The Supreme Court has confirmed in Ust-Kamenogorsk Hydropower Plant JSC (JSC) v AES Ust-Kamenogorsk Hydropower Plant LLP  UKSC 35 that English courts may order an injunction to stay foreign proceedings which have been started in breach of an arbitration agreement, even where no arbitration proceedings are proposed or underway.
The defendant sought the injunction to preserve its arbitration agreement with the claimant, by preventing the claimant from pursuing legal proceedings in the courts of Kazakhstan. However, the defendant did not intend to commence arbitral proceedings pursuant to the arbitration clause in its concession agreement with the claimant. Unanimously upholding the Court of Appeal’s 2011 judgment, the Supreme Court held that its power to order an anti-suit injunction in this case derived from section 37 Senior Courts Act 1981 (which empowers it to grant an injunction “in all cases in which it appears to the court to be just and convenient to do so”), rather than the more narrowly defined powers in section 44 Arbitration Act 1996 (which only applies to injunctions “for the purposes of and in relation to arbitral proceedings”), as no arbitral proceedings were proposed.
Click here and here to see our earlier blogs on the High Court and Court of Appeal decisions in this case, in which the facts of this case are outlined in full. Please click here for our article on the Court of Appeal decision.
Please note that injunctive relief in the present case was granted over proceedings in Kazakhstan. It remains the case that injunctions to stay foreign proceedings commenced or pursued within the European Union / Lugano regime, are impermissible (see our blog on the West Tankers decision governing this area by clicking here).