| CONFLICT OF LAWS — Jurisdiction — Anti-suit injunctions — Clause in agreement for exclusive jurisdiction in one EC member state — Injunction granted in that state to restrain proceedings commenced in another state — Whether permissible under Community law — Council Regulation (EC) No 44/2001, art 1(2)(d)
Allianz SpA and another v West Tankers Inc (Case C-185/07); [2009] WLR (D) 44
ECJ: President Skouris, Judges Jann, Timmermans, Rosas, Lenaerts, Ó Caoimh, Kūris, Juhász, Arestis, Borg Barthet, Klučka, Levits and Bay Larsen: 10 February 2009
It was incompatible with Regulation 44/2001 for a court of an EC member state to make an order to restrain a person from commencing or continuing proceedings before the courts of another member state on the ground that such proceedings would be contrary to an arbitration agreement.
The Grand Chamber of the Court of Justice of the European Communities so ruled on a reference for a preliminary ruling by the House of Lords.
Art 1(2) of Regulation 44/2001 provides: “[This] Regulation shall not apply to … arbitration.” Art 5 provides: “A person domiciled in a member state may, in another member state, be sued … (3) in matters relating to tort … in the courts for the place where the harmful event occurred …”
A charterparty between the claimant owner of a vessel and the charterer contained a clause for arbitration in London. After the vessel had damaged a jetty in Italy owned by the charterer, the defendant insurers, having been subrogated to the charterer’s claim for damages, began proceedings before the Tribunale di Siracusa against the claimant, which disputed the jurisdiction of the Italian court, on the ground of the arbitration agreement. In a parallel action brought in London, the claimant sought a declaration that the dispute was to be settled by arbitration and an order for the defendants inter alia to discontinue the Italian action. The High Court granted the orders sought, and on appeal by the defendants, the House of Lords [2007] 1 Lloyd’s Rep 391 referred to the Court of Justice the question whether an anti-suit injunction such as that issued by the High Court was consistent with Regulation 44/2001.
THE COURT said that it was argued that since art 1(2)(d) of Regulation 44/2001 excluded arbitration from its scope of application, proceedings such as those in issue before the High Court could not come within its scope. However, the effect of the anti-suit injunction was to prevent the courts of another member state from exercising any jurisdiction conferred on them by the Regulation. If proceedings concerning a right asserted by a party, such as a claim to damages, came within the scope of Regulation 44/2001, a preliminary issue on the applicability of an arbitration agreement also came within its scope. It was exclusively for the Tribunale di Siracusa, which was seised of the case, to rule both on its own jurisdiction under art 5(3) of the Regulation and on the claimant’s challenge to that jurisdiction based on art 1(2)(d). With a few exceptions not material in the present case, the Regulation did not permit the courts of one member state to review the jurisdiction of those of another: see eg Turner v Grovit (Case C-159/02) [2005] 1 AC 1, para 26. An anti-suit injunction such as that in issue was therefore not compatible with the Regulation. |
