Since the recast Brussels Regulation 1215/2012 came into force on 10th January 2015, it is now possible to bring proceedings before the courts of an EU country even though the courts of another Member State have been first seised, if those proceedings are brought “in support of arbitration” (i.e. they are started in order to obtain a declaration that there is a valid arbitration agreement between the parties). However, the recast Regulation is silent on whether an anti-suit injunction can be obtained to restrain proceedings in the court first seised.
Advocate General Wathelet issued an Opinion at the end of last year in the Court of Justice of the European Union (CJEU) “Gazprom OAO” case in which he opined that the recast Regulation overturns West Tankers (which prevented Member State courts from issuing anti-suit injunctions to restrain the breach of an arbitration agreement where another Member Court is first seised) and that an anti-suit injunction in such circumstances would not be incompatible with the Regulation. That is arguably incorrect though, given that the Regulation would appear to allow for both sets of proceedings continuing before the courts of the respective Member States - although an eventual New York Convention award is likely to have primacy over the judgment of the EU court first seised which finds that there is no valid arbitration agreement.
The CJEU has now delivered its judgment in the “Gazprom OAO” case. Unfortunately, it does not resolve the issue mentioned above since the decision is based on Regulation 44/2001 rather than the recast Regulation. It was held that Regulation 44/2001 does not preclude a Member State’s courts from recognising and enforcing (or refusing to recognise and enforce) an arbitral award obtained from a tribunal in another Member State which prohibits a party from bringing certain claims before it.
In effect, therefore, this decision confirms that an anti-suit injunction can be obtained from the arbitrators to restrain proceedings brought in a Member State in breach of the arbitration agreement, assuming that the arbitrators have the power to grant the injunction. However, it does not resolve the problem that that Member State’s courts may still refuse to recognise and enforce the arbitral anti-suit injunction. Nor does it resolve the wider issue of whether the courts of a Member State might also grant an anti-suit injunction under the recast Regulation, the penalties for the breach of a court injunction being potentially more serious for a litigant than the breach of an injunction obtained from arbitrators, which can only be enforced by an order from the supervisory court.