Smith J was also satisfied that the parties intended to frame Indian law by making an explicit reference to the arbitration clause, to the exclusion of certain provisions of the Indian Arbitration Act, which Smith J accepted a natural conclusion that Indian law would apply otherwise. Justice Andrew Baker found at trial that Enka`s delay and inability to commence arbitration proceedings in Russia were strong enough reasons to refuse an injunction. However, his preferred reason was that the English court was not the appropriate forum to determine the “real question” between the parties, namely whether the simplicity of dispute resolution extended to the dispute over Enka`s liability in the Moscow proceedings. He concluded that the appropriate forum for this decision was the Moscow Court of Arbitration. Finally, it should be noted that, in this case, the Court of Justice upheld the compromise clause, although there is an exclusive jurisdiction clause next to it in the directive. The exclusive jurisdiction clause does not impinge on the validity of the parties` arbitration decision, but rather is limited to marginal issues such as finding a dispute, mandatory arbitration, finding the validity of the award or making a decision on the merits when the parties waive arbitration. However, it is advisable to avoid the introduction of conflicting dispute resolution clauses when entering into new agreements. Lord Justice Popplewell outlined a three-step test that applies to the determination of the right to an arbitration agreement (AA). The parties should consider explicitly enacting legislation on the arbitration agreement. Arsanovia confirms that the law governing the arbitration agreement is not always implied by an explicit choice of the law in force or an explicit choice of seat. The lack of explicit choices to regulate the arbitration agreement can lead to uncertainty and long legal challenges, which can result in significant costs and delays for the parties and the cancellation of an arbitration decision. With regard to the conciliation agreement, Lord Justices of Appeal Cooke J agreed, which had found at first instance that he had no legal obligation.
As such, it was not a blockage of the jurisdiction of the arbitral tribunal. They did not go so far as to prescribe the essential elements of the effectiveness of a mediation provision, believing that each case should be considered on its own terms. However, they accepted the need for certain factors that did not exist in this situation, namely: the case concerned two risk insurance policies (the “policy”) for the construction of one of the largest hydroelectric power plants in the world, Jirau, in Brazil. When, as part of the directive, Enesa claimed physical damage and consequential damages resulting from incidents that occurred in March 2011, Sulamerica immediately denied liability under the directive. In accordance with a compromise clause of the directive (which provides for an arbitration procedure in London in accordance with the ARIAS rules), they initiated an arbitration procedure to obtain a declaration of non-responsibility and a declaration that a substantial change had taken place. Smith J rejected Cruz City`s argument that the choice of an English seat would amount to a tacit election of English law, as is the case with the arbitration agreement. Smith J. cited Sulamérica as an authority that the seat is not, on his part, an implicit choice of the law of the arbitration agreement. The Court of Appeal of England has given some useful guidance on the relevant examination in determining the law applicable to arbitration agreements (unlike (unlike (i) the law applicable to the contract concerned and (ii) to the law of arbitration or the curial law of the law).