In Allianz SpA and another v West Tankers Inc / West Tankers Inc v RAS Riunione Adriatica di Sicurta SpA and another (Case C-185/07) – Butterworths Law Direct 11.2.09 (better known as the Front Comor) the Court of Justice of the European Communities (Grand Chamber) has this month given its long-awaited judgment on the applicability of the Brussels Regulation to arbitration proceedings in the context of anti-suit injunctions.
The question referred was whether it was consistent with the Regulation for a court of a member state to make an order to restrain a person from commencing or continuing proceedings in another member state on the ground that such proceedings were in breach of an arbitration agreement.
The Court of Justice of the European Communities held that although proceedings, such as those in the instant case, which led to the making of an anti-suit injunction, did not come within the scope of the Regulation, they might nevertheless have consequences which undermined 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.
The ECJ held that the subject matter of the dispute in this case, ie a claim for damages, meant that those proceedings came with the scope of the Regulation. A preliminary issue concerning the applicability of an arbitration agreement, including in particular its validity, also came within its scope of application. Accordingly, the use of an anti-suit injunction to prevent a court of a member state, which normally had jurisdiction to resolve a dispute under art 5(3) of the Regulation, from ruling, in accordance with art 1(2)(d) of the Regulation, on the very applicability of the Regulation to the dispute brought before it necessarily amounted to stripping that court of the power to rule on its jurisdiction under the Regulation.
It followed that an anti-suit injunction, such as that in the main proceedings, was contrary to the general principle which emerged from the case law of the Court on the Brussels Convention, namely that every court seised itself determined, under the rules applicable to it, whether it had jurisdiction to resolve the dispute before it. That jurisdiction was determined directly by the rules laid down by that Regulation, including those relating to its scope of application. In no case was a court of one member state in a better position to determine whether the court of another member state had jurisdiction.