Governing Law of Arbitration Clause

Sulamerica Cia Nacional de Seguros SA & Ors v. Enesa Engenharia SA & Ors [2012]
Commercial Court 19 January 2012

The dispute in this case concerned a claim under a construction all risks policy covering a major hydro-electric project at Jirau in Brazil.

The policy was expressed to be subject to Brazilian law and exclusive Brazilian jurisdiction, but also contained an arbitration agreement (clause 12), referring to English arbitration any dispute "as to the amount to be paid under this Policy". In addition, there was a mediation clause (clause 11) as follows:

"If any dispute or difference of whatsoever nature arises out of or in connection with this Policy including any question regarding its existence, validity or termination, hereafter termed as Dispute, the parties undertake that, prior to a reference to arbitration, they will seek to have the Dispute resolved amicably by mediation…

If the Dispute has not been resolved to the satisfaction of either party within 90 days of service of the notice initiating mediation, or if either party fails or refuses to participate in the mediation, or if either party serves written notice terminating the mediation under this clause, then either party may refer the Dispute to arbitration."

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Lawyers Anthony Menzies, James Crabtree, Susannah Wakefield