Judgement clarifies that the Brussels Recast Regulation does not reverse the West Tankers decision.
By Oliver E. Browne and Robert Price
In Nori Holdings v Bank Otkritie, Justice Males in the High Court issued an anti-suit injunction to restrain court proceedings commenced in Russia in breach of an arbitration clause, but refused to issue an anti-suit injunction to restrain similar court proceedings commenced in Cyprus on the grounds that he was bound by the Court of Justice of the European Union’s (CJEU) decision in West Tankers, affirmed in Gazprom, which prevented the grant of such anti-suit injunctions.
Background
Prior to the CJEU’s West Tankers decision, the English courts had the authority to grant, and indeed did grant, anti-suit injunctions restraining court proceedings commenced in breach of an arbitration clause, see for example The Angelic Grace cited with approval by the Supreme Court in AES Ust-Kamenogorsk. The CJEU in West Tankers however held that such anti-suit injunctions were in breach of EU law as such injunctions undermine the effectiveness, or effet utile, of the Brussels Regulation by “obstructing the court of another Member State in the exercise of the power conferred on it by [the Brussels Regulation]”.