In September 2008 we reported on the advisory opinion of the Advocate General of the European Court of Justice (ECJ) in Allianz SpA v West Tankers regarding the English courts' ability to issue anti-suit injunctions in support of arbitration agreements. The Advocate General stated that it was incompatible with EC regulation 44/2001 (Regulation) for a court of a Member State to injunct a person from commencing or continuing proceedings in another Member State on the ground that it would be contrary to an arbitration agreement. The English courts have consistently held that such injunctions are not incompatible with the Regulation.
The ECJ has now issued its decision agreeing with the Advocate General. West Tankers concerned rival proceedings in London, an arbitration per a London arbitration agreement in a charterparty, and in Italy, court proceedings commenced where the collision causing the claim had occurred. The ECJ ruled that although the Regulation does not apply to arbitration, a preliminary issue as to the applicability of an arbitration agreement does fall within the scope of the Regulation if the subject matter of the dispute, e.g. a claim for damages, falls within the Regulation. The ECJ also found that an anti-suit injunction runs counter to the trust that the courts of Member States accord to one another's legal systems.
Whilst this decision should not affect the ability of the English courts to issue anti-suit injunctions restraining proceedings outside the EU, they will not now be able to prevent rival proceedings being commenced in EU courts on the ground that such proceedings run contrary to an arbitration clause. It will remain to be seen how this affects London as an arbitration centre and parties seeking certainty in the way their disputes will be dealt with.