Případ 2
imagine that you are an arbitrator in a second matter also sitting in London. This dispute is under a construction contract with an arbitration clause that also selected London as the seat. In the second case, the parties are not in agreement as to whether there is a choice of substantive law evidenced in the contract, but it is likely that if there is such a discernible choice, it is a selection of Russian law. The arbitration clause covers ‘any dispute or disagreement arising from or in connection with’ the construction contract.
In this scenario, the parties agree that they are both subject to the arbitration agreement and that it is valid, but they disagree as to its scope. The dispute is about the quality of work done by one party as a construction sub-contractor. The sub-contractor is being blamed for starting a fire and is contesting the allegation. The alleged fault can be challenged either as a breach of contract, or on the basis of negligence, a tortious action, or both. The party complaining about the quality of the work tries to sue in tort in a Moscow court. When challenged for doing so based on the arbitration clause, it argues that if Russian law applied to the wording of the clause, the phrase ‘in connection with’ does not, or might not cover tort claims, even if those claims are based on the same facts as the contract claims. The implication of this suggested restrictive interpretation is that the parties should be taken to have intended that pure contract claims must all go to arbitration, but that tort claims, even on the same facts, must go to a relevant court. What is your immediate reaction – do you think that as a London based arbitrator, you have jurisdiction to hear the tort claims or do you think the true intent was to have the same facts assessed under the two different legal bases as claimed, only considered in two differing fora?