G v R - In an Arbitration Claim - 2023 EWHC 2365 Comm - 22 September 2023
Country
Year
2023
Summary
SIR NIGEL TEARE: This is the trial of an action for final anti suit relief. I have heard the argument today and a decision is required urgently because of a hearing scheduled in Russia next week.
In view of that urgency, I give my decision and reasons now, albeit in a shorter form than is usual when one reserves judgment.
I take the factual background from paragraphs 12 to 14 and paragraphs 16 to 21 of the defendant's skeleton argument, which I do not understand to be in dispute. Those paragraphs are to be regarded as set out in this judgment.
Clause 11 of the bonds provides as follows:
- "This bond and all non-contractual or other obligations arising out of or in connection with it shall be construed under and governed by English law."
Clause 12 of the bonds provided as follows:
- "In case of dispute arising between the parties about the validity, interpretation or performance of the bond, the parties shall cooperate with diligence and in good faith, to attempt to find an amicable solution. All disputes arising out of or in connection with the bond which cannot be resolved amicably, shall be finally settled under the rules of arbitration of the International Chamber of Commerce, the ICC, by one or more arbitrators appointed, in accordance with the said ICC's rules. The place of arbitration shall be Paris and the language to be used in the arbitral proceedings shall be English."
I take the procedural background from paragraphs 20 to 31 of the claimant's skeleton argument, which I do not understand to be in dispute. Those paragraphs are to be regarded as set out in this judgment.
The defendants have challenged the jurisdiction of this court. It is common ground that there must be a jurisdictional gateway. The gateway relied upon is that the claim is made:
- "In respect of a contract, where the contract is governed by the law of England and Wales."
Thus the question is whether the arbitration agreement is governed by English law. The claimant says that it is; the defendant says that it is not.
If it is, the next question is whether the English court is the proper forum for the claimant's claim to an anti suit injunction. The claimant says that it is; the defendant says that it is not.
I deal first with the governing law of the arbitration agreement. The manner in which choices of law are to be construed is explained and summarised in the judgment of the Supreme Court in Enka v Chubb [2020] WLR 4117.
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