Arbitration - Autoridad del Canal de Panama v Sacyr

Author:Clyde & Co LLP
Profession:Clyde & Co

The claimant and the defendants entered into guarantees which were subject to English law and exclusive jurisdiction. Subsequently, the parties entered into a further guarantee and agreed that any disputes under that guarantee would be determined by ICC arbitration in Florida. Broadly, the same dispute arose in respect of both sets of guarantees and one of the issues in this case was whether the English proceedings brought by the claimant should be stayed because they were "in respect of a matter" which it had been agreed would be referred to arbitration (a stay would be required under section 9(1) of the Arbitration Agreement 1996 if they were in "in respect of a matter" which should be arbitrated).

There is no prior caselaw on the meaning of "in respect of a matter" in England, but other jurisdictions have considered the same or a similar provision. Blair J reviewed those cases and concluded that "matter" was a word of wide import and "the context in which it is being considered is important". He concluded that the essential nature of the claim here was that it was being brought under the guarantees which were subject to English law and jurisdiction. That was the "matter" in respect of which the English proceedings had been brought. The mere existence of a common issue in a different contract was not enough to meet the requirements of section 9(1).

The defendant also sought a stay based on the English court's inherent jurisdiction to stay its proceedings (an arbitration in the US having already been commenced). A preliminary point raised by the claimant was the effect of the ECJ decision in...

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