In Gazprom OAO (Case 536/13) the Advocate General (AG) has recently opined on whether a court may refuse to recognise and enforce an arbitral award on the basis that it restricts that court’s right to determine its own jurisdiction under the recast Brussels Regulation (1215/2012/EC). In the course of his opinion the AG made a number of comments on the recognition and enforcement of anti-suit injunctions, particularly in light of the recast Brussels Regulation.
The question which was referred to the Court of Justice of the European Union (“CJEU”) was:
“Where an arbitral tribunal issues an anti-suit injunction, does the court of an EU member state have the right to refuse to recognise the award because it restricts the court’s right to determine whether it has jurisdiction to hear the case under the rules on jurisdiction in the Brussels Regulation?”
The AG drew parallels with the West Tankers case on the basis that, like an anti-suit injunction, an arbitral award which seeks to restrain proceedings in another member state undermines that court’s ability to determine its own jurisdiction. However, the AG then went on to consider the recast Brussels Regulation. He considered that, although the courts were not required to apply the recast regulation until 10 January 2015, and then only to proceedings or other relevant matters instituted on or after that date, recital 12 of the recast Brussels Regulation explains how the previous Brussels Regulation should have been interpreted.
The AG considered that had West Tankers been brought under the recast Brussels Regulation, the anti-suit injunction would not have been held incompatible with that Regulation. This therefore led the AG to the conclusion that both anti-suit injunctions and injunctions issued by arbitral Tribunals are also compatible with the previous Brussels Regulation.
This is the first official indication of how national courts ought to treat anti-suit injunctions issued by arbitral tribunals and the AG’s opinion may have significant implications for the decision in Allianz SpA and Generali Assicurazioni Generali SpA v West Tankers Inc; however, it remains to be seen whether the European Court of Justice (ECJ) will follow his approach.
For more information, see the recent article by Julianne Hughes-Jennett and Sarah Baddeley, which has been published in GAR here.