C v D

Where an arbitration has its seat in England, the parties submit it to the supervisory jurisdiction of the English courts and to the mandatory provisions of Part 1 of the Arbitration Act 1996. A choice of foreign law governing the substantive contract does not, without clear words, import a different regime for challenging the award or displace its final and binding character under section 58. An agreement to the seat carries an obligation to bring challenges only before the courts of that seat. An anti-suit injunction is appropriate to restrain proceedings abroad which breach that agreement and attack the award, although foreign enforcement may still be resisted on the limited grounds available under Part V of the 1958 Convention.

The claimant and defendant, both US corporations, were parties to a Bermuda Form insurance policy containing a London arbitration clause. The policy selected New York law for the substantive insurance contract, but required disputes to be finally determined in London under the English Arbitration Act. A London tribunal issued a Partial Award in the claimant’s favour.

The defendant intended to challenge the award in the Southern District of New York, alleging that the tribunal had manifestly disregarded New York law. The claimant sought final anti-suit and declaratory relief. The central issues were the effect of the agreed seat, the relationship between the substantive governing law and the curial law, and whether the proposed US challenge breached the parties’ agreement.

1. Relief granted. The defendant was restrained from challenging or seeking to vacate the Partial Award, or restraining enforcement or continuation of the arbitration, in any jurisdiction other than the English courts. The proceedings and enforcement proceedings were not stayed pending a foreign decision.
2. The seat was London and the agreed curial law was English law. Under sections 2(1), 4 and Schedule 1 of the Arbitration Act 1996, Part 1 applied. Its mandatory provisions included sections 66 to 68, relevant parts of sections 70 and 71, and section 73. The parties could contract out of non-mandatory provisions, such as section 69, and had done so by making the award final and binding and a complete defence to attempted appeal or litigation absent fraud or collusion. (paras [23]-[28])
3. Agreement to the seat was analogous to an exclusive jurisdiction agreement. It vested supervisory jurisdiction in the courts of the seat and meant that challenges to an award were to be brought there. A challenge in New York would breach the arbitration agreement, the agreement to refer and the agreement to the curial law. (paras [29]-[35], [41], [51]-[54])
4. The selection of New York law for the substantive policy did not substitute the US Federal Arbitration Act for the English statutory framework. Nor did it constitute an agreement that the award was not final and binding. The arbitration clause and the Agreement to Refer pointed to English law governing the arbitration agreement and the reference agreement. (paras [36]-[50])
5. The proposed proceedings were a direct attack on a binding award and were vexatious, oppressive, unconscionable and an abuse of process. No strong cause justified departure from the parties’ bargain. The injunction did not prevent resisting enforcement abroad on the grounds permitted by Part V of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Costs were to follow the event, subject to any agreed order. (paras [55]-[62])

First-instance decision. No prior or appellate decision is stated in the judgment.