In Markel International Co Ltd v P M M Craft & Others [2006] EWHC 3150 (Comm) the applicant insurance company applied for an anti-suit injunction to restrain Tunisian proceedings arising from the accidental death of a man returning to Tunis from working on a drilling rig. The respondents, the deceased's dependents, had commenced proceedings in the Tunisian courts, claiming damages for the deceased's death against the owners of the platform, hull and machinery, and the applicant as the P&I insurer of the vessel. These proceedings were brought under Article 26 of the Tunisian Insurance Code, which provides a claimant, in certain circumstances, with a direct right of action against an insurance company even when the claimant is not party to the insurance contract.

The applicant argued that there was a real danger that the owners of the vessel would be found liable to the respondents in the courts of Tunisia in circumstances where the respondents would be unable to bring a direct claim against the insurance company as a matter of English law, and where any action under the insurance contract should, in accordance with the provisions of that contract, have been begun by way of London arbitration. The respondent argued that it was wrong to characterise its claim in the Tunisian courts as one seeking to enforce an obligation arising under the contract because the right to sue the insurance company in Tunisia was independent of the contract of insurance.

Dismissing the application for interlocutory relief, Morrison J held that, generally, a party seeking to enforce a right in accordance with the terms of an insurance contract was bound to do so in accordance with any arbitration clause in that contract. However, if the claim under Article 26 existed separately and independently of both the cause of action which the victim had against the tortfeasor (the owner) and the rights of an insured (i.e. the owner) against an insurer, then the right conferred by the Tunisian Statute could not be characterised as enforcing a contractual obligation to which the arbitration clause would apply, and so adherence to the arbitration clause was not necessary.

This decision highlights the importance of carefully determining the scope of an arbitration clause, which may in certain circumstances cover non-contractual obligation between the parties