Anti-suit injunctions and arbitration: parasitic or free standing?

Abstract

Where a party amenable to the jurisdiction of the English courts commences proceedings in a foreign jurisdiction in breach of an exclusive jurisdiction clause or an arbitration clause, the English courts have always shown their willingness to injunct such a party. While such injunctions are seen as controversial, nevertheless they have been a useful tool at the disposal of the English courts. Over the years, English courts have demonstrated their willingness to grant anti-suit injunctions under s.37 of the Senior Courts Act 1981 (SCA) 1 so as to uphold the sanctity of arbitration agreements. In February 2009, the European Court of Justice (ECJ) delivered its much-anticipated decision in Allianz SPA v West Tankers Inc (The Front Comor) 2 where it ruled that the English courts could no longer grant anti-suit injunctions in relation to arbitration in EU cases.3 In 2010, the European Parliament’s Committee on Legal Affairs prepared a report4 on the European Commission’s proposal to amend the Brussels Regulation. The Report opposes the deletion of the arbitration exclusion in art.1(2)(d) of the Brussels Regulation5 and suggests the clarification of the point that judicial proceedings ruling on the validity of arbitral competence are excluded from the scope of the Brussels Regulation.6 The Report further suggests that art.31 of the Regulation should be revised so as to provide that no judgment should be recognised in Member States if the court concerned disregarded an arbitration rule of the State in which enforcement is sought unless the judgment of that Member State would produce the same result as if the law of arbitration of the Member State in which enforcement is sought had been applied.7