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ANTISUIT INJUNCTIONS IN SUPPORT OF ARBITRATION: WEST TANKERS STILL AFLOAT

Published online by Cambridge University Press:  24 August 2015

Trevor C Hartley
Trevor C Hartley*
Affiliation:
Professor of Law Emeritus, London School of Economics.
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Abstract

In its eagerly awaited judgment in Gazprom, the CJEU declined to follow the Opinion of Advocate General Wathelet that West Tankers is no longer good law. The West Tankers case decided that the courts of one Member State are precluded from granting antisuit injunctions directed at proceedings in the courts of another Member State, even if the proceedings in which the injunction is granted fall outside the scope of the Brussels Regulation by reason of the fact that they are concerned with arbitration. The Gazprom case confirms that West Tankers is still good law.

Keywords

antisuit injunctionsarbitrationBrussels I RegulationWest Tankers
Type
Shorter Article
Information
International & Comparative Law Quarterly , Volume 64 , Issue 4 , October 2015 , pp. 965 - 975
Copyright
Copyright © British Institute of International and Comparative Law 2015 

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References

1 The phrase ‘Brussels I Regulation’ is used in this note to cover both Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ 2001 L 12, 1 (‘Brussels 2000’) and Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ 2012, L 351, 1 (‘Brussels 2012’).

2 For a full discussion of the law as it stood before the Gazprom case, see Hartley, TC, ‘The Brussels I Regulation and Arbitration’ (2014) 63 ICLQ 843CrossRefGoogle Scholar.

3 Case C-159/02 [2004] ECR I-3565.

4 Para 27 of the judgment.

5 Allianz and Generali Assicurazioni Generali v West Tankers, Case C-185/07, [2009] ECR I-663 (EU:C:2009:69) (Grand Chamber).

6 This right was based on art 1916 of the Italian Civil Code. There are similar provisions in other legal systems, including English law.

7 Art 1(2)(d) of both Brussels 2000 and Brussels 2012.

8 Para 23 of the judgment.

9 Paras 24 and 29 of the judgment.

10 Gazprom v Lithuania (Lietuvos Respublika), Case C-536/13, ECLI:EU:C:2015:316 (Grand Chamber); Opinion of Advocate General Wathelet: ECLI:EU:C:2014:2414. The order for reference was accepted by the CJEU on 27 November 2013; the judgment was given on 13 May 2015, approximately 18 months later.

11 It was 42 pages.

12 Paras 99–112 of the Opinion. This argument seems to have originated with Adrian Briggs and Peter Rees, Civil Jurisdiction and Judgments (5th edn, Informa 2009) 62–3 (para 2.30), though Briggs and Rees do not mention Van Uden as a case with which West Tankers conflicts.

13 Case 145/86 [1988] ECR 645.

14 Case C-190/89 [1991] ECR I-3855.

15 Case C-391/95 [1998] ECR I-7091.

16 This case is discussed at paras 100–103 of the Opinion.

17 At 672 of the ECRs.

18 See para 103 of the Opinion, where Advocate General Wathelet said that in West Tankers the CJEU restricted the extent to which arbitration is excluded from the scope of the Regulation by holding that the English courts could not apply their national law to its full extent and issue an antisuit injunction in support of an arbitration.

19 Discussed at paras 104–112 of the Opinion. The Advocate General's statement of the facts of Marc Rich, at para 104 of his Opinion, was far from neutral. He said that the contract was ‘subject to English law and contained an arbitration agreement’. In fact, both these issues were hotly contested. In the end, the Italian Corte di Cassazione held that the arbitration clause was not part of the contract. This ruling was accepted by the English courts: Marc Rich & Co. AG v Società Italiana Impianti pA (No 2), [1992] 1 Lloyd's Rep 624 (CA). So Marc Rich lost the case in the end: the arbitration never got under way.

20 Art 21 of the Convention. Equivalent provisions are to be found in Brussels 2000 (art 27) and Brussels 2012 (art 29).

21 Fn 50 to para 110 of the Opinion.

22 An analogous problem can arise with regard to treaty making by a federal State. In almost all federations, the power to conclude international agreements is given to the federal government, but what if the subject matter of the treaty falls within an area in which legislative competence lies with the states? Should the federation be able to do by means of a treaty what it cannot do through legislation? Compare the decision of the US Supreme Court in Missouri v Holland 252 US 416 (1920) with that of the British Privy Council in Attorney General for Canada v Attorney General for Ontario (Labour Conventions case) [1937] AC 326.

23 Para 125 of the Opinion.

24 Para 128 of the Opinion. For the origin of this view, see Nuyts, A, ‘La refonte du réglement Bruxelles I’ (2013) 102 Revue critique du droit international privé 1CrossRefGoogle Scholar at 15.

25 Para 91 of the Opinion. He said that Recital 12 to Brussels 2012 explains how the exclusion of arbitration must be, and always should have been, interpreted.

26 Art 73(2) of Brussels 2012.

27 Art 71(1) of Brussels 2000 provides: ‘This Regulation shall not affect any conventions to which the Member States are parties and which, in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments.’ The New York Convention applies with regard to a particular matter: arbitration. It could govern the jurisdiction of courts because it provides that when a court of a Contracting State is seised of an action in respect of which the parties have concluded an arbitration agreement, the court must, at the request of one of the parties, refer the parties to arbitration (unless the arbitration agreement is null and void, inoperative or incapable of being performed). It could also affect the recognition or enforcement of judgments. It requires an arbitral award to be recognized and enforced (subject to exceptions). If the award is irreconcilable with a judgment, this necessarily precludes recognition of the judgment. To this extent, it governs the recognition and enforcement of judgments.

28 For a full discussion, see Hartley, ‘The Brussels I Regulation and Arbitration’ (n 2).

29 He said that it was not necessary for the Lithuanian courts to have recourse to art V(2)(b) in order to refuse recognition: it could be refused on the basis of art V(2)(a); nevertheless, he went on to consider the interpretation of art V(2)(b).

30 See TNT Express Nederland BV v AXA Versicherung AG, Case C-533/08, EU:C:2010:243, paras 60 and 61 of the judgment.

31 Although the CJEU sometimes refers to the Advocate General's Opinion when it agrees with a particular point, it does not normally make adverse criticism of it.

32 Para 32 of the judgment.

33 Para 33 of the judgment, first sentence.

34 See Article 38(1)(c) of the Statute of the International Court of Justice.

35 For a full discussion, see TC Hartley, The Foundations of European Union Law (8th edn, Oxford University Press 2014) ch 5.

36 Para 35 of the judgment.

37 Para 36.

38 Para 34.

39 Para 37.

40 Para 38.

41 Para 39.

42 Para 40.

43 The judgment represents a rejection of the first argument put forward by the Advocate General. It also represents a rejection of his second argument insofar as it applied retroactively to proceedings governed by Brussels 2000. In theory, this leaves open the question whether his second argument might be correct when the proceedings are governed by Brussels 2012. However, since his argument was contrary to both the clear words of the provision and the intent of the drafters, it is hard to believe that it would be accepted.

44 It is doubtful whether arbitrators can, by themselves, impose and enforce penalties for disobedience to their orders. If a court of a Member State were to enforce a penalty of this nature imposed by arbitrators, that would constitute an antisuit injunction as understood in West Tankers.