EnergiBras v.

WindTech GmbH & SeguraTudo

Background:

EnergiBras, a Brazilian energy company, entered into a contract with WindTech GmbH, a
German engineering company specializing in wind turbines. WindTech GmbH agreed to supply
and install wind turbines for a new clean energy project run by EnergiBras in Brazil. SeguraTudo,
a Brazilian insurance company, insured the project for both parties.

The main contract explicitly stated:

"This Agreement shall be governed by and construed in accordance with the laws of Brazil."

However, the contract also contained an arbitration agreement specifying that in case of any
disputes, arbitration would take place in London under ICC Rules.

Neither the main contract nor the arbitration agreement had an explicit governing law clause
for the arbitration agreement.

Important note: Under Brazilian law, the arbitration agreement is likely to be deemed
unenforceable due to specific requirements for insurance-related disputes that are not met in
the agreement.

Incident:

Six months into the project, several wind turbines malfunctioned, causing delays and financial
losses. EnergiBras filed an insurance claim with SeguraTudo, which was duly paid.
Subsequently, SeguraTudo initiated legal proceedings in Brazilian courts against both EnergiBras
and WindTech GmbH to recover the insurance payout, alleging that WindTech's turbines were
faulty and contributed to the losses.

Legal Complications:

In response, WindTech GmbH filed a claim in the English courts for an anti-suit injunction
against SeguraTudo, claiming that the Brazilian proceedings violated the arbitration agreement.
The Commercial Court in England initially dismissed WindTech's claim, ruling that it was not the
appropriate forum to decide the case.

On an expedited appeal, the Court of Appeal reversed this decision, asserting that the
arbitration agreement was governed by English law, as London was the chosen seat for
arbitration.
An anti-suit injunction was thus warranted against SeguraTudo to halt the Brazilian proceedings.
SeguraTudo then appealed to the Supreme Court, arguing that the arbitration agreement
should be governed by Brazilian law, in alignment with the main contract and pointing to the
unenforceability of the arbitration clause under Brazilian law.