Antisuit Injunctions by Arbitral Tribunal and Recognition: Opinion of AG Wathelet
The Opinion of AG Wathelet on C-536/13, Gazprom, referred by the Lietuvos Aukšciausiasis Teismas, was delivered yesterday and reads as follows:
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as not requiring the court of a Member State to refuse to recognise and enforce an anti-suit injunction issued by an arbitral tribunal.
(2) The fact that an arbitral award contains an anti-suit injunction, such as that at issue in the main proceedings, is not a sufficient ground for refusing to recognise and enforce it on the basis of Article V(2)(b) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed in New York on 10 June 1958.
The whole document is accesible here.
(A personal bet: the ECJ will not take up the second point of the Opinion).
If the Court reflects sufficiently, it should leave both elements of the opinion on the cutting room floor. For one, para 91 should set constitutional alarm bells ringing across the EU. The A-G also shows naivity in thinking that anti-suit injunctions leave the (indirectly) targeted court free to reach a conclusion on the validity etc of the arbitration agreement and (thereafter) on Brussels I jurisdiction. In this case, perhaps. In many other cases, the matter will be withdrawn from its arena by the (directly) targeted party. The principle of effectiveness is barely touched on. Finally (for now) how does Van Uden stand with the asserted broad character of the arbitration exception?
It’s a most surprising opinion.
I don’t think even the most enterprising member of the UK negotiating team for the Recast thought that Recital 12 would give a secure basis for reinstating the court anti-suit injunction in support of arbitration clauses. It is to say the least strongly arguable that even though if Recital 12 removes the other court’s decision on whether the arbitration clause is binding from the scope of the regulation, the court anti-suit injunction is still contrary to the principle of mutual trust because it interferes with the other court’s ultimate exercise of its regulation jurisdiction. That’s perhaps how West Tankers could have been decided without unnecessary side effects.
It would be possible to preserve the anti-suit injunction granted by arbitrators on the much less radical basis that arbitrators are not subject to the principle of mutual trust.
What’s more, why is all this necessary?
It is difficult to see on what basis the AG thought the ECJ has locus to decide the interpretation of the New York Convention at all.
As to the idea that the Brussels Regulation could prevent the enforcement of the award, surely the simple and direct answer is that the question of whether or not to enforce an arbitration award of any kind, including an “anti-suit award”, is a pure matter of national arbitration law applying the New York convention, and so the Brussels I regulation is simply irrelevant. The Brussels I Regulation doesn’t require national courts to enforce any arbitration awards and nor can it require them not to enforce arbitration awards – because the New York Convention takes precedence. The principle of effectiveness is not engaged because an anti-suit award doesn’t undermine a court’s Brussels I jurisdiction any more than the national court’s own direct enforcement of the arbitration clause would be.
So if the ECJ wants to refer to any provision of the Recast, it would seem to be sufficient to refer to Article 73.
The pragmatic thrust of the opinion is very sensible in many respects (see the view that damages by arbitrators to enforce the arbitration clause are permissible at fn 87) but one has to have serious doubts that the ECJ will follow the reasoning. And it is rather charming that the pendulum has swung back so far in favour of sympathy for the anti-suit injunction.
But the danger may be that, given the suspect guidance from the AG, that the ECJ may head off in the other direction.