- Introduction
Anti-Suit injunctions are of their foundation in Common Law countries whereby a court orders a party to enjoin from bringing a claim before the courts/arbitral tribunal of another State or , if the party has already brought such a claim, orders that party to discontinue or to suspend the proceedings. This concept is ,in fact, very alien to those whose backgrounds originated from Civil Law.
Although it is said to be not to interfere with jurisdiction of foreign courts, anti-suit injunctions involve indirect interference with the foreign court concerned. Therefore, comity doctrine shall take into consideration before determining to grant anti-suit injunctions.
- Anti-Suit Injunctions Under English Law
- In General
The English courts have jurisdiction, whenever it is necessary to prevent injustice, to restrain the institution or continuance of proceedings in foreign courts by granting anti-suit injunctions.[1] English law, by following case-law, codified procedural acts which do provide an English court, under certain circumstances to grant anti-suit injunctions. In this regard, it is noteworthy to mention Supreme Court Act 1981 sec. 37/1 and Arbitration Act 1996 sec. 44.
- Requirements
- An anti-suit injunction can only be issued to refrain a party who is amenable to the jurisdiction of the English court.[2] The jurisdictional foundation against the party to be injuncted would arise either by reason of:
- His presence in England
- His submission
- The court having exercised its discretionary extended (long-arm) jurisdiction in the cases prescribed by Civil Procedure Rules.[3]
- There shall be an equitable interest.
- a. The applicant of anti-suit injunctions before an English court should demonstrate that prosecution of the foreign action will be “oppressive or vexatious”or, as it is sometimes labelled, “unconscionable”.
- Whereas under doctrine of forum non conveniens the defendant merely has to establish that another forum is more appropriate, where an anti-suit injunction is sought from the English court, the general rule is that it must be shown not only that the foreign forum is not the natural forum but also that England is the natural forum.[4]
III. Anti-Suit Injunctions In The Face Of Brussels Convention 1968
- On 28 September 1968, the Convention on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters, the so-called Brussels Convention, was agreed upon by the Member States of the then European Community (EC). Its goal was to increase economic and efficiency and to promote the single market by harmonizing the rules on jurisdiction and preventing parallel litigation. The Brussels Convention provides a system of determination of the competent judge within the EU legal order and a simplified mechanism of recognition and enforcement.
- In 2000, the EU decided to incorporate the Brussels Convention, an international instrument by nature, within the scope of the Community law. This communitarisation of the Brussels Convention resulted in Council Regulaion (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters.[5]
In Overseas Union Insurance Ltd. v. New Hampshire Insurance Co.[6], it was held that it is irrelative where the parties domicile since the court first seized to determine the jurisdiction.
In Continental Bank NA v. Aeakos Compania Naviera SA[7], the court found that if there is an exclusive jurisdiction clause then art. 17 of Brussels Convention prevails art. 21 otherwise application of art. 21 of Brussels Convention can amount to be oppresive and vexatious in view of art. 17.
This case was overruled by Gasser v. MISAT [8] whereby European Court of Justice held that art. 21 in effect trumped art. 17.
It is noteworhty to state outcome of Turner v. Grovit[9] ruling of ECJ.The EJC stated that :
“The Brussels Convention is necessarily based on the trust which the Contracting States accord to one another’s legal systems and judicial institutions. An anti-suit injunction undermines the foreign court’s jurisdiction to determine the dispute and must be seen as constituting an interference with the jurisdiction of the foreign court which is incompatible with the system of Brussels Convention. Such interference cannot be justified by reference to the fact that it is only indirect and is intended to prevent an abuse of process by the defendant in relation to proceedings before the court granting the injunction.”[10]
- Arbitration And Anti-Suit Injunction In The Light Of Brussels Regime
Since the ruling upon Gasser v. MISAT [11]and Turner v. Grovit[12], international private lawyers were wondering the EJC decision on Allianz SpA (formerly Riunione Adriatica di Sicurta SpA) v. West Tankers Inc. (“The Front Comor”)[13] and the outcome was not suprising.
The EJC in Allianz SpA (formerly Riunione Adriatica di Sicurta SpA) v. West Tankers Inc. (“The Front Comor”)[14]stated that it is in compatible with the Brussels Regulation for a court of a Member State to make an order to restrain a person from commencing or contunuing proceedings in another Member State on the ground that such proceedings would be contrary to an arbitration agreement.
- Anti-Suit Applications In Some EU Countries
In 1989 Brussels Civil Court held that an American anti-suit injunction could not be recognized in Belgium because it was repugnant to Belgian public policy. In 1988 the Luxemburg Court of Appeal held that as a matter of principle there can be no such thing as an anti-suit injunction under Luxemburg law. In 1996 in Re the Enforcement of An Anti-Suit Injunction, the Dusseldorf Regional Court of Appeal held that the service of an anti-suit injunction in Germany had to refused under art. 13 of the 1965 Hague Service Convention.[15] French courts reflected similar views however a recent case once again spotlighted the issue since it granted an anti-suit injunction.
- Observations and Conclusion
Anti-Suit injunctions are a Common Law creator and so alien to the Civil Lawyers. Their enforceability and even service are still under discussion within EU. Recent developments show clearly that “No longer can English courts restrain proceedings before the courts of other EU Member States on the grounds that they infringe English arbitration agreement.[16]
Anti-suit injunctions can also have no effective room under Turkish Law especially in view of Constitutional Law of Turkey. Turkish authorities would refuse such injunctions when they have received anything as such.
As a conclusion, anti-suit injunctions have gained its role by means of being exploited economically however Common Law and Civil Law systems shall be reconciled in order to achieve an uniform rule in this regard.
[1] Julian Wilson, Anti-Suit Injunctions, Journal of Business Law, Londra September 1997, p. 424
[2] Societe Nationale Industrielle Aerospatiale v. Lee Kui Jak [1987] A.C. 59
[3] Julian Wilson, Anti-Suit Injunctions, Journal of Business Law, Londra September 1997, p. 425
[4] Jonathan Hill, International Commercial Disputes, London 1998, p. 324
[5] Sandrine Giroud, Anti-Suit Injunction in International Commercial Arbitration and the Brussels I Regulation Perspectives from the West Tankers Inc. Case, Geneva 2008, p. 5
[6] Overseas Union Insurance Ltd. v. New Hampshire Insurance Co.Case C-351/89 [1991] ECR I-3317
[7] Continental Bank NA v. Aeakos Compania Naviera SA [1994] 1 WLR 588
[8] Erich Gasser G.M.B.H. v. Misat Srl , Case C-116/02 [2004] 1 Lloyd’s Rep. 222
[9] Turner v. Grovit [2001] UKHL 65, Case C-159/02 [2004] 2 Lloyd’s Rep. 169
[10] Sir Peter Gross, “Anti-Suit Injunction and Arbitration”, Lloyds Maritime and Commercial Law Quarterly, 2005 s. 10-11
[11] Erich Gasser G.M.B.H. v. Misat Srl , Case C-116/02 [2004] 1 Lloyd’s Rep. 222
[12] Turner v. Grovit [2001] UKHL 65, Case C-159/02 [2004] 2 Lloyd’s Rep. 169
[13] Allianz SpA (formerly Riunione Adriatica di Sicurta SpA) v. West Tankers Inc. (“The Front Comor”) [2007] UKHL 4 , Case C-185/07 [2009] 1 Lloyd’s Rep. 413
[14] Allianz SpA (formerly Riunione Adriatica di Sicurta SpA) v. West Tankers Inc. (“The Front Comor”) [2007] UKHL 4 , Case C-185/07 [2009] 1 Lloyd’s Rep. 413
[15] Peter B. Carter, Anti-Suit Injunctions in Private International Law, http://europainstitut.de/euin/schrift/download/368.pdf
[16] Richard Fentiman, “Arbitration and Anti-Suit Injunctions in Europe”, Cambridge Law Journal, Londra 2009, p. 278