Лектор докладно проаналізувала разом з учасниками англійські колізійні норми, а саме:

1. Case factual background. Фактичні передумови справи.

2. Shall a court of England and Wales apply the provisions of “Rome I Regulations”? Чи повинен суд Англії та Уельсу застосовувати положення «Регламент Рим I»?

3. Rules developed by the common law for determining the law governing contractual obligations. Правила, розроблені загальним правом для визначення права, що регулює договірні зобов'язання.

4. Conclusions of the Supreme Court of the United Kingdom. Висновки Верховного суду Великої Британії.

У рамках характеристики англійських колізійних норми (на прикладі справи Enka Insaat Ve Sanayi AS проти OOO Insurance Company Chubb) акцентовано на наступному:

1. Case factual background. Фактичні передумови справи

1. On 1 february 2016 a power plant situated at berezovskaya in russia was severely damaged by fire. The appellant ("chubb russia") is a russian insurance company which had insured the owner of the power plant, a company now named PJSC unipro ("unipro"), against such damage. Chubb russia is part of the chubb group, which is the world's largest publicly traded property and casualty insurer.

The company responsible for the design and construction of the power plant under a contract made with Unipro in May 2011 was a russian company called CJSC Energoproekt. The respondent ("Enka") was engaged by Energoproekt as one of many subcontractors involved in the construction project. Enka is a global engineering and construction company incorporated and based in Turkey.

The construction contract contains, in article 50, a dispute resolution clause in these terms:

"Resolution of disputes:

50.1. The Parties undertake to make in good faith every reasonable effort to resolve any dispute or disagreement arising from or in connection with this Agreement (including disputes regarding validity of this agreement and the fact of its conclusion (hereinafter - Dispute') by means of negotiations between themselves. In the event of the failure to resolve any Dispute pursuant to this article within 10 (ten) days from the date that either Party sends a Notification to the opposite Party containing an indication of the given Dispute (the given period may be extended by mutual consent of the Parties) any Party may, by giving written notice, cause the matter to be referred to a meeting between the senior managements of the Contractor and Customer (in the case of the Contractor senior management shall be understood as a member of the executive board or above, in the case of Customer, senior management shall be understood as general directors of their respective companies). The parties may invite the End Customer to such Senior Management Meeting. Such meeting shall be held within fourteen (14) calendar days following the giving of a notice. If the matter is not resolved within twenty (20) calendar days after the date of the notice referring the matter to appropriate higher management or such later date as may be unanimously agreed upon, the Dispute shall be rieferred to international arbitration as follows:

• the Dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce,

• the Dispute shall be settled by three arbitrators appointed in accordance with these Rules, the arbitration shall be conducted in the English language, and

• the place of arbitration shall be London, England.

2. On 21 May 2014 Energoproekt transferred its rights and obligations under the construction contract to Unipro pursuant to an assignment agreement made between Energoproekt, Unipro and Enka. By clause 7.5 of that agreement, the parties agreed that disputes between Unipro and Enka were to be finally and exclusively resolved by arbitration in accordance with the provisions of article 50.1 of the construction contract.

Key facts:

• Applicable law was not chosen, but was chosen the seat of arbitration (London)

• The High Court dismissed Enka's (defendant's) claim.

• The Court of Appeal overturned the judge's decision.

Legal english terminology:

• An injunction:

An injunction is a court order that requires the persons to whom it is addressed to do, or refrain from doing, a specified act.

Це судовий наказ, який вимагає від осіб, яким він адресований, виконати певну дію або утриматися від її вчинення.

(Wolverhampton City Council and others (Respondents) v London Gypsies and Travellers and others (Appellants) [2023] UKSC 47).

• Anti-suit injunction is a transnational remedy for multi-jurisdictional litigation:

An anti-suit injunction is an interlocutory remedy issued by a court in one jurisdiction which prohibits a litigant from initiating or continuing parallel litigation in anotner jurisdiction or jurisdictions.

Заборона проти позову - це проміжний засіб правового захисту, виданий судом в одній юрисдикції, який забороняє учаснику судового процесу ініціювати або продовжувати паралельний судовий процес в іншій юрисдикції або юрисдикціях.

Why did the Court of Appeal overturned the judgment?

It held that, unless there has been an express choice of the law that is to govern the arbitration agreement, the general rule should be that the arbitration agreement is governed by the law of the seat, as a matter of implied choice; that there was no express choice of law in this case and that the arbitration agreement was therefore

governed by English law; and that it was appropriate to grant an anti-suit injunction to restrain Chubb russia from pursuing the russian claim.

2. Shall a court of England and Wales apply the provisions of “Rome I Regulations”? Чи повинен суд Англії та Уельсу застосовувати положення «Регламент Рим I»?

Rome I applies to contracts concluded after 17 December 2009"

(Articles 28 and 29 of Rome I).

Contracts entered into before that date are governed by the predecessor instrument, l.e., the 1980 Convention on the law applicable to contractual obligations.

"25. The Rome I Regulation applies, in situations involving a conflict of laws, to

contractual obligations in civil and commercial matters. Article 1(2) (e) however, excludes from its scope "arbitration agreements and agreements on the choice of court".

"27. Because the Rome I Regulation does not apply to arbitration agreements, an English court which has to decide which system of law governs the validity, scope or interpretation of an arbitration agreement must apply the rules developed by the common law for determining the law governing contractual obligations".

3. Rules developed by the common law for determining the law governing contractual obligations. Правила, розроблені загальним правом для визначення права, що регулює договірні зобов'язання

Common law rules are that a contract (or relevant part of it) is governed by:

• the law expressly or impliedly chosen by the parties; or

• in the absence of such choice, the law with which it is most closely connected: see eg Dicey, Morris & Collins on The Conflict of Laws, 15th ed (2012), rule 64(1).

Express or implied?

"...a choice of law to govern a contract, like any contractual term, may be explicitly articulated or may be a matter of necessary implication or inference from other terms of the contract and the surrounding circumstances.."

English case law:

Enka Insaat Ve Sanayi AS (Respondent) v 000 Insurance Company Chubb (Appellant) [2020] UKSC 38 On appeal from: [2020] EWCA Civ 574

• the seat is where the arbitration is to be performed (legally, if not physically)[121]-[124];

• this approach maintains consistency with international law and legislative policy [125]-[141];

• this rule is likely to uphold the reasonable expectations of contracting parties who specity a location for the arbitration without choosing the law to govern the

• contract [142]-[143];

• and (iv) this approach provides legal certaint, allowing parties to predict easily which law the court will apply in the absence of choice [144].

The seat is where the arbitration is to be performed (legally, if not physically)

[121]-[124]:

"...The seat of arbitration is in these circumstances the place to whose system of law the arbitration agreement is most closely attached…."

We therefore agree with the view of Moore-Bick LJ in the Sulamérica case quoted at para 104 above and also with statement of Longmore LJ in C v D [2007] EWCA Civ 1282; [2008] Bus LR 843 para 26, that:

"an agreement to arbitrate will normally have a closer and more real connection with the place where the parties have chosen to arbitrate than with the place of the law of the underlying contract in cases where the parties have deliberately chosen to arbitrate in one place disputes which have arisen under a contract governed by the law of another place."

The this approach maintains consistency with international law and legislative policy [125]-[141]: "...The New York Convention, to which the United Kingdom became a party in 1975 and which more than 160 states have now signed, has been described as "the single most important pillar on which the edifice of international arbitration rests," and as "perhaps... the most effective instance of international legislation in the entire history of commercial law": see Redfern and Hunter: Law and Practice of International Commercial Arbitration, 6th ed (2015)..."

Two limbs:

1. The first, and primary, rule is that the validity of the arbitration agreement is governed by "the law to which the parties [have] subjected it" - in other words the law chosen by the parties.

2. The second, default rule, which applies where no choice has been indicated is that the applicable law is that of "the country where the award was made". Where the parties have chosen the seat of arbitration, this will be (or be deemed to be) the law of the seat. In English law this is expressly provided by section 100(2)(b) of the 1996 Act.

4. Conclusions of the Supreme Court of the United Kingdom. Висновки Верховного суду Великої Британії

English case law:

Enka Insaat Ve Sanayi AS (Respondent) v 000 Insurance Company Chubb (Appellant) [2020] UKSC 38 On appeal from: [2020] EWCA Civ 574.

The central issue on this appeal is how the governing law of an arbitration agreement is to be determined when the law applicable to the contract containing it differs from the law of the "seat" of the arbitration, the place chosen for the arbitration in the arbitration agreement.

Conclusions on applicable law:

Enka Insaat Ve Sanayi AS (Respondent) v 000 Insurance Company Chubb (Appellant) [2020] UKSC 38 On appeal from: [2020] EWCA Civ 574.

• Where a contract contains an agreement to resolve disputes arising from it by arbitration, the law applicable to the arbitration agreement may not be the same as the law applicable to the other parts of the contract and is to be determined by applying English common law rules for resolving conflicts of laws rather than the provisions of the Rome I Regulation.

• Where an English court must decide which system of law governs an arbitration agreement, it should apply the English common law rules for resolving conflicts of laws rather that the provisions of the Rome I regulation, as the latter excludes arbitration agreements from its scope.

• In the absence of any choice of law to govern the arbitration agreement, the arbitration agreement is governed by the law with which it is most closely connected. Where the parties have chosen a seat of arbitration, this will generally be the law of the seat, even if this differs from the law applicable to the parties substantive contractual obligations.