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Anti-suit Injunctions Supporting Arbitration Agreements
Institute scholars publish first comments on the ECJ referral by the House of Lords in the West Tankers case
If a party files suit in a national court contrary to the terms of an applicable arbitration agreement, the court will normally disallow the suit and refer the parties to arbitration proceedings. Sometimes however, litigants will nonetheless try their luck in national courts, asserting for example the invalidity of the agreement or that their suit lies outside of the scope of the terms of the agreement. For the respondent the question arises how to thwart such a suit, an effort that not only incurs additional costs but also endangers enforcement of the arbitration clause in light of the risk of an unfavourable decision. With its anti-suit injunction, it is most notably English procedural law that potently regulates and prevents an undesired parallel state lawsuit. Yet, in the Turner case ( Case C-159/02) the ECJ concluded that European procedural law fundamentally conflicts with an injunction preventing court proceedings in another Member State. The question remained open however whether suit injunctions were also impermissible when issued for the protection of an arbitration proceeding. Following multiple English court decisions affirming their legality, the House of Lords has in the case of West Tankers Inc v. RAS Riunione Adriatica di Sicurta SpA now decided to refer to the ECJ the question whether anti-suit injunctions in protection of arbitration agreements are compatible with EC Regulation 44/2001 (Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters). Noteworthy in this decision is the effort employed by the House of Lords to ground the legality of anti-suit injunctions with comparative law analysis and economic arguments. Therein the lords also address the criticisms of continental jurists as to English legal practice. The court cites a number of German and French authors in their decision, Institute scholars Jan Kropholler, Anatol Dutta and Christian Heinze included in their midst.
On the occasion of the House of Lords referral, Institute researchers have renewed their engagement with the question of the reconciliability of the English anti-suit injunction in support of arbitration agreements with European procedural law. Their opinions conclude that the ECJ in continuance of the judicature it has thus far developed is also likely to declare that anti-suithttp://www.ukassignment.org/daixieEssay/daixieyingguoessay/ injunctions supporting the implementation of arbitration agreements are incompatible with EC Regulation 44/2001 and other fundamental European laws. As such, Martin Illmer and Ingrid Naumann explain in their article, appearing in Internationales Handelsrecht 2007, 64, that the rationale in the ECJ Turner decision is equally applicable to the legal context of arbitration agreements and that the economic considerations set forward by the House of Lords represent unjustified protectionism in favour of London arbitral settings. In a continuation of their earlier published work on anti-suit injunctions, Anatol Dutta and Christian Heinze consider the English legal regulations and, moreover, comprehensively examine the legality of anti-suit injunctions in protection of arbitration agreements from a European legal perspective in light of EC Regulation 44/2001. In their article “Anti-suit injunctions zum Schutz von Schiedsvereinbarungen”, Recht der Internationalen Wirtschaft 2007, 411, they similarly argue for applying the principles of the ECJ decision in Turner and thereby conclude a breach of EC Regulation 44/2001. Finally, in “The Impact of EU Law on Anti-suit Injunctions in aid of English Arbitration Proceedings”, Civil Justice Quarterly 2007, 358, Ben Steinbrück adopts the specific perspective of arbitration law and reasons why the decision as to the effects and scope of English arbitration agreements may not permissibly be monopolised by English courts.#p#分页标题#e#
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