The recent decision of the House of Lords in Amin Rasheed Shipping Corp. v. Kuwait Insurance Co.1 involved the application of English private international law in relation to a marine insurance policy which contained neither a choice-of-law clause nor a jurisdiction or arbitration clause.

The policy in question had been issued in Kuwait, in April 1979, by an insurance company incorporated and having its head office in Kuwait. The assured was a shipping company incorporated in Liberia but carrying on business in Dubai. The policy covered a vessel, owned by the assured and trading in the Arabian Gulf, against marine and war risks for 12 months. It expressly provided that claims should be payable in Kuwait. But the policy was expressed in the English language, and in wording which followed meticulously that of the Lloyd’s S.G. policy scheduled to the (British) Marine Insurance Act 1906. It also expressly incorporated the Institute War and Strikes Clauses, a copy of which was attached. The sum insured and the premium were expressed in sterling.

Moreover, in 1979 there was no indigenous law dealing specifically with marine insurance in Kuwait. There was a Commercial Code, which dealt generally with commercial contracts but not specifically with marine insurance, and which provided that, in the absence of a specific rule, the court should decide according to custom, and that, in the absence of custom, the principles of natural law and equity should be applied. There was also a Code of Conflict of Laws, by which a transnational contract was subjected to the law agreed on or contemplated by the parties. A Code of Marine Insurance Law came into operation in August 1980, but without retrospective effect.

In February 1980 the vessel entered a Saudi Arabian port and was seized, detained and apparently confiscated by the Saudi Arabian authorities, who considered that she was engaged in smuggling.

The assured, who denied that the vessel had been engaged in smuggling, claimed against the insurer for a constructive total loss under the Institute Clauses, and sought to litigate its claim in the English Commercial Court. The insurer, who asserted that the vessel had been engaged in smuggling and relied on the exception in cl. 4(1)(e) of the Institute Clauses, contested the jurisdiction of the English court.

Whether the English court had jurisdiction to entertain the action brought by the assured against the insurer turned on whether the insurance contract was “by its terms, or by implication, governed by English law”, for such a case the Rules of the Supreme Court 1965, Order 11, rule 1(1)(f)(iii), would confer on the English High Court the power to authorize service of the writ abroad, and thus to assume jurisdiction to entertain the action, even though the defendant insurance company had no place of