The court considered an appeal under the Bermuda Form of international Liability Insurance which provided for arbitration in London subject to the internal laws of New York. The insurers threatened to challenge under US federal arbitration law in a federal court an award secured by the insured in a London arbitration, and the insured obtained an anti-suit injunction from the Commercial Court. The insurers appealed, arguing that the choice of English law as the curial law of the arbitration did not exclude a challenge under the law of New York, which had been expressly chosen to govern the parties’ obligations. The insured argued that, because the parties had chosen London as the seat of the arbitration and therefore English law as the curial law, the law of the arbitration was English and an award could be challenged only in the English courts.
Held: The anti-suit injunction was upheld.
Longmore LJ said that ‘by choosing London as the seat of the arbitration, the parties must be taken to have agreed that proceedings on the award should be only those permitted by English law’ and ‘the choice of a seat for the arbitration must be a choice of forum for the remedies seeking to attack the award’. He distinguished the proper law of the underlying insurance contract and the arbitration agreement, observing that the latter was ‘a separable and separate agreement’, and said that the law of the seat of the arbitration ‘will also be relevant’. He then formulated the question for consideration as being this: ‘if there is no express law of the arbitration agreement’, whether the law with which that agreement has its closest and most real connection is that of the seat of the underlying contract or the law of the seat of the arbitration. He considered that ‘the answer is more likely to be the law of the seat of the arbitration than the law of the underlying contract’.
Judges:
Lord Clarke of Stone-cum-Ebony MR, Longmore, Jacob LJJ
Citations:
[2007] EWCA Civ 1282, [2008] 1 Lloyd’s Rep 239, [2007] ArbLR 10, [2008] 1 All ER (Comm) 1001, [2007] All ER (D) 61, 116 Con LR 230
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Sheffield United Football Club Ltd v West Ham United Football Club Plc ComC 26-Nov-2008
The claimant sought an order to prevent the defendant company from pursuing further an appeal against a decision made by an independent arbitator in their favour as regards the conduct of the defendant in the Premier League in 2006/2007.
Held: . .
Cited – UST-Kamenogorsk Hydropower Plant Jsc v AES UST-Kamenogorsk Hydropower Plant Llp SC 12-Jun-2013
Arrangements between the parties owners and operators of a power plant in Kazakhstan required disputes to be arbitrated in London under ICC Rules. That clause was governed by English law, and the remainder by Kazakh law. A ruling by the Supreme . .
Cited – Arsanovia Ltd and Others v Cruz City 1 Mauritius Holdings ComC 20-Dec-2012
. .
Lists of cited by and citing cases may be incomplete.
International, Arbitration
Updated: 12 July 2022; Ref: scu.261800