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Lloyd's Maritime and Commercial Law Quarterly

English and Scottish Arbitration Law

Karen Maxwell *

CASES

31. Accentuate Ltd v. Asigra Inc1

Enforcement—EU law
The contract between the English claimant and the Canadian defendant contained a Canadian governing law clause and provided for arbitration in Toronto. Disputes arose and an arbitral tribunal appointed pursuant to the clause held that the Commercial Agents (Council Directive) Regulations 19932 (which were introduced into English law to give effect to mandatory provisions of EU law3) did not apply when determining the parties’ rights and liabilities. The claimant commenced proceedings in the English court claiming compensation under the Regulations. The defendant obtained an order setting aside permission to serve the proceedings out of the jurisdiction, and a stay of proceedings pursuant to the Arbitration Act 1996, s 9. The claimant appealed, arguing that the choice of law and arbitration provisions amounted to an evasion of EU law and, as such, were unenforceable.
Decision: Appeal allowed. Permission to serve out of the jurisdiction upheld.
Held: There was a sufficiently arguable case that the claimant was an “agent” with mandatory rights arising under the Regulations. In so far as the arbitration and choice of law provisions had the effect of derogating from the Regulations, it was “null and void” for the purposes of the Arbitration Act 1996, s 9.4 Furthermore, if the Regulations applied, recognition of the awards would be refused on public policy grounds because of their failure to recognise mandatory principles of EU law.
Comment: Arguably, it was the choice of law provision (rather than the agreement to arbitrate) which led to the application of the Ingmar principle, that parties may not contract out of the application of mandatory rules of EU law. Nevertheless, the case is a good illustration of the far-reaching effect that EU law can have on the enforceability of dispute resolution clauses.


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