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authorities
statue
1. EU LAW
article 1(2)(d) of the Regulation provides that it is not to apply to arbitration.
1.2. case law
2.english law
2.1. section 37(1) of the Supreme Court Act 1981 the High Court has jurisdiction to grant an injunction (whether interlocutory or final) "in all cases in which it appears to the court to be just and convenient to do so."
2.2. section 44(1) and (2)(e) of the Arbitration Act 1996 the court has power to grant an interim injunction "for the purposes of and in relation to arbitral proceedings".
2.3. article 27 required the court of exclusive jurisdiction to stay proceedings until the court first seised had applied article 23 and refused jurisdiction. (Gasser GmbH v MISAT Srl (Case C-116/02) [2003] ECR I-14693)
case
1. Re Oriental Inland Steam Company (1874) LR 9 Ch App 557.英国第一个关于禁诉令的判例
2. Pena Copper Mines Ltd v Rio Tinto Co Ltd (1911) 105 LT 846.禁诉令案例
3. The Angelic Grace [1995] 1 Lloyd's Rep 87(in all cases in which it appears to the court to be just and convenient to do so." The English courts have regularly exercised this power to grant injunctions to restrain parties to an arbitration agreement from instituting or continuing proceedings in the courts of other countrie)可以签发禁诉令的判例
4. Gasser GmbH v MISAT Srl (Case C-116/02) [2003] ECR I-14693(which decides that a court of a Member State on which exclusive jurisdiction has been conferred pursuant to article 23 cannot issue an injunction to restrain a party from prosecuting proceedings before a court of another Member State if that court was first seised of the dispute) 不可以签发禁诉令的判例
5. Turner v Grovit (Case C-159/02) [2004] ECR I - 3565 (which decides that a court of a Member State may not issue an injunction to restrain a party from commencing or prosecuting proceedings in another Member State which has jurisdiction under the Regulation, on the ground that those proceedings have been commenced in bad faith) ,the one court had to trust the other to dismiss the proceedings on the ground that they had been brought in bad faith. 不可以签发禁诉令的判例
Both 2 and 3 are based upon the proposition that the Regulation http://www.ukassignment.org/ provides a complete set of uniform rules for the allocation of jurisdiction between Member States and that the courts of each Member State have to trust the courts of other Member States to apply those rules correctly.
6. Transport Mutual Insurance Association (Eurasia) Ltd v New India Assurance Co Ltd [2005] 1 (bound by Colman J of trial court )
7. 44号规则不适用仲裁案件的判例Marc Rich & Co AG v Società Italiana Impianti PA [1991] ECR I-3855 （the exclusion applies not only to arbitration proceedings as such but also to Court proceedings in which the subject-matter is arbitration.）改判例同时界定了44号规则2（1）d中仲裁的含义（the Court decided that the subject-matter is arbitration if the proceedings serve to protect the right to have the dispute determined by arbitration.）#p#分页标题#e#
8. 临时措施不是与仲裁有关的事项，因而适用44号规则的判例Van Uden Maritime BV v Deco-Line [1998]ECR I-7091（… it must be noted…that provisional measures are not in principle ancillary to arbitration proceedings but are ordered in parallel to such proceedings and are intended as measures of support. They concern not arbitration as such but the protection of a wide variety of rights. Their place in the scope of the Convention is thus determined not by their own nature but by the nature of the rights which they serve to protect …"）
本案件中，
Opinion from house of lords
The proceedings now before the House are entirely to protect the contractual right to have the dispute determined by arbitration. Accordingly, they fall outside the Regulation and cannot be inconsistent with its provisions.
Professor Dr Peter Schlosser points out in an illuminating article (Anti-suit injunctions zur Unterstützung von internationalen Schiedsverfahren (2006) RIW 486-492), an exclusive jurisdiction clause is in this respect quite different. It takes effect within the Regulation under article 23 and its enforcement must therefore be in accordance with the terms of the Regulation; in particular, article 21. But an arbitration clause takes effect outside the Regulation and its enforcement is not subject to its terms.
Issues
1. The contrary argument is that any court order in any proceedings (whether falling within the scope of the Regulation or not), which restrains a party from invoking a jurisdiction available under the Regulation, conflicts with the Regulation because it amounts to an indirect interference with that jurisdiction.
2. Finally, it should be noted that the European Community is engaged not only with regulating commerce between Member States but also in competing with the rest of the world. If the Member States of the European Community are unable to offer a seat of arbitration capable of making orders restraining parties from acting in breach of the arbitration agreement, there is no shortage of other states which will. For example, New York, Bermuda and Singapore are also leading centres of arbitration and each of them exercises the jurisdiction which is challenged in this appeal. There seems to me to be no doctrinal necessity or practical advantage which requires the European Community handicap itself by denying its courts the right to exercise the same jurisdiction.
3. The purpose of arbitration (enshrined in most modern arbitration legislation) is that disputes should be resolved by a consensual mechanism outside any court structure, subject to no more than limited supervision by the courts of the place of arbitration. Experience as a commercial judge shows that, once a dispute has arisen within the scope of an arbitration clause, it is not uncommon for persons bound by the clause to seek to avoid its application. Anti-suit injunctions issued by the courts of the place of arbitration represent a carefully developed - and, I would emphasise, carefully applied - tool which has proved a highly efficient means to give speedy effect to clearly applicable arbitration agreements.#p#分页标题#e#
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