Sulamerica CIA Nacional De Seguros SA & Ors v Enesa Engenharia SA & Ors

Sulamerica CIA Nacional De Seguros SA & Ors v Enesa Engenharia SA & Ors

The proper law of the arbitration agreement is English law, not Brazilian law, because the seat of arbitration is London and the parties cannot be taken to have intended a law that would undermine the effectiveness of the arbitration agreement. The mediation clause is not sufficiently certain to be enforceable as a condition precedent to arbitration. The arbitration agreement covers all disputes arising out of the policy, not just quantum. The exclusive jurisdiction clause does not override the arbitration agreement.

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
Civil Appeal / Appeal From High Court (commercial Court) to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Proper Law of Arbitration Agreement, Anti Suit Injunctions, Interpretation of Dispute Resolution Clauses, Jurisdiction Clauses, Mediation as Condition Precedent
Arbitration Insurance Law Conflict of Laws Proper Law of Arbitration Agreement Anti Suit Injunctions Interpretation of Dispute Resolution Clauses Jurisdiction Clauses Mediation as Condition Precedent

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 12 Party arguments 2
Sign in to unlock

Parties

Sulamérica Cia Nacional de Seguros S.A. and others

Claimants/respondents

Enesa Engenharia S.A. and others

Defendants/appellants

Procedural Posture

Civil Appeal / Appeal From High Court (commercial Court) to Court of Appeal

Legal Issues

  1. 1 What is the proper law governing the arbitration agreement in the insurance policy?
  2. 2 Is mediation under the policy a binding and enforceable precondition to arbitration?
  3. 3 Does the arbitration agreement cover all disputes or only quantum?

Ratio Decidendi

The proper law of the arbitration agreement is English law, not Brazilian law, because the seat of arbitration is London and the parties cannot be taken to have intended a law that would undermine the effectiveness of the arbitration agreement. The mediation clause is not sufficiently certain to be enforceable as a condition precedent to arbitration. The arbitration agreement covers all disputes arising out of the policy, not just quantum. The exclusive jurisdiction clause does not override the arbitration agreement.

Court Disposition

Appeal dismissed

Orders

  • Permission to appeal on ground 4 refused
  • Anti-suit injunction restraining proceedings in Brazil continued