West Tankers v. RAS
Stephen Males QC and Sara Masters (instructed by MFB) for the Appellants, RAS
Timothy Brenton QC and David Bailey QC (instructed by Ince & Co) for the Respondents, West Tankers
ANTI-SUIT INJUNCTIONS: WHETHER ENGLISH COURT CAN ISSUE ORDER TO DISCONTINUE EC MEMBER STATE COURT PROCEEDINGS: CHARTERPARTY: LONDON ARBITRATION CLAUSE: INSURERS’ SUBROGATED RIGHTS: EC REGULATION 44/2001, REGS. 1(2)(D), 5(3): SUPREME COURT ACT 1981, S. 37(1)
The House of Lords considered whether a court of a European Community ("EC") Member State could grant an injunction against a person bound by an arbitration agreement to restrain him from commencing or prosecuting proceedings in breach of that agreement in the court of another EC Member State which has jurisdiction to hear the proceedings under EC Regulation 44/2001 ("the Regulation"). Under the Regulation, subject to certain exceptions, a defendant can only be sued in his state of domicile. The House of Lords considered the facts of the case against the background of the decisions in Gasser v MISAT1 and Turner v Grovit2 and concluded that it was necessary to refer the question to the European Court of Justice. Their Lordships made clear, however, that they strongly favoured the continued availability of anti-suit injunctions as a protection for those who have entered into arbitration agreements.
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This case note is based on an Article in the April 2007 Edition of the ‘Shipping Offshore and Transport Bulletin’, published by the international firm of lawyers,DLA Piper. DLA Piper is an International Contributor to this website.
Tankers consequently began English Court proceedings against the insurers, seeking declarations that the Italian case arose out of the charter and that the insurers claiming via subrogation were therefore bound by the London arbitration clause in the charter. Tankers also sought an injunction to stop the insurers taking any further steps other than in arbitration and to get them to discontinue the Italian proceedings.
Gasser GmbH v MISAT Srl1 (which decided that a court of a Member State on which exclusive jurisdiction had been conferred pursuant to article 23 cannot issue an injunction to restrain a party from prosecuting proceedings before a court of another Member State if that court was first seised of the dispute) and Turner v Grovit2 (which 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 the Regulation, on the ground that those proceedings have been commenced in bad faith) are both based upon the proposition that the Regulation provides a complete set of uniform rules for the allocation of jurisdiction between Member States and that the courts of each Member State have to trust the courts of other Member States to apply those rules correctly.
Arbitration, however, is wholly excluded from the scope of the Regulation. The Regulation gives priority to the defendant’s domicile and that approach is unsuited to arbitration in which the parties will normally have chosen the seat and governing law on grounds of neutrality, availability of legal services and the unobtrusive effectiveness of the supervising jurisdiction.
It is settled law that the arbitration exclusion from the Regulation also applies to court proceedings in which the subject-matter is arbitration. Where, as in this case, proceedings are brought to protect the contractual right to have a dispute dealt with by arbitration, they fall outside the scope of the Regulation and cannot be challenged for being inconsistent with its provisions. To extend the application of the Regulation to orders made in proceedings in which it does not apply, such as arbitration or arbitration-related proceedings, goes beyond the reasoning in Gasser v MISAT and Turner v Grovit.
The House of Lords also observed that commercial people who choose arbitration do so to be outside the jurisdiction of any court rather than to choose one court over another, often for reasons of privacy, informality, absence of delay through appeal or application by the arbitrators of a more commercially-minded approach to legal issues. Arbitration, however, needs the support of the national courts and this has often been through the court's ability to restrain foreign court proceedings and thereby reduce the risk of conflict between an arbitration award and the judgment of a national court. Finally, the Court pointed out that the European Community competes with other jurisdictions to offer a seat of arbitration capable of making orders to restrain parties from acting in breach of arbitration agreements and so should not risk losing its competitive edge by stopping its courts from making orders of this kind.
In the light of these observations, the House of Lords referred to the European Court of Justice the question whether it was inconsistent with the Regulation to restrain a person from commencing proceedings in one EC Member State on the ground that such proceedings are in breach of an arbitration agreement.
1 Case C-116/02)
 ECR I-14693
To a certain extent, the Regulation and the related decisions in Gasser v MISAT and Turner v Grovit have eroded the application of anti-suit injunctions in EC Member States, but, so far at least, that erosion has not extended to their efficacy in the context of arbitration. In that way, commercial parties can still enter into London arbitration agreements, particularly in conjunction with English governing law provisions, safe in the knowledge that an attempt to circumvent such agreements by reference to courts of other jurisdiction will not be welcomed by the English Court.
If the parties wish to ensure that any dispute likely to arise in the EU is heard in London, a London arbitration clause is likely to be more effective for that purpose than an exclusive jurisdiction clause in favour of the English High Court.
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