Arbitration-Related Injunctions: An Update From England

There were three important judgments from the English courts in June 2018 concerning arbitration-related injunctions, showing the different approaches to anti-suit injunctions and to worldwide freezing injunctions, and indicating what English arbitration will look like after Brexit.

Anti-suit injunctions against court proceedings inside and outside the EU

The first judgment, issued on 6 June 2018, was Nori Holdings Limited and others v Public Joint-Stock Company Bank Otkritie Financial Corporation [2018] EWHC 1343. This concerned an injunction to restrain a party from pursuing court proceedings in Cyprus and Russia, in breach of a London arbitration clause.

Cyprus is in the EU, and where anti-suit injunctions involving EU countries are concerned, the leading case is West Tankers Inc v Allianz SpA (Case C-185/07) [2009] AC 1138. There, the Court of Justice of the European Union ruled that an order which sought to prevent a court in another EU country from deciding whether it had jurisdiction was incompatible with EU Regulation No. 44/2001 and therefore contrary to EU law. However, the claimant in Nori argued that West Tankers no longer stopped an English court issuing an anti-suit injunction because Regulation No. 44/2001 had been revised in 2012, and the EU Advocate General had opined in the Gazprom case (Case C-536/13) [2015] 1 WLR 4937 that this revision overturned West Tankers. The judge reviewed the changes to the Regulation and concluded that they did not invalidate West Tankers. As a result, he had to leave it to the courts in Cyprus to decide what to do about the proceedings there.

The position was different, however, in relation to the Russian...