“This Reinsurance shall be governed by and construed according to the Laws of England and Wales. The Courts of England and Wales shall have exclusive jurisdiction of the parties hereto on all matters relating to this insurance.”
“Pursuant tosection 37 of the Senior Courts Act 1981 , until the return date, or further Order, the Defendant, whether by itself, its servants, agents or otherwise, is restrained (save as is otherwise addressed in this paragraph) from commencing or prosecuting or continuing or taking any steps in or otherwise participating in proceedings in any court or tribunal other than in the Courts of England and Wales, against the Claimant in respect of all matters relating to the reinsurance provided by the Defendant to the Claimant for the period1 July 2021 to1 July 2022 . This includes the motion filed in the United States District Court for the Southern District of New York with Docket Number 1:23-cv-09175, Doc. Nos. 1-5. For the avoidance of doubt nothing in this paragraph shall prevent GIC from serving a notice of arbitration on TICL pursuant to clause 13(a) of the Facultative Certificates, albeit GIC may not seek anti-suit relief or equivalent in any form from any Court, forum or arbitral tribunal such that may be constituted.”
“i) The Court has the power to grant an interim injunction "in all cases in which it appears to the court to be just and convenient to do so":section 37(1) of the Senior Courts Act 1981 ("SCA 1981"). "Any such order may be made either unconditionally or on such terms and conditions as the court thinks just": section 37(2). ii) The touchstone is what the ends of justice require: Emmott v Michael Wilson & Partners Ltd[2018] 1 Lloyd's Rep 299 at [36] per Sir Terence Etherton MR. iii) The Court has jurisdiction undersection 37(1) of the Senior Courts Act 1981 to restrain foreign proceedings when brought or threatened to be brought in breach of a binding agreement to refer disputes to arbitration: Ust-Kamenogorsk Hydropower Plant JSC v AES Kamenogorsk Hydropower Plant LLP[2013] 1 WLR 1889 (SC). iv) The jurisdiction to grant an anti-suit injunction must be exercised with caution: Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] UKPC 12,[1987] AC 871 , 892E per Lord Goff. v) As to the meaning of "caution" in this context, it has been described thus in The "Angelic Grace"[1995] 1 Lloyd's Rep 87 at 92:1 per Leggatt LJ: “The exercise of caution does not involve that the Court refrains from taking the action sought, but merely that it does not do so except with circumspection.” vi) The Claimant must therefore demonstrate such a negative right not to be sued. The standard of proof is “a high degree of probability that there is an arbitration agreement which governs the dispute in question”: Emmott at [39]. The test of high degree of probability is one of long standing and boasts an impeccable pedigree going back to Colman J in Bankers Trust Co v PT Mayora Indah (unreported)20 January 1999 and American International Specialty Lines Insurance Co v Abbott Laboratories[2003] 1 Lloyd's Rep 267 and has been recently affirmed on the high authority of Christopher Clarke LJ in Ecobank v Tanoh[2016] 1 WLR 2231 at 2250. vii) The Court will ordinarily exercise its discretion to restrain the pursuit of proceedings brought in breach of an arbitration clause unless the Defendant can show strong reasons to refuse the relief: The Angelic Grace[1995] 1 Lloyd's Rep 87 ; The Jay Bola[1997] 2 Lloyd's Rep 279 (CA) at page 286 per Hobhouse LJ. viii) The Defendant bears the burden of proving that there are strong reasons to refuse the relief: Donohue v Armco Inc[2002] 1 All ER 749 at [24]-[25] per Lord Bingham.”
“The Market Reform Contract (MRC) is now the standardised form of agreement used in the London market. The slip has in principle disappeared, but it is still common for draft contracts put forward for comment by brokers to be described as “slips”
“49. Each of the 4 policies began with a number of pages which started with the heading “Risk Details”
“... when a risk is presented by the broker to the market, the presentation consists of an introductory section setting out the most important details of the risk (which more or less corresponds to the old slip) but attached to this document is a “schedule” which sets out the terms of the policy. The effect therefore is that all of the documents are prepared up-front, and when the underwriters scratch the documents the contract is in its entire form.” 51. A Market Reform Contract must contain the details set out in the published guidance. It consists of a series of sections, including Risk details. The Risk details include, for example, the unique market reference, the type of policy, the interest insured, the monetary limits and the choice of law and jurisdiction.” [Emphasis added]
“It is an odd word. One would have expected inconsistency”. but they were not. GIC submitted that the hierarchy clause was not a conflict hierarchy clause. The purpose of that provision is not that conflicting clauses in the Faculative Certificates must give way to the terms of the Slip Policies/MRCs. Rather, the Faculative Certificates, including their extensive law and jurisdiction provisions should apply in full, without reference to the Slip Policies/MRCs, unless there is a lack of clarity or uncertainty as to the meaning or operation of the terms of the Faculative Certificates. In the case of such a lack of clarity or uncertainty, then it would be permissible to refer to the Slip Policies/MRCs, but not otherwise. GIC argued that if TICL’s reading of this provision were correct, a highly implausible situation would result, namely that only 9 days after agreeing the Slip Policies/MRCs, the parties consciously agreed to a detailed New York arbitration agreement, identified as one of the “Required Terms and Conditions”, which on TICL’s case would then (bizarrely) be removed - along with the New York governing law clause - by reason of the “confusion” provision. (7) There is no lack of clarity and no uncertainty, and therefore no confusion, as to the meaning or operation of the arbitration agreement and therefore the arbitration agreement stands. Accordingly, the provisions in the Slip Policies/MRCs as to law and jurisdiction afford no assistance. As Rix LJ said in HIH Casualty and General Insurance Ltd v New Hampshire Insurance Co[2001] EWCA Civ 735 ;[2001] 2 Lloyd’s Rep 161 at [83], there are limits on the utility of using an antecedent contract or document as an aid to construction of a later contract and such is the case here (with bold emphasis added): “… where the later contract is intended to supersede the prior contract, it may in the generality of cases simply be useless to try to construe the later contract by reference to the earlier one. Ex hypothesis, the later contract replaces the earlier one and it is likely to be impossible to say that the parties have not wished to alter the terms of their earlier bargain. The earlier contract is unlikely therefore to be of much, if any, assistance. Where the later contract is identical, its construction can stand on its own feet, and in any event its construction should be undertaken primarily by reference to its own overall terms. Where the later contract differs from the earlier contract, prima facie the difference is a deliberate decision to depart from the earlier wording, which again provides no assistance.”
“But the principle of liberal interpretation in favour of arbitration encourages, as it seems to me, not only an expansive reading of what an arbitration clause includes but also a restrictive reading of any other clause which is said, notwithstanding an arbitration clause providing for all disputes to be referred to arbitration, to exclude particular disputes from arbitration … without expressly saying so.”
“in a case where an anti-suit injunction is applied for in relation to proceedings in which the issue sought to be litigated abroad is already before the English Court for determination, the Court would be unlikely to grant relief of a truly final nature, in that there would be express or implied “liberty to apply” in the event of a change of circumstances which resulted in that issue being withdrawn from the English Court, or whereby, for any other reason, the oppression originally complained of were relieved”. (2) In Navigation Maritime Bulgare v Rustal Trading Ltd[2002] 1 Lloyd’s Rep 106 at [123], Aikens J held: “There was some debate at the hearing on whether any injunction granted should be interlocutory or final. Mr. Baker invited me to determine finally the existence of the arbitration agreement and dispose finally of the claim for an injunction. I have decided that the injunction should be interlocutory. I accept that it is unlikely that further contested facts concerning the first to fifth defendants’ attitude to the London arbitration proceedings will emerge. However the grant of the injunction is dependent on the conclusion that there is an arguable case that the arbitration agreement is binding between the claimants and the defendants. Formally that issue has yet to be determined in a final way. It seems wrong to grant a final injunction when the basis for that relief has itself not been either conceded or finally determined. So for the present I will make the order interlocutory.”
“Having considered all the points made by GdC, I am of the view that the ASI should be continued. Specifically, and to repeat, I am satisfied to a high degree of probability that there is an arbitration agreement which governs the dispute in question. I do not consider that there are strong reasons not to grant an injunction restraining its breach. I can see no good reason why the relief granted should not now be final. There does not seem to be a real prospect of evidence hereafter coming to light that would make a significant difference to the issues to be decided.” [Emphasis added]
“I refer to the judgment of Colman J. on20 January 1999 in Bankers Trust Company, Bankers Trust International Plc v. P.T. Mayora Indah, unreported (see below). In the course of his judgment Colman J. said: "... at this stage the court has to be satisfied that there are strong grounds for believing that the relief sought by the plaintiff is relief to which it must in fact be entitled. This is not merely an American Cyanamid test; it goes beyond that because the injunctions which the plaintiff seeks are intended to continue until after the hearing of any arbitration pursuant to the arbitration clause and therefore have the effect of enforcing that arbitration agreement as distinct from preserving the status quo pending a trial prior to the arbitration going any further. "If the orders are granted an arbitration will take place and if the orders granted are obeyed by my order the arbitration will have taken place before any proceedings in Indonesia can be pursued. I must therefore be satisfied that the plaintiff has established a high degree of probability that its case against Mayora is right and that it is indeed entitled as of right to restrain Mayora from taking proceedings by way of action in Indonesia." See further the Supreme Court Practice 1999, para.29/L/15, "Whether an exception to American Cyanamid" and the cases there cited.”
“The required strength of Midgulf's case 36. This is a case where an anti-suit injunction is sought at the interlocutory stage of proceedings. However, if the injunction is granted its effect is likely to be final because it will end the Tunisian proceedings and enable the arbitration proceedings to be completed. In such circumstances this court has required the applicant for an anti-suit injunction to establish “a high degree of probability” that its case against the respondent is right and that it is indeed entitled as of right to restrain the respondent from taking proceedings abroad; see Bankers Trust v Jakarta Int. [1999] 1 Lloyd's Rep. 910 at p.913, and American International Speciality Lines Insurance v Abbott Laboratories [2003] 1 Lloyd's Rep. 267 at p.275. It was not suggested that I should apply any higher test (cf Sheffield United v West Ham United [2009] 1 Lloyd's Rep. 167 at paragraphs 8-10). In oral submissions it may have been suggested that a lesser test should be applied but it was not clear to me what that was. I consider that I should follow the approach adopted in Bankers Trust v Jakarta Int. and American International Speciality Lines Insurance v Abbott Laboratories .”
“Discussion 37. Midgulf's case that the fax dated 7 July was an acceptance of the offer contained in the fax dated 2 July is certainly arguable. The language of “confirmation” and “conclusion” is a clear indication that the deal had been done. For that to be so GCT must have accepted all of the terms in Midgulf's offer, including the incorporation of “the contract dated 27 June” amongst which was the London arbitration clause. On this construction the reference to “the following conditions” in the fax dated 7 July was simply a summary of the principal terms agreed. Of course, if the written exchanges are construed in the context of Midgulf's case as to the telephone conversation of 4 July Midgulf's case gains strength. 38. But GCT's case that its fax dated 7 July, notwithstanding the use of the language of “confirmation” and “conclusion”, was a counter offer, accepted by Midgulf's fax dated 9 July, is also arguable. The fax is, on objective analysis, to be regarded as a counter offer because it introduced a condition regarding drafts and the list of conditions on the basis of which GCT stated that it was willing to contract did not include an incorporation of the “contract dated 27 June.”