ENGLISH HIGH COURT MAINTAINS ANTI-SUIT INJUNCTIONS FOR INSURERS AND CONSIDERS CONFLICTING DISPUTE RESOLUTION CLAUSES

In the recent case of AIG Europe SA and others v John Wood Group Plc and another [2021] EWHC 2567 (Comm), the High Court (the Court) maintained certain anti-suit injunctions granted in favour of a number of insurers who subscribed to various excess liability policies, two of which contained a valid arbitration clause. The Court refused, however, to maintain relief in respect of other insurers subscribed to one of the excess policies.

In doing so, the Court provided guidance on the approach taken by English courts to conflicting standard term and negotiated dispute resolution clauses, and in particular when it will construe jurisdiction clauses in favour of the English courts as exclusive.

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ENGLISH COURT ALLOWS SECTION 69 APPEAL ON POINT OF LAW AGAINST AWARD ISSUED BY JUDGE-ARBITRATOR

In the recent decision of Equitas Insurance Limited v Municipal Mutual Insurance Limited [2019] EWCA Civ 718 (available here), the Court of Appeal allowed an appeal on a point of law under section 69 of the Arbitration Act 1996 (the “Act“) against an award rendered by Flaux LJ as judge-arbitrator.

The award concerned a dispute between an insurer, Municipal Mutual Insurance (“MMI“), and its reinsurer, Equitas Insurance (“Equitas“), about how employer’s liability (“EL“) mesothelioma insurance claims should be handled at a reinsurance level. The Court of Appeal held that although employers may “spike” their EL claims 100% into a single policy year as against their insurer, an insurer may not “spike” its own claims 100% into a single policy year as against its reinsurer. A detailed analysis of the case can be found here.

Given the relatively low number of cases which obtain permission to appeal under section 69 of the Act (let alone succeed), it is instructive to revisit the earlier decision of the Court of Appeal in which permission to appeal was granted.

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English Court of Appeal reinstates the appointment of an arbitrator on the basis that he qualifies for appointment under the arbitration clause

In Allianz Insurance and Sirius International Insurance Corporation v Tonicstar Limited [2018] EWCA Civ 434, the English Court of Appeal has reversed the decision of the High Court on whether a party-appointed arbitrator met the contractual requirements as to requisite experience. The Court of Appeal held that that an English QC with experience of insurance and reinsurance law was sufficient to comply with a contractual clause requiring arbitrators to have “experience of insurance and reinsurance”.

This decision is of particular interest as such challenges to arbitrators rarely come before the courts. It highlights once again the importance of drafting arbitration clauses clearly, particularly where parties require their arbitrators to possess certain qualifications or experience.

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