JOIA2009018

Journal of International Arbitration 26(3): 311–336, 2009.
© 2009 Kluwer Law International. Printed in The Netherlands.
Antisuit Injunctions and Arbitration Proceedings:

What Does the Future Hold? Antisuit Injunctions and Arbitration Proceedings: What Does the Future Hold?
Dr. Kyriaki Noussia*

Journal of International Arbitration
Michael
Moser
Dominique
Antisuit injunctions restrain foreign court proceedings in case of a valid agreement for arbitration. In the
Journal of InternationalHascher
Arbitration
2009 Volume 26 Issue 3
common law world, it has been argued that they have contributed to London’s eminent position as a popular
arbitral seat and that the opinion of Advocate General Kokott of September 4, 2008 and the European Court of
Justice (E.C.J.) judgment of February 10, 2009, following the referral of West Tankers Inc. v. RAS Riunione
Adriatica di Sicurta S.p.A. (The Front Comor) to the E.C.J. in December 2006, has already promulgated a
change in this state of affairs.
The purpose of this article is to discuss comparatively antisuit injunctions in relation to arbitration in the
United States, the United Kingdom, and in Europe, analyze the aforementioned opinion given by Advocate
General Kokott and the E.C.J. judgment that followed, and the future of London’s arbitral popularity, and
finally, set out the modern function and role of antisuit injunctions in light of the efforts to harmonize private
international law.
I. Introduction
An antisuit injunction is an order issued by a court or an arbitration tribunal enjoin-
ing a party from initiating or continuing proceedings in another jurisdiction. Antisuit
injunctions have been regularly granted by common law courts. In England, the power
to grant antisuit injunctions, which may still exist with regard to other English courts, is
in practice used only with regard to foreign courts. Their wide use in the common law
jurisdictions has, inter alia, provided common law courts with the power to support cur-
rent arbitration proceedings and, in this way, promote legal efficiency. Such injunctions
reduce the risk of conflicting decisions by arbitral and state court tribunals. Antisuit
injunctions have certain ancillary effects, for example, they may affect the foreign forum,
or bar arbitrations which have commenced without an existing agreement to arbitrate, or
obstruct actions to set aside or enforce arbitral awards. Arbitration is excluded from the
scope of Council Regulation 44/2001.1 This exclusion is the reason for the current
uncertainty in English arbitral practice surrounding antisuit injunctions.
This article analyzes comparatively the current judicial trend with regard to antisuit
injunctions sought in support of arbitration proceedings preventing parties, where an
* Alexander von Humboldt Research Fellow, Institute of Procedural Law, Faculty of Law, University of Ham-
burg, Germany and Max Planck Institute of Comparative and Private International Law, Hamburg, Germany. The
author would like to thank Dr. Anatol Dutta, Dr. Ben Steinbrück, Prof. Peter Kutner, Mr. Keith Uff, and Prof. Nel-
son Enonchong for commenting on an earlier draft of this article. The author also gratefully acknowledges the
research help provided by Ms. Tanya Corrigan. The author would also like to thank Prof. Jonathan M. Harris for dis-
cussions on the topic and, thus, providing her with the incentive to research and write on it. Last but not least, the
author is indebted to the anonymous referees for their comments. All errors remain the author’s responsibility.
1
Council Regulation 44/2001 of December 22, 2000 on Jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters (EC).
312 journal of international arbitration
arbitration agreement exists, from resorting to parallel state court proceedings, on a U.S.,
U.K., and European level. Following the argument of the House of Lords, in referring
West Tankers Inc. v. RAS Riunione Adriatica di Sicurta S.p.A. (The Front Comor)2 to the E.C.J.,
that the role of antisuit injunctions as a means to protect arbitral jurisdiction is one of the
pertinent reasons for London’s eminent position as one of the world’s leading arbitral
centres, the author critically addresses the decision in West Tankers.3 Further, the author
analyzes the opinion of Advocate General Kokott delivered on September 4, 2008 and
the E.C.J. judgment which followed on February 10, 2009. The author also examines the
overall effect on London’s eminence as an arbitral venue and the modern utility of
antisuit injunctions in light of the efforts to promote uniformity of private international
law.
II. Antisuit Injunctions in Support of Arbitration Proceedings

In this section, the author will contrast and compare antisuit injunctions in the
United States, United Kingdom, and in Europe. In effect, the author will analyze the dif-
ferences between the U.S., U.K., and EU attitudes to the power of the judiciary to make
awards of antisuit injunctions to support arbitral proceedings and in this way demonstrate
the difference in approach between common law and civil law systems.
There are many reasons for considering the law in these jurisdictions. First, antisuit
injunctions have been widely used both in the United Kingdom and in the United
States. Thus, the United Kingdom and the United States have been chosen in order to
demonstrate the common law approach in relation to antisuit injunctions in the context
of arbitration. Secondly, the United States is examined because of the differing standards
applied in the various circuits of the U.S. federal court system, which further validate the
need to reconsider the practicality, modern function, and role of antisuit injunctions in
the common law world and outside it. Thirdly, the examination of the position in the
European Union has been necessary in order to reflect on the different attitudes and
trends, as well as the uncertainty of the current situation in Europe, which stems from the
potential conflict between the obligations of the Member States under the New York
Convention4 and the jurisdictional provisions of Council Regulation 44/2001.5 Overall,
in choosing to examine the position in the above jurisdictions, the author aims to depict
the existing trends and draw valuable conclusions as to the prospect of unification of the
conflict of laws and promotion of the role of private international law.6
2
West Tankers Inc. v. RAS Riunione Adriatica di Sicurta S.p.A. (The Front Comor), [2007] UKHL 4.
3
Id.
4
Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, 330
U.N.T.S. 3, 21 U.S.T. 2517, T.I.A.S. No. 6997 [hereinafter “New York Convention”].
5
Council Regulation 44/2001; A. Ali, K. Nesbitt & J. Wessel, Antisuit Injunctions in Support of International Arbi-
tration in the United States and the United Kingdom, 11 Int’l Arb. L. Rev. 12–19 (No. 1, 2008).
6
A. Truhktanov, Antisuit Injunctions in Support of Arbitration: Is the ECJ About to Take Away the English Courts’
Powers?, 10 Int’l Arb. L. Rev. 136 –38 (No. 4, 2007).
antisuit injunctions and arbitration proceedings 313
A. Position in the United States

In the author’s examination of the position under U.S. law, she discusses antisuit
injunctions in support of arbitration both at the domestic and foreign level.
At a domestic level, U.S. state courts may issue an antisuit injunction to prevent the
pursuing of an inequitable suit in another state.7 First, on the basis of the doctrine of judi-
cial comity and secondly on the basis of the application of restrictions which exist in the
various statutes,8 state courts cannot issue antisuit injunctions to bar proceedings before
federal courts, and federal courts (vice versa) cannot issue antisuit injunctions to bar pro-
ceedings before state courts.9 In spite of this “hands-off ” policy, federal courts may
exceptionally issue antisuit injunctions against state courts10 where this is expressly
authorized by an Act of Congress,11 or where it is necessary in aid of their jurisdiction,12
or to protect or effectuate their judgments.13 Thus, in spite of the cautiousness exercised
by the U.S. courts for the reasons stated supra with regard to their decision on when to
issue antisuit injunctions, the use of antisuit injunctions is not precluded where equitable
or other policy considerations outweigh the dangers of interference and where such
injunctions are not perceived as a threat to the independence of the two judicial systems
but as a tool for the enhancement of the notion of a “cooperative” federalism.14
At the foreign level, in spite of the existing diversity in the way factors and analysis
standards are employed when reviewing the criteria for the issuance of antisuit injunc-
tions, the prevailing U.S. judicial attitude is to grant antisuit injunctions in support of
arbitration.15 Thus, U.S. courts exercise their authority to issue antisuit injunctions and
enjoin parties from pursuing claims in a foreign proceeding16 subject to the requirement
of the threshold criteria that the U.S. and foreign suit involve the same parties as well as
the same issues.17 Since these threshold criteria are often met, U.S. courts base their decisions
mainly on factors like comity or public policy principles. Nevertheless, these factors have
not been easy to follow, and there is a judicial Circuit split with regards to the extent to
which comity and other factors play a role in the issue of antisuit injunctions. In effect,
the Third, Sixth, Eighth and D.C. Circuits follow a conservative approach and are generally
7
Cole v. Cunningham, 135 U.S. 107 (1890); O’Hare v. Burns, 45 Colo. 432, 101 Pac. 755 (1909); Applestein
v. United Board & Carton Corp., 35 N.J. 343, 173 A.2d 225 (1961).
8
Judiciary Act 1793, s. 22 (1); Judiciary Act 1875, s. 41 (1926); U.S. Judicial Code s. 2283 (1948).
9
C. Warren, Federal and State Court Interference, 43 Harvard L. Rev. 345, 345–78 (1930).
10
Pursuant to U.S. Judicial Code s. 2283 (1948).
11
Mitchum v. Foster, 92 S. Ct. 2151, 407 U.S. 225, 32 L.Ed. 2d 705 (1972); C.A. Wright, Law of Federal
Courts 300 –30 (15th ed. 1994).
12
James v. Bellotti, C.A., 733, F.2d. 989 (1st Cir. 1984); Green v. Green, C.A., 259 F.2d 229 (7th Cir. 1958);
Wright, supra note 11, at 302–03.
13
Chick Kam Choo v. Exxon Corp., 108 S.Ct. 1684, 486 U.S. 140, 100 L.Ed 2d. 127 (1988); Wright, supra
note 11, at 304 – 0 5.
14
Comment: Antisuit Injunctions Between State and Federal Courts, 32 U. Chicago L. Rev. 471, 505–07 (1965).
15
Ali, Nesbitt & Wessel, supra note 5, at 13.
16
Quaak v. Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren, 361 F.3d 11 (1st Cir. 2004); Kaepa Inc. v.
Achilles Corp., 76 F.3d 624, 626 (5th Cir. 1996); China Trade & Dev. Corp. v. M.V. Choong Yong, 837 F.2d 33, 35
(2d Cir. 1987); Ali, Nesbitt & Wessel, supra note 5, at 12.
17
Quaak, supra note 16; Ali, Nesbitt & Wessel, supra note 5, at 12.
reserved in granting antisuit injunctions.18 The Fifth, Seventh and Ninth Circuits follow
a liberal approach and are, thus, more eager to grant antisuit injunctions.19 The First and
Second Circuits follow a middle approach which encompasses features of the conserva-
tive and liberal approaches adopted by the other Circuits20 and are at times eager to grant
antisuit injunctions and at other times not. More specifically, on the basis of the principles
established by the judicial doctrine of comity, courts following the conservative approach
will be reluctant to issue an antisuit injunction,21 save in cases where res judicata bars the
foreign proceeding or where foreign litigation threatens public policy or the court’s juris-
diction.22 Courts following the liberal approach also consider comity principles, but place
greater weight on factors such as the existence or not of vexatious features in the foreign
action, or whether the foreign action leads to duplicate adjudication, additional delay and
expenses, and most of the time find in favour of the grant of a foreign antisuit injunc-
tion.23 Courts following the middle approach encompass in their rulings features of both
the conservative and liberal approaches. On the one hand, consistent with comity prin-
ciples, it would apply the criteria embodied in the conservative approach, whereas, on
the other hand, they would take into account factors such as the vexatious character of
the foreign action or the delay and inconvenience which may occur. In short, federal
courts, in accordance with the strong public policy in favour of arbitration, are not
against the granting of antisuit injunctions in support of arbitral proceedings but, never-
theless, are not unrestrictive in issuing them save where comity principles and public
policy reasoning require it. The reluctance of the conservative Circuits demonstrates
a changing tendency and highlights the need to reconsider, to a certain extent, the
function and grant of antisuit injunctions.
B. Approach of the E.C.J.

The E.C.J. has sought, rarely, to test the arbitration exception of Article 1(2)(4) of
the Brussels Convention as applied to state court proceedings conducted in connection
with arbitration proceedings.24
18
Goss Int’l Corp. v. Man Roland Druckmaschinen, No. 06-2658, 2007 WL 1731573 (8th Cir. June 18,
2007); Gau Shan Co. v. Bankers Trust Co., 956 F.2d 1349, 1354 (6th Cir. 1992).
19
Allendale Mut. Ins. Co. v. Bull Data Sys. Inc., 10 F.3d 425 (7th Cir. 1993); Kaepa, supra note 16; Karaha
Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357 (5th Cir. 2003); Affymax Inc.
v. Johnson & Johnson, 420 F. Supp. 2d 876 (N.D. Ill. 2006).
20
Quaak, supra note 16; China Trade, supra note 16; Paramedics Electromedicina Comercial Ltd. v. G.E. Med.
Sys. Info. Tech. Inc., 369 F.3d 645 (2d Cir. 2004); S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 237 (2d
Cir. 2001); Ibeto Petrochemical Indus. Ltd. v. M/T Beffen, 475 F.3d 56 (2d Cir. 2007).
21
Goss, supra note 18; Gau Shan, supra note 18.
22
Ali, Nesbitt & Wessel, supra note 5, at 13; Compagnie des Bauxites de Guinea v. Ins. Co. of N. Am., 651 F.2d
877 (3d Cir. 1981); Republic of Phillipines v. Westinghouse Elec. Corp., 43 F.3d 65 (3d Cir. 1995); Bro-Tech Corp.
v. Thermax Inc., 2007 WL 2597618 (E.D. Pa. September 4, 2007); General Electric Co. v. Deutz A.G., 270 F.3d 144,
161 (3d Cir. 2001).
23
Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909 (D.C. Cir. 1984).
24
Case C-190/89, Marc Rich & Co. A.G. v. Società Italiana Impianti P.A. (The Atlantic Emperor), 1991
E.C.R. I-3894; Case C-391/95,Van Uden Maritime B.V. v. Deco-Line K.G., 1998 E.C.R. I-7091.
In Marc Rich & Co. A.G. v. Società Italiana Impianti P.A.,25 the E.C.J. considered
whether English proceedings for the appointment of an arbitrator fell under the arbitration
exception of Article 1(2)(4) of the Brussels Convention.26 Amidst the questions referred
to the E.C.J. were whether the exception in Article 1(2)(4) of the Brussels Convention
extends to any litigation or judgments and, if so, whether it extends also to litigation or
judgments where the initial existence of an arbitration agreement is a matter in issue.
The E.C.J. held that the arbitration exception had a broad meaning covering arbi-
tration in its entirety27 and as such would also encompass proceedings brought before
national courts in relation to arbitration, and that the appointment of an arbitrator by a
national court was a measure adopted by the state to facilitate arbitration which came
within the sphere of arbitration and which was covered by the exclusion contained in
Article 1(2)(4) of the Brussels Convention. It was also held that Article 1(2)(4) of the
Brussels Convention should be interpreted as meaning that the exclusion extended to lit-
igation pending before a national court concerning the appointment of an arbitrator,
even if the existence or validity of an arbitration agreement was a preliminary issue
in litigation.
The E.C.J. stated that, according to the Jenard Report,28 Article 1(2)(4) of the Brussels
Convention provided that arbitration is excluded from the scope of its application (on the
justification that there were already many existing international agreements on arbitra-
tion), and that this exclusion encompasses the recognition and enforcement of arbitral
awards. It also stated that the Schlosser Report29 had also commented, with regard to
arbitration, that the Brussels Convention does not cover court proceedings which are
ancillary to arbitration, such as the appointment or dismissal of arbitrators, the fixing of
the place of arbitration, the extension of the time limit for making awards, or the obtain-
ing of a preliminary ruling on questions of substance and, in the same way, it also
excludes judgments which aim to determine whether an arbitration agreement is valid or
not, or to order the parties not to continue the arbitration proceedings.30 It was also stated
that in order to determine whether a dispute falls within the scope of the Brussels Con-
vention, reference should be made solely to the subject matter of the dispute and that if,
by virtue of its subject matter (such as, for example, the appointment of an arbitrator) a
dispute fell outside the scope of the Brussels Convention, the existence of a preliminary
issue which the court would have to resolve in order to determine the dispute could not
justify the application of the Brussels Convention. It was also pointed out that if the
applicability of the exclusion of Article 1(4) of the Brussels Convention were to vary
25
Marc Rich, supra note 24.
26
Now Council Regulation 44/2001, art. 1(2)(d).
27
28
P. Jenard, Report on the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters
signed at Brussels ch. III, s. IV, point D (1968), 1979 O.J. (C 59) 1– 65.
29
P. Schlosser, Report on the Convention on the Association of the Kingdom of Denmark, Ireland and the United King-
dom of Great Britain and Northern Ireland to the Convention on Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters and to the Protocol on its Interpretation by the Court of Justice 61 (1979), 1979 O.J. (C 59) 71.
30
Marc Rich, supra note 24, paras. 17–22.
according to the existence or otherwise of a preliminary issue which could be raised at

any time by the parties, all this would affect legal certainty, which was one of the objec-
tives pursued by the Brussels Convention.31 Accordingly, it was concluded that the rela-
tionship of a preliminary issue to the existence or validity of the arbitration agreement did
not affect the exclusion from the scope of the Brussels Convention of a dispute concern-
ing the appointment of an arbitrator, and that Article 1(2)(4) of the Brussels Convention
should be interpreted as meaning that the exclusion provided for therein extended also to
litigation pending before a national court for the appointment of an arbitrator, even if the
existence or validity of an arbitration agreement was a preliminary issue in that litigation.32
In Van Uden Maritime B. (trading as Van Uden Africaline) v. Kommanditgesellschaft in
Firma Deco-Line,33 which concerned an application for an interim injunction to secure a
debt claim already the subject of an arbitration agreement, the court stated that the sub-
ject matter is arbitration if the proceedings serve to protect the right to have the dispute
determined by arbitration. The question in that case was whether a Dutch court had
jurisdiction under Article 31 of Council Regulation 44/2001 to make an interlocutory
order for a provisional payment against a German debtor when the substantive dispute
was being heard by arbitrators in the Netherlands.34 Advocate General Léger stated that
the defendant and the German government had highlighted the risk of conflicting deci-
sions, if parallel jurisdiction of national courts hearing interim applications and arbitration
tribunals adjudicating on the substance was allowed, and also pointed out that the interim
relief sought was inseparably linked to the subject matter of the arbitration proceedings,
as both concerned payment of a debt.
Referring again to the Schlosser Report35 and following also Marc Rich & Co. A.G.
v. Società Italiana Impianti P.A.,36 the E.C.J. found37 that interim measures are parallel and
not ancillary to the arbitration proceedings but only intended as measures of support and,
as such, do not concern arbitration but the protection of a wide variety of rights and that
their place in the scope of the Convention is not to be determined by their own nature
but by the nature of the rights which they serve to protect. The granting of provisional
or protective measures under Article 24 of the Brussels Convention was conditional on
the existence of a real connecting link between the relief sought and the territorial juris-
diction of the state of the court to which an application was made. Moreover, interim
payment of a contractual consideration did not constitute a provisional measure within
Article 24 of the Brussels Convention unless (i) repayment to the defendant of the sum
awarded was guaranteed if the plaintiff was unsuccessful as to the substance of his claim;
and (ii) the relief sought related only to assets of the defendant located or to be located
within the territorial jurisdiction of the court to which an application was made. Thus,
31
Case C-38/81, Effer v. Kantner, 1982 E.C.R. 825, para. 6; Marc Rich, supra note 24, paras. 26–27.
32
Marc Rich, supra note 24, paras. 27–29.
33
Van Uden, supra note 24.
34
West Tankers, supra note 2, paras. 13 –14.
35
Schlosser, supra note 29.
36
Marc Rich, supra note 24, paras. 18 –19.
37
Van Uden, supra note 24, para. 33.
in the context of the present case, the injunction sought was found not to constitute a
provisional or protective measure and as such a measure ancillary to arbitration, but an
interim measure parallel to the arbitration, which was not to be covered by the arbitration
exception.38
As it will be demonstrated in the discussion infra, the distinction between measures
ancillary and parallel to the arbitration is fundamental, in that only parallel measures such
as antisuit injunctions, which serve a protective (albeit satellite) role, are excluded from
the scope of Council Regulation 44/2001.
More recently, in Erich Gasser G.m.b.H. v. Misat S.r.l.,39 among the questions referred
to the E.C.J. was whether a court named in a jurisdiction clause (the “second court”), but
which had only seized jurisdiction in a case after the parties had commenced proceedings
in another court (the “first court”) could proceed to determine the case without waiting
for a decision by the first court. Secondly, it was asked whether this applied, in particular,
where the proceedings in the first court were taking an unjustifiably long time with a
consequential risk of detriment to a party. The E.C.J. held that the second court had to
stay proceedings in accordance with Article 21 of the Brussels Convention,40 until the
first court had determined whether it had jurisdiction itself, as well as whether the parties
had actually agreed to designate the second court as having exclusive jurisdiction. It was
also held that if the first court decided that it had jurisdiction, the second court had to
decline jurisdiction in favour of the first court and that this was the case even where the
proceedings in the first court were excessively long.
Shortly after Erich Gasser,41 the House of Lords, in Turner v. Grovit and Others,42
sought from the E.C.J. a preliminary ruling on whether a court in a country which is
party to the Brussels Convention could restrain proceedings in another country which is
also party to the Brussels Convention. The issue in Turner43 concerned the grant of an
antisuit injunction to restrain the commencement or continuation of proceedings in
another Member State with jurisdiction under Council Regulation 44/2001, on the
ground that the proceedings had been commenced in bad faith. The E.C.J. held that a
prohibition by a court of the continuation of legal proceedings in another country was
against the principle embodied in the Brussels Convention, namely the necessity for
mutual trust between the legal systems of the contracting states. It also held that this
jurisdiction could only be reviewed in exceptional cases by a court in another contracting
state and that the Brussels Convention disallowed the grant of an injunction designed to
prohibit a party to proceedings pending before a court from commencing or continuing
proceedings before another court, even where that party was acting in bad faith and was
aiming to vex the proceedings in the first state.
38
M. Illmer & I. Naumann, Yet Another Blow: Antisuit Injunctions in Support of Arbitration Agreements Within the
European Union, 10 Int’l Arb. L. Rev. 147, 150 (No. 5, 2007).
39
Case C-116/02, Erich Gasser G.m.b.H. v. Misat S.r.l., 2003 E.C.R. I-14693.
40
Now Council Regulation 44/2001, art. 27.
41
Erich Gasser, supra note 39.
42
Case C-159/02, Turner v. Grovit & Ors, 2004 E.C.R. I-3565.
43
Id.
The trend of the E.C.J. rulings in refusing antisuit injunctions reflects its willingness
to promote the principles embodied in Council Regulation 44/2001 and underlines its
intention to apply the concept of mutual trust in the various different legal systems of the
contracting states.
However, the judgment on antisuit injunctions in Turner44 does not necessarily gov-
ern the decision in West Tankers.45 The proceedings in West Tankers46 relate to the protec-
tion of the contractual right to have the dispute determined by arbitration. Accordingly,
they fall outside Council Regulation 44/2001 and cannot be inconsistent with its provi-
sions, since the arbitration agreement lies outside the system of allocation of court juris-
dictions created by Council Regulation 44/2001. The argument that any court order in
any proceedings, whether falling within the scope of the Council Regulation or not,
which restrains a party from invoking a jurisdiction available under the Council Regula-
tion conflicts with Council Regulation 44/2001 because it amounts to an indirect inter-
ference with that jurisdiction, is an argument that lies far from reality. An extension of the
application of Council Regulation 44/2001 to orders made in proceedings to which the
Council Regulation does not apply, goes far beyond the reasoning in Turner.47
C. Position in the United Kingdom

1. Approach of the English Courts
Antisuit injunctions constitute a revamped version of the former “common injunc-
tions” which existed in the fifteenth century and acted as a remedy preventing litigants
from bringing proceedings, against good conscience, in the courts of the common law.48
“Common injunctions” were abolished by section 24(5) of the Judicature Act 1873. In
theory, the power to grant an injunction with regard to other courts in England still
exists. However, in practice, such judicial power is used only with regard to foreign
courts.49
In the United Kingdom, as with the United States, there is a general tendency in
favour of the granting of antisuit injunctions. This tendency is, however, controversial
because it allows the court to interfere with foreign proceedings and because it finds no
analogous authority within the continental legal systems.50 The statutory basis of the
44
Id.
45
West Tankers, supra note 2, paras. 12–14.
46
Id.
47
Turner, supra note 42.
48
Wharton v. May, (1799) 5 Ves. 71 (31 E.R. 454); Kennedy v. Earl of Carsilis, (1818) 2 Swans. 313 (36 E.R.
635); Bushby v. Munday, (1821) 5 Madd. 297 (56 E.R. 908); Hanison v. Gurney, (1821) 5 Jac. & W. 563 (37 E.R.
743); Beauchamp v. Marquis of Huntley, (1822) Jac. 546 (37 E.R. 956); Beckford v. Kemble, (1822) 1 Sim. & St. 7
(57 E.R. 3); Lord Portarlington v. Soulby, (1834) 3 My. & K. 104 (40 E.R. 40); Booth v. Leycester, (1837) 1 Keen.
579 (48 E.R. 430); Bunbury v. Bunbury, (1839) 1 Beav. 38 (48 E.R. 963); The Carron Iron Co. v. Maclaren, (1855)
5 H.L.C. 416; Hope v. Carnegie, (1866) 1 Ch. App. 320; Armstrong v. Armstrong, [I892] 1 P. 98; Moore v. Moore,
(1896) 12 T.L.R. 221; Pena Copper Mines v. Rio Tinto Co., [1911–13] All E.R. Reprint 209 (C.A.); T.C. Hartley,
Antisuit Injunctions and the Brussels Jurisdiction and Judgments Convention, 49 Int’l & Comp. L.Q. 166– 68 (2000).
49
Hartley, supra note 48, at 168.
50
C. Ambrose, Can Antisuit Injunctions Survive European Community Law?, 52 Int’l & Comp. L.Q. 401 (2003).
power of the English courts to issue antisuit injunctions against claimants in foreign pro-
ceedings lies in Supreme Court Act 1981, section 37(1), which states that the High Court
may by order grant an injunction in all cases in which it finds it just and convenient to
do so. Section 44 of the English Arbitration Act 1996 provides that a court is also
empowered to grant such an injunction in connection with arbitration proceedings,51
although on a more limited basis, namely, that it can assert jurisdiction over the claimant
in the foreign proceedings and it is convinced of the necessity of granting the antisuit
injunction.52
The E.C.J. rendered a “double blow”53 to English procedural law in Erich Gasser54 and
Turner,55 where the survival of antisuit injunctions in support of arbitration proceedings
falling under Council Regulation 44/2001 was threatened.56 Nevertheless, English courts
have generally affirmed their jurisdiction to issue antisuit injunctions in support of arbi-
tration.57 In Aggeliki Charis Compania Maritima S.A. v. Pagnan S.p.A. (The Angelic Grace),58
Lord Millet expressed the view that antisuit injunctions should no longer be sparingly
used. In Welex A.G. v. Rosa Maritima Ltd.,59 the Court of Appeal upheld the decision of
Steel, J. in the Commercial Court and granted an antisuit injunction in order to enforce
a contractual provision that there should be arbitration in London.60 However, in Through
Transport,61 the Court of Appeal refused to grant an antisuit injunction. The court stated
that an antisuit injunction would be granted to restrain court proceedings brought in
breach of an agreement to arbitrate, following from the decision of the Court of Appeal
in Aggeliki Charis Compania Maritima S.A. v. Pagnan S.p.A. (The Angelic Grace).62 It also
stated that where arbitration and Scott v. Avery clauses63 existed in a contract, the parties
51
Starlight Shipping Co. v. Tai Ping Insurance Co. Ltd., [2007] EWHC 1893 (Comm); Ali, Nesbitt & Wessel,
supra note 5, at 16–17.
52
Ali, Nesbitt & Wessel, supra note 5, at 17–18.
53
A. Briggs, Decision of British Courts During 2004-Private International Law, 75 Br. Y.B. Int’l L. 537, 551
(2004).
54
55
56
A. Briggs, Antisuit Injunctions and Utopian Ideals, 120 L.Q.R. 529, 531 (2004); A. Briggs & P. Rees, Civil
Jurisdiction and Judgments paras. 2.30, 5.45, 9.13 (4th ed. 2005); L. Merrett, To What Extent Does an Agreement to
Arbitrate Exclude the Brussels Regulation?, 64 Contract L.J. 308 (2005); N. Pengelley, The European Court of Justice,
English Courts and the Continued Use of the Antisuit Injunction in Support of Agreements to Arbitrate:Through Transport v. New
India, 2 J. Priv. Int’l L. 397, 402 (2006); A. Dutta & C. Heinze, Prozessführungsverbote im Englischen und Europäischen
Zivilverfahrensrecht, 8 Z.E.u.P. 428, 460 (2005); P. Schlosser, Antisuit Injunctions zur Unterstützung von internationalen
Schiedsverfahren, 2006 R.I.W. 486, 487; B. Steinbrueck, The Impact of EU Law on Antisuit Injunctions in Aid of English
Arbitration Proceedings, 26 C.J.Q. 358, 360 (2007).
57
Through Transport Mutual Ins. Assoc. (Eurasia) Ltd. v. New India Assurance Co. Ltd., [2005] 1 Lloyd’s Rep.
67 (C.A.); West Tankers, supra note 2; Steinbrueck, supra note 56, at 360.
58
Aggeliki Charis Compania Maritima S.A. v. Pagnan S.p.A. (The Angelic Grace), [1995] 1 Lloyd’s Rep. 87,
96.
59
Welex A.G. v. Rosa Maritima Ltd., [2002] 2 Lloyd’s Rep. 701.
60
Id. para. 23; D. Tan, Antisuit Injunctions and the Vexing Problem of Comity, 45 Virginia J. Int’l L. 283, 331–32
(2005).
61
Through Transport, supra note 57.
62
Aggeliki Charis, supra note 58; See J.M. Harris, Recognition of Foreign Judgments at Common Law: The Antisuit
Injunction Link, 17 Oxford J. Legal Studies 477, 488– 89 (1997).
63
In 1856 the House of Lords decided in the case of Scott v. Avery, (1865) 10 E.R. 1121, that an arbitration
agreement which attempted to oust the court’s jurisdiction would be contrary to public policy and therefore void.
However, a provision making the arbitrator’s award a condition precedent to the right to bring an action in the court
was held to be enforceable. With such a clause the jurisdiction of the court is not ousted but deferred.
would be bound to them and would not be allowed to launch a pre-emptive strike by
means of court proceedings in a foreign state. However, the Court of Appeal declined to
grant an antisuit injunction which was sought to restrain the insurer’s proceedings in Fin-
land because the insurer was not a party to the contract under which he was subrogated
or any other contract requiring him to submit the dispute to arbitration. It is conceivable
that the Court of Appeal in Through Transport64 refused to grant the antisuit injunction in
an effort not to deviate from the general approach of the E.C.J. Nevertheless, the case
analysis above should not lead to any generalized conclusions simply because antisuit
injunctions may still be granted to restrain breach of arbitration and Scott v. Avery clauses
in a contract, where the party sought to be restrained is a party to the contract containing
the arbitration clause.
More recently, in Noble Assurance Co. & Shell Petroleum Inc. v. Gerling-Konzern General
Insurance Co. U.K. Branch,65 following an arbitral award in London, the court granted an
antisuit injunction. The court found the foreign proceedings vexatious and an abuse of
power and process, and stated that considerations of caution and comity permitted the
grant of the antisuit injunction.66
C v. D67 was a case which concerned a claim by C, a New Jersey company, against
its liability insurer D, also a company incorporated in the United States. Under an insur-
ance contract made between the parties on standard Bermuda Form terms, D provided
liability insurance to C for a three-year period between November 1, 1997 and Novem-
ber 1, 2000, with an occurrence limit and an aggregate limit of U.S.$100 million and an
excess of U.S.$190 million.68 Various legal claims were asserted against C and one of its
European subsidiaries, resulting in C paying out damages well in excess of the policy lim-
its, and C sought indemnification from D under the policy. D refused to accept liability,
and arbitration proceedings were duly commenced in London. Following a hearing
which resulted in a partial award in favour of C, D applied to the tribunal seeking to
“correct” the award and stated its intention to apply to a federal court in the United
States to prevent enforcement of the award on the grounds that the arbitrators had man-
ifestly disregarded New York law when rendering the partial award. C, in response,
sought and obtained an interim antisuit injunction from the English court (which was
later replaced by undertakings) and subsequently applied for a final injunction and declar-
atory relief when D applied to be released from its undertakings. These cross-applications
were heard by Cooke, J. on June 20 and 21, 2007, and judgment in favour of C was
64
Through Transport, supra note 57.
65
Noble Assurance Co. & Shell Petroleum Inc. v. Gerling-Konzern General Ins. Co. U.K. Branch, [2008]
Lloyd’s Rep. I.R.1.
66
Fulbright & Jaworski L.L.P., Comment, International Arbitration, in Fulbright Client Alert (March 2007).
67
C v. D, [2007] EWCA (Civ) 1282; Times, January 16, 2008 (C.A. (Civ. Div.)).
68
C was the named insured on the policy, but the definition of the insured comprised C together with any sub-
sidiary, affiliate, or associated company of C, as listed in a schedule attached to the policy. The schedule included a
large number of such affiliates, including 303 companies incorporated outside the United States. Under the terms of
the policy, only C or its U.S. insurance brokers were to be treated as representing all of the insureds in matters arising
under the policy; see D. Foster, C v. D:The English Court of Appeal Upholds an Antisuit Injunction in Support of Arbitration
Proceedings, 11 Int’l Arb. L. Rev. 104, 105 (No. 2, 2008).
handed down on June 28.69 It was this decision to grant C a permanent antisuit injunc-
tion that was the subject of the appeal. Following the approach adopted by Cooke, J. at
first instance, the Court of Appeal held that the central point at issue was whether or not,
by choosing London as the seat of the arbitration, and consequently English law as the
law applicable to the conduct of the arbitration, the parties must be taken to have agreed
that proceedings to challenge or review the award should be those, and only those, per-
mitted by English law and that the parties must be taken to have agreed to this.70 The
agreement on the seat of arbitration is analogous to an exclusive jurisdiction clause, and
any claim for a remedy going to the existence or scope of the arbitrator’s jurisdiction, or
the validity of an interim or final award, should only be made in the courts of the place
specified as a seat of the arbitration. C was accordingly entitled to the permanent antisuit
injunction restraining D from initiating proceedings in the U.S. courts.71 Thus, in C v. D72
the Court of Appeal once again reaffirmed the English court’s willingness to grant an
antisuit injunction in support of arbitration.73
In Starlight Shipping Co. v. Tai Ping Insurance Co. Ltd. (Hubei Branch) (The Alexandros
T),74 the court granted an antisuit injunction to restrain proceedings brought by the
respondent in the maritime court of Wuhan in China contrary to an arbitration clause
incorporated in the terms of the charter. The court stated that where contracting parties
agreed to refer disputes to arbitration and a claim falling within the scope of the arbitra-
tion agreement was made in proceedings elsewhere, it would ordinarily restrain the pro-
ceedings in the non-contractual forum, unless the party suing in that forum could show
strong reasons for proceeding there, and that in the instant case, no strong reason was
available to militate against the grant of such an antisuit injunction. The examination of
the above case law reflects the attitude of the English judiciary and at the same time
proves that it has no hesitation in granting antisuit injunctions where appropriate.
However, other attempts in different legal fori75 to justify the English law on antisuit
injunctions have proven unsuccessful.
In Case 3VA 11/95,76 in relation to a contractual dispute and following an injunc-
tion by the English High Court prohibiting a German resident from commencing or
continuing any proceedings against the petitioner other than in the contractually agreed
forum, that is, the London Court of International Arbitration, the petitioner requested
service of the injunction in Germany. The German Legal Authority refused to serve the
69
C v. D, supra note 67.
70
The whole purpose behind the Bermuda Form, according to the court, with its dispute resolution procedure
providing for English arbitration applying New York’s substantive law to issues arising under the policy, was that
judicial remedies in respect of the award should be those allowed by the Arbitration Act 1996, and nothing
more; see Foster, supra note 68, at 106.
71
Foster, supra note 68, at 106.
72
C v. D, supra note 67.
73
Foster, supra note 68, at 104.
74
Starlight Shipping Co. v. Tai Ping Insurance Co. Ltd. (Hubei Branch) (The Alexandros T), [2008] 1 Lloyd’s
Rep. 230.
75
Case 3VA 11/95, Oberlandesgericht, Dusseldorf, January 10, 1996; S.A. Banque Worms v. Épx Brachot,
Cass. 1e civ., November 19, 2002.
76
Id.
request on the grounds that service would infringe the sovereignty of Germany pursuant
to Article 13 of the 1965 Hague Service Convention. The petitioner applied for an order
that the German Legal Authority grant the request for service and the Regional Court
of Appeal, Dusseldorf dismissed the application as unfounded. In finding that the service
of an antisuit injunction on a German resident must be refused under Article 13 of the
1965 Hague Service Convention, the Regional Court of Appeal, Dusseldorf, stated that
antisuit injunctions constitute an infringement of the jurisdiction of German courts
because only the German courts alone can decide in accordance with their procedural
laws and international agreements whether they are competent to adjudicate on a given
matter or not.
In S.A. Banque Worms v. Épx Brachot,77 the French Cour de Cassation decided that a
court exercising jurisdiction in a French bankruptcy could make an order restraining a
creditor from taking execution proceedings against the debtor’s land in Ibiza, although
the Spanish court would plainly have had exclusive jurisdiction under Council Regula-
tion 44/2001 to entertain such an application. Although the French Cour de Cassation
noted that such orders made in terms of proceedings were excluded from Council Reg-
ulation 44/2001, nevertheless it did not consider them as conflicting with it.
English courts contend that arbitration and antisuit injunctions in support of it are
excluded from the scope of Article 1(2)(d) of Council Regulation 44/2001,78 at variance
with the findings of the E.C.J. regarding the compatibility of antisuit injunctions with
Council Regulation 44/2001.79 The rationale behind the Brussels Convention of filling
in the gaps in the New York Convention80 (as stated by the E.C.J. in Marc Rich81 and in
Van Uden)82 supports the argument that due to the fact that antisuit injunctions were not
included in the New York Convention,83 they are not covered by Article 1(2)(d) of
Council Regulation 44/2001.84 Judgments in various fori, such as that of the Dusseldorf
Regional Court of Appeal in Case 3VA 11/9585 or the one of the French Cour de Cas-
sation in S.A. Banque Worms v. Épx Brachot,86 further justify the above argument, whilst
decisions like the one in Turner 87 have revealed a fundamental clash of values which could
affect the very foundations of the rationale of the Council Regulation 44/2001. It seems
that antisuit injunctions are at odds with the objectives of Council Regulation 44/2001
77
S.A. Banque Worms, supra note 75.
78
Illmer & Naumann, supra note 38, at 147– 49; Through Transport, supra note 57; West Tankers, supra note 2; see
Pengelley, supra note 56, at 403; Trukhtanov, supra note 6, at 136–38; G. Blanke, The ECJ’s Recent Jurisprudence on
Antisuit Injunctions Under the Brussels Convention: A Promising Début for a More Prominent Role for Arbitration in European
Commercial Dispute Resolution at the Dawn of the 21st Century?, 16 Eur. Bus. L. Rev. 593 (2005); J.M. Harris, Arbi-
tration Clauses and the Restraint of Proceedings in Another Member State of the European Union, 2005 Lloyds Maritime &
Com. L.Q. 159, 160; J. Hill, International Commercial Disputes in English Courts para. 11.3.7 (3d ed. 2005); Briggs, supra
note 56, at 551.
79
Council Regulation 44/2001.
80
New York Convention, supra note 4.
81
82
Van Uden, supra note 24; New York Convention, supra note 4.
83
84
85
Case 3VA 11/95, supra note 75.
86
S.A. Banque Worms, supra note 75.
87
with regard to the creation of a uniform jurisdictional code and highly predictable juris-
dictional rules. However, and although antisuit injunctions run counter to the mutual
trust principle of Council Regulation 44/2001, they do not seriously impair the effec-
tiveness of Council Regulation 44/2001.88
2. Approach of the English Courts in West Tankers

In West Tankers,89 the dispute concerned a vessel named The Front Comor, which was
owned by West Tankers and chartered to Erg Petnoli SpA (ERG). The vessel collided
with a jetty owned by ERG which then resorted to arbitration for losses not recovered
by its insurers, RAS S.p.A. Following the initiation of arbitration proceedings in London
by ERG, RAS S.p.A. commenced proceedings in an Italian court to recover excess
payments made to ERG. On the basis of the arbitration agreement contained within
the charterparty, West Tankers sought an antisuit injunction to restrain RAS S.p.A. from
continuing the Italian proceedings.90
The House of Lords referred to the E.C.J. the question whether under the Council
Regulation, a court of a European Member State is barred from issuing an injunction to
prevent proceedings in another Member State in breach of an arbitration agreement. In
doing so, the House of Lords also expressed its opinion that the question should be
answered in the negative, based on various arguments.91 More specifically, the House of
Lords did not ask the E.C.J. to depart from or reverse its earlier decisions,92 rather it asked
the E.C.J. to distinguish West Tankers93 on the basis that it concerns an interim measure for
the protection of the arbitration clause, which, as such, is outside the scope of Council
Regulation 44/2001.
According to the reasoning given by Lord Hoffman, the House of Lords was of the
opinion that, in West Tankers,94 the E.C.J. should decide that antisuit injunctions in favour
of U.K. arbitration clauses fall outside the scope of the Council Regulation. His Lordship
stated that in Erich Gasser95 (where it had been decided that a court of a Member State on
which exclusive jurisdiction has been conferred pursuant to Council Regulation 44/2001,
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 seized of the dispute), it
had been determined that Council Regulation 44/2001, Article 27, required the court of
exclusive jurisdiction to stay proceedings until the court first seized had applied Article 23
88
Hartley, supra note 48, at 166, 168.
89
West Tankers, supra note 2.
90
Ali, Nesbitt, and Wessel, supra note 5, at 19.
91
Such as the fact that arbitration is excluded from the scope of Council Regulation 44/2001, the fact that
parties engaged in commerce choose arbitration to avoid national court proceedings, the fact that that U.K. courts
exercise jurisdiction to restrain foreign court proceedings in an effort to promote legal certainty, or the fact that a
negative ruling would reduce the attractiveness of European Member States, especially London, as arbitral venues.
92
See, e.g., the judgments in Erich Gasser, supra note 39, and Van Uden, supra note 24.
93
94
Id. ss. 12–14.
95
and refused jurisdiction; and that in Turner96 (where it had been decided 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 Council
Regulation 44/2001, on the ground that those proceedings have been commenced in
bad faith) it had been held that one court had to trust the other to dismiss the proceed-
ings on the ground that they had been brought in bad faith.
His Lordship went on to state that in each case, the court which had granted the
injunction had been purporting to act pursuant to a jurisdiction within the scope of the
Council Regulation and that both cases were based upon the proposition that the Coun-
cil Regulation provided 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.97 However, arbitration is
altogether excluded from the scope of Council Regulation 44/2001 by Article 1(2)(d)
and the basic principles by which Council Regulation 44/2001 allocates jurisdiction, that
is, by giving priority (subject to exceptions) to the domicile of the defendant, are entirely
unsuited to arbitration, in which the situs and governing law are generally chosen by the
parties on grounds of neutrality, availability of legal services, and the unobtrusive effec-
tiveness of the supervisory jurisdiction. In addition, it was stated that there is no set of
uniform Community rules which Member States can or must trust each other to apply,
and that although it is true that all Member States adhere to the 1958 New York Con-
vention,98 nevertheless the New York Convention99 is not a Community instrument and
does not create a system for the allocation of jurisdiction comparable with Council Reg-
ulation 44/2001.100 This had also been supported by case law such as Marc Rich,101 which
held that the exclusion applies not only to arbitration proceedings but also to court pro-
ceedings in which the subject matter is arbitration; and in Van Uden,102 which held that
the subject matter is arbitration if the proceedings serve to protect the right to have the
dispute determined by arbitration, and where it was stated103 that jurisdiction existed
because, despite the existence of an arbitration, the subject matter of provisional measures
was not arbitration.104 Following the above line of argument, his Lordship further stated
that (a) the proceedings in West Tankers105 were entirely to protect the contractual right to
have the dispute determined by arbitration and as such fell outside Council Regulation
44/2001; (b) the arbitration agreement fell outside the system of allocation of court
jurisdictions created by Council Regulation 44/2001; (c) the extension of the application
of Council Regulation 44/2001 to orders made in proceedings to which the Council
96
97
98
Which Council Regulation 44/2001, art. 71, declares to be unaffected; New York Convention, supra note 4.
99
100
101
102
103
Id. s. 33.
104
105
Id.
Regulation did not apply ignored the practical realities of commerce; and (d) such an
extension would apply to all kinds of orders made in other excluded proceedings.106 Not
least, the existence of European academic opinion to support the argument against the
extension was pointed out.107
III. Scope of Council Regulation 44/2001 and Interpretation of

the Arbitration Exclusion
The recommendations of the national reports contained in the Heidelberg Report
on the application of the Brussels I Regulation in twenty-five Member States108 show a
tendency not to support extending Council Regulation 44/2001109 to arbitration. At the
same time, the practical problems relating to the exclusion of arbitration can no longer be
dissimulated, as a number of controversial issues are not yet settled.110 This is also detected
by specific interfaces between Council Regulation 44/2001111 and arbitration. In partic-
ular, in relation to the matter of inclusion of arbitral matters in the framework of Council
Regulation 44/2001,112 it should be noted first that the New York Convention,113 which
provides a uniform framework for arbitration and the enforcement of arbitral awards, is
in force worldwide and should not be set aside or weakened by some regional frame-
work. Secondly, the most prominent achievement of the New York Convention114 con-
sists in its broad scope of application in all contracting states, entailing uniformity and
legal certainty worldwide. Accordingly, Council Regulation 44/2001 should not address
issues dealt with by the New York Convention.115 However, the prevalence of the New
York Convention116 does not exclude supplemental and supporting provisions addressing
the interfaces between the New York Convention117 and Council Regulation 44/2001,
such as ancillary measures.118
106
Such as, e.g., orders concerning matrimonial property and insolvency; see S.A. Banque Worms, supra note 86,
whereby the French Cour de Cassation did not consider such an order, made in proceedings excluded from Council
Regulation 44/2001, as conflicting with it; see West Tankers, supra note 2, para. 18.
107
See Schlosser, supra note 29; J. Krause, Turner/Grovit: Der EuGH erklärt Prozessführungs-verbote für unvereinbar
mit dem EuGVÜ, 2004 R.I.W. 533, 540–01; M. Watt, Commentary on Turner v. Grovit, 93 Revue Critique de Droit
Intrnational Privé 654, 662 (2004); S. Clavel, Antisuit Injunctions et Arbitrage, 2001 Rev. Arb. 669, 684.
108
B. Hess, T. Pfeiffer & P. Schlosser, Study JLS/C4/2005/03: Report on the Application of Regulation Brussels I in the
Member States, Final Version, Ruprecht-Karls-Universität Heidelberg, Institut für ausländisches und internationals Privat- und
Wirtschaftsrecht (2007), available at <http://ec.europa.eu/civiljustice/news/docs/study_application_brussels_1_en.pdf>.
109
110
A.V. Dicey, Dicey and Morris on the Conflict of Laws paras. 11–29 (14th ed. 2006).
111
112
Id.
113
114
Id.
115
Id.
116
Id.
117
Id.
118
It has also been suggested that the exclusion of art. 1(2)(d) of Council Regulation 44/2001 be deleted in an
effort to diminish the danger of conflicting decisions on the effectiveness of arbitration agreements. However, this
would also severely affect the possibility to issue antisuit injunctions protecting arbitration agreements and, thus, this
question will largely depend on the impact of the ruling of the E.C.J. in West Tankers, supra note 2; see B. Hess, T.
Pfeiffer & P. Schlosser, The Brussels I Regulation (EC) No. 44/2001 33–35 (2008).
Notwithstanding the above, the argument that arbitration is excluded from the
scope of Article 1(2)(d) of Council Regulation 44/2001, and that this includes also
antisuit injunctions in support of arbitration proceedings, is supported, first, by the fact
that Article 1(2)(d) of Council Regulation 44/2001 itself comprehensively excludes arbi-
tration from the scope of European procedural law; and secondly, by the E.C.J.’s rulings in
Marc Rich119 and Van Uden.120 In those cases, the E.C.J. applied the arbitration exception to
state court proceedings in connection with arbitration proceedings. In the first case, the
E.C.J. stated that English proceedings for the appointment of the arbitrator fall within the
arbitration exception of Article 1(2) No. 4 of the Brussels Convention only if the principal
focus of the matter is arbitration, and accordingly the arbitration exception had a broad
meaning covering arbitration in its entirety, that is, not only arbitration proceedings as
such but also national court proceedings in which the subject matter is arbitration. In the
latter case, the E.C.J. stated that the issue whether an interim measure is covered by the
arbitration exception depends on the nature of the protected right, that is, if the issue of
the subject matter being arbitration depends on whether the proceedings serve to protect
the right to have the dispute determined by arbitration,121 rather than on the nature of the
interim measure; this is because the latter is usually parallel and not ancillary to arbitration
proceedings and the decision on the above depends also on whether the proceedings
serve to protect the right to have the dispute determined by arbitration. However, as case
law has demonstrated, the challenge by the E.C.J. in Turner122 and in Erich Gasser123 to the
compatibility of antisuit injunctions with Council Regulation 44/2001 was not widely
followed by the English courts, which chose to limit the findings of the E.C.J. to the
particular facts of the respective cases, that is, jurisdiction agreements in Erich Gasser124
and antisuit injunctions in the context of abuse of process in Turner.125 Thus, on the basis
of the reasoning by the Court of Appeal in Aggeliki Charis,126 English courts chose to dis-
tinguish antisuit injunctions in aid of arbitration agreements.127 In West Tankers,128 where
the issue before the House of Lords was whether the approach established by the E.C.J.
in Erich Gasser129 and Turner130 extends to the present arbitral context,131 it was noted that,
contrary to different European opinion, the current English position is against this view.
119
120
121
On the question whether a Dutch court had jurisdiction to make an interlocutory order for a provisional
payment against a German debtor when the substantive dispute was being heard by arbitrators in the Netherlands,
the E.C.J. decided that the jurisdiction existed because, despite the existence of an arbitration, the subject matter of
provisional measures was not arbitration.
122
123
124
Id.
125
126
Aggeliki Charis, supra note 58; see Harris, supra note 62, at 488–89.
127
Through Transport, supra note 57; West Tankers, supra note 2; Welex, supra note 59; Navigation Maritime Bul-
gare v. Rustal Trading Ltd. (The Ivan Zagubanski), [2002] 1 Lloyds Rep. 106 (Comm.).
128
129
130
131
The actual question which the Lords posed to the European Court was whether it is consistent with Council
Regulation 44/2001 for a court of a Member State to make an order to restrain a person from commencing or con-
tinuing proceedings in another Member State on the ground that such proceedings are in breach of an arbitration
agreement.
The conflicting opinions with regard to the question of whether or not antisuit
injunctions fall within the interpretation of the arbitration exclusion of Council Regula-
tion 44/2001 are bound to instigate further academic and judicial debates. The English
position may be at odds with the position followed in Europe but the reasoning of Lord
Hoffman in distinguishing West Tankers132 and Van Uden133 stands firm. Furthermore, it
epitomizes the argument that ancillary measures, like antisuit injunctions, serve the pur-
pose of protecting the right to have the dispute determined by arbitration and, as such,
fall within the scope of the arbitration exception from Council Regulation 44/2001.
IV. Opinion of the Advocate General in the WEST TANKERS Case

The question whether antisuit injunctions to protect an arbitration agreement are
compatible with Council Regulation 44/2001 was submitted to the E.C.J. in Case C-185/
07 Allianz (formerly West Tankers).134 In an opinion delivered on September 4, 2008,
Advocate General Kokott proposes that the E.C.J. should answer the question in the
negative.
A. Opinion of Advocate General Kokott

In its referral of a preliminary issue to the E.C.J., the House of Lords made several
observations, supporting the view that it is consistent with Council Regulation 44/2001
for a Member State court to make an order restraining proceedings in another Member
State on the ground that such proceedings are in breach of an arbitration agreement. The
court’s supervisory role in the arbitral seat was emphasized.135
Advocate General Kokott considered that Council Regulation 44/2001 precludes
antisuit injunctions made to protect an arbitration agreement.136 In supporting this con-
clusion, Advocate General Kokott cited Turner,137 where the E.C.J., relying on the prin-
ciple of mutual trust underpinning the system of the Brussels Convention, held that the
Brussels Convention precludes the imposition of an antisuit injunction in connection
with proceedings before the court of another Member State, even where the foreign pro-
ceedings are brought in bad faith with a view to frustrating the existing proceedings.
However, the opinion of the English courts is that Turner138 cannot apply to antisuit
injunctions made in support of an arbitration agreement because arbitration is excluded
from the scope of Council Regulation 44/2001. More specifically, since the term “arbitration”
includes not only arbitration proceedings themselves and the recognition and enforce-
ment of arbitral awards but also all national court proceedings in which the subject matter
132
133
134
135
A.I. Pribetic, Case Note: Opinion of Advocate General Kokott in Allianz S.p.A. (formerly Riunione Adriatica Di
Sicurta S.p.A.) and Others v. West Tankers Inc. (Case C-185/07, delivered on September 4, 2008), available at <http://
ssrn.com/abstract=1263473>.
136
Pribetic, supra note 135, para. 2.
137
138
Id.
is arbitration, and antisuit injunctions are ancillary measures in support of the conduct of
arbitration proceedings, it is argued that proceedings seeking the issue of such injunctions
are excluded from Council Regulation 44/2001.
Advocate General Kokott counter-argued that the decisive question is not whether
the application for an antisuit injunction, that is, in the present case the proceedings
before the English courts, falls within the scope of application of Council Regulation
44/2001, but whether the proceedings against which the antisuit injunction is directed,
that is, in the present case the proceedings before the court in Italy, do so.139
Advocate General Kokott noted that it has always been a matter of dispute between
the common law and the continental law whether the exclusion of arbitration should be
understood in the broad sense advocated by the House of Lords,140 and accepted that the
wording of the exception gives no clear indication as to which interpretation should be
preferred.
Advocate General Kokott also highlighted, in her opinion, a conflict of conventions,
that is, arbitration against litigation, and economic globalism against economic regional-
ism, which would require the court to navigate between the option of harmonization via
arbitration, offered under the New York Convention,141 and that of unification via the
reciprocal enforcement of judgments, offered under Council Regulation 44/2001. In the
Advocate General’s view, the court should search for a smooth path towards harmoniza-
tion of competing international instruments and the overall goal of unification of inter-
national trade law.142
Equally important, in the Advocate General’s view, was the related principle of
mutual trust. Advocate General Kokott noted that the E.C.J. had emphasized in Turner143
that, due to the fact that Council Regulation 44/2001 is founded on mutual trust
between Member States, a national court may not interpret Council Regulation
44/2001 in a manner which calls into question the competence of another Member State
court. If a party is restrained from commencing or continuing proceedings before a court
of another contracting party by an antisuit injunction, that constitutes interference with
that court’s jurisdiction and the fact that that injunction is addressed to the defendant and
not directly to the foreign court is irrelevant.144 Advocate General Kokott noted that this
139
140
According to the common law approach, only the arbitral body itself and the national courts at the seat of
arbitration, which support its activities, may determine who has jurisdiction to examine the effectiveness and scope
of the arbitration clause and, thus, where there is an arbitration agreement, all disputes arising from the legal relation-
ship are subject exclusively to arbitration, irrespective of the substantive subject matter. According to the continental
law approach, it depends on whether the claim for damages falls, in principle, within the scope of Council Regula-
tion 44/2001 and whether the Italian court, subject to the arbitration plea, has jurisdiction as the place in which the
harmful event occurred, in accordance with Council Regulation 44/2001, art. 5(3); and where the court, if the
defendant legitimately invokes the arbitration clause in those proceedings, would be obliged in principle under art.
II(3) of the New York Convention to refer the dispute to the arbitral body; see I. Meredith et al., Arbitration Alert, K &
L Gates Newsletters & Alerts (2008), available at <www.klgates.com/newsstand/Detail.aspx?publication=4874>.
141
142
Opinion of Advocate General Kokkot in West Tankers, supra note 136, paras. 27, 28, 30; Pribetic, supra note
135.
143
144
principle broadens the scope of the lis pendens doctrine and precludes a Member State
court from circumventing or ignoring the jurisdiction of another Member State court.145
On the basis of the explanatory reports on the Brussels Convention, the case law of the
E.C.J. and the scope of the New York Convention,146 Advocate General Kokott argued
that not only the actual arbitration proceedings but also related proceedings before the
national courts could be excluded from the scope of Council Regulation 44/2001, and
that the question whether or not proceedings fall within the scope of the Council Reg-
ulation must be determined by the substantive subject matter of the dispute.147 Advocate
General Kokott also stated that, even if the view was taken that the issue fell within the
ambit of arbitration as a preliminary issue, it could not change the classification of the
proceedings for the purpose of Council Regulation 44/2001. Advocate General Kokott
went on to state that, if the court were barred from ruling on such preliminary issues, a
party could avoid proceedings merely by claiming that there was an arbitration agreement
and a claimant who considered that the agreement was invalid or inapplicable would be
denied access to the national court, contrary to the principle of effective judicial protec-
tion which is a general principle of European law and one of the fundamental rights pro-
tected in the European Community.
Advocate General Kokott dismissed the argument supported by the House of Lords
that the practical reality of arbitration proceedings, as a method of resolving commercial
disputes, requires the English courts to be able to grant antisuit injunctions in support of
arbitration. Advocate General Kokott followed the syllogism that proceedings before a
national court outside the place of arbitration would result only if the parties disagreed as
to whether the arbitration clause was valid and applicable to the dispute in question, in
which case it would in fact be unclear whether there was consensus between the parties
to submit a specific dispute to arbitration. Advocate General Kokott also argued that,
conversely, if proceedings before national courts which may have jurisdiction were pre-
vented by an antisuit injunction, those courts might later refuse to recognize and enforce
the arbitral award.148
Advocate General Kokott conceded that there was a risk that the arbitral body or the
national courts at its seat, on the one hand, and the courts in another Member State
which have jurisdiction under Council Regulation 44/2001 in respect of the subject
matter of the proceedings, on the other hand, may reach divergent decisions regarding
the scope of the arbitration clause and that, consistent with the view supported by the
House of Lords, if both the arbitral body and the national court declared that they had
145
Id. para. 25.
146
147
In the dispute before the court in Italy, the insurers are claiming damages by right of subrogation for loss
caused to Erg Petroli following the collision between the ship and the jetty. The subject matter is therefore a claim in
tort, and possibly also in contract, for damages, which falls within the scope of Council Regulation 44/2001 and not
arbitration, and the existence and applicability of the arbitration clause merely constitute a preliminary issue which
the court seized must address when examining whether it has jurisdiction; see Meredith et al., supra note 140.
148
Pribetic, supra note 135, paras. 67–69.
jurisdiction, conflicting decisions on the merits could result.149 However, Advocate Gen-
eral Kokott asserted that, in case of conflict of jurisdictions between the national courts
of two Member States, Articles 27 and 28 of Council Regulation 44/2001 ensure that
there is coordination and that, given the fact that arbitration does not come within the
scope of Council Regulation 44/2001, at present no mechanism to coordinate its juris-
diction with the jurisdiction of national courts exists.150 Nonetheless, and in spite of the
above considerations, Advocate General Kokkot asserted that allowing such a measure
was undesirable, for it could impel the introduction of antisuit injunctions by other juris-
dictions as reciprocal measures.
Finally, Advocate General Kokkot expressed the opinion that a solution by way of
legislation was called for; that only the inclusion of arbitration in the scheme of Council
Regulation 44/2001 could remedy the situation and that, until then, if necessary, diver-
gent decisions would have to be accepted, although this would probably occur only in
exceptional cases.151 With regard to the argument of the House of Lords that a ruling in
the negative would impede London’s global arbitral standing, Advocate General Kokott
replied that aims of a purely economic nature cannot justify infringements of Community
law.
B. Critique of the opinion of Advocate General Kokott

Advocate General Kokott’s conclusion and dismissal of the arguments adduced by
the House of Lords regarding the practical reality of arbitration proceedings, with respect,
is not supported by coherent arguments. The reasons underlying the parties’ agreement
to refer disputes to arbitration will almost certainly be wholly undermined if one party
brings proceedings before a court of another Member State. However, to state that such
proceedings will result only if the parties disagree as to whether the arbitration clause is
valid and applicable to the dispute in question, at the very least ignores the very real risk
of bad faith. Moreover, the fact that the court should ultimately refer the matter to arbi-
tration, if it finds that the arbitration clause is indeed valid and applicable, does not cure
the harm done by the intervening lapse of time. In addition, the assertion that aims of a
purely economic nature cannot justify infringements of Community law in response to
the argument concerning competitive disadvantage, is invalid. Although, as discussed
infra, it is the author’s view that London’s eminent arbitral standing will not be detrimen-
tally affected by a negative ruling of the E.C.J., nevertheless, the House of Lords did not
in fact refer to London or to the English courts, but noted that the European Commu-
nity is engaged not only with regulating commerce between Member States but also in
competing with the rest of the world.
The above apart, it is notable that Advocate General Kokott did not address some of the
arguments cogently made by the House of Lords in its referral to the E.C.J. for a preliminary
149
Id. para. 70.
150
Id. paras. 70 –72.
151
Id. para. 73.
ruling. The House of Lords explicitly accepted that, under Council Regulation 44/2001,
the Italian court had jurisdiction to try the claim in tort, but stressed that the arbitration
clause was an agreement not to invoke that jurisdiction, and it is that agreement that the
antisuit injunction requires to be performed. Advocate General Kokott’s approach was
that any court order in any proceedings which restrains a party from invoking a jurisdic-
tion under the Council Regulation is contrary to it. The House of Lords correctly
expressed the view that such an argument ignores the practical realities of commerce. In
addition, the House of Lords, in explicitly accepting that in proceedings falling under
Council Regulation 44/2001, it is right that courts of Member States should trust each
other to apply it, also expressed the view that in cases concerning arbitration it is equally
necessary that Member States should trust the arbitrators or the court exercising supervi-
sory jurisdiction to decide whether the arbitration clause is binding and, if so, to enforce
it by orders requiring the parties to arbitrate and not litigate. Given the importance
placed by Advocate General Kokkot on the mutual trust principle, it is regrettable that
these issues were ultimately not addressed in her opinion.
V. Judgment of the E.C.J. in the WEST TANKERS Case

A. Tentative observations and anticipated implications
Following Advocate General Kokott’s opinion on September 4, 2008, it was
observed and anticipated that, should her opinion be followed by the E.C.J. in its judg-
ment, a material boost would be given to a number of seats of arbitration outside the
Member States of the European Union. However, this would not necessarily have put
London in a position where it would suffer a severe detriment as an arbitral seat.
The judgment of the E.C.J. was rendered on February 10, 2009; however, the full
implications in terms of the effect upon arbitration across Member States will not be
known for a long time. Equally, more time will be needed in order to assess the extent
to which Advocate General Kokott’s approach and the E.C.J.’s judgment will impact on
the drafting of arbitration clauses.152
B. E.C.J. judgment in the WEST TANKERS case

On February 10, 2009, the E.C.J. delivered its judgment in West Tankers.153 The issue,
in the words of the Court, was whether it was incompatible with Council Regulation
44/2001 for a court of a Member State to make an order to restrain a person from com-
mencing or continuing proceedings before the courts of another Member State on the
ground that such proceedings would be contrary to an arbitration agreement, even
though Article 1(2)(d) of Council Regulation 44/2001 excludes arbitration from its
152
Meredith et al., supra note 140.
153
Case C-185/07, Allianz S.p.A. (formerly Riunione Adriatica di Sicurtà S.p.A.), Generali Assicurazioni Gen-
erali S.p.A. v. West Tankers Inc., Judgment of February 10, 2009.
scope.154 The E.C.J. answered that it is incompatible with the Council Regulation for a
court of a Member State to make an order restraining a person from commencing or
continuing proceedings before the courts of another Member State on the ground that
such proceedings would be contrary to an arbitration agreement.
In order to reach this conclusion, the E.C.J. offered a two-stage reasoning: first, that
Council Regulation 44/2001 applied; and secondly, that the Council Regulation
excludes antisuit injunctions.155
In particular, the E.C.J. noted that even though proceedings such as those in the
main proceedings, which led to the making of an antisuit injunction, cannot come
within the scope of the Council Regulation,156 they may nevertheless have consequences
which undermine its effectiveness, namely, preventing the attainment of the objectives of
unification of the rules of conflict of jurisdiction in civil and commercial matters and the
free movement of decisions in those matters, and that this is so, inter alia, where such
proceedings prevent a court of another Member State from exercising the jurisdiction
conferred on it by Council Regulation 44/2001.157 Thus, the Court noted that it would
be appropriate to consider whether the proceedings brought by Allianz and Generali
against West Tankers before the Tribunale di Siracusa themselves come within the scope
of the Council Regulation and then to ascertain the effects of the antisuit injunction on
those proceedings.158 The Court found159 that if the subject matter of the dispute, that is,
the nature of the rights to be protected in proceedings, such as a claim for damages, fall
within the scope of the Council Regulation, a preliminary issue concerning the applica-
bility of an arbitration agreement, including in particular its validity, also comes within its
scope of application.160 The Court stated that the objection of lack of jurisdiction raised
by West Tankers before the Tribunale di Siracusa on the basis of the existence of an arbi-
tration agreement, including the question of the validity of that agreement, came within
the scope of the Council Regulation and that it was therefore exclusively for that court
to rule on that objection and on its own jurisdiction, pursuant to Articles 1(2)(d) and 5(3)
of Council Regulation 44/2001.161
Clearly, since the E.C.J. found that the Council Regulation was applicable, it is
expected that, in the light of Turner,162 it would disallow antisuit injunctions.163 The E.C.J.
154
Allianz S.p.A. v. West Tankers, supra note 153, para. 19.
155
See G. Cuniberti, ECJ Judgment in West Tankers, Conflict of Laws Net 10/02/2009, available at
<www.conflictoflaws.net>.
156
157
Id. para. 24.
158
Id. para. 25.
159
Id. para. 26.
160
The court stated that this finding is supported by para. 35 of the Evrigenis-Kerameus Report on the Accession
of the Hellenic Republic to the Convention of September 27, 1968 on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters, 1978 O.J. (L 304) 36, which stated that the verification, as an incidental
question, of the validity of an arbitration agreement which is cited by a litigant in order to contest the jurisdiction
of the court before which he is being sued pursuant to the Brussels Convention, must be considered as falling
within its scope. See Allianz S.p.A. v. West Tankers, supra note 153, s. 26; see Cuniberti, supra note 155.
161
162
163
Cuniberti, supra note 155.
stated that the use of an antisuit injunction to prevent a court of a Member State, which
normally has jurisdiction to resolve a dispute under Article 5(3) of Council Regulation
44/2001, from ruling, in accordance with Article 1(2)(d), on the very applicability of the
Council Regulation to the dispute brought before it necessarily amounts to stripping that
court of the power to rule on its own jurisdiction under the Council Regulation.164 It
also stated that it followed that an antisuit injunction, such as that in the main proceedings,
was contrary to the general principle which emerged from the case law of the E.C.J., that
every court has jurisdiction to resolve the dispute before it165 and that in obstructing the
court of another Member State in the exercise of the powers conferred on it by Council
Regulation 44/2001, namely to decide, on the basis of the rules defining the material
scope of that Regulation, including Article 1(2)(d) thereof, whether that Regulation was
applicable, such an antisuit injunction also runs counter to the mutual trust principle (i.e.,
the mutual trust which the Member States accord to one another’s legal systems and
judicial institutions and on which the system of jurisdiction under Council Regulation
44/2001 is based.)166 Further, if by means of an antisuit injunction, the Tribunale di
Siracusa were prevented from examining the preliminary issue of the validity or the appli-
cability of the arbitration agreement, a party could avoid the proceedings merely by rely-
ing on that agreement, and that consequently an applicant who considered that the
agreement was void, inoperative, or incapable of being performed would thus be barred
from access to the court before which it brought proceedings under Article 5(3) of
Council Regulation 44/2001 and would therefore be deprived of a form of judicial pro-
tection to which it ought to be entitled.167 Finally, it concluded that all the above lead to
the conclusion that establishment of antisuit injunctions are incompatible with Council
Regulation 44/2001.168
C. Critique on the E.C.J. judgment in the WEST TANKERS case

In assessing the E.C.J. judgment in West Tankers,169 the author believes that the
E.C.J.’s decision to disregard the arguments of the House of Lords regarding the practical
reality of arbitration proceedings undermines the right of parties to refer their disputes to
arbitration. The statement that (a) the issuing of the said antisuit injunction would have
consequences which undermine the effectiveness of Council Regulation 44/2001,
namely preventing the attainment of the objectives of unification of the rules of conflict
of jurisdiction in civil and commercial matters and the free movement of decisions in
those matters; (b) the use of an antisuit injunction to prevent a court of a Member State,
164
Allianz S.p.A. v. West Tankers, supra note 153, para. 28; see Cuniberti, supra note 155.
165
See, to that effect, Erich Gasser, supra note 39, paras. 48–49. See Allianz S.p.A. v. West Tankers, supra note 153,
para. 29; see Cuniberti, supra note 155.
166
Turner, supra note 42, para. 24; see Allianz S.p.A. v. West Tankers, supra note 153, para. 30; see Cuniberti, supra
note 155.
167
168
169
Allianz S.p.A. v. West Tankers, supra note 153.
which normally has jurisdiction to resolve a dispute under Article 5(3) of Council Reg-
ulation 44/2001, from ruling, in accordance with Article 1(2)(d), on the very applicabil-
ity of the Council Regulation to the dispute brought before it amounts to stripping that
court of the power to rule on its own jurisdiction under the Regulation;170 and (c) this
also undermines the mutual trust principle embodied in Council Regulation 44/2001,
are all arguments that avoid the practical necessities that antisuit injunctions are called to
serve.
This view and criticism apart, the author believes that London’s position as a
pre-eminent arbitral seat will not be detrimentally affected by the E.C.J. ruling171 for the
reasons elaborated infra.
VI. Impact of the WEST TANKERS Case on London as an Arbitral Venue

The E.C.J. answered the preliminary question posed to it in West Tankers172 in
the negative.
The author believes that the E.C.J. judgment in West Tankers173 will not necessarily
position London negatively as an arbitral venue.While there may be some negative effect,
there is no reason why London should suffer a detrimental blow in its continued ranking
as one of the most popular arbitral venues in the world.
First, nowhere has it been established that parties, in choosing an arbitral seat, con-
sider whether the supervisory courts of that arbitral seat are able to issue antisuit injunc-
tions. Secondly, the other European continental law arbitral venues, such as Paris,Vienna,
Stockholm, or Zurich, also have established tradition of granting antisuit injunctions.
If their popularity as an arbitral venue is not affected there is no reason to think why
London’s popularity should be affected. Thirdly, even if London’s popularity declines,
any possible negative effect will only apply as far as arbitrations involving EU states are
concerned. Fourthly, the interest of one state within the European Union to attract
arbitration business cannot justify interference with Council Regulation 44/2001 and,
therefore, antisuit injunctions are not necessary to establish a leading position as an arbi-
tral seat.174 Parties choose to arbitrate in London because of the long tradition of English
law in this sector and not merely because of the greater chance of securing antisuit
injunctions in this forum. Admittedly, common law lawyers might at first glance think
hard about going to a jurisdiction where the arbitration could be thwarted by spurious
foreign proceedings, and many might argue that jurisdictions like Singapore and Hong
170
Id. s. 28; see Cuniberti, supra note 155.
171
172
173
174
Steinbrueck, supra note 56, at 372; this is further illustrated in the French decision of the Cour d’Appel Paris,
March 29, 2001, Revue de l’Arbitrage 427, 436 (2001) and in the decision of the French Cour de Cassation in État
d’Israël v. Société NIOC, Cass. Civ. 1re, February 1, 2005, Revue de l’Arbitrage 693 (2005), whereby the French
courts appointed an arbitrator for arbitration proceedings between an Iranian national oil company and the State of
Israel in order to prevent a denial of “arbitral justice,” although there was neither a French arbitral seat nor did French
law apply to the arbitration.
Kong, which are positioning themselves to become important international arbitral cen-
tres, will see the judgment as a “gift” offered to them. However, one should not forget
all of the counter-arguments stated supra, such as, for example, the fact that the judgment
only affects EU cases, or the fact that it has nowhere been established that parties, in
choosing an arbitral seat, consider whether the courts of that arbitral seat are able to grant
antisuit injunctions.
For all these reasons, the E.C.J. judgment in West Tankers175 is highly unlikely to
diminish London’s position as an arbitration venue.176
VII. Conclusion
In the common law systems, antisuit injunctions are positively perceived. Both in
the United Kingdom and the United States, their granting in support of arbitration pro-
ceedings is a measure employed to halt judicial proceedings brought in breach of a valid
agreement to arbitrate. In England, the trend is to favour the prevalence of individual jus-
tice and grant antisuit injunctions in support of arbitration proceedings, not least because
they are largely seen as a basic element of the supervisory jurisdiction of the courts. In
the United States, the mere existence of a judicial split among the Circuits, and the tak-
ing into account of comity principles and other considerations, underscore the general
presumption in favour of antisuit injunctions and compelling defendants to obey them,
whilst accepting that they should only be permitted where res judicata bars the foreign
proceeding, or where foreign litigation threatens public policy or the court’s jurisdiction.
This reluctance, at least where the approach of the conservative Circuits is concerned,
highlights a difference to the position followed in England and argues for a new consid-
eration of the function of antisuit injunctions.
In Europe, the judicial trend followed by the E.C.J. has enabled a pro-litigation type
of forum shopping, which bypasses well-established common law concepts and takes
away certain effective remedies traditionally used to prohibit abusive behaviour.
The real question, therefore, comes down to what will be considered more impor-
tant and, thus, prevail, that is, the institutional value of harmony between courts or the
personal value of justice in the individual case.
Admittedly, antisuit injunctions do not necessarily represent a cure-all mechanism.
At the same time, however, no other clear alternative exists. In the light of the above,
should their continued grant be seen as a step towards enhancing the unification of the
conflict of laws and promoting the role of private international law? From a continental
law point of view, the institutional value of harmony between courts seems to be prevail-
ing. From a common law point of view, individual justice dominates. However, antisuit
injunctions should not be perceived as discouraging the harmonization and unification of
private international law, nor as violating any specific provisions of Council Regulation
175
176
Steinbrueck, supra note 56, at 372.
44/2001. Their continued use should, therefore, be seen as a way for England to continue
to assert the unique qualities and distinctive features of its legal system.177 In reconsidering
the function and use of antisuit injunctions, the author also examines how the E.C.J.
judgment in West Tankers ties up with arbitration law principles. What about “komptenz-
kompetenz”? Although the New York Convention is cited in support of the E.C.J.’s
judgment, the latter can also be seen as running counter to the New York Convention
insofar as it permits arbitrations to be delayed while they are embroiled in labyrinthine
legal processes of the state courts.178 The answer to the question about the future of
antisuit injunctions will be determined according to which of the two abovementioned
parameters, that is, the institutional value of harmony between courts or the personal
value of justice in the individual case, will prevail, in conjunction with the assessment of
other parameters such as practical and market realities and necessities.
Long before the E.C.J. judgment in West Tankers,179 it had been argued that such a
ruling, to the negative as to the issuing of antisuit injunctions, would mark the end of an
era where a previously tested strong and traditional mechanism was deployed to restrain
parallel court proceedings and in support of valid arbitration agreements.180 The author
concurs with this view, but contends that the E.C.J. judgment in West Tankers181 will not
seriously disadvantage London as an arbitral venue.
177
I. Nurmella, Sanctity of Dispute Resolution Clauses: Strategic Coherence of the Brussels System, 1(1) J. Private Int’l
L. 115, 144 (2005).
178
The judgment supported the continental law point of view whereby the institutional value of harmony
between courts prevails over the dominance of individual justice.
179
180
Truhktanov, supra note 6, at 138.
181

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Journal of International Arbitration 26(3): 311–336, 2009.

© 2009 Kluwer Law International. Printed in The Netherlands.

Antisuit Injunctions and Arbitration Proceedings:

Dr. Kyriaki Noussia*

II. Antisuit Injunctions in Support of Arbitration Proceedings

A. Position in the United States

B. Approach of the E.C.J.

according to the existence or otherwise of a preliminary issue which could be raised at

C. Position in the United Kingdom

2. Approach of the English Courts in West Tankers

III. Scope of Council Regulation 44/2001 and Interpretation of

IV. Opinion of the Advocate General in the WEST TANKERS Case

A. Opinion of Advocate General Kokott

B. Critique of the opinion of Advocate General Kokott

V. Judgment of the E.C.J. in the WEST TANKERS Case

B. E.C.J. judgment in the WEST TANKERS case

C. Critique on the E.C.J. judgment in the WEST TANKERS case

VI. Impact of the WEST TANKERS Case on London as an Arbitral Venue

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