G v R

Where an arbitration agreement forms part of a contract and its governing law is unspecified, the contractual choice of law will generally apply to the arbitration agreement. A different seat does not, by itself, displace that inference. It may do so where the law of the seat, including through well-established case law, treats the arbitration agreement as governed by that law, or where applying the contractual law creates a serious risk of invalidity or ineffectiveness.

For an anti-suit injunction supporting arbitration seated abroad, the applicant must show clearly and distinctly that England is the proper forum. The greater effectiveness or availability of injunctive relief in England does not establish that substantial justice cannot be obtained in the arbitral seat. Particular caution is required where the English court lacks supervisory jurisdiction.

The claimant sought a final anti-suit injunction to restrain proceedings in Russia concerning bonds containing an English governing-law clause and an ICC arbitration agreement with Paris as the seat. The defendant challenged the jurisdiction of the English court.

The court considered whether the arbitration agreement was governed by English law, which was the applicable jurisdictional gateway, and, alternatively, whether England was the appropriate forum for granting coercive relief in support of a Paris-seated arbitration. The central issues were the effect of the contractual choice of law, French law applicable at the seat, and the absence of an anti-suit injunction remedy in France.

1. Governing law. The guidance in Enka v Chubb [2021] WLR 4117 established that, where the arbitration agreement’s law is unspecified, the contractual choice of law will generally apply. The separability principle does not prevent that construction. A different seat is insufficient on its own to displace the inference.
2. The inference may be negated where the law of the seat indicates that the arbitration agreement is governed by that law, or where applying the contractual law creates a serious risk that the agreement would be ineffective. Such an indication may arise from well-established case law, not only from statute. The French courts’ established approach to international arbitration therefore negated the inference that English law governed the arbitration agreement. The applicable law was the French substantive rules for international arbitration.
3. Proper forum. Applying the principles stated in Spiliada, the claimant had to show clearly and distinctly that England was the forum in which the matter could be more suitably tried for the interests of all parties and the ends of justice. The arbitration was seated in Paris, and the French court would have supervisory or supporting jurisdiction. Those were important connecting factors.
4. The fact that an anti-suit injunction was available only in England, or that it was more effective than remedies available in France, did not mean that substantial justice could not be obtained in the Paris arbitration. Damages for breach of the arbitration agreement remained available, and the alleged difficulty of enforcement in Russia was not established by detailed evidence. The ex parte decision in SQD was of limited assistance because the defendant had not been heard.
5. The court concluded that it had no jurisdiction to hear the claim and could not grant the injunction. The claim was dismissed. It was unnecessary to decide whether relief would have been granted if jurisdiction existed.