Sulamérica CIA Nacional De Seguros S.A. & Ors v. Enesa Engenharia S.A. & Ors
England and Wales Court of Appeal
[2012] EWCA Civ 638 (2012)
- Written by Sara Adams, JD
Facts
Enesa Engenharia S.A. and others (the insureds) (defendants) entered into insurance-policy contracts with Sulamérica CIA Nacional De Seguros S.A. and others (the insurers) (plaintiffs). The policies were expressly governed by Brazilian law. A dispute-resolution provision established a final stage of arbitration in England but required that the parties first attempt mediation governed by Brazilian law before referring a dispute to arbitration. The arbitration agreement’s language clearly stated that either party could refer disputes to arbitration. After a dispute arose over policy coverage, the insurers gave the insureds a notice of arbitration. In response, the insureds filed suit in Brazil, arguing that under Brazilian law the arbitration agreement precluded the insurers from referring disputes to arbitration and only permitted referrals to arbitration with the insureds’ consent. The Brazilian court enjoined the insurers from arbitrating. The insurers applied for an injunction in England barring the insureds from proceeding in the Brazilian action. The English lower court granted the injunction. The insureds appealed the injunction, arguing that the parties made an implied choice that Brazilian law would govern the arbitration agreement.
Rule of Law
Issue
Holding and Reasoning (Moore-Bick , J.)
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