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RESTRAINT OF FOREIGN PROCEEDINGS – ANTI-SUIT INJUNCTIONS
There are many conflicts and overlaps between jurisdiction established under the Brussels 1 Regulation (Council Regulation 44/2001/EC) and that of the common law rules which have yet to be worked through in the courts. In Samengo-Turner v J & H Marsh & McLennan (Services) Ltd [2007] EWCA Civ 723, [2007] 2 All ER (Comm) 813 the Court of Appeal was faced with a disagreement between English claimants and their English employer defendants which were part of a group of companies based in New York. The holding company was named as third defendant to the case. The bonus arrangement in dispute was made with 'the company', which expressly included the third defendant, its subsidiaries and affiliates. The claimants had given notice to terminate their contracts of employment and the second and third defendants sued them in New York on the non-solicitation clauses in the agreement and for return of bonus. The New York judge rejected the jurisdictional challenge, so the claimants brought declaratory proceedings in England and sought an anti-suit injunction over the New York proceedings. The claimants argued that the English court had jurisdiction based on art 20(1) of the Brussels 1 Regulation despite the exclusive jurisdiction clause in the bonus agreement in favour of New York. Article 20 broadly requires employers to sue employees in the courts of the employee's domicile except where a jurisdiction agreement has been entered into after the dispute has arisen (art 21(1)). The first instance judge disagreed with the claimants' arguments and refused the anti-suit injunction. The proceedings in England did not relate to individual contracts of employment and had not been brought by the employer. The Court of Appeal allowed the claimants' appeal. First, the bonus agreements were part of the contracts of employment. The second and third defendants should be regarded as employers, not least because they had brought proceedings in New York on a claim relating to a contract of employment, which could only have been brought by an employer. Second, although the Court of Appeal expressly accepted that an anti-suit injunction was not to be lightly awarded, it was to be granted in these circumstances. The claimants' English statutory employment rights of jurisdiction in the English courts could only be given effect to in England, because the judge in New York had already denied them. The grant of the injunction was a flagrant breach of comity; the New York judge had actually decided to uphold the jurisdiction agreement and the English court denied it effect. However, that only goes to show that comity is a fragile concept which does not give us helpful indication of how the courts should decide these difficult questions.
ARBITRATION
Anti-suit injunctions
[5.12]
The relationship between arbitration and jurisdiction of the English courts is complex. The purpose of arbitration agreements is to remove disputes from all courts, both English and foreign. Anti-suit injunctions are used to support that end. So when one party seeks access to a foreign court the English courts may be called in aid via the restraint procedure to prevent breaches of the arbitration agreement. There have been several important cases on different aspects of this issue this year. In C v D [2007] EWCA Civ 1282, [2007] All ER (D) 61 (Dec) an arbitration agreement contained in an insurance policy provided for arbitration in London; however, the applicable law of the policy was New York. An award was made in London which was final under English law. The defendant applied to the New York courts to correct the awardhttp://www.ukassignment.org/daixieEssay/falvessaydaixie/ arguing there that the tribunal had manifestly disregarded New York law. The claimants applied to the English court for an anti-suit injunction against the New York proceedings and also for a declaration that the defendants could not rely on the law of New York in preventing enforcement of the award. The arguments were complex and difficult. Which law governed the question of the judicial remedies available under the arbitration agreement? Was it the applicable law of the underlying contract (New York)? Or that of the seat of the arbitration (English)? Or the applicable law of the arbitration agreement (however determined)? The Court of Appeal held that, by choosing a seat for the arbitration, the parties had chosen the forum to determine all remedies in respect of the award. Therefore, English law, including the Arbitration Act 1996, determined the question of the permitted remedies. The Arbitration Act 1996 permits some contracting out of the non-mandatory provisions. Nevertheless, choosing the proper law of the contract of arbitration as a different law to that of the seat of arbitration did not bring in a way of challenge to the award not permitted under the law of the seat of the arbitration. Therefore, the anti-suit injunction was awarded. This result is clearly in favour of a pragmatic, one-stop shop for arbitration and post-award issues which is consistent with the tenor of the Arbitration Act 1996 and its underlying convention.#p#分页标题#e#
[5.13]
The law does not always permit such a pragmatic response. We are awaiting a judgment from the European Court of Justice on the relationship between arbitration and the Brussels 1 Regulation in the case of West Tankers Inc v RAS Riunione Adriatica di Sicurta SpA, The Front Comor [2007] UKHL 4, [2007] 1 All ER (Comm) 794n (see also [2.5], [2.30] above). Here the arbitration agreement provided for arbitration in England but one of the parties was seeking a determination from the Italian courts. The other party applied for an anti-suit injunction against the Italian proceedings. Both parties were domiciled in member states of the EU, and so the Brussels 1 Regulation applied to accord jurisdiction to the court first seised (Italy) and prevent an anti-suit injunction (Turner v Grovit Case C-159/02 [2004] 2 All ER (Comm) 381, [2004] All ER (EC) 485) unless these proceedings fell within the exception for arbitration in art 1(2)(d). The further complication was that the insurers were claiming a right to sue by subrogation to the charterparty. It is quite likely that the ECJ will decide both that art 27 applies to accord priority to the Italian proceedings which do not substantially concern arbitration and that an anti-suit injunction is impermissible against the courts of another member state whatever the ground of jurisdiction relied upon. That conclusion extends the reach of the Brussels 1 Regulation considerably beyond the current view of the English court. Watch this space.
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