Background: The Mauritius Union Assurance ("MUA") had been providing blanket insurance cover to the Mauritius Commercial Bank ("MCB") for a number of years before a large scale fraud within the bank was discovered in 2003.  The insurance policy issued by MUA for the relevant year was reinsured in the London market by the Claimants (the "Reinsurers").  In 2003 and 2004 MCB initiated proceedings in Mauritius against the perpetrators of the fraud and against MUA for payment under the policy.  Early in February 2005 the Reinsurers obtained permission from the English Court to serve proceedings on MUA and MCB in Mauritius, seeking to obtain, inter alia, a declaration that the reinsurance policy had been avoided for non disclosure.  On 21 February 2005 MUA joined the Reinsurers to the proceedings in Mauritius, virtually at the same time as the Reinsurers obtained an anti-suit injunction and an anti-anti suit injunction against MUA.

MUA and MCB applied to the Commercial Court for a stay of the English proceedings and orders to set aside the permissions to serve the proceedings out of the jurisdiction as well as the anti suit and the anti anti suit injunctions.

Issues: The overriding issue as identified by Aikens J was whether England was the appropriate forum for the disputes.  This, however, required him to consider a number of issues, including (1) whether there was an exclusive jurisdiction clause in favour of the Mauritius Courts in the reinsurance; (2) whether England was the convenient forum in which to determine the disputes and (3) whether the injunctions should be discharged.

(1) The subject matter of the dispute was one of a number of reinsurances covering MUA's exposure to MCB.  The Reinsurance did not contain a jurisdiction clause but it did have words of incorporation referring, interestingly, to the primary reinsurance, which had a Mauritian jurisdiction clause.  In line with previous authorities, Aikens J found that the general words of incorporation did not incorporate the Mauritian jurisdiction clause.

(2) In order to determine the appropriate forum Aiken J had to consider whether the appropriate law was English law.  For the Reinsurance Aikens J had to rely on Art 4(1) of the Rome Convention, which states that the applicable law is that of the country with which the contract is most closely connected, and this is deemed to be where the party that has to effect the performance characteristic of the contract has its central administration.  Aikens J held that the characteristic performance of a reinsurance contract is the payment in the event of a valid claim.  Since such payment would come from the Reinsurers based in London, there was a good arguable case that the applicable law of the Reinsurance was English law.  As regards MCB, Aikens J had to consider which law governed the tort alleged against MCB i.e. MCB's failure to disclose the fraud in the proposal form provided to the Reinsurers.  The proposal form was completed by MCB in Mauritius and transferred to the Reinsurers in London who relied upon it to decide whether or not to write the risk.  Applying the test under 11(2) of Part III of the Private International Law (Misc. Provisions) Act 1995, Aikens J found that the most significant element of the tort was the reliance by the Reinsurers, which had taken place in England.  Thus there was a good arguable case that the law governing the relevant tort was English law.

Based on this analysis, and taking into consideration some other factors in favour of the English Courts, Aikens J found that the appropriate forum to hear the dispute concerning the reinsurance was England.

(3)  Aikens J agreed to discharge the injunctions on the basis that the third party proceedings against the Reinsurers in Mauritius were not vexatious or oppressive.  He acknowledge that this would lead to two concurrent proceedings in England and Mauritius, but felt that this was not sufficient for him to find that the injunctions should remain.