指导Through Transport Mutual Insurance Association (Eurasia

Through Transport Mutual Insurance Association (Eurasia) Ltd v. New India Assurance Co Ltd
QBD

New India insured a cargo of garments that was lost in overland transit, having been shipped between Finland and Russia. New India settled the claim and sought to exercise subrogated rights against the carrier, Borneo Maritime Oi. As Borneo Maritime was insolvent, New India brought proceedings in Finland against its liability insurers, TTMIA, under the Finnish Insurance Contracts Act, which bestows upon a claimant similar rights against the insurers of an insolvent Defendant as does the Third Party (Rights against Insurers) Act 1930 in England.

TTMIA applied to the English Court for an anti-suit injunction restraining the Finnish proceedings on the basis that the insurance contract between TTMIA and Borneo Maritime contained a London arbitration clause and was subject to English law. As New India was claiming through Borneo Maritime, TTMIA asserted that it had to proceed in arbitration in London, not in the Finnish Courts.

However, the Finnish Court was the court first seized of the dispute, and under EU law (Council Regulation 44/2001 Art 27) it would normally be the Finnish Court which should decide whether it had jurisdiction. There is, however, an exception to this rule in the case of arbitration,contained in Article 1.2(d) of the same EU Regulation. The Court of Appeal in London upheld Justice Moore Bick's Commercial Court decision that the English Court had jurisdiction to decide whether the exemption applied, so that it was for the English Court had to consider whether the matter should proceed by way of arbitration.

The Court therefore proceeded to consider the merits of TTMIA's claim for an anti-suit injunction. It found that the claim by New India v TTMIA under the Finnish Insurance Contracts Acts was in effect an attempt to enforce the terms of the contract of insurance between Borneo Maritime and TTMIA, its insurer. Although the Finnish Insurance Contracts Act gave New India an independent statutory right of action directly against Borneo Maritime's insurers, the principal right which New India had was to enforce the terms of the insurance contract, which included the arbitration clause. TTMIA was therefore entitled to rely on the arbitration clause.

The Court of Appeal also found that it had jurisdiction under Section 18 of the English Arbitration Act 1996 to appoint an arbitrator in default of New India doing so. However, despite this, the Court of Appeal set aside the anti-suit injunction that Justice Moore Bick hadhttp://www.ukassignment.org/daixieEssay/falvessaydaixie/ granted at first instance. In this respect, the Court found that New India was not itself a party to the contract of insurance and so could not be found itself to be in breach of that contract for commencing proceedings against TTMIA in Finland. The effect of this was to leave New India free to pursue its parallel claim against TTMIA in the Finnish Courts, which under Finnish law it was entitled to do.#p#分页标题#e#

Interestingly, the outcomes of the Finnish proceedings and London arbitration could be different. The TTMIA Rules contain a "pay to be paid" clause in a form common to P&I clubs and expressly subject to English law. Following the "Fanti" and the "Pardre Island" cases, a claim under English law under the Third Party (Rights Against Insurers) Act 1930 would fail on the basis that the insured, Borneo Maritime, had not in fact paid the claims in question. It is, however, undecided whether the "pay to be paid" clause would operate in the same way to defeat the claim brought in Finland directly against the insurers of an insolvent company under the Finnish Insurance Contracts Act.