOR VEHICLE ANNEX and OPEL PARTS AND ACCESSORIES; and

4.3.2

to provide Service (all work related to MOTOR VEHICLES OPEL PARTS and ACCESSORIES including but not limited to inspections, repairs, maintenance, warranty, campaign and policy carried out by DEALER under this AGREEMENT) for MOTOR VEHICLES; and

4.3.3

identify itself as an OPEL DEALER at the DEALER FACILITIES approved by OPEL NSC.

4.4

RESPONSIBILITY OF DEALER

DEALER shall endeavour to conduct and perform DEALER OPERATIONS in a manner which exceeds customer expectations throughout the purchasing and ownership experience.

DEALER shall:

4.4.1

Actively and effectively sell and promote MOTOR VEHICLES, OPEL PARTS and ACCESSORIES and, if DEALER participates, OPEL NSC Recommended Programs; and Actively and effectively promote the DEALER OPERATIONS, the purchase and use of MOTOR VEHICLES, OPEL PARTS and ACCESSORIES to all customers and in particular to customers located in the AREA OF RESPONSIBILITY; and

4.4.2

Actively and effectively promote the DEALER OPERATIONS, the purchase and use of MOTOR VEHICLES, OPEL PARTS and ACCESSORIES to all customers and in particular to customers located in the AREA OF RESPONSIBILITY; and

4.4.3

Provide prompt, efficient, courteous and quality service and shall use its best endeavours to fix each MOTOR VEHICLE and OPEL PART right the first time. DEALER shall provide service to meet all of the service needs of customers of MOTOR VEHICLES and OPEL PARTS. DEALER shall perform all service, pre-delivery inspections, transportation damages repair and adjustments, warranty repairs, special policy repairs and adjustments, and campaign inspections and corrections, regardless of where such MOTOR VEHICLES were purchased, in a workmanlike manner and in accordance with the SERVICE POLICIES AND PROCEDURES ANNEX and any other instructions provided to DEALER by OPEL NSC, within the timeframe set forth by the applicable consumer protection and warranty laws. OPEL NSC may amend the SERVICE POLICIES AND PROCEDURES ANNEX at any time; and

4.4.4

Provide maintenance and repair service to customers of MOTOR VEHICLES regardless of where such MOTOR VEHICLES were purchased and where customer normally services the MOTOR VEHICLE, within the timeframe set forth by the applicable consumer protection and warranty laws.”

Article 4.5 of the Agreement obliged Kerish to promote the sale of Opel vehicles parts and accessories at its own expense; and also to use advertising materials supplied by Opel and to participate in Opel’s marketing programmes “in order to penetrate markets by segments based on a joint assessment”.

Articles 4.11 and 4.12 of the Agreement provided as follows:

“4.11

NO AGENT OR LEGAL REPRESENTATIVE STATUS

This AGREEMENT does not make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.

4.12

DEALER'S RESPONSIBILITY FOR ITS OPERATION

DEALER is an independent business and as such is solely responsible for the success and profitability of all business activities. DEALER enters into this AGREEMENT based on its market analysis and its knowledge of the market. Any market analyses provided by OPEL NSC prior to the signature of this AGREEMENT or during the term of this AGREEMENT are for information purposes only and shall not be construed as the basis of DEALER'S decision to enter into this AGREEMENT or to continue this AGREEMENT.

OPEL NSC has no liability in connection with the establishment or conduct of DEALER OPERATIONS and DEALER shall be solely responsible for all expenditures, liabilities and obligations incurred or assumed by DEALER in connection with DEALER'S responsibilities under this AGREEMENT.”

Article 7 and the related annexes imposed dealer standards with which Kerish was obliged to comply, including in accordance with manuals and instructions to be supplied by Opel pursuant to Article 11. Article 11 also provided for other instructions and assistance to be provided by Opel in respect of Kerish’s operations including recommended programmes, some of which (e.g. training programmes) Kerish was obliged to participate in to a minimum level, and others of which Opel was eligible but not obliged to participate in. Article 8.1 imposed minimum purchase requirements on Kerish in relation to vehicles and Articles 8 and 9 contained detailed provisions governing the ordering and delivery of vehicles and parts and accessories by Kerish from Opel. Article 10 provided for Opel to set sales targets for Kerish which would be used to evaluate all Opel dealers pursuant to a detailed system of evaluation set out in Annex 9. Article 13.1 explained that the purpose of evaluation arose from Opel establishing a network of dealers and that the performance of each dealer affected the overall success and image of the whole network, as well as evaluating individual dealer performance to identify areas for improvement. Article 10.6 provided that Opel would be directly liable to customers on the written warranties it provided to customers, but otherwise Opel neither assumed nor authorised Kerish to assume on its behalf any other obligations or liabilities towards customers or anyone else. Article 10.11 restricted Kerish to sales to end user customers or other Opel dealers and prohibited the sale to non-Opel dealers or other intermediaries (subject to defined exceptions). Article 12 provided for provision of detailed information by Kerish to Opel. Other Articles governed auditing, intellectual property, proprietary and confidential information, termination and cross indemnification.

Within the confines of these terms Kerish was free to, and did, determine its operating practices and costs, and its sales and services practices and charges, so as to be in control of the profits it made and kept from operation the Agreement.

The trial took place over the course of five court days, during which the Judge dealt with a number of issues, including other issues of Palestinian law than the issue which arises on the appeal. The experts gave evidence and were cross-examined over the course of about a day. The Judge addressed the issue of Palestinian law with which the appeal is concerned in a clear and thorough passage at [102]-[139] in which he set out his reasons for accepting the evidence of Mr Attereh by reference to the evidence of both experts, the Palestinian and Jordanian cases and materials on which they relied, and the detailed terms of the Agreement and the way it operated in practice. I can address the specific criticisms advanced in the grounds of appeal without needing to set out those 38 paragraphs, and any attempt at a summary would fail to do justice to the comprehensive process of reasoning articulated by the Judge.

The law on the correct approach by an appellate court to findings on foreign law was summarised by Lord Hodge DPSC giving the judgment of the Board of the Privy Council in Perry v LopagTrust Reg [2023] UKPC16 [2023] 1 WLR 3494 at [10]-[15]. The starting point is that findings in relation to foreign law are findings of fact, but they are findings of fact of a special kind. Where the foreign legal system is a common law system which adopts a similar approach to legal reasoning and statutory interpretation to that of English law, the judge is entitled and required to bring to bear his or her knowledge of the common law and rules of statutory construction in analysing the foreign law. Where, by contrast, the foreign system of law is unfamiliar and the judge is required to interpret texts of a statute or cases in a foreign language, the judge will be dependent on the experts to understand the meaning and nuances of the foreign language. Where the judge is dependent upon the evidence of foreign law experts who disagree as to the interpretation and application of a foreign law and has to decide whose evidence to prefer the judge will have regard to all the evidence presented. In those circumstances, as Lord Hodge put it at [14]:

“The judge will reach a view based on an assessment of each expert having regard to each expert’s evidence as a whole, and the way in which each expert answered the questions posed in chief and on cross-examination to justify his or her opinions. The judge will thus evaluate the experts’ reasoning. Not all the matters which have influenced the judge in forming a view on which evidence to prefer will always be recorded in any detail in a judgment or can be ascertained from reading a transcript of the proceedings. The judge will have regard to “the whole of the sea of evidence presented to him whereas an appellate court will only be island hopping”. Those words of Lewison LJ in FAGE UK Ltd v Chobani UK Ltd [2014] FSR 29, para 114 are in such circumstances as applicable to a case involving expert evidence on foreign law as they are to cases involving the evidence of witnesses of fact more generally.”

Lord Hodge went on to explain at [15] that there was therefore a spectrum of circumstances in which the principal variable is the degree to which the judge can use his or her skill and experience of domestic law. At one end are common law systems where the texts are in the English language.

“At the other end of the spectrum are cases of disputed foreign law in which the skill and experience of the judge in domestic law has a minimal role to play in the ascertainment and application of foreign law, as in Byers. In such cases the court at each level of the hierarchy is dependent on the written and oral evidence of expert witnesses, tested by cross-examination. The trial judge’s findings on the content and application of foreign law have a close kinship to other findings of fact. In that circumstance the first appellate court will be slow to intervene in the judge’s assessment and the Board’s practice in relation to concurrent findings of fact should be adopted.”

The Board’s approach to findings of fact was summarised in Maso Capital Investments Ltd v Trina Solar Ltd [2025] UKPC 48 at [19] pursuant to well-known English authorities. In the absence of some identifiable error such as a material error of law, an appellate court will not interfere with such findings unless the judge's decision is plainly wrong, in the sense that it was one which no reasonable judge could have reached, or (which is the same) lies outside the bounds within which reasonable disagreement is possible; if the decision does not come within that category it is irrelevant that the appellate court would have reached a different decision. See Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642; [2003] 1 WLR 577, at [16]; FAGE UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] FSR 29, at [114]; Henderson v Foxworth Investments Ltd [2014] UKSC 41; [2014] 1 WLR 2600, at [58]-[68]; Volcafe Ltd v Cia Sud Americana de Vapores SA [2018] UKSC 61; [2019] AC 358, at [41]; JSC BTA Bank v Ablyazov [2018] EWCA Civ 1176; [2019] BCC 96, at [40]-[41]; Perry v Raleys Solicitors [2019] UKSC 5; [2020] AC 352, at [49]-[52]; and Volpi v Volpi [2022] EWCA Civ 464; [2022] 4 WLR 48, at [2]-[4].

Four of the reasons for that restrictive approach are of relevance to the current appeal. First, where the trial court has heard evidence given orally by witnesses, tested by cross- examination, it is in a much better position to evaluate that evidence than an appeal court which does not have that advantage; a transcript of the evidence does not capture the atmosphere of the courtroom or the subtleties of the way the evidence was given. Secondly, as Lord Hoffmann said in Piglowska v Piglowski [1999] UKHL 27; [1999] 1 WLR 1360, 1372: "[The judge's] expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance ... of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation." Thirdly, the trial judge has sat through the entire case and their ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for days or weeks will be far deeper than that of the appellate court whose view of the case is much more limited: McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477, at [4], as captured in Lewison LJ’s memorable and oft-quoted metaphor of “island-hopping”. Fourthly, duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case. Again to quote the memorable language of Lewison LJ in FAGE v Chobani: "[t]he trial is not a dress rehearsal. It is the first and last night of the show."

In this case the issue of Palestinian law is clearly at the end of the spectrum identified in Perry v Lopag in which those principles are applicable. It involved construction of a text in Arabic, the translation of which was disputed, under a system of law which is unfamiliar to English judges. The experts relied on other laws in Arabic, including the Jordanian 1966 Commercial Law and Jordanian Commercial Agents Law, and between them on five reports of Palestinian cases and fifteen reports of decisions of the Jordanian Court of Cassation, running to hundreds of pages in total. The Judge saw and heard the experts giving evidence before him, on this and other issues, and was able to judge how their views fared under probing in cross-examination.

Mr Sinclair therefore faces a formidable task in seeking to persuade us that the Judge was plainly wrong in his assessment of the expert evidence. It is made all the more difficult for him for three reasons. First, the points he made were mostly arguments of his own devising based on the language of the translations of the laws and cases, which were for the most part not derived from the evidence of Dr Husseini, who did not engage with the Jordanian authorities by reference to which Mr Attereh supported his views. This is an impermissible approach. In Byers v Saudi National Bank [2022] EWCA Civ 43, [2022] 4 WLR 22, cited with approval in Lord Hodge’s summary in Perry v Lopag, this Court emphasised at [104] that the court’s task in cases at this end of the spectrum is not to address how it would itself interpret and apply the texts; their wording is only to be considered as part of the evidence and as a help to decide between conflicting expert evidence. Secondly, although we had in the bundles the reports and joint memorandum of the experts which were before the Judge, we were not taken to, or invited to read, any parts of Mr Attereh’s written reports (save that Opel’s original skeleton argument invited us to read a report of Mr Attereh addressed to the fresh evidence application which was not pursued). Nor did Kerish seek to put before us a transcript or note of the oral evidence of either of the expert witnesses at trial. We do not therefore have any basis on which we could begin to try to assess Mr Attereh’s evidence for ourselves, and specifically have had no opportunity to assess Mr Attereh’s explanations when the points which Mr Sinclair advances on appeal were put to him in cross-examination. Indeed Mr Sinclair did not even provide any information to us about what his response was in cross-examination to the various points he sought to argue on the appeal. Mr Sinclair therefore invites us to say that the Judge was plainly wrong to accept Mr Attereh’s evidence without our being taken to any of his written or oral evidence which articulates and explains his views, by reference to points which Mr Attereh was asked about and responded to, in circumstances where the Judge was able to evaluate that response but we have not even been told what the response was. That would obviously be unfair to Mr Attereh, Opel and the Judge and makes Mr Sinclair’s task nigh impossible. Thirdly, Mr Sinclair’s points do not address the sea of evidence upon which the Judge was relying, or more than a limited number of the elements of his reasoning. The Judge’s detailed reasoning adopted a commendable multi-factorial approach in which he identified different strands, only some of which are addressed in the grounds argued on appeal. They are a classic example of island hopping.

Mr Sinclair relied on the distinction identified in Banco Intesa Sanpaolo SpA v Commune di Venezia [2023] EWCA Civ 1482 [2024] Bus LR 228 at [152] between the evidence as to what the foreign law is and its application to the facts. However that is a distinction without a difference in relation to the issue of Palestinian law in the present case, in which the meaning of Article 1 of the Commercial Agents Law and how it would be applied to the Agreement in this case are inextricably intertwined questions of what conclusion would be reached by the Court of Cassation in Palestine, as the disputed translation well illustrates.

Against that background, the grounds of appeal, as developed by Mr Sinclair in his oral argument, fell a very long way short of establishing that the Judge’s conclusion on the issue was plainly wrong. I will take them in turn.

Under ground 1 Mr Sinclair contended that the Judge, in his analysis at [110], failed to accord sufficient weight to the fact that the Agreement had been registered as a commercial agent with the Palestinian Ministry of National Economy. It was common ground between the experts at the trial that registration was not determinative. The Judge accepted that he should have some regard to the view of the Ministry as the body responsible for drafting the legislation and for registration. However, he observed, there was no evidence as to the Ministry’s specific reasons for issuing a certificate and Mr Attereh’s evidence was that the Ministry was not consistently rigorous in its examination of agreements. The Judge observed that the limited regard he had to the views of the Ministry in registering the Agreement had to be balanced against the detailed evidence and argument he had had on Palestinian law and the practical operation of the Agreement, and said that he proposed to resolve the issue on the basis of those materials as reflecting the approach a Palestinian Court would take. In that respect he drew attention to the fact that in case 872/2021 the Palestinian Court of Appeal had held that the appellant was not a commercial agent notwithstanding that he had been registered as such by the Ministry. Despite Mr Sinclair’s criticisms, I can detect no error in that approach.

Under ground 2, Mr Sinclair challenges the Judge’s treatment of the decision of the Palestinian Court of Cassation in Case 325/2022 (‘Shell’) and of the Jordanian Court of Cassation in cases 538/2019, 2949/2007 and 1295/2020, which in Mr Attereh’s view and the Judge’s assessment made clear that not every distributor or dealer is a commercial agent, and in particular that in those cases the person was held not to be a commercial agent because they acted in their own name and for their own account in purchasing and reselling goods. Mr Sinclair’s essential point was that when one looks at the text of those decisions they were concerned with whether a person was a commission agent, which is a different concept from a commercial agent, the two being distinguished under Articles 80 to 87 of the 1966 Commercial Law. However the Judge interpreted the decisions as saying that the relevant person could not be a commission agent and therefore could not be a commercial agent (see eg [112] in relation to Shell). That was in accordance with Mr Attereh’s evidence, which the Judge was entitled to accept. Mr Sinclair’s attempt to persuade us he was wrong simply by taking us to the English translations of the laws and cases is an impermissible basis for contending that the Judge was plainly wrong to accept that evidence, quite apart from the fact that Mr Sinclair told us that these points had been put to Mr Attereh in cross-examination but, unlike the Judge, we have no record of his response, nor even any information about it.

Under ground 3 Mr Sinclair submits that the Judge erred in his analysis at [121] that ownership of the goods is a relevant factor in ascertaining whether a party is a commercial agent. Ownership of goods, it was submitted, is an irrelevant factor given that Article 14 of the Commercial Agents Law provides that, upon the termination of a commercial agent’s agreement, the supplier or the new agent is obliged to purchase all stock and spare parts. This being so, it is said the Judge erred in taking into account, let alone according significance to, the fact that Kerish traded in Opel vehicles, parts and accessories in its own name and for its own financial account: if a party did not buy and sell vehicles in its own name, it would not have any “stock of products” to transfer pursuant to Article 14.

This does not fairly reflect the way the Judge treated and took into account the fact that ownership of the goods passed to Kerish. He rejected Mr Attereh’s evidence that the mere fact of transfer of ownership was of itself fatal to the agreement amounting to a commercial agency, specifically by reason of Article 14 of the Commercial Agents Law; and said that he regarded ownership as a relevant but not conclusive factor at [121]. His reasons for treating it as relevant are apparent from [126] to [132] in which it was treated as an aspect of the wider point that the nature of the agreement was one in which Kerish were buying and reselling goods for their own account as what the Palestinian Court of Cassation had described as “purchasing goods from a supplier or producer for the purposes of resale” and which the Palestinian and Jordanian Courts had held was a hallmark of something which would not be treated as activity as a commercial agent. Mr Sinclair’s argument that the text of those decisions did not warrant that interpretation of them is an invitation to embark upon an impermissible exercise in this court, for the reasons I have explained. The Judge was entitled to accept Mr Attereh’s evidence as to the effect of those cases. In short, the Judge treated ownership as relevant on the basis that it reflected the nature of the agreement, articulated in Article 4.3.1, that Kerish was buying and selling goods for its own account which was particularly significant having regard to the Palestinian and Jordanian cases he had considered. There is no proper basis on which I could conclude that he was plainly wrong in that conclusion.

Under grounds 4 and 5, Mr Sinclair argues that the Judge erred in placing weight on Article 4.11 in [133] as a powerful indicator that Kerish was not a commercial agent under Palestinian Law, whereas, he submitted, it was merely addressed to the question under English law as the governing law of the agreement as to whether either party could bind the other and could not extend to questions of Palestinian law. The Judge’s reasoning in this paragraph was not confined to Article 4.11, but linked it with Article 4.12 making clear that Kerish was to act as an independent business and as such was solely responsible for the success and profitability of all its business activities. So far as Article 4.11 was concerned the Judge observed, correctly, that a similar provision had been treated as “negat[ing] the agency characteristic” in the Jordanian Court of Cassation case 1295/2020 upon which Mr Attereh relied in support of his views. The Judge said that he did not see why article 4.11 should not extend to and exclude Palestinian concepts of agents, and in that I would agree with him. But in any event that was not determinative of this part of his reasoning. He concluded the paragraph with this: “In any case, if KIMA is not an agent or representative of Opel in an English law sense, it is hard to see what in the facts of the present case or the terms of the [Agreement] supports a conclusion that is it nevertheless acting “on behalf of” or “for the account of” Opel in any sense.” I can see no proper basis for saying that he was plainly wrong in this aspect of his reasoning, let alone in his overall conclusion reached as part of a multi-factorial assessment of which this formed only a part.

Under ground 6, Mr Sinclair argues that the Judge erred at [136] in treating the words “profit margin” (as found in Article 1 of the Commercial Agents Law) as meaning “profit share”. The concepts are, he submits, conceptually distinct at the level of economic principle, and are plainly apt to cover a profit made by buying and reselling goods. This is not only impermissible in itself as an invitation to embark upon our own construction of the translation of the provision, but it also ignores the fact that the profit margin must be “in return for” the agent acting on behalf of or for the account of the principal, as the Judge emphasised at [135]; and ignores the evidence of Mr Attereh as to the Palestinian and Jordanian cases indicating that buying and reselling goods for a profit did not come within the scope of the relevant commercial agents laws.

For these reasons I can detect no merit in the grounds advanced and I would dismiss the appeal.

It remains for me to explain my reasons for joining in the decision to dismiss Kerish’s application to remit the case to the Judge. It is first necessary to set out the sequence of events relied on.

Following the Judgment, two further decisions of the Palestinian Court of first instance were promulgated in 2024, both decided by the same judge, namely case 49/2022 (‘Thorn Lighting’) and case 201/2022 (‘Japan Tobacco’). By an application notice issued on 24 December 2024 Opel sought to adduce as fresh evidence on the appeal a report of Mr Attereh exhibiting and commenting on these cases, in which he explained why they supported his previous views and the decision of the Judge. In its skeleton argument for the appeal in July 2025 Opel’s counsel described the fresh evidence as necessary and important material for the Court to consider on the Palestinian law issue. In response Kerish issued an application notice on 5 June 2025 to rely on fresh evidence in the form of a further report from Dr Husseini, commenting on Thorn Lighting and Japan Tobacco and exhibiting a further decision of the Jordanian Court of Cassation rendered on 11 September 2024 (‘Proctor & Gamble’). The application notice and the evidence in support made clear that it was a contingent application, seeking to adduce the evidence if Mr Attereh’s report was admitted. This is readily understandable because there was nothing in what Dr Husseini said about those three cases which suggested that they lent any support to a conclusion that the Judge was wrong on the Palestinian law issue; rather Dr Husseini sought only to distinguish Japan Tobacco and Thorn Lighting as providing any positive support for the Judge’s conclusion, and sought to rely on Proctor & Gamble for a similar purpose.

Neither of those fresh evidence applications were determined when, at the hearing on 16 July last year, the Court adjourned the appeal for the views of HMG to be ascertained. However there was some discussion at the hearing of how the parties expected the fresh evidence to be addressed if admitted, and in particular whether cross-examination of the experts would need to be undertaken by this court or would require remission to the Judge.

On 29 September 2025 the Palestinian Court of Appeal promulgated its decision in case 5/2024 on appeal from the first instance decision in Thorn Lighting (‘Thorn Lighting CA’). The Court of Appeal upheld the first instance decision by a majority of 2 to 1. In the course of preparation of the bundles for the resumed hearing of the appeal Opel asked to have a translation of the Thorn Lighting CA judgment included in the bundles, to which Kerish agreed. Neither side prepared or served any further expert report in relation to that decision. In a supplemental skeleton argument served by Opel on 8 June 2026, Opel sought to identify the remaining issues for the resumed hearing of the appeal, now some three weeks away. It made clear that Opel no longer sought to rely on the fresh evidence in respect of the Japan Tobacco and Thorn Lighting decisions (whilst commenting that the latter had been upheld in Thorn Lighting CA), which merely confirmed the correctness of the Judge’s decision. It argued that remission would be unnecessary and disproportionate; accordingly Opel invited the Court to apply the ordinary appellate test to the Judge’s findings on the evidence before him without admitting further evidence on appeal.

On 22 June 2026, a week before the hearing of the appeal, Kerish issued an application for the issue of Palestinian law to be remitted to be determined by the High Court, for the reasons set out in a supporting witness statement from Mr Dahoud. The application was accompanied by a skeleton argument in support. In summary the grounds advanced were that a decision could be expected from the Palestinian Court of Appeal in Japan Tobacco within 3 to 5 months, and that the fact that the Court of Appeal had appointed experts to assess the quantum of the claim showed that it was intending to overturn the first instance decision. Moreover it was said that a decision of the Court of Cassation in Thorn Lighting was expected shortly. It was submitted that these were likely to have an important bearing on the issue of Palestinian law and that the appeal should not be heard in circumstances in which it might turn out to be based on a misunderstanding of Palestinian law in the light of imminent Palestinian court decisions.

Opel opposed the application and served a witness statement of Mr Attereh in support of its opposition.

There is no extant application to adduce the existing Palestinian Court decisions in Japan Tobacco or Thorn Lighting in evidence, or that of the Jordanian Court of Cassation in Proctor & Gamble, or to put it more accurately the expert evidence of Mr Attereh or Dr Husseini about those decisions. Mr George confirmed that Opel does not pursue its application of 24 December 2024, and Kerish’s application of 4 June 2025 was contingent on that application being successful. There is no evidence from Dr Husseini that any of the existing decisions in those cases support the appeal or undermine the conclusion of the Judge under Palestinian law. The remission application turns solely on prospective decisions by the Court of Appeal in Japan Tobacco and by the Court of Cassation in Thorn Lighting.

The first question is when those decisions can be expected. In a statement exhibited to Mr Dahoud’s witness statement, Mr Shawkat, the lawyer for the appellants in Japan Tobacco, says that the Court of Appeal decision can be expected in three to five months. Mr Attereh, who acts for the respondents in that appeal, estimates that it will be in January 2027. So far as a decision of the Court of Cassation in Thorn Lighting is concerned, Mr Dahoud says that it is expected “soon”. What he means by soon may be interpreted by reference to his description of the Japan Tobacco Court of Appeal decision as “imminent”, which would suggest something longer than the 3 to 5 months estimated for that decision. Mr Attereh’s statement explains that he has conducted a representative sampling of Cassation appeals handled by his firm, which reveals a typical time between filing and decision of between 8 and 32 months. Several appeals remain pending for materially longer, in one case for over 4 years. It therefore seems that it might be a matter of at least a year or more before the decision emerges in Thorn Lighting. Moreover if there were an appeal to the Court of Cassation in Japan Tobacco, the rationale for remission would involve waiting for the decision of the Court of Cassation in that case, which would almost certainly be more than a year away and quite probably longer, possibly several years. Further, what is to happen if after the Court of Cassation has delivered Judgment in Japan Tobacco and Thorn Lighting, without it assisting Kerish’s argument, there is a further case awaiting appeal to the highest court which might do so? The logic of Kerish’s argument is that there should be yet further delay in the remitted hearing taking place in the High Court, to await the outcome of that case.

It is also entirely uncertain whether either of the prospective decisions in Japan Tobacco and Thorn Lighting will assist Kerish’s case on the issue of Palestinian law which arises in this case. Mr Attereh in his witness statement disagrees with Mr Shawkat’s assertion that the fact that the Court has appointed quantum experts in Japan Tobacco gives any indication of the appeal being successful. He points to other cases in which damages reports have been requested or sanctioned by the court in advance of a decision, but the decision then being to reject the claim. Mr George also points to the fact that in Japan Tobacco there is a claim for damages as well as, and separately from, that advanced under the Commercial Agents Law; and that one of the grounds of appeal is that the first instance judge should have considered and awarded damages for this claim irrespective of its conclusion on the Commercial Agents Law. That suggests that even if, contrary to Mr Attereh’s evidence, appointment of experts could be taken as an indication of the Court’s likely decision, it would not necessarily be an indication of views on the Commercial Agents Law claim. In any event there may be an appeal to Cassation in the event that the Court of Appeal allows the appeal (or indeed dismisses it). Mr George also points out that cases settle and that there are other issues in both cases which might lead to a decision which does not address the issue which arises in the current appeal. Moreover the facts of those cases are not on all fours with the facts of the current case, so that any statement of principle may have a different effect on the outcome in those cases from that which it would have in the present case.

Accordingly it is a matter of pure speculation whether awaiting a final decision by the highest Court in both cases will result in a decision which provides assistance on the point which arises in this case. And there is nothing in the evidence to suggest that if so, it will be a decision in favour of the argument for which Kerish contends. Kerish’s invitation to await further decisions of the Palestinian Courts is no more than Micawberism.

To remit the case for an indefinite period, which may well be measured in years, for the purposes of that speculative possibility is contrary to the interests of finality in litigation, both in terms of the reasonable expectations of Opel and the public interest in finality and the efficient use of court resources. This appeal has already been delayed by a year as a result of the difficulty surrounding recognition of Palestine by HMG. It would in my view be wrong in principle and disproportionate to remit the matter now. As Mr George put it, it is necessary to “stop the clock” at some point. That point is normally the conclusion of the trial which is the “first and last night of the show”. There is nothing in the circumstances of the present case which would justify departure from that general rule.

I agree.

I also agree.