QBE EUROPE SA/NV & Anor v GENERALI ESPAÑA DE SEGUROS Y REASEGUROS

A person asserting a statutory direct right against an insurer may be restrained from suing outside an agreed arbitral forum where, in substance, the right enforces the insured’s contractual rights. The right is conditioned by the arbitration agreement even though the claimant was not an original party to the insurance contract.

Whether the right is contractual is determined under English conflict-of-laws principles by its substantive content. Modifications to the insurer’s defences or to a pay to be paid condition will not ordinarily alter that character where the policy still defines the insured liability, risks, period and limits of cover.

An anti-suit injunction will ordinarily follow unless strong reasons justify refusal. Comity, foreign mandatory-law policy, and the fact that the direct claimant is not in contractual breach do not ordinarily amount to such reasons.

QBE sought urgent anti-suit injunctions restraining Generali from pursuing Spanish proceedings against QBE UK and from commencing equivalent proceedings against QBE Europe. Generali, having indemnified the owner of an undersea cable, claimed directly against the yacht’s liability insurer under Article 465 of the Spanish Maritime Navigation Act 2014.

The policy was governed by English law and contained a London arbitration clause. Generali contended that its Spanish claim was tortious and statutory, rather than contractual, and that the arbitration agreement did not bind a non-party exercising a direct right.

The central issue was whether the direct action was, in substance, an attempt to enforce the insured’s contractual entitlement to indemnity and was therefore conditioned by the London arbitration agreement.

1. Application granted. QBE UK and QBE Europe were entitled to anti-suit injunctions restraining the Spanish proceedings and any equivalent proceedings against QBE Europe.

2. The court applied the Angelic Grace framework to this quasi-contractual application. A claimant asserting a right derived from an insurance contract cannot take the benefit of that right without observing the forum agreement which conditions it. This principle applies both to a conventional derived-rights claimant and to an applicant which does not admit that it remains a party to the underlying contract.

3. The English conflicts analysis asks whether the foreign statute gives the third party substantially the same contractual entitlement as the insured, or instead creates a new independent right. The content of the right is more important than its formal source or its classification as tortious under foreign law.

4. QBE established to a very high degree of probability that Article 465 of the Spanish Maritime Navigation Act 2014 gave Generali a direct means of enforcing the policy’s promise of indemnity. The policy determined the insured liability, insured perils, period of cover, limits and deductible. Articles 466 and 467, Article 406.1, and the supplementary operation of Article 76 of the Insurance Contracts Act 1980 supported that conclusion. QBE had shown a strong case that coverage and non-personal defences remained available, but not that personal defences could also be raised.

5. Clause 63 did not confine London arbitration to disputes between the original insurer and assured. Clear language would have been required to exclude persons exercising rights derivatively. Clause 63.6 excluded directly conferred third-party rights; it did not exclude derivative rights or their associated obligation to arbitrate.

6. Generali showed no strong reason, and no discretionary reason, to refuse relief. Comity, Spanish public policy favouring direct actions, the absence of a contractual breach by Generali, and the possibility that a claim might fail in arbitration did not displace the English policy of enforcing the London arbitration agreement. There was a real risk that Generali would join QBE Europe to the Spanish proceedings without notice, so quia timet relief was justified.

This was a first-instance urgent application. The judgment records that Generali had commenced proceedings in the Court of First Instance of Madrid, but no appellate history is stated.