Anti-suit Injunction in Texas Preventing London Arbitration and Anti-suit Proceedings in the Commercial Court

Steven Gee QC and Tom Whitehead have recently been instructed to act on behalf of London Market underwriters in respect of a US$65m insurance claim.

The policy is governed by Texas law and contains a clashing London arbitration clause and a Texas exclusive jurisdiction clause, in addition to a US service of suit clause which purports to give effect to both the London arbitration clause and the Texas exclusive jurisdiction clause.

The parties are in dispute as to whether the claim to recover under the policy must be brought by way of London arbitration or whether the claim is subject to the exclusive jurisdiction of the Texas state courts.

Proceedings have been commenced in London for a declaration and a final anti suit injunction compelling London arbitration. Rival proceedings on the merits have been commenced in Texas, with the Texas court having granted an ex parte temporary restraining order to stop the London proceedings.

Steven Gee QC and Tom Whitehead recently travelled to Texas, where Steven Gee (who is admitted to the New York Bar) was granted temporary admission to the Texas State Bar and addressed the Court on English law issues, including cross-examination of the assured's English law expert (a London silk).

Issues include whether the courts of a contracting state to the New York Convention may issue an injunction to restrain the courts of the putative arbitral seat from determining whether there is an arbitration agreement between the parties as required of them by Article II of the New York Convention. It is believed to be the first occasion on which an order has been sought that restrains the ability of the Commercial Court, being the court of the arbitral seat, from determining this issue.

The case continues.