After the fire, in May 2019, Chubb Russia filed a claim in the Moscow Arbitrazh (commercial) Court against Enka, among others, claiming joint liability for the damage caused by the fire. Enka filed a motion to have Chubb Russia's claim dismissed on the grounds that it fell within the scope of the arbitration agreement contained in the construction contract, and therefore ought to be resolved by arbitration in London rather than before the Russian courts. In March 2020, the Russian courts denied Enka's motion to refer the claim to arbitration.
Meanwhile, in September 2019, Enka brought a claim in the English High Court seeking an anti-suit injunction to restrain Chubb Russia from further pursuing the Russia proceedings against it on the grounds that this was a breach of the arbitration agreement. In October 2019, the English court declined to grant an interim anti-suit injunction but gave directions for an expedited trial that took place in December 2019. A judgment delivered shortly after dismissed Enka's claims. The court found that the appropriate forum to decide whether Chubb Russia's claim against Enka fell within the arbitration agreement was the Moscow court and not the English court.
In March 2020, Enka filed a request for arbitration against Chubb Russia with the ICC seeking a declaration that Chubb Russia's claims in the Russian court fell within the scope of the arbitration agreement and damages. Chubb Russia challenged the jurisdiction of the arbitration and denied Enka's entitlement to any of the relief claimed.
In May 2020, Chubb Russia applied to the Supreme Court for permission to appeal, which the court granted at the same time as staying the anti-suit injunction on Chubb Russia. The appeal was expedited and heard over two days in July 2020.
The expeditious manner in which the proceedings were carried out by the court of first instance, the Court of Appeal and the Supreme Court – all within a span of just over seven months – is a true testament to the efficiency with which the English courts act when faced with matters of urgency.
The Supreme Court's decision
In contrast to the Court of Appeal's approach the Supreme Court, by a majority, held that a choice of law for the main contract should generally be treated as the choice of law for the arbitration agreement but that, in the absence of such a choice, the arbitration agreement is governed by the law of the seat as a default.
In arriving at its decision, the Supreme Court referred to a considerable body of English law which proceeds on the assumption that a choice of law for the contract will normally apply to an arbitration agreement in the contract. Recently, the Court of Appeal similarly construed a clause in a contract as meaning that all the terms of the contract were governed by English law, including an arbitration clause which provided for arbitration in France. In a 2012 case, the Court of Appeal said that it was "common for parties to make an express choice of law to govern their contract, but unusual for them to make an express choice of law to govern any arbitration agreement contained within it; and where they have not done so, the natural inference is that they intended the proper law chosen to govern the substantive contract also to govern the agreement to arbitrate".