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Insurance Law Monthly
Anti-suit injunctions
European cases: the arbitration exception
The English courts have long sought to prevent a party to an arbitration clause from 留学生论文代写 disregarding his obligation to arbitrate by bringing judicial proceedings. If the proceedings are brought in England, s9 of the Arbitration Act 1996 demands that those proceedings are to be stayed. If the proceedings are brought elsewhere, the English courts have almost as a matter of course granted an anti-suit injunction restraining the participation in those proceedings by the party in apparent breach of the arbitration clause. However, the position has been thrown into doubt by two European Court of Justice rulings, Erich Gasser GmbH v Misat Srl (Case-116/02) [2004] 1 Lloyd's Rep 222 and Turner v Grovit (Case C-159/02) [2004] 1 Lloyd's Rep 216. Those cases decided that if a court within the EU or EFTA is first seised of judicial proceedings which fall within any of Council Regulation 44/2001, the Brussels Convention or the Lugano Convention, no other court has jurisdiction to grant an anti-suit injunction to restrain participation in those proceedings as the court first seised may alone resolve doubts as to its own jurisdiction. Thus, in Erich Gasser it was held to be impermissible to restrain an alleged breach of an exclusive jurisdiction clause by anti-suit injunction, and a similar conclusion was reached in Turner in respect of a foreign action which was allegedly abusive. The question addressed by the Court of Appeal in Through Transport Mutual Insurance Association (Eurasia) Ltd v New India Assurance Co Ltd [2005] 1 Lloyd's Rep 67 was whether the same principle applies to EU or EFTA actions in breach of an arbitration clause.
INSURANCE
Through Transport: the facts
NI, an insurance company, insured the owners of a cargo of garments against the risk of loss during carriage from Calcutta to Moscow. Following the loss of the container, NI indemnified the owners and sought to exercise subrogation rights against the carriers, BMO and BML (associated companies). The carriers were members of a mutual insurance association, TT, which gave cover in respect of liability claims for loss of cargo. The rules of TT, which enshrined the insuring terms, stated that the insurance was governed by English law and that any disputes were to be resolved by arbitration in London. The rules also contained a 'pay to be paid' clause, under which the carriers could recover from TT only after making payment to any claimant. This type of provision is a familiar one in English P&I Club cover.
Before any action could be brought against BMO, it went into insolvent liquidation and was struck off the register of companies in Finland. NI thus turned its attention to TT. Under English law, NI would have a valid claim against TT under the Third Parties (Rights against Insurers) Act 1930, which enables the victim of an insolvent assured to step into the shoes of that assured and to enforce any judgment directly against the assured's liability insurers. However, NI faced an insuperable problem https://www.51lunwen.org/liuxuelunwendx/in that the pay to be paid clause precluded any payment by TT until BMO had itself made payment, plainly an impossibility in the circumstances. Readers will be aware that in Firma C-Trade SA v Newcastle Protection and Indemnity Association (The Fanti) and Socony Mobil Oil Co Inc v West of England Ship Owners Mutual Insurance Association (L本论文由英语论文网提供整理，提供论文代写，英语论文代写，代写论文，代写英语论文，代写留学生论文，代写英文论文，留学生论文代写相关核心关键词搜索。