High Court Upholds Arbitration Agreement In Policy

In Chubb Bermuda Insurance Ltd v Fertitta Entertainment, Inc [2026] EWHC 1392 (Comm), the English Commercial Court granted the Claimant insurer, Chubb Bermuda Insurance Ltd (Chubb Bermuda), a final anti-suit injunction in support of a London arbitration clause contained in an excess layer insurance policy. The Court awarded Chubb Bermuda damages for breach of this arbitration agreement, arising from the insured Defendants (a group of US companies whose business focused on the hospitality sector in Texas and/or Louisiana, the Policyholder Defendants) having commenced three successive sets of proceedings in the Louisiana courts in contravention of the arbitration clause. 

This case provides a timely reminder of the breadth of the English Court’s readiness to enforce English-law governed arbitration agreements, as well as highlighting the risks in failing to carry out a proper analysis of the dispute resolution provisions in a policy and ensuring consistency across the different layers in a programme. When faced with an arbitration or jurisdiction clause, the guiding principle and starting point for the English Court will be to give effect to the intention of the parties and, save for exceptional circumstances, this ought to displace considerations of forum conveniens.

BACKGROUND 

The Policy 

Chubb Bermuda issued a property policy for the period 31 May 2019 to 31 May 2020, which was recorded as having been issued at Hamilton, Bermuda through a Bermuda-based broker (the Policy). The Policy provided a limit of USD 200,000,000 as part of a USD 500,000,000, excess of USD 250,000,000 tower. 

Two provisions in the Policy were central to the dispute.

• General Provision 2 provided that: 

“any dispute arising out of or relating to this Policy, or the breach thereof, shall be fully and finally determined in London, England under the provisions of the Arbitration Act of 1996 (as amended or supplemented)…”

and 

“all matters relating to the existence of the agreement to arbitrate and the selection of arbitrators shall be determined under the laws of England and Wales…”

• General Provision 3 provided that the Policy is governed by the laws of the State of New York, subject to various carve-outs, with English law governing in any circumstances where New York law does not apply. 

Significantly, via a declaration in the Policy, “Clause 32” of the followed Policy Form was specifically deleted. Clause 32 would have provided for Chubb Bermuda to submit to the jurisdiction of any court of competent jurisdiction in the United States. 

Procedural Background

The Policyholder Defendants gave notice of loss to their excess insurers, including Chubb Bermuda in June 2020, in respect of alleged COVID-19 business interruption losses. The Policyholder Defendants subsequently commenced a first set of proceedings against various of their insurers in Louisiana. These proceedings were quickly dismissed.

Shortly thereafter, the Policyholder Defendants commenced similar proceedings in different divisions of the Louisiana Court against various insurers, alleging that the Louisiana Court had sole and exclusive jurisdiction by reason of a service of suit clause in the followed Policy Form – the very provision that had been expressly deleted from the Policy. In January 2025 the Policyholder Defendants sought to add Chubb Bermuda as a new defendant to the Louisiana proceedings. 

This prompted Chubb Bermuda to commence proceedings in the English Commercial Court on 30 January 2025 (the English Proceedings) and apply without notice for an interim anti-suit injunction (the Interim ASI). This was granted the following day by Jacobs J, prohibiting the Policyholder Defendants from pursuing or taking any further steps in the Louisiana proceedings so far as they concerned any claim arising out of or relating to the Policy. 

Pending settlement discussions, the Interim ASI was continued by consent. These settlement discussions were not productive and on 13 August 2025, the Policyholder Defendants issued an application challenging the jurisdiction of the English Commercial Court and seeking to set aside the Interim ASI. Two days later, the Policyholder Defendants obtained, without notice, a temporary restraining order in Louisiana, preventing Chubb Bermuda from pursuing its action in the English Proceedings or from pursuing any arbitration arising from or related to the Policy. The Policyholder Defendants subsequently obtained a further Louisiana temporary restraining order and a preliminary injunction.

When challenged, the Policyholder Defendants did not dispute that these actions breached the Interim ASI, but simply asserted that the English Court had no jurisdiction and that the arbitration clause in the Policy was void under Louisiana law (Louisiana Revised Statutes 22:868 (La. R.S. 22:868)). 

Chubb Bermuda successfully appealed the Louisiana preliminary injunctions. Subsequently Chubb Bermuda was granted permission to amend its Claim Form in the English Proceedings, to seek damages for the Policyholder Defendants’ breach of the arbitration agreement. The Policyholder Defendants served no responsive evidence in the English Proceedings and did not attend the final hearing before Mr Justice Bright on 3 June 2026. The Defendants’ solicitors produced a letter and referred to a witness statement from a partner at the Defendants’ principal attorneys in Louisiana. 

DECISION

The Defendants had challenged English jurisdiction on the following grounds:

1. The arbitration agreement in General Provision 2 of the Policy was invalid under Louisiana law, by reason of Louisiana statutory provision La. R.S. 22:868;
2. There was no connection to England and the Defendants had not submitted to the jurisdiction of the English Court; and 
3. Louisiana was the most suitable forum.

Bright J found that:

• pursuant to General Provision 2 of the Policy, the governing law of the arbitration agreement in the Policy was English law – despite the rump of the Policy being governed by New York law (subject to limited exceptions).
• As to whether the arbitration agreement was rendered invalid by La. R.S. 22:868, that provision would only apply if the arbitration agreement was governed by the laws of Louisiana and it was not, precisely because General Provision 2 expressly stated that all matters relating to the existence of the agreement to arbitrate should be determined under the Laws of England and Wales. As such, the Defendants’ challenge to English jurisdiction was based on a false premise.
• Because the arbitration agreement was valid, then points (2) and (3) were irrelevant since, by agreeing to arbitrate in London, the parties had necessarily agreed to the supervisory jurisdiction of the English Court, pursuant to the Arbitration Act 1996 and CPR 62.

Bright J therefore found that there was a valid arbitration agreement in the Policy, which extended to all the matters that the Policyholder Defendants sought to litigate in the Louisiana Court. He remarked that a court will ordinarily exercise its discretion to restrain the pursuit of proceedings brought in breach of a valid forum clause unless the defendant can show 'strong reasons' to refuse the relief. Here, the fact that the underlying claims were more closely connected with Louisiana was “not a reason (let alone a strong reason)” to not grant Chubb Bermuda final ASI relief, which Bright J consequently did.

Beyond the ASI, Bright J granted Chubb Bermuda its costs incurred by its US lawyers in the period since the Policyholder Defendants obtained the Louisiana temporary restraining order (over USD 700,000). Chubb Bermuda was also entitled to its costs of the English Proceedings, awarded on the indemnity basis. 

COMMENT

The judgment provides a clear illustration of the financial and practical consequences of attempting to litigate in a preferred domestic forum in defiance of an agreed arbitration clause. Policyholders should review the dispute resolution provisions in their policies at the time of placement and seek legal advice, if necessary, on what these mean in practice. Brokers should also ensure that their client properly understands the dispute resolution architecture that they are agreeing to.

This case is also a reminder of the particular challenges that can arise in excess layer placements. Here, the Policy sat at the very top of the insured’s programme, providing a limit of USD 200,000,000 as part of USD 500,000,000, excess of USD 250,000,000. If the dispute resolution provisions on an excess layer differ materially from those in the primary or other layers, the result can be a fragmented dispute resolution framework which can lead to parallel proceedings in different forums/jurisdictions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.