In AES Ust-Kamenogorsk Hydropwer Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2010] EWHC 722 (Comm) the High Court ruled that it had jurisdiction to grant declarations and continue an anti-suit injunction to protect an arbitration clause in a contract between two Kazakhstani companies, AES Ust-Kamenogorsk Hydropwer Plant LLP (AESUK) and Ust-Kamenogorsk Hydropower Plant JSC (JSC).

Pursuant to a complex series of contracts (the detail of which was not relevant to the case) JSC was effectively the owner and grantor of a 20 year concession to operate a hydroelectric plant in Kazakhstan and AESUK was the grantee and lessee of said concession. During the course of the concession, various disputes arose between the parties, principally relating to an alleged failure by AESUK to comply with requests by JSC for information regarding the value of the concession.

This resulted in JSC bringing proceedings in the Kazakhstan courts, which AESUK disputed on the grounds of the existence of an English arbitration clause in the concession agreement. AESUK was unsuccessful in its opposition to the claims in Kazakhstan and so obtained an ex parte anti-suit injunction in England. It then applied in the present proceedings for declarations that the arbitration clause was valid, that the dispute regarding the supply of information fell within the clause and that the anti-suit injunction ought to be continued pursuant to either s44 of the Arbitration Act 1996 (which gives the court powers to make orders in support of arbitrations on the application of a party or proposed party to the arbitration), or s37 of the Superior Courts Act 1981 (which gives the court general powers to grant injunctions). JSC argued, inter alia, that the English courts did not have jurisdiction to grant an injunction as it was not permissible to rely on either statute referred to above. There was, therefore, no arbitration claim which could have formed the basis of an application to serve an arbitration claim form out of the jurisdiction under CPR 62 and the claim did not fall within any of the jurisdictional "gateways" in CPR 62.5.

Mr Justice Burton held that AESUK could not rely on s44 Arbitration Act 1996 and could not, therefore, rely on the jurisdictional gateway contained in CPR 62.5(1)(b). Section 44 could only apply if there were actual or intended arbitration proceedings, which there were not in the present case, as AESUK did not intend to commence any proceedings, it merely wished to ensure that any proceedings brought against it would be brought by way of arbitration in England. However, s37 Superior Courts Act 1981 was wider than s44, and there was no reason why it could not be relied upon. It was not necessary for an application under s37 to be parasitic on a separate cause of action; the cause of action in this case was simply the enforcement of the arbitration clause. The gateway in CPR 62.5(1)(c) could therefore be used, even where there was no actual or intended arbitration proceedings, provided that the claimant in question was relying on a contractual right not be sued in a foreign country. The anti-suit injunction was therefore upheld. Burton J was careful to point out, however, that care should always be taken not to oust the arbitral jurisdiction in circumstances such as these.

Burton J went on to hold that any dispute as to the jurisdiction of the arbitrators over the claim or the applicability of the arbitration clause could be properly dealt with by the arbitrators in any future arbitration between the parties.

This case shows that it will not always be necessary for a party to have commenced arbitration proceedings before it turns to the English courts for declaratory or injunctive relief. However, it is likely this will only apply where the party seeking the anti-suit injunction is the defendant in the proposed action, and is not seeking to commence an arbitration, but is simply seeking to ensure that any action against it is taken in arbitration in England rather than elsewhere.