Published 26 August 2020
Background to the Dispute
(Minor revisions 23/09/2020) This dispute has its genesis in the contractual arrangements for Enka's participation in building the Berezovskaya power plant in Russia for PJSC Unipro (then called E.ON Russian) ("Unipro") pursuant to a contract entered into with Unipro's general contractor, CJSC Energoproekt (the "Contract"). Pursuant to the Contract, Enka was to provide works relating to the boiler and auxiliary equipment installation. Energoproekt's subsequently assigned its rights under the Contract to Unipro.
Unipro was insured by Chubb Russia under a primary policy, with reinsurance and retrocession arrangements involving retention of some risk in companies within the Chubb group and the balance of the risk ceded into the market.
In 2016 a fire broke out at the power plant which caused Chubb to pay out USD$ 400 million to Unipro. Chubb became subrogated to Unipro's rights and asserted that the fire had been caused by Enka's defective works.
On 25 May 2019, Chubb commenced proceedings against Enka in the Moscow Arbitrazh Court. After some rectification, Chubb's claims were accepted on 3 September 2019. On 16 September 2019, Enka issued an Arbitration Claim Form in the Commercial Court in London seeking: (i) a declaration that Chubb was bound by the arbitration agreement in the Contract (the "Arbitration Agreement"); and (ii) an anti-suit injunction pursuant to s.37 of the Senior Courts Act 1981 requiring Chubb to discontinue the Russian proceedings.
On 17 September 2019, Enka filed a motion with the Moscow Arbitrazh Court seeking dismissal without consideration of the claim against it on the basis that Chubb was bound by the Arbitration Agreement in the Contract.