Brazilian appeal dismissed to block arbitration proceedings in England

11 June, 2012

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In a ruling last month, appeal court judges Lord Neuberger, Lord Justice Moore-Bick and Lady Justice Hallett upheld the anti-suit injunction restraining the appellants, Enesa Engenharia S.A. and others from pursuing proceedings against the respondents, Sulamérica Cia Nacional de Seguros S.A. and other insurers in the courts of Brazil. The construction group applied to the appeal court of the state of São Paulo last year to prevent the arbitration, in which insurers of the 3300 MW dam are seeking a declaration that they should not be liable for losses arising from a four-day protest there last March. The insurance companies argued that the arbitration agreement was a juridically separable agreement and should be governed by the laws of England as the seat of arbitration. In his decision, Lord Justice Moore-Bick concluded that the arbitration agreement had its closest and most real connection with English law, and was therefore governed by English law.

The consortium intends to seek permission to appeal to the Supreme Court of the United Kingdom.

The arbitration is taking place under the rules of ARIAS (UK) – a London-based insurance and reinsurance arbitration body.

Representing the respondent Sulamerica and others, instructed by Clyde & Co associate Richard Butt, were Michael Crane QC of Fountain Court,  Stephen Houseman and Damien Walker of Essex Court Chambers.

Download the judgment.