UK Trends and Developments Contributed by: Tom Sprange KC, Shouvik Bhattacharya, Sadyant Sasiprabhu and Alice Konneh, King & Spalding International LLP
Practical implications for parties and counsel Chubb Bermuda , Maxamcorp and FH Holding hold practical lessons for any party contracting for, or fac - ing, English-seated arbitration, and for counsel advis - ing such parties. Draft the arbitration agreement clearly Arbitration agreements should be clearly drafted, and should account for the Arbitration Act 2025, which came into force on 1 August 2025 and applies to arbi - tral proceedings, and related court proceedings, com - menced on or after that date. The most significant reform for present purposes is Section 6A, a new default rule on the law governing the arbitration agreement. Under Section 6A, in the absence of an express choice by the parties, the arbi - tration agreement is governed by the law of the seat. A choice of law for the main contract does not, of itself, amount to an express choice for the arbitration agreement. Section 6A reverses the common law position estab - lished in Enka and reaffirmed in UniCredit , and it has a direct bearing on the jurisdictional pathway those cases opened. On facts materially identical to Uni- Credit , an English-law contract providing for a foreign seat, the arbitration agreement would, for proceedings commenced after 1 August 2025, be governed by the law of the seat rather than English law. The practi - cal consequence is that parties who value access to English injunctive support should not rely on the old default. To avail of the protection of English courts, parties should include a clause designating London as the seat in clear terms, where that is the parties’ intention. The arbitration agreement should also be drawn wide - ly enough to cover: • all relevant parties; • the full scope of disputes contemplated; • any non-contractual claims arising out of or in con - nection with the relationship; and • proceedings connected to or arising from the same subject matter.
a sufficiently high probability that the Moscow pro - ceedings breached the arbitration agreement because the foreclosure claim had been brought under the mortgage agreement, which expressly contemplated judicial enforcement before the Moscow Commercial Court. Reading the contractual documents together, the court held that the arbitration clause and the Mos - cow jurisdiction clause were intended to operate con - currently, rather than in conflict. FH also argued that the Russian proceedings were vexatious and oppressive and should be restrained on that basis. The court rejected this argument, empha - sising that the dispute was overwhelmingly connect - ed with Russia: the security was Russian property, the mortgage was governed by Russian law and the enforcement proceedings were taking place before the contractually chosen Russian court. The decision turned on the construction of apparently competing dispute resolution clauses across a suite of related contracts. Applying the principles summarised in BNP Paribas SA v Trattamento Rifiuti Metropolitani SpA , the court held that the English connection was too tenu - ous to justify the exercise of its injunctive discretion. FH Holding Moscow carries two important mes - sages. The first is doctrinal: where a transaction is documented across several agreements with differ - ent dispute resolution provisions, the English court will not, absent clear language, import the arbitration clause of the principal agreement into disputes that arise more naturally under an ancillary contract. The second is practical: inconsistency across the dispute resolution clauses of a financing suite is an invitation to jurisdictional conflict, and parties should ensure that questions such as whether an event of default has occurred are allocated coherently across the facil - ity, guarantee and security documents. Read alongside Chubb Bermuda and Maxamcorp , FH Holding confirms that the English courts may act pre - ventively or correctively where a party has promised to arbitrate in England and Wales and then litigates else - where, but may adopt a non-interventionist approach where the English connection is weaker, the arbitration is seated elsewhere or the foreign proceedings have a strong local connection.
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