Contributor - Alex Layton QC
"When anti-suit injunctions to restrain court proceedings in other EU countries in breach of an exclusive jurisdiction agreement were outlawed by the European Court's decision in Turner v. Grovit in 2004, it was probably only a matter of time before the European Court did the same for anti-suit injunctions to restrain a breach of an arbitration agreement. That has now happened in the West Tankers decision described elsewhere in this bulletin.
The West Tankers decision has been widely criticised, not only by common lawyers but by many eminent European lawyers too. It appears to treat an arbitration clause as no more than a defence to court proceedings, whereas arbitration is more usually seen as an entirely independent means of dispute resolution by which the parties have opted out of the decision-making powers of the ordinary courts. Perhaps even more disturbingly, the European Court has used vague and wide language in its decision which might lead to the impression that arbitrators' own powers to determine their own jurisdiction (what Germans and now the wider world call kompetenz-kompetenz) have been undermined. This is surely an application of the law of unintended consequences (or at least one hopes so).
The good news is that the European Commission has this month issued its Green Paper about the amendment of the Brussels Regulation, and that it contains a proposal which would reverse the effect of this difficult decision. So watch this space."
Alex Layton QC
20 Essex Street
Alex appeared as counsel for the UK government in the West Tankers case.
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