United Kingdom / 16 May 2012 / England and Wales, Court of Appeal / Sulamérica Cia Nacional de Seguros SA v. Enesa Engenharia SA / A3/2012/0249
| Country | United Kingdom |
| Court | England and Wales, Court of Appeal |
| Date | 16 May 2012 |
| Parties | Sulamérica Cia Nacional de Seguros SA v. Enesa Engenharia SA |
| Case number | A3/2012/0249 |
| Source |
[2012] EWCA Civ 638 | online: BAILII |
| Languages | English |
| Summary | The parties entered into two risk insurance policies relating to construction of a hydroelectric generating plant in Brazil. These policies, which were expressly governed by Brazilian law, contained an exclusive jurisdiction clause in favour of Brazilian courts, as well as an arbitration clause providing for arbitration in London. There was no express choice of law clause in the arbitration agreement. A dispute arose. The insured invoked the exclusive jurisdiction clause by commencing litigation in Brazil, while the insurers invoked the arbitration clause by initiating arbitration in London. The Brazilian courts made an order enjoining the insurers from pursuing the arbitration in London on the ground that, under Brazilian law, the conditions for invoking the arbitration clause had not been met. Meanwhile, the insurers obtained an order from the English courts enjoining the insured from pursuing the litigation in Brazil on the ground that, under English law, which was held to be the law governing the arbitration agreement, the arbitration clause had been validly invoked. The insured appealed. The Court of Appeal upheld the anti-suit injunction. It held that the arbitration agreement was governed by the law of the seat of the arbitration, being English law. In so ruling, it referred to the scholarly view that if the arbitration is to be held in the territory of a State party to the NYC, then section 103(2)(b) of the Arbitration Act 1996 (U.K.) (which directly incorporates and whose wording is equivalent to Article V(1)(a) NYC's provision regarding invalidity of the arbitration agreement) appears to give rise to a rebuttable presumption that the law governing the validity of the arbitration agreement is the law of the seat, which is also where the award is to be treated as "made" for the purposes of the NYC. The Court agreed that, under English law, the insurers had validly invoked the arbitration clause. |
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