AUTORIDAD DEL CANAL DE PANAMÁ V SACYR SA AND OTHERS

[2017] EWHC 2228 (Comm), Queen's Bench Division, Commercial Court, Mr Justice Blair, 5 September 2017

Arbitration - Stay of judicial proceedings - Claims under guarantees governed by English law and English exclusive jurisdiction - Main agreement governed by Panamanian law and subject to arbitration - Whether guarantees were "on demand" - Whether claim in judicial proceedings was "in relation to a matter" subject to arbitration - Arbitration Act 1996, section 9 - Stay on case management grounds

In August 2009 ACP engaged four companies, the defendants, under the "Main Contract" to undertake a project to widen the Panama Canal. In May 2010 a joint venture of the defendants, GUPC, took their place as contracting party. The defendants agreed that they would jointly and severally guarantee GUPC's performance under a Joint and Several Guarantee (JSG). The Main Contract was governed by Panamanian law and disputes were to be determined by arbitration in Miami. In December 2012 the parties agreed that advance payments would be made by ACP, and those payments were again guaranteed by the defendants under an Advance Payment Joint and Several Guarantee (APJSG) in much the same terms as the JSG. In 2015 further advance payments were made, and they were guaranteed by the defendants under Advance Payments Guarantees (APGs) governed by English law and subject to the exclusive jurisdiction of the English courts. Disputes arose between the parties: ACP claimed that the advance payments were repayable because GUPL had failed to obtain letters of credit, and sought the sum of US$288,275,465.20. As a result of that claim, three sets of proceedings were commenced: an ICC arbitration commenced by GUPC and the other companies in Miami in December 2013; proceedings in England commenced by ACP in November 2016; and a further arbitration in Miami commenced by GUPC and the other companies in January 2017. The claim by ACP in the English proceedings was for summary judgment against the defendants under the APGs. No claims were made under the JSG and APJSG. The defendants sought a stay of the proceedings.