Arbitration - Nori Holdings v Bank Okritie

Case Alert - [2018] EWHC 1343 (Comm)

Court holds that English Court cannot grant anti-suit injunction to restrain proceedings in another Member State court, which were brought in breach of an arbitration agreement

One of the issues in this case was whether the claimant could obtain an anti-suit injunction to restrain the pursuit of court proceedings in a Member State (Cyprus) which it alleged were brought in breach of an arbitration agreement.

Regulation (EC) 44/2001 provides that where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, the Member State court first seised of proceedings must hear the case. The ECJ decisions in Gasser v Misat (2003) and Turner v Grovit (2004) established that the English courts cannot grant an anti-suit injunction where another Member State is first seised of proceedings, even if that breaches an exclusive jurisdiction clause (although it is still possible to obtain an anti-suit injunction to restrain proceedings outside the EU).

The West Tankers v Allianz case confirmed that the same position applies where there is an alleged breach of an arbitration agreement, even though arbitration is expressly excluded from the scope of Regulation 44/2001. That was because it was held that an anti-suit injunction would undermine the effectiveness of the Regulation.

Regulation (EC) 44/2001 was recast into a new Regulation (1215/2012) in January 2015 ("the recast Regulation"). The recast Regulation restates the arbitration exception and confirms that proceedings relating to arbitration fall outside of its scope. It clarifies that any court proceedings brought in order to support an arbitration (including enforcing or challenging an award and deciding the validity of an arbitration agreement) fall outside the scope of the recast Regulation (and hence the court not first seised can decide these matters) (Recital 12). The recast Regulation also provides that a New York Convention arbitral award will have precedence over a Member State court judgment (if both the arbitration and the Member State proceedings continue to a decision on the merits and reach opposite conclusions). However, the recast Regulation is silent about whether an anti-suit injunction could be granted by a Member State court.

In the CJEU case of "Gazprom OAO", Advocate General Wathelet issued an opinion which provided, broadly, that West Tankers had been overturned and so an...