The AG Opinion in West Tankers


Advocate General Kokott’s Opinion in Allianz SpA (formerly Riunione Adriatica Di Sicurta SpA) and Others v West Tankers Inc. is out, and the House of Lords (and most common law practitioners) are not going to find it a pleasurable read.

The question, you will remember, is whether anti-suit injunctions to give effect to arbitration agreements are compatible with the Brussels I Regulation (No 44/2001), in the wake of the ECJ decisions in Gasser and Turner. The door had been closed on issuing injunctions restraining legal proceedings in other Member States, except (as was quickly pointed out in London) perhaps where that injunction was granted in order to uphold an agreement to arbitrate. Article 1(2)(d) of the Brussels I Regulation does, after all, provide that the Regulation shall not apply to arbitration.

The reference by the House of Lords also cited (among other things) the practical effect that a negative answer would have on arbitration in London; if injunctions were no longer to be part of the judicial arsenal, then London’s popularity as an arbitral seat would significantly diminish. Parties would simply choose New York, Singapore, or other arbitration centres, where injunctions could still be issued.

The exclusion argument under 1(2)(d) is given short shrift by AG Kokott:

56. Every court seised is therefore entitled, under the New York Convention, before referring the parties to arbitration to examine those three conditions. It cannot be inferred from the Convention that that entitlement is reserved solely to the arbitral body or the national courts at its seat. As the exclusion of arbitration from the scope of Regulation No 44/2001 serves the purpose of not impairing the application of the New York Convention, the limitation on the scope of the Regulation also need not go beyond what is provided for under that Convention.

In its judgment in Gasser the Court recognised that a court second seised should not anticipate the examination as to jurisdiction by the court first seised in respect of the same subject-matter, even if it is claimed that there is an agreement conferring jurisdiction in favour of the court second seised. () As the Commission correctly explains, from that may be deduced the general principle that every court is entitled to examine its own jurisdiction (doctrine of Kompetenz-Kompetenz). The claim that there is a derogating agreement between the parties – in that case an agreement conferring jurisdiction, here an arbitration agreement – cannot remove that entitlement from the court seised.

That includes the right to examine the validity and scope of the agreement put forward as a preliminary issue. If the court were barred from ruling on such preliminary issues, a party could avoid proceedings merely by claiming that there was an arbitration agreement. At the same time a claimant who has brought the matter before the court because he considers that the agreement is invalid or inapplicable would be denied access to the national court. That would be contrary to the principle of effective judicial protection which, according to settled case-law, is a general principle of Community law and one of the fundamental rights protected in the Community. ()

There is no indication otherwise in Van Uden. In that case the Court had to give a ruling regarding jurisdiction in respect of interim measures in a case which had been referred to arbitration in the main proceedings. In that context the Court stated that, where the parties have excluded the jurisdiction of the courts in a dispute arising under a contract and have referred that dispute to arbitration, there are no courts of any State that have jurisdiction as to the substance of the case for the purposes of the Brussels Convention. ()

That statement is certainly correct. The justification for the exclusive jurisdiction of the arbitral body specifically requires, however, an effective arbitration agreement covering the subject-matter concerned. It cannot be inferred from the judgment in Van Uden that examination of preliminary issues relating thereto is removed from the national courts.

It is also not obvious why such examination should be reserved to the arbitral body alone, as its jurisdiction depends on the effectiveness and scope of the arbitration agreement in just the same way as the jurisdiction of the court in the other Member State. The fact that the law of the arbitral seat has been chosen as the law applicable to the contract cannot confer on the arbitral body an exclusive right to examine the arbitration clause. The court in the other Member State – here the court in Syracuse – is in principle in a position to apply foreign law, which is indeed often the case under private international law.

Finally it should be emphasised that a legal relationship does not fall outside the scope of Regulation No 44/2001 simply because the parties have entered into an arbitration agreement. Rather the Regulation becomes applicable if the substantive subject-matter is covered by it. The preliminary issue to be addressed by the court seised as to whether it lacks jurisdiction because of an arbitration clause and must refer the dispute to arbitration in application of the New York Convention is a separate issue. An anti-suit injunction which restrains a party in that situation from commencing or continuing proceedings before the national court of a Member State interferes with proceedings which fall within the scope of the Regulation.

The Advocate General found the House of Lords’ practical arguments similarly unconvincing. The comparison with other arbitration centres such as New York and Bermuda was rebuffed with, “To begin with it must be stated that aims of a purely economic nature cannot justify infringements of Community law.” The point Lord Hoffman made about individual autonomy – the parties’ choice to submit to arbitration, and not be bothered by the fuss of court proceedings – was seen as co-existing peacefully with a negative answer to the question: “proceedings before a national court outside the place of arbitration will result only if the parties disagree as to whether the arbitration clause is valid and applicable to the dispute in question. In that situation it is thus in fact unclear whether there is consensus between the parties to submit a specific dispute to arbitration.” AG Kokott does, however, go on to point out the flaw in that argument:

If it follows from the national court’s examination that the arbitration clause is valid and applicable to the dispute, the New York Convention requires a reference to arbitration. There is therefore no risk of circumvention of arbitration. It is true that the seising of the national court is an additional step in the proceedings. For the reasons set out above, however, a party which takes the view that it is not bound by the arbitration clause cannot be barred from having access to the courts having jurisdiction under Regulation No 44/2001.

One more problem was alluded to (echoing the concerns of the House of Lords): the arbitral body (and its supporting national courts) and the courts which take subject-matter jurisdiction under the Regulation may not agree on the scope or validity of the arbitration clause. Conflicting decisions then follow. The Regulation, capable of keeping the peace between two national courts when conflicting decisions arise under Arts 27 and 28, is powerless to solve the dilemma; Article 1(2)(d), you will still remember, excludes arbitration. What to do, then? Kokott concludes:

72. A unilateral anti-suit injunction is not, however, a suitable measure to rectify that situation. In particular, if other Member States were to follow the English example and also introduce anti-suit injunctions, reciprocal injunctions would ensue. Ultimately the jurisdiction which could impose higher penalties for failure to comply with the injunction would prevail.

Instead of a solution by way of such coercive measures, a solution by way of law is called for. In that respect only the inclusion of arbitration in the scheme of Regulation No 44/2001 could remedy the situation. Until then, if necessary, divergent decisions must be accepted. However it should once more be pointed out that these cases are exceptions. If an arbitration clause is clearly formulated and not open to any doubt as to its validity, the national courts have no reason not to refer the parties to the arbitral body appointed in accordance with the New York Convention.

It may come as a disappointment to common law lawyers, but the Opinion won’t really come as a surprise; the writing was on the wall post-Gasser and Turner, and it would have been extraordinary for the powers that be in Luxembourg to upset the delicate conflicts ecosystem created by those decisions (and the one in Owusu) by placing those cases involving a prima facie valid arbitration clause outside of the scope of the Regulation entirely. If you’re going to produce poor decisions, one could say, you might as well do it consistently.

Those in civil law jurisdictions may disagree that the Opinion in West Tankers represents a bad day for the business of solving disputes in London – see the articles by the Max Plank Institute, for instance. Some others, however, may begin to wonder whether the European Union’s pursuit of the hallowed principle of ‘legal certainty’ will end with the removal of any and all discretionary national court powers – indeed, the removal of common law private international law itself. The tension between common and civil law traditions is likely to continue as we proceed along the path to complete Europeanization of the conflict of laws; and at the moment, the common law is looking decidedly battered and bruised.

20 replies
  1. Adrian Briggs says:

    Oh, I don’t know: the injunction is only one way to try to make people abide by their promises, but there are others. Even if the Court were to give judgment in terms of this monotonous advice, it will not take much effort to map alternative paths. A little creative thought will circumvent this piece of dull predictability.

  2. Martin George says:

    Perhaps, although is there not a sense that anything approaching creative thinking, when it comes to any of the EU conflicts Regulations, will be swiftly quashed by the court in Luxembourg, or the legislature in Brussels?

  3. Gilles Cuniberti says:

    From a civil law perspective, the idea that London’s popularity would diminish as a consequence of the inability of its courts to issue anti-suit injunctions is counter-intuitive. Geneva and Paris have been doing just fine for quite a while, and their courts never had such power.

  4. Antonin I. Pribetic says:

    Perhaps someone has already tried either a bad faith or abuse of process argument. Given that West Tankers involved a dubious negative declaratory action in the Syracuse court (the infamous‘Italian torpedo’), another potential counter-measure is a positive declaratory action in the local court of the arbitral seat. If all else fails, one could try arguing the public policy exception under the Model Law or New York Convention at the enforcement stage.

  5. Adrian Briggs says:

    Yes, and there are plenty of others, and they don’t require you to wait till hell has frozen over and the Italian court has done the right thing. Mind you, and in response to Gilles Cuniberti, the suggestion of others that a decision in the terms proposed by this advocate general would empty the arbitration rooms of London as everyone packed their bags and headed for random foreign places, was foolish and a useless distraction from the legal analysis. None of this excuses the mandatory ‘see no evil, hear no evil, speak no evil’ policy, which dignifies its shabby self as ‘mutual trust’, but where there is a wrong, the common law can usually find a remedy.

  6. Alex Layton says:

    As the weary resignation which pervades the earlier posts suggests, the AG’s Opinion is unsurprising. Although it is rather more convincing than had perhaps been expected, what is surprising is that she has approached the question from a quite different angle from that adopted by all the parties (to whose submissions she makes scarcely any reference). I am by no means convinced that the Court will follow it (although I retain my own weary scepticism).
    To dispose of one point immediately, the AG takes the view that the arbitration exception in Art 1(2)(d) does not apply to the Syracuse proceedings – on the basis that it would be a preliminary issue not touching on the underlying dispute in those proceedings. But she has dodged the question whether the exception applies to the English anti-suit proceedings, in part by asking whether the legal relationship (rather than the proceedings) falls within the subject-matter scope of the Regulation. She offers no coherent analysis of the scope of the exception and fails to grapple with the role of pre-emptive proceedings such as these.
    The meat of the argument concerns the question whether, even if the anti-suit proceedings are themselves outside the Regulation, they nevertheless are preculded by European law (and particularly by the principle of effectiveness) as being incompatible with the Regulation. Approached in this way (as it was in the parties’ submissions), the arguments are more finely balanced than AG Kokott would allow.
    In my view, the outcome will depend on what view is taken on this latter question by those judges who think the issue through more comprehensively than the AG has done (as some of the 13 of them showed signs of doing at the hearing) and whether they carry the day in the court’s deliberations. We shall have to wait and see.

    As for Adrian’s comments: I agree that if the Court follows the AG, then creative common lawyers will find ways of mitigating the effects of the judgment; but I do not agree that the practical arguments were foolish or that they carry no weight. If the practical arguments had favoured the AG’s stance, I doubt that she would have discounted them so readily.

  7. Anteo Picello says:

    the European Community institutions did not enact Regulations, neither Directives, on international commercial arbitration. Basically, the international legislation used by the European Member States with each other is the same as the one used by the rest of the countries. The EC seems to be satisfied with the current international legislation on international commercial arbitration, since all its efforts to enact legislation on ADR are solely about out-of-court schemes, such as conciliation and mediation, excluding arbitration proceedings.

    Although the national laws of the EU Member States show some level of harmonization, they are still very different from each other. With specific provisions in each country, the domestic arbitration laws are not similar.
    the main challenge of the EC, within its territory, is to adapt alternative dispute resolution methods, including arbitration, to a Community context, in order to settle its conflicts, and therefore bringing legal safety and peace for its citizens. This safety can require minimum standards of quality, concerning arbitration proceedings. Nonetheless, minimum standards can create a clash between the basic contractual nature of arbitration and local arbitral culture. Thus, the EC must be careful to set such standards, because if arbitration proceedings begin to mimic the judicial process in its elaborate attention to safeguarding quality and rights, it may render a future decline in arbitration’s appeal as the dispute resolution mechanism of the parties’ choice.
    Setting cross-border standards regarding ADRs, and especially arbitration, is not only a European Community task, but a duty of everybody involved with arbitration proceedings. (R. Armanelli G.)

    A.P., from Bari, Italy.

  8. Adrian Briggs says:

    There has been a view, regrettably prevalent in Germany, that the injunction was first and foremost something designed to attract dispute-resolution to London. This perception was, sad to say, aided and abetted by things said in the Lords; and it provided the pretext for a reponse which said it was no proper function of the Regulation to protect the interests of the London arbitration business. If that was not a distraction, I don’t know what it was. As to the observation by Alex Layton that the A-G does not focus on the subject matter of the English proceedings, I’m not sure that’s quite right. She does appear at [48] to come close enough to accepting that the English proceedings have arbitration as their subject matter, which is useful (though the opposite could hardly have been seriously maintained). When she says that the Italian proceedings do not, she is plainly right. All this then means is that the injunction to restrain is an order which an English court may not make. That may be regrettable, but as a point it is an extremely narrow one.

  9. Alka Sood says:

    The English Anti-suit injunction would loose its effectiveness if every member started issuing it. This is the biggest shortcoming of the injunction that it cannot work in the bigger picture. The AG also gives this argument. However, there is a real problem in International Trade where parties seek the courts in breach of their contractual agreement and these problems are becoming regular. If someone is going to find the solution for it the common lawyer will. The solution might not be the Anti-suit injunction, but the common lawyer will come out with something new soon. (I totally agree with Adrian Briggs.)

  10. Mees says:

    Turner has shown that the ECJ sees the anti-suit injunction as standing too close to telling the foreign court that it cannot entertain litigation instigated in breach of a jurisdiction clause. Concepts of mutual faith and legal certainty of an individual vis-à-vis the member states override the contractual position of the person seeking the injunction towards the person breaching the contract. I may be a civil lawyer, but I am also working with contracts on a daily basis and find it outrageous that they can be breached in this manner without recourse to proper injunctions. As a consequence, I have much more sympathy for the common law position.

    For any form of new injunctory relief, to be created after Turner and the likely outcome of West Tankers, the question will always be whether that injunction does not have the effect to restrain the defendant in its “right” under the regulation to bring proceedings into any court other than the court or arbitral tribunal agreed between the parties. Because if it does have this effect, the injunction would be prohibited under the Regulation.

    One would wonder whether the agreement between the parties could allow room for relief in this type of situation. A penalty of X for every day proceedings are continued in breach of the jurisdiction clause? A separate submission to the English courts for injunctions in the event of a breach of the jurisdiction clause?

  11. Mihail Danov says:

    I have my doubts whether a Member State court could rule under the Brussels I Regulation on such a “preliminary issue” as the scope of an arbitration clause. It seems to me that the AG concept of “preliminary issue”, if adopted by the ECJ, would fly in the face Article 1(2)(d).
    Are we not talking about an application for a stay of court proceedings brought by the defendant before the Italian court on the basis of Article II of the New York Convention? Well, if that were a “preliminary issue” for the purposes of the Brussels I Regulation, then I wonder when “arbitration” would be an issue that the action is principally concerned with.
    It appears that before an arbitral award had been rendered, “arbitration” would normally arise as a “preliminary issue” in national courts. (The court proceedings would have arbitration as their subject matter in cases where an application for anti-suit injunction is brought. But, then such an injunction could not be issued ….) If that were so, then what is the point of having Article 1(2)(d)?

  12. Adrian Briggs says:

    Fair enough, but two things should not be overlooked. One, it’s only the anti-suit injunction which is proposed to be prohibited. Something like a mandatory injunction to proceed with the arbitration does not appear to be affected (though no doubt it will produce some moaning about effets utiles). But two, the person who says that he did not agree to arbitrate is not always up to no good, despite the local assumption that arbitration is so good for you that if you stray within a country mile of the alleged agreement, you should honour and obey it. The idea that A is bound by an arbitration agreement made by B will not strike everyone, in every case, as compelling (think back to those Article 17/23 cases). Given that, the right of a person to say ‘I am entitled to sue, and I did not agree to arbitrate’ ought not be rubbished; and in this case it may be that this is how it struck or will strike the Italian court. We have a different set of tools for dealing with cases in which one court says: ‘pay damages (and, by the way, you were not bound to arbitrate)’ while another says ‘as far as we can see, this should have been referred to arbitration, and the judicial order for the payment of damages ought not have been made, nd we will listen to submissions about what follows from the finding that it should not have been made’. Okay, it is not the law on injunctions which is allowed to provide the solution. A highly effective weapon has been outlawed, but this happens, and not just in law. It simply means that we will develop more effective replacements and, in the end, may come to recognise these as being rather more sophisticated than what went before.

  13. Mihail Danov says:

    I agree that the right of a person to say ‘I am entitled to sue, and I did not agree to arbitrate’ should not be rubbished. Certainly, every court should examine the conditions as set out in the New York Convention – at [54-55] (the AG opinion). However, it seems to me that the question whether A is bound by an arbitration agreement made by B is quite an important issue which goes to the heart of the court’s (the arbitral tribunal’s) jurisdiction. To provide an answer to this question, a national court should certainly go beyond a mere check of whether the conditions of Article II of the NY Convention have been satisfied. (For example, such a dispute may be quite complex, raising an issue of the law governing the arbitration agreement.) Article 1(2)(d) of the Brussels I Regulation seems to indicate that the court’s jurisdiction to hear and determine such a dispute should be derived by the Member State law, but not by the Brussels I Regulation. If my understanding were right, then the arbitration exception would have covered an anti-suit injunction as well.

  14. Anteo Picello says:

    Dont forget the landmark case judged by the European Court of Justice, the Nordsee Case, regarding a reference to that Court of preliminary ruling by an Arbitrator. Many themes have been mentioned as aspects of the right to refer, but definitely the most important is the interpretation of Article 234 (ex Article 177) of the EC Treaty, that provides in verbis:

    “Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.”

    New legislation at a European Level is needed, otherwise arbitration and litigation will end up damaged in credibility both in the UK and in the EU as a whole. Parties that today choose london would end up in New York, not in other European cities, for both legal (legal certainty) and financial (low US Dollar) reasons.
    The EU needs to face this situation seriously.

  15. Oliver L. Knoefel says:

    Yes indeed, there is “a view, regrettably prevalent in Germany” (Adrian Briggs, Comment no 8), that oh so many devices of English procedural and arbitral law are liable, if not designed, to promote London’s attraction as a center of dispute resolution. Leo terram propriam protegat… Mind you, after the high-end legal industry of Frankfurt, Hamburg and Munich has spent almost 15 years in some kind of British Overseas Territory (and has been told that this is the “internationalization of the practice of law”), the German legal profession is learning slowly, but steadily how to do the trick (see recently, and most instructive, Volker Triebel, Anwaltsblatt 2008, p. 305).

  16. John Gaffney says:

    May I offer the following thoughts on the Opinion:

    The exclusion of “arbitration” (under Article 1(4)) from the scope of Regulation 44/2001 recognizes the lack of Community competence in this area and the consequent exclusion of matters governed by international and bilateral instruments in the area, including the New York Convention and, in so far as they relate to arbitration, the treaty and conventions listed in article article 69 of the Regulation, such as not to interfere with the commitments of Member State courts under those instruments.

    Hence, in a situation contemplated and governed by Article II(3) the Convention – where the a Contracting State court, seised of an action in a matter in respect of which the parties have made an arbitration agreement is obliged, at the request of one of the parties, to refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed – the Regulation does not apply. This is recognized in Van Uden where the Court of Justice states:

    “Under Article 1, second paragraph, point 4, of the Convention, arbitration is excluded from its scope. By that provision, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts (Case C-190/89 Rich v Società Italiana Impianti [1991] ECR I-3855, paragraph 18).” [emphasis added]

    Hence, the Regulation ought not to apply to the proceedings of the type to which an anti-suit injunction in the West Tankers case was directed. (And, therefore, the Member State court seized of such proceedings cannot be regarded as first-seized for the purpose of the Regulation.) The fact that pursuant to Article II(3) the Member State court may enquire in whether arbitration agreement is null and void, inoperative or incapable of being performed should not affect this analysis (see Experts’ Report (OJ 1979 C 59, p. 71, at pp. 92-93).

    Let’s turn to the proceedings in which anti-suit relief is sought. It’s not clear to me whether such proceedings are governed or contemplated by the New York Convention. However, I am inclined to think not; if anything Article II(3) appears to contemplate any challenge to the institution of proceedings in breach of an arbitration agreement as being made within (rather than outwith) the jurisdiction where such proceedings are instituted. As such, the Regulation does not appear to be prima facie excluded. One must therefore consider whether such anti-suit proceedings are governed by the Regulation according to Van Uden/Turner case law cited in the present case.

    One might consider an analogy with the issue of provisional measures sought in aid of arbitration, which was considered in Van Uden. In that case, it was held that “provisional measures are not in principle ancillary to arbitration proceedings but are ordered in parallel to such proceedings and are intended as measures of support. They concern not arbitration as such but the protection of a wide variety of rights. Their place in the scope of the Convention is thus determined not by their own nature but by the nature of the rights which they serve to protect…It must therefore be concluded that where…the subject-matter of an application for provisional measures relates to a question falling within the scope ratione materiae of the Convention, the Convention is applicable and Article 24 thereof may confer jurisdiction on the court hearing that application even where proceedings have already been, or may be, commenced on the substance of the case and even where those proceedings are to be conducted before arbitrators.” [emphasis added]

    It seems clear that in contrast to the measures considered in Van Uden, the relief sought in the case of an anti-suit injunction application certainly does concern arbitration, which, according to that case (and the Rich case), includes proceedings before national courts. Moreover, such relief is expressly intended to protect the applicant’s rights to arbitration. Therefore, regardless of whether the arbitration relates to matters falling within the scope ratione materiae of the Regulation, such anti-suit proceedings ought to fall outside the Regulation. In this way, such a case may be distinguished from Turner, where the Court held that the Brussels Convention precludes the imposition of an anti-suit injunction in connection with proceedings before the court of another Member State – in that case the anti-suit injunction was concerned with proceedings falling within the scope of the Regulation.

    Otherwise, one would have the strange situation where the proceedings, which are the subject matter of the anti-suit proceedings, would fall outside the scope of the Regulation, leaving the court to which such an application is made as the court “first seised” for the purpose of the Regulation.

  17. Alka Sood says:

    Refering to the comment of Mihai Danov, I understood his comment as: If the Italian court considers the arbitration clause under the New York Convention then it has arbitration as its subject matter and therefore is covered by Art 1(2)d- the arbitration exception. The proceedings in England for the anti-suit injunction are covered under the exception however the question is the about the Italian proceedings which the anti-suit injunction targets and by Mihail Danovs argument that would fall within the scope of the arbitration exception as well.
    I am waiting to hear Adrian Briggs response to Mihail Danovs argument. (I am a student so excuse me for my curiosity)

  18. Michael Madoghwe says:

    I will be disappointed if the ECJ comes out with a contrary decision to that given in Grover v Turner, because of the need to promote the European ideals, but such a decision will affect transnational commercial transactions where arbitration has been chosen as the means of dispute resolution, for instance in Africa. In Nigeria, most international commercial agreements include arbitration clauses and the preference is to make England the seat of the arbitration. A negative decision like that contained in the opinion of AG Kolkott will scare away people from London and this will invariably affect the position of london as the capital of commercial arbitration in the world. This type of judgment will have adverse effect on the few common law countries in Africa who tow the English position on almost all principles of law. For the promotion of globalization, the EU should not prevent the application of anti-suit injunction to arbitration agreements most especially when arbitration is excluded from the Brussels I Regulation.

  19. Horatia Muir Watt says:

    To my mind, the function of mutual trust, which comes up as a leitmotive since Gasser, needs re-thinking. Mutual trust is of course a foundational concept within the common judicial area – every Member State refrains from bringing a value-judgment on the courts of the others. This is what justifies mutual recognition of judgments from the courts of Sister States (except for the very limited margin left to public policy). But it doesn’t seem to me that mutual trust has any relevance as a mechanism for solving conflicts of jurisdiction in cases where there are parallel proceedings. One thing is to say that (say) that the French/Polish court system is perfectly trustworthy, and that judgments emanating from those courts call to be recognised in England/Italy, anther is to invoke mutual trust to give priority to one or the other in a situation where both claim jurisdiction. The way in which mutual trust was used in Gasser means giving precedence on this issue (ie determining jurisdiction) to any court seized (even in bad faith) over the court chosen by the parties. A more discriminating use of the principle of mutual trust could allow, on the contrary, for the absolute priority (notwithstanding the ordinary rules of lis pendens) of the designated court to decide on the effects of the clause (at least if prime facie valid). Similarly, as far as West Tankers and arbitration is concerned, it is difficult, once again, to understand why the principle of mutual trust should lead to consecrating the priority of any court seized (even in bad faith) rather than trusting the courts of the seat of the arbitration.

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