W6: Effect of EU Law on Arbitral Jurisdiction

Question 1

Brussels I Regulation

Answer 1

1. Regulation (EU) No. 1215/2012 - Jurisidiction, and R and E of Judgments in Civil and Commercial Matters
2. Recast Regulation No. 44/2001 - Replaced the Brussels Convention
3. OBJECTIVES:
   i. Sound operation of the int’l market
   ii. Unified rules of jurisdiction
   iii. Rules dealing w/parallel proceedings
   iv. Recital 26: “mutual trust in the admin. of justice in the Union justifies the principle that… a judgment given by the courts of a MS should be treated as if it had been given in the MS addressed”
4. MAIN PROVISION:
   [Art. 29(1)]
5. Without prejudice to Art. 31(2),
   - “Where proceedings involving the same cause of action, and b/w same parties are brought in the courts of diff. MS, any court other than the court first seised, shall suo motu stay its proceedings until such time as the jurisidiction of the court first seised is estd.”
6. In cases ref: in para 1, upon request by a court seised of the dispute, ay other court seised shall w/out delay inform the former court of the date when it was seised in accordance w/Art. 32
7. Where the jurisdiction of the court first seised is estd., any court other than the court first seised shall decline jurisdiction in favour of that court

Question 2

Anti-Suit Injunctions w/in the EU: Proceedings in Another MS

Answer 2

1. Turner v Grovit
   - An English court CANNOT issue an anti-suit injunction to restrain proceedings in another MS
   - This principle has extended to arb. despite Art. (1)(d) [See West Tankers case]
2. AMT Futures Ltd. v Marziller
   - No circumvention of the rule by bringing proceedings in England against the Solicitors of the Party who commenced proceedings in another MS

Question 3

Brussels I Regulation and Arbitration: Enforcement of an AA and Proceedings in Another MS

Answer 3

1. Art. 1(2)(d): The Regulation shall NOT apply to arb.
2. CASE LAW:
   i. Marc Rich & Co AG v Societa Italiana Impianti PA (1991)
   - The Regulation does NOT apply to court proceedings for the appointment of an arbitrator
   ii. Van Uden Maritime BV v Deco-Line (1998)
   - The Regulation applies to court proceedings to obtain an interim measure in support of arb. if the subject-matter of the proceedings relates to a civil/commercial matter

Question 4

West Tankers Case: CJEU Judgement

Answer 4

1. FACTS:
   i. WT Chartered ‘Front Comor’ to Erg (Italian Co.)
   ii. Charterparty: English Law governs, arb. in London
   iii. Vessel collided in Italy w/jetty owned by Erg.
   iv. Insurers commenced court proceedings in Italy against WT to recover the amounts paid to Erg. by virtue of their Statutory Right of Subrogation to Erg’s claims
   v. Italian Courts have jurisdiction u/Brussels I Regulation Recast No. 1215/2012, Art. 7(2)
   vi. WT obtains a declaration that the insurers are bound by the AA and an anti-suit injunction from the English courts
2. JUDGEMENT:
   i. Para 29: “An anti-suit injunction, such as that in the main proceedings, is contrary to the general principle… that [every court seise itself determines], under the rules applicable to it, [whether it has jurisdiction to resolve the dispute before it]… Regulation No. 44/2001 does NOT authorise the jurisdiction of a court of a MS to be reviewed by a court in another MS”
   ii. Para 30: “In obstructing the court of another MS in the exercise of the powers conferred on to by the Regulation, namely to decide whether it is applicable, such an anti-suit injunction also runs counter to the [mutual trust] which the MS accord to one another’s legal system and judicial institutions, and on which the system of jurisdiction u/Regulation is based”
3. ENGLAND: Many lawyers strongly disagree w/CJEU’s Judgement

Question 5

West Tankers Case: The Fallout

Answer 5

1. CASE LAW: National Navigation Co. v Endesa Generacion SA
   - Decision of a court of another MS on the jurisdiction of an arbitral tribunal - which court had to decide as a preliminary matter - is a judgement which enjoys free movement thru out the EU u/Brussels I Regulation
2. APPEALS (to circumvent West Tankers):
   i. EXCA Civ 27
   - The court has the power u/S.66 EAA 1996 to order judgment to be entered in the terms of an arbitral award where the award is in the form of a negative declaration
   ii. EWHC 854 (Comm)
   - Damages granted by the tribunal for breach of the AA compatible w/EU Law

Question 6

Anti-Suit Injunctions and Non-EU States: Enforcement of an AA and Proceedings in a Non-MS

Answer 6

Midgulf Int’l Ltd. V Group Chimique Tunisien

- Anti-suit injunctions unaffected in this context

Question 7

Anti-Suit Injunctions Issued by Arbitrators/Tribunal in Another MS

Answer 7

Gazprom Case
- Compatible w/EU Law for a MS court to recognise and enforce an anti-suit injunction in the form of an award by arbitrators restraining proceedings in a MS

Question 8

Brussels I Regulation RECAST

Answer 8

MAIN PROVISION: Art. 73(2)

• This Regulation shall not affect the application of the NYC 1958
• NYC > Regulation Recast

RECITAL: 12

(1) This Regulation should not apply to arbitration. Nothing in this Regulation should prevent the courts of a MS, when seised of an action in a matter wrt which the parties have entered into an AA, from [referring the parties to arbitration], from [staying/dismissing the proceedings], or from [examining whether the AA is null and void, inoperative or incapable of being performed], in accordance with their national law.
(2) [A ruling given by a court of a MS as to whether or not an AA is null and void, inoperative or incapable of being performed should not be sub: the rules of R and E laid down in this Regulation], regardless of whether the court decided on this as a principal issue or as an incidental Q.
(3) On the other hand, [where a court of a MS, exercising jurisdiction u/Regulation or u/national law, has determined that an AA is null and void, inoperative or incapable of being performed, this should not preclude that court’s judgment on the substance of the matter from being recognised or, as the case may be, enforced in accordance w/Regulation]. This should be w/out prejudice to the competence of the courts of the MS to decide on the R and E of arbitral awards in accordance with the [1958 NYC], which takes precedence over this Regulation.
(4) This Regulation should not apply to any action/ancillary proceedings wrt, in particular, [the est. of an arbitral tribunal], [the powers of arbitrators], [the conduct of an arbitration procedure or any other aspects of such a procedure], nor to any action/judgment concerning the [annulment, review, appeal, recognition or enforcement of an arbitral award].

Question 9

Effect of Case:

Slovakia v Achmea

Answer 9

1. Effectively “kills” Investment Arb. w/in the EU
2. Unclear what, if any, effect this decision will have on ICA w/in the EU and beyond
3. Esp. in light of Brexit

Question 10

Brussels Convention

Answer 10

1. Predecessor of the Brussels I Regulation
2. Highly contentious issue had been the effect of this Convention on the availability of anti-suit injunctions
3. English courts had initially determined that the Convention had no effect
   * Angelic Grace case (1995)
4. CJEU subsequently determined that anti-suit injunctions were NOT permitted wrt proceedings in another MS
   - Applicable even if the English Courts consider the proceedings to be covered by an AA; thus excluded from the scope of the Regulation
5. Judgment may be obtained from another MS in breach of an English AA