Anti-suit injunctions in arbitration cases

Effect of European Council Regulation 44/2001

The English courts have for many years asserted the right to restrain, by means of an anti-suit injunction, a person from bringing an action in some other jurisdiction where the action is in contravention of an arbitration clause. That power unarguably exists where the foreign proceedings are brought outside the EU or EFTA. However, as a result of two decisions of the European Court of Justice reported in 2004, there has been serious doubt as to whether the power of the English court to restrain foreign proceedings has survived where the court before which the action has been brought is within the EU or EFTA. Differing views have been expressed. That issue has now been addressed by the Court of Appeal in Through Transport Mutual Insurance Association (Eurasia) Ltd v New India Assurance Co Ltd [2005] 1 Lloyd’s Rep 67 , and it has been held that the cases do not affect the pre-existing position. The judgment of the Court of Appeal (Lord Woolf CJ and Rix and Clarke LJJ) was delivered by Clarke LJ. It is almost certain that the matter will ultimately – whether in the present case or some other – have to be resolved by a further reference to the ECJ by the House of Lords.