Arbitration Update: Anti-Suit Injunctions in the EU - The Beginning of the End of West Tankers?
17 July 2015
In the West Tankers (C-185/07) case, the Court of Justice of the EU (“CJEU”) found anti-suit injunctions issued by national courts, which prevent litigation in other member states in breach of an arbitration agreement, to be incompatible with EU law. This meant that arbitration agreements could be undermined by protracted jurisdictional litigation in breach of the arbitral agreement.
The CJEU recently revisited the question of anti-suit injunctions and decided that such an injunction can be enforced in member states without offending against EU Law. This is the outcome of Case-536/13 (“Gazprom OAO”) in which the Lithuanian Supreme Court asked the CJEU to clarify whether it could recognise and enforce an injunction granted by a Swedish arbitral tribunal. The CJEU affirmed that such recognition conformed with EU law.
The decision, whilst not entirely unexpected, reflects a position consistent with the 1958 New York Convention (“the New York Convention”). It also represents a retreat from the position adopted in West Tankers, which itself is now open to question.
The West Tankers Problem
In Allianz Spa v West Tankers Inc, the CJEU decided that national courts could not grant an injunction that prevented a party from bringing proceedings in another member state in breach of an arbitral agreement. As the courts of each member state are to determine their own jurisdiction under the Brussels Regulation (Regulation 44/2001), such an injunction would be incompatible with EU law.
On 10 January 2015, the Recast Brussels Regulation (Regulation 1215/2012) replaced the Brussels Regulation. The Recast Regulations govern the jurisdiction and enforcement of judgments in civil and commercial matters between member states. Arbitral proceedings have always been outside the Brussels regulation. Proceedings in support of arbitration are now also clearly excluded in the Recast Regulations.
The 1958 New York Convention regulates recognition and enforcement of arbitral awards amongst its 156 signatory states.
The Gazprom OAO proceedings arose under the Brussels Regulation of 2001. The Lithuanian Supreme Court asked the CJEU to decide if the Brussels Regulation prevented the enforcement of anti-suit injunctions issued by an arbitral tribunal in another member state, in this case Sweden. The Lithuanian proceedings were commenced under the New York Convention to enforce the Swedish tribunal’s order.
The CJEU distinguished the case from West Tankers on the basis that the anti-suit injunction was issued by an arbitral tribunal, and not a national court. For this reason, the CJEU held that the Brussels Regulation was not applicable and that the order could be enforced.
The judgment confirms that parties to arbitral proceedings in the EU can seek enforceable anti-suit injunctions from a tribunal to prevent proceedings in breach of the arbitral agreement. The caveat of course is that the tribunal has the power to make such an order, as it typically will under an UNCITRAL Model Law system.
The Advocate General in Gazprom OAO also observed that the prohibition on anti-suit injunctions in West Tankers may no longer hold following the revisions to the Brussels Regulations which came in to force in 2015. The CJEU did not decide on this issue and so West Tankers continues to reflect EU law on the inability of member states’ courts to issue anti-suit injunctions directed at proceedings in other member states.
The CJEU has affirmed the ability of an arbitral tribunal to grant an anti-suit injunction which is enforceable under the Brussels Regulation. The Court did not, however, take the opportunity to revise its decision in West Tankers. That decision is now perhaps an anomaly given the revisions to the Regulations that entered into force in 2015.
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