In a recent decision, the French Cour de Cassation clarified its attitude to anti-suit injunctions issued by the courts of non-European states. It held that an anti-suit injunction issued to prevent the breach of a choice of jurisdiction clause did not contravene French international public policy. This contrasts with the position taken by the ECJ in West Tankers (Allianz SpA v West Tankers Inc (Case C-185/07)), in relation to anti-suit injunctions brought in breach of an arbitration agreement.
In the present matter, the American respondent had entered a distribution contract with the French applicant to distribute drinks in Europe. The contract submitted disputes to the jurisdiction of the courts of the state of Georgia. When the contract was terminated by the respondent, the applicant brought proceedings before the French Courts. The respondent commenced parallel proceedings before the Georgian Superior Court. On the basis of the jurisdiction clause, the Georgian Superior Court issued an anti-suit injunction enjoining the French company from proceeding before the French courts and issued a default judgment ordering the applicant to pay a sum of money to the respondent. The respondent sought recognition and enforcement of the Superior Court's decision in France, which was granted by the Versailles Court of Appeal.
The applicant appealed to the Cour de Cassation against the decision of the Versailles Court of Appeal, arguing that the Superior Court's anti-suit injunction was contrary to French international public policy, and that enforcement of the default judgment should be denied. The Cour de Cassation found that the respondent was fully entitled to invoke the choice of jurisdiction clause, a contractual provision that the parties had freely agreed to. Moreover, it held that the Superior Court's anti-suit injunction, which fell outside the field of application of the EU law, was not contrary to French international public policy as its sole purpose was to prevent "the breach of a pre-existing contractual obligation".
Whether a similar approach will be taken to anti-suit injunctions issued in support of arbitration agreements remains to be seen. Had the anti-suit injunction in this matter not been issued to prevent such a manifest breach of a jurisdiction agreement, it is possible that the French Courts, which are unable to issue anti-suit injunctions, may not have shown such deference to the Georgian Superior Court. Nevertheless, the approach of the Cour de Cassation is markedly different from that taken by the ECJ in West Tankers and may breathe some life into a useful tool for ensuring compliance with arbitration agreements.
(Cass. Civ. 1re, 14 oct. 2009, n° 08-16.369 et 08-16.549)