Sulamerica CIA Nacional De Seguros SA & Ors v Enesa Engenharia SA & Ors [2012] EWCA Civ 638 (16 May 2012)

Sulamerica CIA Nacional De Seguros SA & Ors v Enesa Engenharia SA & Ors [2012] EWCA Civ 638 (16 May 2012)

The proper law of the arbitration agreement is English law, as the law of the seat of arbitration, because the parties' express choice of Brazilian law for the substantive contract is not sufficient to displace the strong connection to English law created by the choice of London as the seat, especially where application of Brazilian law would undermine the effectiveness of the arbitration agreement. The mediation clause is not sufficiently certain to be a binding condition precedent to arbitration. The arbitration clause covers all disputes, including liability, not just quantum.

Citation
[2012] EWCA Civ 638
Parties
Claimants/respondents: Sulamérica Cia Nacional de Seguros S.A. and others; Defendants/appellants: Enesa Engenharia S.A. and others
Jurisdiction
England and Wales
Judgment Date
16 May 2012
Procedural Posture
Appeal / Court of Appeal Judgment on Appeal From High Court (commercial Court)
Outcome
Appeal dismissed
Legal Topics
Proper Law of Arbitration Agreement, Anti Suit Injunctions, Interpretation of Dispute Resolution Clauses, Jurisdiction Clauses, Mediation as Condition Precedent, Separability of Arbitration Agreements
Arbitration Conflict of Laws Insurance Law Civil Procedure Proper Law of Arbitration Agreement Anti Suit Injunctions Interpretation of Dispute Resolution Clauses Jurisdiction Clauses +2 more

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Parties

Sulamérica Cia Nacional de Seguros S.A. and others

Claimants/respondents

Enesa Engenharia S.A. and others

Defendants/appellants

Procedural Posture

Appeal / Court of Appeal Judgment on Appeal From High Court (commercial Court)

Legal Issues

  1. 1 What is the proper law governing the arbitration agreement in a contract with Brazilian governing law, Brazilian jurisdiction clause, and London seat of arbitration?
  2. 2 Is mediation under the contract a binding condition precedent to arbitration?
  3. 3 Does the arbitration clause cover disputes as to liability or only quantum?

Ratio Decidendi

The proper law of the arbitration agreement is English law, as the law of the seat of arbitration, because the parties' express choice of Brazilian law for the substantive contract is not sufficient to displace the strong connection to English law created by the choice of London as the seat, especially where application of Brazilian law would undermine the effectiveness of the arbitration agreement. The mediation clause is not sufficiently certain to be a binding condition precedent to arbitration. The arbitration clause covers all disputes, including liability, not just quantum.

Court Disposition

Appeal dismissed

Orders

  • Permission to appeal on ground 4 refused
  • Order of Cooke J. continuing anti-suit injunction affirmed