Lloyd's Maritime and Commercial Law Quarterly
ARBITRATION AND LITIGATION AFTER WEST TANKERS
Youell v. La Réunion Aérienne National Navigation v. Endesa (The Wadi Sudr)
One did not have to be imbued with the soothsaying abilities of an oracle to predict the outcome of the reference to the European Court of Justice in Allianz SpA v. West Tankers Inc (The Front Comor).1 The headline, that anti-suit injunctions could not be granted where they restrained a person commencing or continuing with proceedings in the courts of another Member State on the ground that those proceedings would be contrary to an arbitration agreement, was almost tedious in its predictability. Whatever the failings of the West Tankers judgment, to conflicts lawyers from all jurisdictions, the situation is unlikely to alter significantly in the immediate future2 and English commercial and private international lawyers can begin to refocus their attention on two other issues relating to the scope of the arbitration exception found in art 1(2)(d) of Regulation 44/2001 (“the Brussels I Regulation”).
The first issue is how the English courts will approach the question of jurisdiction where there is an arbitration agreement said by one party to be valid and where other proceedings concerned with that arbitration are ongoing in another Member State. This was recently considered by the Court of Appeal in Youell v. La Réunion Aérienne
3 in a potentially important restatement of the relationship of arbitration disputes to the Brussels I Regulation jurisdictional regime.
The second set of issues comes from the later stage of the litigation and involves consideration of what effect a judgment of a Member State court concerning an arbitration agreement has upon English proceedings. The decision of Gloster J in National Navigation Co v. Endesa Generacion SA (The Wadi Sudr)4 has reconsidered the problem in a manner that deserves some comment.
A. Youell and jurisdiction over arbitration
Youell arose out of a series of insurance policies and contracts in England and France governed by French law and containing French arbitration clauses. The claimants were market insurers in London, the defendants in France. Following a settlement reached by the defendants on behalf of the claimants, it was alleged that the French defendants had lacked the proper authority. The French defendants had commenced arbitration in Paris under the arbitration clause in the French policy, arguing that the claimants were liable to indemnify them for the settlement. The English claimants launched proceedings for a declaration of non-liability under the contract—the existence of which they denied—arguing that the place of performance of the contract was London and that the English courts
1. (Case C-185/07) (Judgment of 10 February 2009); noted A Briggs [2009] LMCLQ 161. The judgment is an abridged form of the more fully-reasoned Opinion of Kokott AG, delivered on 4 September 2008.
2. Although see the recommendations of the report issued under Council Regulation (EC) No. 44/2001, art 73, suggesting the deletion of the arbitration exclusion: B Hess, T Pfeiffer & P Schlosser, The Brussels I Regulation 44/2001: Application and Enforcement in the EU (2008), 31–40.
3. [2009] EWCA Civ 175.
4. [2009] EWHC 196 (Comm); [2009] 1 Lloyd’s Rep 666.
LLOYD’S MARITIME AND COMMERCIAL LAW QUARTERLY
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