The long awaited ECJ judgment in the case of West Tankers (the Front Comor) has been handed down. As many commentators expected, it follows the opinion given by the Advocate-General in September 2008. Anti-suit injunctions in support of arbitration agreements are held to be incompatible with the Brussels Regulation No. 44/2001.
Anti-suit injunctions are a distinctive feature of the English and common law tradition. They are used by the English courts to restrain parties from commencing or continuing proceedings overseas in breach of a court or arbitration jurisdiction agreement. Following a series of cases relating to the Brussels Regulation No. 44/2001, anti-suit injunctions have not been available in relation to European court cases for several years. Until today's decision it was argued that the regulation did not apply to arbitration agreements because arbitration is excluded from the scope of the regulation under Article 1. This decision means that the English courts can no longer grant anti-suit injunctions to restrain a party bringing European court proceedings in breach of an arbitration agreement.
The decision will be greeted with some dismay by English arbitration practitioners who saw the availability of anti-suit injunctions as one of the distinct advantages of arbitrating in London. However this is but one amongst many factors to be considered when choosing an arbitration forum and whilst we will watch with interest the impact that this decision has on choice of seat, we anticipate that in practice London will continue to be one of the world's leading arbitration centres.