Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb

In Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb, the Supreme Court of the United Kingdom considered the question of which national law governs an arbitration agreement when the governing law of the contract differs from the law of the arbitration seat. The Court of Appeal had held that, unless there has been an express choice of the law governing the arbitration agreement, the general rule should be that the arbitration agreement is governed by the law of the seat, as a matter of implied choice. The Supreme Court, however, disagreed with this approach and held that the arbitration agreement should generally be governed by the same law that governs the contract unless there are other factors demonstrating powerful reasons to the contrary. The Court held that there are strong reasons for construing a choice of law to govern a contract as applying to an arbitration agreement set out in a clause of the contract, even where the law chosen to govern the contract differs from that of the place chosen as the seat of the arbitration. The Court also held that the overlap argument, which suggests that the law governing the arbitration agreement and the law governing the arbitration process should be the same, is not a sufficient basis to conclude that the choice of seat is an implied choice of the law governing the arbitration agreement. The Court held that the choice of seat can be regarded as a choice of the curial law, but whether this carries any implication that the parties intended the same system of law to govern the arbitration agreement must depend on the content of the relevant curial law. The Supreme Court therefore held that the arbitration agreement in this case was governed by Russian law, which was the governing law of the contract. The Court also held that the English courts ought to respect the Russian courts' jurisdiction to decide whether the arbitration agreement applied to the claim which Chubb Russia had brought against Enka in Russia, and that the anti-suit injunction granted by the Court of Appeal was therefore wrong. The Supreme Court set aside the anti-suit injunction and remitted the case to the Court of Appeal for further consideration.