Arbitration - conflict of laws – applicability of arbitration clause – Anti-suit injunction [Shell Petroleum v Sunlink Energies]
The English Commercial Court granted a final anti-suit injunction in favour of Shell Petroleum ("Shell") against Sunlink Energies and Resources Limited ("Sunlink"), in relation to Nigerian court proceedings brought by Sunlink in breach of an arbitration clause in favour of London seated arbitration under the auspices of the International Chamber of Commerce ("ICC")(the "Arbitration Clause").
To determine the governing law of the Arbitration Clause, Baker J followed the Supreme Court's decision in Enka v Chubb [2020] UKSC 38. Although the arbitration is seated in London, the governing law of the underlying agreement is Nigerian law, and therefore the governing law of the Arbitration Clause is Nigerian law.
Sunlink argued that the Nigerian court was the correct forum on the basis that the Arbitration Clause was invalid as it referred to non-extant rules, was incapable of performance and was contrary to Nigerian public policy. Each of the grounds was dismissed by the judge. The injunction included mandatory requirements on Sunlink to take steps to withdraw the Nigerian proceedings.
This article was first published by LexisNexis on 21 December 2023.
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