Abstract The article discuses recognition and enforcement of anti-suit injunctions issued by arbitral tribunals in the EU, taking into account limitations on arbitrators’ power to issue the injunctions as well as their legal effects in various jurisdictions. We critically evaluate the consistency of the CJEU’s approach to anti-suit injunctions as presented in West Tankers and in Gazprom. To this end, we compare effects of anti-suit injunctions from state courts and these from arbitral tribunals on the efficiency of EU law and the fundamental rights that it protects. Special regard is paid to the right to legal protection as enshrined in Article 47 of the Charter of Fundamental Right. 1. Introduction Several months before the Court of Justice of the European Union (CJEU) rendered a judgment in West Tankers,1Thomas Raphael wrote: If the European Court of Justice does hold that the English Court cannot grant anti-suit injunctions to enforce an arbitration clause, one obvious alternative option for the injunction claimant is to seek an analogous order from the arbitrators.2 This author also noted that there was a growing number of decisions reported where arbitrators have granted anti-suit injunctions.3 Similar to anti-suit injunctions developed in the English legal tradition, anti-suit injunctions issued by arbitrators aim at discouraging a party to an arbitration agreement from commencing or continuing a suit in another forum,4 i.e. to prevent parallel proceedings which may result in conflicting decisions by two (or more) different bodies.5 It is emphasized by some authors that arbitral tribunals, unlike state courts, are not bound by a formal system of ‘international comity’ and therefore they are in a better position than judges to issue anti-suit injunctions.6 However, this argument has not persuaded everyone.7 Even Laurent Lévy, who does not exclude the possibility of issuance of anti-suit injunctions by an arbitral tribunal, states that ‘arbitrators should not take the risk of ordering a judge … how to behave’,8 which is justified by the principle of the equality of all courts and tribunals and every person’s right to seek legal protection from the state courts. These concerns are even more important when it comes to recognition and enforcement of anti-suit injunctions issued by arbitrators which elevates them to the level of court decisions. When presented with questions over the recognition and enforcement of the anti-suit injunction issued by the arbitral tribunal in the Gazprom case,9 the CJEU has not extended the prohibition against anti-suit injunctions, provided for in the West Tankers judgement, to cover those issued by arbitrators. The question then arises whether the lack of consistency in the CJEU’s assessment of instruments indirectly influencing the jurisdiction of the EU Member States’ courts—depending on the entity that issues them—should be accepted. Therefore, this article aims at a critical analysis of the Gazprom judgment, reflecting on the consequences stemming from the recognition and enforcement of anti-suit injunctions issued by arbitrators in the context of the right to seek an effective remedy before a tribunal previously established by law (Article 47 of the Charter of Fundamental Rights of the European Union). Sections 2 and 3 establish a framework in regard to the arbitral tribunal’s power to issue anti-suit injunctions as well as their legal effects. The authors examine doubts regarding the practice of issuing anti-suit injunctions by arbitrators, focusing on the law of Member States. Section 4 presents the context of the Gazprom case and the reasoning of the CJEU’s judgment. Section 5 contains critical analysis of the Gazprom judgment in which special attention is paid to the differences between Gazprom and West Tankers judgments. Finally, Section 6 reflects on the relation between the Brussels system and the right to an effective legal remedy before a tribunal previously established by law, as enshrined in Article 47 of the Chapter of Fundament Right of the EU, and its influence on the recognition and enforcement of anti-suit injunctions issued by arbitral tribunals. 2. Arbitral Tribunals’ Power to Issue Anti-Suit Injunctions An anti-suit injunction is a type of remedy which has its origin in common law systems.10 Most notably, courts in England, acting on the basis of Article 37 of the Senior Court Act, are empowered to issue an injunction to enforce ‘the negative promise contained in the arbitration agreement not to bring foreign proceedings’.11 However, such a remedy is unknown in Member States whose legal systems are based on civil law tradition.12 There is a valid concern whether arbitrators are empowered to order a party to withdraw a claim brought before a state court or to refrain from pursuing it. The ambiguity regarding the source of such power undermines legitimacy of the arbitral anti-suit injunctions as such and put our criticism of the CJEU’s judgment in the Gazprom case in a broader context. The powers of an arbitral tribunal are grounded in (i) the arbitration agreement, which may contain a reference to the chosen arbitration rules, (ii) the law governing that agreement and (iii) the law governing the arbitration proceedings (lex loci arbitri).13 However, neither national laws nor the rules of arbitral institutions expressly regulate the authority of arbitral tribunals to issue anti-suit injunctions.14 It has been argued in relation to arbitration proceedings seated in England that Section 48(5)(a) of the Arbitration Act 199615 provides the arbitrators with the default power to issue anti-suit injunctions in the form of a final award.16 This position was based on Welex,17 in which the Court of Appeal stated: Rosa’s application for an anti-suit injunction was first made to the arbitrators under section 48(5) of the Arbitration Act 1996, which gave the tribunal the same power as the court ‘to order a party to do or refrain from doing anything’. However, the Welex case considered the application for a declaration that no valid arbitration agreement was made under Section 72 of the Arbitration Act 1996 as well as the anti-suit injunction issued the lower court which aimed at preventing proceedings in Poland contrary to the arbitration agreement in the charter-party. The issue regarding the applicability of Section 48(5) to an anti-suit injunction issued by an arbitrator was not fully explored by the Court of Appeal, nor was this even argued before it. The possibility of issuing an anti-suit injunction in the form of a final award is questioned by Hakeem Seriki, who asserts that the power to grant permanent injunctions can be derived only from Article 37 of the Senior Courts Act 1981 and therefore is conferred only on state courts.18 Moreover, since the arbitrators’ powers under Section 48 of the Arbitration Act 1996 are confined to ‘substantive awards’, they cannot extend to interim anti-suit injunctions.19 At the same time, arbitral tribunals seated in England have no default power to issue an interim anti-suit injunction under Section 39 of Arbitration Act 1996. This power needs to be expressly conferred on them by the parties—either in the arbitration agreement itself or in the chosen arbitration rules.20 Therefore, even in the case of arbitration seated in England, which is known for access to anti-suit injunctions issued by state courts, an arbitral tribunal’s default competence can only be considered if an anti-suit injunction constitutes a final remedy. Whereas the arbitral tribunal’s power to issue interim anti-suit injunctions should be searched for either in the arbitration agreement itself or in applicable arbitration rules. It has been submitted that when parties have an agreement that clearly provides for arbitration to be the exclusive means of resolving all disputes relating to an underlying contract or otherwise, a breach of that agreement also comes within the scope of disputes submitted to the arbitrators for resolution.21 This approach suggests that the authority to issue anti-suit injunctions to remedy a breach of an arbitration agreement flows from the same source that enables a tribunal to address any other breach of contract—the arbitration agreement itself.22 Thus, an anti-suit injunction issued by arbitrators constitutes an order directed to the party to make performance in kind of the arbitration agreement, which includes inter alia the parties’ mutual promise to abstain from seizing a court for the resolution of their disputes and to submit their dispute to the decision of an arbitral tribunal.23 In this case, the anti-suit injunction could qualify as a final remedy. However, whether a party may be ordered to perform the arbitration agreement in kind is debated24 and cannot be taken as a common ground in international arbitration. If an arbitration agreement, applicable arbitration rules or applicable arbitration law provide for a sufficiently broad provision on issuance of interim or conservatory measures, one can argue that such a provision encompasses also a competence to issue anti-suit injunctions.25 Although in practice anti-suit injunctions were often issued as an interim measure protecting the integrity of the arbitral proceedings,26 there is doubt concerning the subject matter secured by such a measure. Interim measures usually serve to protect a substantive claim, i.e. a possibility of having the final decision enforced or otherwise benefit from its effects. Anti-suit injunctions instead protect the proceedings themselves. However, since the conclusion of an arbitration agreement is dictated by a more effective enforcement of an award on merits, it can be considered that an anti-suit injunction indirectly protects a substantive claim as well. The latter approach was followed by the Working Group of the United Nations Commission on International Trade Law (UNCITRAL). Particularly, Article 17(2) of the Model Law defines an interim measure as any temporary measure, whether in the form of an award or in another form, by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party, inter alia, to take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself. According to the Working Group, the words ‘prejudice to the arbitral process itself’ were added to the article in 2006 to clarify that an arbitral tribunal had the power to prevent obstruction of the arbitral process, by issuing i.a. anti-suit injunctions.27 Arbitration rules of major arbitral institutions do not include similar provisions but it is submitted that broadly worded clauses empowering the arbitral tribunal to grant any interim measure ‘it deems appropriate’,28 either in form or an order or an award, constitute a legitimate basis for issuing anti-suit injunctions.29 More attention should be paid to Article 25.1 (iii) of LCIA Rules which states that the arbitral tribunal ‘shall have the power to order on a provisional basis, subject to a final decision in an award, any relief which the Arbitral Tribunal would have power to grant in an award, including the payment of money or the disposition of property as between any parties’. In this case, an anti-suit injunction could be issued by arbitrators as an interim measure only under the assumption that they are empowered to render a final award ordering the party to withdraw from the proceedings commenced before the state court or not to commence any. The competence to render such an award does not stem from the LCIA Rules but must be assessed under the applicable arbitration law (assuming that an arbitration agreement is silent on that matter). This may be true for an arbitration seated in England (on the basis of Section 48(5)(a) of the English Arbitration Act 1996), but not necessarily for other jurisdictions. In search of a universal basis for the competence of arbitral tribunals to issue anti-suit injunctions, reference is made to general principles of international arbitration. It is argued that arbitral tribunals must have the ability to defend their own jurisdiction to ensure the effectiveness of the parties’ intention to submit their dispute to arbitration for resolution.30 Such reasoning was employed by the Iran–United States Claims Tribunal to issue anti-suit injunctions. The tribunal consistently found that it had ‘an inherent power to issue such orders as may be necessary to conserve the respective rights of the Parties and to ensure that its jurisdiction and authority are fully effective’. This logic, created by the tribunal operating on the basis of an intergovernmental agreement, was adopted by arbitration scholars for the needs of commercial arbitration. Emmanuel Gaillard takes the view that arbitrators are empowered to sanction all violations of the arbitration agreement to ensure the effectiveness of the arbitral award and to avoid potentially conflicting decisions in parallel proceedings before the arbitral tribunal and the state courts.31 To justify this, Gaillard relies on the principle of Kompetenz-Kompetenz, which ‘further allows the arbitrators to decide any challenge to the arbitration agreement itself’.32 Such a broad understanding of this principle provides the arbitral tribunal with the power to rule on its own competence to hear the given dispute (positive effect), while excluding the possibility of the state court first ruling on the existence of the arbitration agreement (negative effect).33 This is an isolated view among Member States, however.34 Most European legal systems recognize only the positive effect of the Kompetenz-Kompetenz principle, which does not prejudice the state court’s competence to decide whether the parties made a valid arbitration agreement.35 Only French arbitration law provides also for the negative effect,36 in both domestic37 and international arbitration.38 This means that the understanding of the Kompetenz-Kompetenz principle39 adopted in most jurisdictions authorizes the arbitral tribunal only to rule on its own competence, without affecting the jurisdiction of the state courts, and as such cannot be considered a source of the arbitrators’ power to issue an anti-suit injunction. In our opinion, the question of whether the arbitrators have the power to issue an anti-suit injunction cannot be resolved by relying on the specificity of the arbitration law of a single Member State. The above shows that the arbitrators’ power to issue anti-suit injunctions is highly disputable. In our opinion, there is no universal answer to the question about the source of such power as it very much depends on the law applicable to arbitration agreement and lex arbitrii. The controversies around the source of arbitrators’ competence do not rather influence the recognition and enforcement of arbitral anti-suit injunctions directly, as the plea of lack of jurisdiction at the enforcement stage would usually be concerned with a particular dispute brought before a state court and covered by the anti-suit injunctions, and not with the anti-suit injunction itself. However, they undermine legitimacy of such measures and the arbitral process itself. 3. Effects of Anti-suit Injunctions Issued by Arbitral Tribunals In order to analyse whether recognition and enforcement of anti-suit injunctions issued by arbitrators should be permissible within the EU, their legal effects before and after potential recognition or enforcement by the state courts should be determined. Prior to recognition or enforcement of anti-suit injunctions issued by arbitral tribunals, only their (i) effects in the arbitral proceedings and (ii) damages consequences (i.e. the possibility of seeking damages for their violation) can be considered. On this stage, anti-suit injunctions cannot exert any procedural effects in the sense of affecting the jurisdiction of the state courts. Anti-suit injunctions may have effects in the arbitral proceedings if their issuance did not end the proceedings, that is, if the anti-suit injunction is issued as an interim measure. Then the respondent’s violation of the injunction may, apart from the informal influence on the party’s perception by the arbitrators, entail sanctions with respect to the costs of the proceedings.40 It is possible to consider a party’s violation of provisional measures issued by the tribunal within the broad competence of the arbitrators in ruling on costs, provided for in many sets of arbitration rules.41 Under this view, the costs of the arbitration may be charged to a party violating an anti-suit injunction even if it ultimately prevailed on the merits of the dispute in which the anti-suit injunction was issued.42 In arbitration seated in England, the consequences of violation of the arbitral anti-suit injunction issued in the form of interim measure can be much more severe. Under Section 42 of the Arbitration Act 1996, the arbitral tribunal may apply to the state court for an injunction ordering a party to comply with its peremptory order. Then violation of an anti-suit injunction originally issued by the arbitral tribunal may constitute contempt of court, with the same consequences as violation of an anti-suit injunction issued by a court.43 Moreover, Olga Vishnevskaya indicates the possibility of the arbitral tribunal itself ascribing a sanction to the anti-suit injunction in the form of a fine for violating it (known in the French system as astreinte). However, this is permissible only with an express basis in the lex arbitri.44 With respect to the damages consequences of anti-suit injunctions issued by arbitral tribunals, one can observe that an arbitral anti-suit injunction does not create a civil obligation between the party against whom it was issued and the party that applied for it, nor between the arbitral tribunal and the party against whom it was issued. Here, it is irrelevant whether the anti-suit injunction was issued as a provisional measure or as a final award. Even when adopting the substantive theory of the arbitration agreement,45 contractual liability may result only from non-performance of this agreement i.e. filing a suit regarding claims submitted to arbitration to the state court. Issuance of the anti-suit injunction does not change the qualification of the actions in breach of arbitration agreement, and does not constitute an independent ground for contractual liability.46 In this context, one may wonder whether a party for the benefit of which anti-suit injunction was issued can claim damages based upon breach of an obligation to perform arbitral awards which can be derived from some of the rules of arbitral institutions47 or an arbitration agreement itself.48 First, this may be considered only in case of an arbitral anti-suit injunction rendered as a final award. Secondly, the acceptance of liability for non-compliance with an obligation to perform arbitral award in good faith would mean that such an obligation is actionable, which is not always the case. In civilian systems, the obligation to perform the arbitral award cannot be enforced by a claim for performance.49 The path to enforcement of an arbitral award is the relevant post-arbitration proceedings which are conducted either under the national arbitration law or the New York Convention. Consequently, where the obligation to perform the arbitral award is not actionable, damages cannot be sought for non-performance of the award containing anti-suit injunction. The case looks different from the perspective of a few arbitration laws belonging to common law tradition which enable enforcement of arbitral awards outside statutory provisions by means of the actio ex contractu.50 For example, Section 66(4) of Arbitration Act 1996 provides for ‘an action on the award’ which is based on breach on an implied promise to abide by the terms of the arbitral award.51 Similarly, Hong Kong’s courts recognize a common law action to enforce an arbitral award by which the court could grant damages, even if the arbitral tribunal awarded a different remedy.52 Therefore, damages for failing to comply with the anti-suit injunction issued as a final award could possibly be obtained in the proceedings based on the common law cause of action. This points to the conclusion that violation of anti-suit injunctions issued by arbitral tribunals will not, in most cases, constitute grounds for contractual liability. Liability in damages for tort also appears problematic, as commencing or pursuing proceedings before the state court in violation of the arbitration agreement and the anti-suit injunction would have to be regarded as wrongful (tortious) behaviour. But such behaviour constitutes exercise of the right of access to the courts guaranteed in all the Member States, and moreover its supposed wrongfulness would depend on the existence of an earlier agreement binding the parties (the arbitration agreement), which contradicts the general nature of tortious unlawfulness.53 Before considering the possible consequences of anti-suit injunctions issued by arbitrators after their recognition or enforcement, it should be noted that only anti-suit injunctions that constitute final remedies may be enforced under the New York Convention regime.54 Since arbitral decision (most often in the form of an order) on interim relief are not covered by the New York Convention,55 enforcement of anti-suit injunctions issued as interim measures may be granted only on the basis of the national laws governing enforcement of arbitral interim relief. In many European jurisdictions, this will occur in the proceedings analogous to the proceedings for enforcement of an arbitral award.56 Assuming hypothetically that anti-suit injunctions issued by arbitral tribunals may be recognized or enforced by the court of the Member States, their potential (i) procedural effects and (ii) effects resulting from execution by state compulsion should be analysed. We will look in more detail at the Polish civil procedure as an example of a civil law system. This choice is explained, in the first place, by the expertise of the authors: as the issue is very technical and rarely occurs in legal practice, we did not deem comparative analysis safe. Nevertheless, the choice of the Polish civil procedure is also supported by its representativeness: the system is rather unoriginal, with strong German influences, and the problems that arbitral anti-suit injunctions pose for the system are to be expected in other civil-law countries. We understand procedural effects of anti-suit injunctions issued by arbitral tribunals and recognized by state courts to mean the preclusive effects of such decisions, preventing a state court from hearing a case initiated by the party indicated in an anti-suit injunction from evaluating its own jurisdiction. The state court could be bound by the anti-suit injunction as a resolution of a preliminary question, namely the one of court’s jurisdiction. Whether procedural effects of an anti-suit injunction exist after its recognition by the state court is determined by the legal system of the country of recognition. Under Polish law, the preclusive effect of anti-suit injunctions could apply at most to the existence of an obligation of a party. This is because of the very content of the operative parts of anti-suit injunctions (the only part that is biding under Polish law). Anti-suit injunctions typically prohibit a party from going to a state court or orders that the party drops its case before this court. Therefore, the operative part refers to a party, not to a court. Consequently, a state court would be bound by the determination that, for example, a party was not permitted to file a statement of claim, or that it has an obligation to withdraw an application. However, this binding force does not concern the very issue of the jurisdiction of the state court. Even if violation of an arbitral anti-suit injunction constitutes a breach of contractual duty, it does not mean that the state court should rectify the situation by refusing to hear the case. The contrary is true: no provision of Polish law allows for refusing to hear a case because the plaintiff was under a contractual duty not to go to the court. The jurisdiction of the state court does not depend on whether a party is violating a contractual obligation in filing its claim, but on the competence vested in the court by law. The anti-suit injunction does not affect this, unlike e.g. jurisdiction or arbitration agreements which effects are clearly defined in law. Nevertheless, recognition of an anti-suit injunction issued by an arbitral tribunal may have a very narrow preclusive effect, outside jurisdictional issues. If the arbitral anti-suit injunction is ignored, the arbitral tribunal can charge the respondent in the final award with the costs of the proceedings to the injunction, even though it is the winning party. Then, in the state where the anti-suit injunction is recognized, the possibility to defeat enforcement of the award on costs will be restricted. When called upon to enforce the costs, the court will be bound by the ruling under which the party had an obligation to comply with the anti-suit injunction. Regardless of the procedural effects of anti-suit injunctions, it is possible to enforce them by way of execution. In this scenario, their effects will of course depend on the law of the state of enforcement. In Poland, assuming hypothetically that enforceability of an arbitral award containing an anti-suit injunction was upheld, the arbitral anti-suit injunctions prohibiting parallel proceedings pending before a state court could be enforced pursuant to the provisions on executing decisions prohibiting a certain behaviour (Articles 1050, 1051 and 1053 of the Civil Procedure Code). Conversely, an arbitral anti-suit injunction ordering a withdrawal of a claim could be executed as a decision ordering a specific behaviour (other than payment or handing over a thing). That is to say that anti-suit injunctions could be executed in the very same manner as e.g. judgments banning entrepreneurs from certain statements about competitors or temporary injunctions against parking on a certain plot of land. The rules for execution of prohibitory decisions differ throughout Europe. The three main models are fines, penalties paid to the other party and criminal sanctions e.g. arrest—imposed in the event of ignoring of a proposition.57 In Poland, whereas all three models are present to some extent, the other party can choose between fining the party in breach or having a fine adjudicated (historical fining being the only option). The above demonstrates that anti-suit injunctions issued by arbitral tribunals may entail sanctions at the stage of the arbitral proceedings, and further also sanctions at the stage of compulsory execution, provided for by the law of the Member State in which the injunction is recognized or enforced. 4. The Gazprom Case The problem of recognition and enforcement of anti-suit injunctions issued by arbitral tribunals in the light of Council Regulation (EC) No 44/200158 was considered by the Court of Justice in the Gazprom judgment rendered due to the questions for preliminary ruling referred by the Supreme Court of Lithuania. The case originated from a shareholders’ agreement concerning the ownership and operation of Lietuvos Dujos, a major Lithuanian company from the gas sector.59 The agreement was entered into by three major shareholders of the company: E.ON Ruhrgas, Gazprom and the Republic of Lithuania and included an arbitration clause requiring all disputes arising out of or in connection with it to be resolved by arbitration under the Stockholm Chamber of Commerce (SCC) Rules. A dispute regarding the formula for the calculation of the gas price contained in the long-term gas contract arose and the Ministry of Energy of Lithuania commenced investigation proceedings before the Lithuanian court. In response, Gazprom raised the plea of arbitration agreement and commenced SCC arbitration arguing that the Ministry of Energy’s conduct was in breach of the arbitration clause included in the shareholders’ agreement. In particular, Gazprom requested the arbitral tribunal to order the Ministry of Energy to discontinue the Lithuanian court proceedings forthwith and to refrain from any further actions in Lithuanian court in violation of the arbitration agreement, as well as to pay damages to Gazprom for violation of the arbitration agreement. While the matter was still pending in the Lithuanian court, the arbitral tribunal rendered an award that found that certain aspects of the Ministry of Energy’s claims before the Lithuanian court were in breach of the shareholders’ agreement, and ordered the Ministry of Energy to withdraw from the court such claims so as to remove any inconsistency with the shareholders’ agreement. However, the arbitral tribunal dismissed Gazprom’s claim for damages.60 Interestingly, in its reasoning the tribunal did not consider the source of the competence to issue an anti-suit injunction. It only stated that: […] it is common ground that bringing disputes which fall under the scope of an arbitration clause before State Courts constitutes a breach of such arbitration clause, and that an arbitral tribunal has jurisdiction to find that such a breach has occurred and to draw the legal consequences arising there from.61 Gazprom sought to have the award recognized and enforced by the Lithuanian courts. The Vilnius Court of Appeal relying on Article V(2)(a) and (b) of the New York Convention, decided not to grant Gazprom’s application. It specifically held that the arbitral tribunal had no authority to determine a question already raised before and examined by the state court in the proceedings initiated by the Ministry of Energy, since this court found that the disputes referred to in Article 2.134 of the Civil Code could not be settled by arbitration.62 Gazprom filled a cassation appeal against this decision to the Lithuanian Supreme Court. At the same time, the case initiated by the Ministry of Energy was continued before Lithuanian courts of all instances and the Supreme Court decided to suspend proceedings in this matter until the decision on the recognition and enforcement of the anti-suit injunction was issued. Against this background, the Lithuanian Supreme Court referred three questions for preliminary ruling which aim at clarifying, whether Regulation 44/2001 requires a court of a Member State to refuse to recognize and enforce an anti-suit injunction issued by an arbitral tribunal forbidding a party to raise certain claims before a court of a Member State that has jurisdiction to rule on them according to the Regulation 44/2001. In the course of proceedings before the CJEU, the Advocate General Melchior Wathelet presented an opinion which aroused numerous controversies.63 The Advocate General argued that Regulation 44/2001 must be interpreted as not requiring the court of a Member State to refuse to recognize and enforce an anti-suit injunction issued by an arbitral tribunal. This conclusion was made on the basis of Regulation 1215/2012,64 although it was neither applicable to the case at bar nor effective at the time of preparing the opinion. The Advocate General stated: […] the Court should take it into account in the present case, since the main novelty of that regulation, which continues to exclude arbitration from its scope, lies not so much in its actual provisions but rather in recital 12 in its preamble, which in reality, somewhat in the manner of a retroactive interpretative law, explains how that exclusion must be and always should have been interpreted.65 At the same time, the Advocate General took a very critical stand toward the West Tankers judgment and argued that it departed from the Court’s previous case law66 concerning anti-suit injunctions. According to Melchior Wathelet, the West Tankers reasoning cannot be applied to anti-suit injunctions issued by arbitral tribunal which are not bound by the principle of mutual trust.67 Moreover, the opinion excludes the possibility of denying recognition or enforcement by the court of a Member State on the basis of Article V(2)(b) of the New York Convention (public policy clause): The Brussels I Regulation, its provisions on the allocation of jurisdiction between the courts of the Member States and its interpretative principles such as mutual trust between the courts of the Member States do not compare with respect for fundamental rights, breach of which would shake the very foundations on which the EU legal order rests.68 The Advocate General also pointed out that according to Article 35(3) of the Brussels I Regulation, ‘[t]he test of public policy … may not be applied to the rules relating to jurisdiction’ which he deems to be the proof that the rules on jurisdiction are not a matter of public policy.69 The CJEU considered the questions of the Supreme Court of Lithuania jointly and ruled that Regulation 44/2001 does not govern the recognition and enforcement, in a Member State, of an arbitral award issued by an arbitral tribunal in another Member State, therefore it does not preclude a court of a Member State from recognizing and enforcing, or from refusing to recognize and enforce, an arbitral award prohibiting a party from bringing certain claims before a court of that Member State. The Court emphasized that ‘Regulation No 44/2001, apart from a few limited exceptions, does not authorise the jurisdiction of a court of a Member State to be reviewed by a court in another Member State’70—and in this regard—the Court approved the West Tankers reasoning. However, the Court distinguished West Tankers from Gazprom stating that in the latter case an anti-suit injunction has been issued by an arbitral tribunal, which is not by bound by the principle of mutual trust, thus there can be no question of an infringement of that principle by interference of a court of one Member State in the jurisdiction of the court of another Member State. According to the Court, failure to comply with an anti-suit injunction issued by an arbitral tribunal is not capable of resulting in penalties being imposed upon it by a court of another Member State, and therefore the effects of anti-suit injunctions issued by court of Members State are different of those issued by arbitral tribunals. Furthermore, the Court reasoned that the anti-suit injunction issued by the arbitral tribunal does not deprive it addressee judicial protection because ‘in proceedings for recognition and enforcement of such an arbitral award, first, that party could contest the recognition and enforcement and, second, the court seized would have to determine, on the basis of the applicable national procedural law and international law, whether or not the award should be recognised and enforced’.71 The judgment in the Gazprom case was approved by many scholars.72 As Trevor Hartley summed up ‘West Tankers still stands’, however, the CJUE has rightly rejected its application in the Gazprom case since the arbitral award rendered by the tribunal seated in Stockholm lacked a penalty which would make it comparable to anti-suit injunction issued by the English court in West Tankers.73 It was also emphasized that the CJUE rejected flawed reasoning of the Advocate General’s opinion which led to unrestricted domination of arbitration over jurisdictional rules of the European law.74 The CJEU’s reasoning was fully accepted and applied also by the Supreme Court of Lithuania which granted the enforcement of the anti-suit injunction issued by the arbitral tribunal seated in Sweden.75 5. Critical Analysis of the Gazprom Judgment Before taking up a critical analysis of the judgment in Gazprom, it should be pointed out that both the Gazprom and West Tankers judgments, as well as the theses presented by us, remain current under Regulation 1215/2012. More specifically, recital 12 of this regulation does not affect the evaluation of the permissibility of issuance of anti-suit injunctions by a state court or arbitral tribunal.76 Our scepticism of the CJEU’s position in Gazprom is based on the unequivocal refusal to apply the West Tankers rule, despite its expressed acceptance. Moreover, the Gazprom judgment lacks any deep analysis of the issue of the right to effective legal remedy before a tribunal previously established by law, which is fundamentally important in any case where there is a positive jurisdictional conflict between a state court and an arbitral tribunal. In its justification for refusing to apply the dictum of West Tankers, the CJEU indicated three differences between the anti-suit injunction issued by the High Court and the injunction issued by the arbitral tribunal in Gazprom. First, arbitral tribunals are not covered by the principle of mutual trust between the courts of the Member States; secondly proceedings for recognition and enforcement of arbitral awards are excluded from the scope of Regulation 44/2001; and thirdly only anti-suit injunctions issued by a state court (an English court) are tied to sanctions. These differences will be analysed in detail below. In Gazprom, the CJEU appears to take the position that the principle of mutual trust among courts of the Member States, which is not binding on an arbitral tribunal, was the principal argument behind the ruling in West Tankers, when this issue was of only secondary importance.77Ratio decidendi in West Tankers follows from the conclusion that ‘an anti-suit injunction … is contrary to the general principle which emerges from the case-law of the Court on the Brussels Convention, that every court seized itself determines, under the rules applicable to it, whether it has jurisdiction to resolve the dispute before it (see, to that effect, Gasser, paragraphs 48 and 49)’.78 This issue is present to the same degree in the Gazprom case: assuming that the case heard by the Lithuanian court as a result of the application by the Lithuanian Minister of Energy is covered by Regulation 44/2001,79 that court should independently rule on its own jurisdiction. In Gazprom the CJEU emphasized that ‘failure on the part of the Ministry to comply with the arbitral award of 31 July 2012 in the context of the proceedings relating to initiation of an investigation in respect of the activities of a legal person is not capable of resulting in penalties being imposed upon it by a court of another Member State’.80 Indeed, considering that the application for enforcement of the Swedish arbitral award was filed in Lithuania, under these facts it was impossible for the court of another Member State to impose sanctions on the Minister of Energy. However, in our opinion, this does not mean that the anti-suit injunction issued by the Swedish arbitral tribunal was not backed by the penalty, as proposed by Trevor Hartley.81 In case of enforcement of the Gazprom award by the Lithuanian court, the Lithuanian Ministry of Energy’s disobedience could result in sanctions that are provided by Lithuanian law for the compulsory execution of non-monetary relief—assuming that no state immunity defence is used and that the execution proceedings may be pursued against the state. Apart from this point, however, it should be noted that the state remains bound by an award enforced by its own court even in the absence of sanctions—and indeed exempting the state from execution partly arises out of the conviction that it will willingly perform judgments. Moreover, state officials who ignored an enforced award could possibly face sanctions (e.g. disciplinary proceedings) themselves, for ignoring a court’s decision on enforcement. Thus, the difference between anti-suit injunctions issued by English courts in West Tankers and Turner82and arbitral anti-suit injunctions comes down to the fact that in case of commencing or continuing court action in violation of the English anti-suit injunction, the penalty for contempt of court is automatically available, whereas in case of the violation of arbitral anti-suit injunctions, enforcement by a state court is necessary to reach the sanctions available in law of this state for compulsory execution of non-monetary reliefs. Therefore, the state court’s decision on enforcement may change the nature of arbitral anti-suit injunction from instruments which effects are confined to the arbitral proceedings to measures supported by the state’s compulsory execution. It is relevant not so much whether the anti-suit injunction issued by the arbitral tribunal carries sanctions ab initio, as whether it may carry sanctions as a result of recognition or enforcement of the award. If such sanctions for disobedience to an arbitral anti-suit injunction could occur, then the decision of the state court on recognition or enforcement of the ruling violates the effet utile of Regulation 44/2001.83 This conclusion is not changed by the finding by the CJEU in Gazprom that the proceedings for recognition or enforcement of anti-suit injunction are not covered by Regulation 44/2001.84 Exclusion from scope of the Regulation is irrelevant for evaluation of whether the excluded activity may violate a right guaranteed by the Regulation. 6. Recognition and Enforcement of Anti-suit Injunctions Issued by Arbitrators and Article 47 of the Charter of Fundamental Rights The reasoning of the Gazprom judgment briefly touches upon the right to access the court85 and concludes that this right is realized in the proceedings for the recognition and enforcement of the anti-suit injunction issued by arbitrators.86 However, we believe that the right to effective legal remedy before the tribunal previously established by law as enshrined in Article 47 of the Charter, and more specifically the implementation of this right in the Brussels Regulations, opposes the recognition or enforcement of anti-suit injunctions by arbitral tribunals. The proposed position extends beyond how the right to effective legal remedy in the context of anti-suit injunctions was understood by the CJEU itself, but in our view, it is a logical consequence of the Brussels regime. Admittedly, providing for legal protection is chiefly the Member States’ business. However in exercising its treaty competencies, the EU also has both the authority and the obligation to ensure the right to effective legal remedy before the tribunal previously established by law. Under Article 67(4) TFEU, ‘The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters’. This means that ensuring access to justice falls within the competencies of the EU, regardless of exercise of any other competencies (this is confirmed in Article 81(2)(e) TFEU). The CJEU case law acknowledges the need to guarantee the rights stemming from Article 47 of the Charter in the course of implementing Regulation 44/2001. This may be observed in judgments in which Article 47 of the Charter was recognized as an element of public policy whose infringement justifies denial of recognition and enforcement of a judgment from another Member State.87 With respect to jurisdiction, the import of the right to legal protection is apparent in the judgments in C-112/13 A v B88 and C-327/10 Hypoteční banka.89 In A v B, the CJEU stated first that the provisions of the regulation should be interpreted in light of fundamental rights, and that ‘all the provisions of Regulation No 44/2001 express the intention to ensure that, within the scope of the objectives of that regulation, proceedings leading to the delivery of judicial decisions take place in such a way that the rights of the defence enshrined in Article 47 of the Charter are observed’.90 An identical statement is found in Hypoteční banka.91 The CJEU thus takes the position that the right to a defence must be guaranteed within the Brussels regime. The CJEU takes a similar view on another aspect of Article 47: the right to an effective protection.92 We readily agree that the right to an effective protection and the right to a defence should be ensured in interpretation and application of regulations 44/2001 and 1215/2012. In our view, though, this proposition does not go far enough. We believe that the Regulations are instruments for realization of the right to effective legal remedy before the tribunal previously established by law. This right is not just one of many fundamental rights which must be respected in application and interpretation of the Regulations, but it is the very right which the Brussels regime is intended to realize. This is tied to nature of the rules set forth in the Brussels Regulations. The Brussels Regulations, both in the original version (Regulation 44/2001) and in the recast version (Regulation 1215/2012), may be understood in two ways. The first possible understanding is that the Regulation is a sorting system, demarcating jurisdictions of various Member States. The purpose of the Regulation is hence to eliminate jurisdictional conflicts. In this context, a simplified procedure of recognition and enforcement may be understood as supplementation of the jurisdictional rules—limitations on national jurisdiction are accompanied by the possibility of easier exercise of the effects of the national court judgments abroad. The second understanding sees the Brussels Regulation through the prism of individual rights. The Regulation is an instrument for realisation of the right to legal protection enshrined in Article 47 of the Charter of Fundamental Rights—in various aspects of this right. It delivers on the promise of legal protection for plaintiffs, who may effectively reach defendants’ assets regardless of where in Europe they are located. It also protects defendants from being sued elsewhere than in the country they live in, save some strictly enumerated instances. The legal protection under the Brussels Regime does not end here; it touches several more points, for instance the possibility of appointing a representative in absentia for the defendant.93 The view that the jurisdictional rules of the Brussels Regulations are only intended to resolve conflicts between the courts of different Member States seems reductionistic. Nevertheless, we find it in the Advocate General’s opinion in Gazprom94as well as in West Tankers, in which the CJEU refers to ‘attainment of the objectives of unification of the rules of conflict of jurisdiction in civil and commercial matters’ for the purposes of Regulation 44/2001.95 It is then necessary to explain, why we find this understanding too narrow. Article 47 of the Charter of Fundamental Rights guarantees the right to an effective legal remedy before a court. This right implies the obligation to provide such remedy. The obligation with respect to application of the Brussels Regulations rests on the Member States pursuant to Article 51(1) of the Charter (the Member States apply EU law while applying the Regulation, which is sufficient to trigger the Charter and its Article 47). If the Brussels Regulations provide for the jurisdiction of the courts of a Member State in a given case, failure by the national law to vest such courts with competence to hear the case must be evaluated under Article 47 of the Charter. We might go so far as to venture that this evaluation will generally be negative. The right to an effective remedy constitutes an essential condition for the effectiveness—if not the existence—of all other rights. The Member States bear the obligation to vest their courts with competence in cases in which the Brussels Regulations award them jurisdiction. If a national law does not vest its courts with this competence, infringing Article 47 of the Charter is not the only consequence. The EU law takes primacy over national law and has a direct effect. As a result, Article 47 of the Charter in connection with the jurisdictional provision of the Regulation and Article 51(1) of the Charter vests the courts of this country with competence to hear the case. Therefore, the very competence that was lacking in national law is provided for by EU law. Whereas this may be a far-fetched idea where it comes to general jurisdiction, it is more readily visible in case of exclusive jurisdiction. Courts which under the regulations have exclusive jurisdiction cannot find themselves incompetent to hear the case (according to national law), as this would result in déni de justice. Therefore, in the absence of national-law provisions, they must draw their competence from the EU law. What is possible in case of exclusive jurisdiction is also possible when it comes to other kinds of jurisdiction, as the mechanisms for primacy and direct effect works similarly. In short, we believe that the Brussels Regulations do not only demarcate between national-law competences to hear cases; it also establishes such competences. Consequently, encroachment on such competence must be evaluated under the relevant Brussels Regulation and Article 47 of the Charter of Fundamental Rights. It is immaterial in this respect whether the encroachment itself falls within the bounds of the Regulation; it is also immaterial who encroached on the competence: a state court, an arbitral tribunal, or anyone else. The Regulation does limit the content of the competence, but it does not limit the possible methods of infringing the competence. Whenever a state court is, in law or in fact, limited in exercising its jurisdictional competences under the Regulation, we must therefore treat it as an encroachment and evaluate it under Article 47 of the Charter. In concluding an arbitration agreement, the parties waive the exercise of their right to have their case heard by a public court under Article 47 (par. 2, sentence 1) of the Charter of Fundamental Rights.96 This conclusion is not changed by the fact that state courts exercise some degree of control over arbitration in post-arbitration proceedings since they do not consider the case on merits and conduct révision au fond.97 The waiver of the exercise of Article 47 right is justified by the autonomous will of the parties, and its permissibility and form are governed by national arbitration laws. These laws assume that the state court will be capable of evaluating the effectiveness of an arbitration agreement i.e. a waiver of the right to have the case heard by a public court.98 Such an evaluation is made when ruling on the plea of the arbitration agreement as a defence, or an application for recognition or enforcement of the arbitral award, or in the event of filing of a petition to set aside the award. But anti-suit injunctions issued by arbitral tribunals aim to deprive the state court of the possibility to review the arbitration agreement while the claim is brought before the state court. They effectively prevent state courts from reviewing whether the party waived the exercise of the right to have its case heard by a public court. In issuing an anti-suit injunction, the purpose of the arbitral tribunal is to reserve this evaluation only to itself. This is contrary to the construction of waiver of exercise of right to have their case heard by a public court by way of an arbitration agreement, as this waiver must be subject to effective judicial oversight which cannot be limited to the post-arbitration proceedings. As the CJEU rightly pointed out in West Tankers: Lastly, if, by means of an anti-suit injunction, the Tribunale di Siracusa were prevented from examining itself the preliminary issue of the validity or the applicability of the arbitration agreement, a party could avoid the proceedings merely by relying on that agreement and the applicant, which considers that the agreement is void, inoperative or incapable of being performed, would thus be barred from access to the court before which it brought proceedings under Article 5(3) of Regulation No 44/2001 and would therefore be deprived of a form of judicial protection to which it is entitled.99 In the case of proceedings for recognition or enforcement of arbitral anti-suit injunction, the court may examine fully the jurisdiction of the arbitral tribunal to hear the given dispute on the merits. This is because the competence to issue the injunction is derivative from the general competence to hear the case. It may be justified and indeed necessary to deny recognition or enforcement of such anti-suit injunction because the arbitral tribunal lacks jurisdiction to hear the main dispute (Article V(1)(a) or (c) of the New York Convention). Such refusal is particularly likely when the application for recognition or enforcement of the anti-suit injunction is filed in a state where the state court has denied the defence of the arbitration agreement in the dispute that the injunction is concerned with. When, however, applications for recognition or enforcement of an anti-suit injunction are filed in many Member States, it is possible that the foreign court will not uphold jurisdictional defences against such a decision, which would open the way for its recognition or enforcement. In such case, the competence of the state courts to examine their own jurisdiction when faced with the plea of an arbitration agreement, which is an element of the right provided for in Article 47 of the Charter of Fundamental Rights, will be restricted. It does not matter whether the anti-suit injunction was enforced or recognized in the state against whose court the injunction was granted or in some other state. In any case, the enforcement or recognition may (depending on national law) lead to execution of the injunctions. If the party against whom the injunction was granted suffers adverse effects because of going to a state court, the effectiveness of the court’s jurisdiction is impaired not unlike in West Tankers. Thus, denial of recognition or enforcement of such a ruling is justified by violation of the fundamental principles of public policy, which necessarily include the right articulated in Article 47 of the Charter of Fundamental Rights. This right is realized through guaranteeing the competence of the courts of the Member States to consider cases within their own jurisdiction, including also to consider the plea of an arbitration agreement. In other words, because anti-suit injunctions are intended to effectively limit the state court’s ability to rule on its own jurisdiction, they infringe the right to effective legal remedy before a tribunal previously established by law. This right, when jurisdiction in the given case would arise under the Brussels Regulations, follows from the Charter of Fundamental Rights. In our view, the effectiveness of the protection of Article 47 requires that the Member States recognize it, also with respect to Brussels regime, as an element of their public policy justifying denial of recognition or enforcement of an anti-suit injunction.100 This conclusion remains true for both arbitral anti-suit injunction enforced under the New York Convention (Article V(2)(b)) as well as those enforced on the basis of domestic rules on interim measures. 7. Concluding Remarks The very notion of anti-suit injunctions issued by arbitral tribunals is controversial due to the assumption they are grounded on—that the Kompetenz-Kompetenz principle with respect to arbitral tribunals takes precedence over the competence of the state court to rule on its own jurisdiction. This would establish far-reaching primacy of arbitration over the state judicial system.101 Considering the prohibition of issuance of anti-suit injunctions within the EU by state courts in cases covered by the Brussels regime, it does not appear proper to vest arbitral tribunals with the ability, through such injunctions, to de facto limit the right of the state courts to examine their own jurisdiction, including the issue of the arbitration agreement. This view is particularly supported by the sanctions which violation of anti-suit injunctions enforced by a state court may entail, equivalent to the sanctions that may be imposed for violation of anti-suit injunctions issued by state courts themselves. Moreover, we believe that recognition and enforcement of anti-suit injunctions issued by arbitral tribunals infringe the right to effective legal remedy before the tribunal previously established by law, as implemented by the Brussels Regulations, which is a fundamental principle of the legal order of the European Union. Adopting this position ensures a uniform approach of the courts of the Member States to anti-suit injunctions issued by arbitral tribunals, as well as a uniform approach to anti-suit injunctions issued by arbitral tribunals and state courts, if there are similar legal effects for the party concerned. When evaluating the anti-suit injunction as a procedural measure, it must be emphasized that commencement by a party to an arbitration agreement of proceedings before a state court contrary to this agreement will launch the procedure under Article II(3) of the New York Convention, upon assertion of the defence by the other party, in any state that is a party to the Convention. This is a fundamental mechanism for demarcating the competencies of arbitral tribunals and state courts, as an expression of the negative effect of an arbitration agreement. All EU Member States are also parties to the New York Convention, and the courts of these states are obliged to apply it. What is thus fundamentally important is that it is the state courts, not arbitral tribunals, which stand guard over the effectiveness of the arbitration agreement, while also protecting the parties’ fundamental rights. It should be pointed out in this context that the courts of the Member States ensure a high level of legal protection, including protection of the autonomy of the parties’ will expressed in submitting disputes for resolution through arbitration. The spread of anti-suit injunctions issued by arbitral tribunals will in our view lead to deterioration in the relations between arbitral tribunals and state courts essential for the proper functioning of arbitration. There is a justified concern that the state courts’ response to the issuance of anti-suit injunctions by arbitral tribunals will be anti-arbitration injunctions, prohibiting commencement of proceedings before arbitral tribunals or ordering them to be discontinued.102 Thus pressing for anti-suit injunctions may prove a double-edged sword for the arbitration community. It needs to be emphasized that the proposal we present for adoption by the Member States of a uniform policy with respect to anti-suit injunctions, regardless of whether the injunction is issued by a state court or an arbitral tribunal—that is, the de facto extension of the West Tankers holding to cover anti-suit injunctions issued by arbitral tribunals—will not deprive the parties to an arbitration agreement of their right to arbitration. Apart from the protection provided under Article II(3) of the New York Convention or the possibility for the arbitral tribunal to sanction an unscrupulous respondent as provided by the law governing arbitration proceedings, the possibility of challenging the enforceability of a state court judgment issued parallel to arbitration proceedings should also be indicated. The basis for denial of recognition or enforcement of such decision of the foreign state court will in this situation be the incompatibility with the recognized or enforced arbitral award, as well as the autonomy of the will of the parties who entered into arbitration agreement—as these circumstances falls within the coverage of the public policy clause. Footnotes 1 CJEU Case C-185/07 Allianz SpA, Generali Assicurazioni Generali SpA v West Tankers Inc.  ECLI:EU:C:2009:69. See also H Seriki, Injunctive Relief and International Arbitration (Informa Law 2015) 55ff. 2 T Raphael, The Anti-Suit Injunction (OUP 2008) 285 (¶12.26). 3 ibid 197, ¶7.41. Some authors use the term ‘antisuit order’ to refer to an anti-suit injunction issued by an arbitral tribunal, to distinguish them from anti-suit injunctions issued by state courts. But in this article, we adopt the terminology proposed by the CJEU. See R Moloo, ‘Arbitrators Granting Antisuit Orders: When Should They and on What Authority?’ (2009) 26(5) J Int Arbitration 676, and works cited there. 4 O Vishnevskaya, ‘Anti-suit injunctions from Arbitral Tribunals in International Commercial Arbitration: A Necessary Evil?’ (2015) 32(2) J Int Arbitration 175; Seriki (n 1) 76. 5 Moloo (n 3) 677. 6 T Landau, ‘‘Arbitral Lifelines’: The Protection of Jurisdiction by Arbitrators’ in AJ van den Berg (ed), International Arbitration 2006: Back to Basics? ICCA Congress Series, vol 13 ( Kluwer Law International 2007) 286. 7 For example, Pierre A Karrer calls for a total ban on issuance of anti-suit injunctions, whether by state courts or arbitral tribunals. See ‘Anti-Arbitration Injunctions: Theory and Practice’ in (n 6) 229. 8 L Lévy, ‘Anti-suit Injunctions Issued by Arbitrators’ in E Gaillard (ed), Anti-suit Injunctions in International Arbitration: IAI Seminar, Paris, November 21, 2003 (Juris Publishing 2005) 128. 9 CJEU Case C-536/13, Gazprom OAO v Lietuvos Respublika  ECLI:EU:C:2015:316. 10 JDM Lew and others, Comparative International Commercial Arbitration (Kluwer Law International 2003) 159, note 129. 11 Ust-Kamenogorsk Hydropower Plant JSC v AES Ust-Kamenogorsk Hydropower Plant LLP 1 WLR 920,  UKSC 35,  1 WLR 1889 ¶ 48. 12 JC Fernández Rozas, ‘Anti-suit Injunctions Issued by National Courts Measures Addressed to the Parties or to the Arbitrators’ in (n 8) 75. 13 E Gaillard, ‘Anti-suit Injunctions Issued by Arbitrators’ in (n 6) 237. 14 Vishnevskaya (n 4) 179. 15 Available at <http://www.legislation.gov.uk/ukpga/1996/23/contents> accessed 22 February 2018. 16 Raphael (n 2) 196 (¶7.39). Cooke J in Starlight Shipping Co & Anor v Tai Ping Insurance Co Ltd (Hubei Branch) & Anor also noted that the arbitrators could grant an anti-suit injunction in the form of a final award in order to restrain the pursuit of proceedings in China. Rev 1  EWHC 1893 (Comm) (1 August 2007). 17 Welex AGv Rosa Maritime Ltd  APP.L.R. 07/03. 18 Seriki (n 1) 78, 79. 19 Ch Debattista, ‘Arbitrators’ Powers To Order Interim Measures Including Anti-Suit Injunctions’ (2010) 76 Arbitration 425; T Raphael, The Anti-Suit Injunction Updating Supplement (OUP 2008) 32, 33 (¶7.39). 20 ibid 77. 21 Moloo (n 3) 679; OL Mosimann, Anti-Suit Injunctions in International Commercial Arbitration (Eleven 2010) 100. See also Interim Award of 14 May 2001, ICC no 830 published in (n 8) 314. 22 ibid. 23 P Ortolani, ‘Anti-Suit Injunctions in Support of Arbitration under the Recast Brussels I Regulation’ (2015) 6 MPILux Working Paper 9 11–12; Moloo (n 3) 679, 680. 24 Lévy (n 8) 117 (reference no 5). 25 See Vishnevskaya (n 4) 181; D Joseph, Jurisdiction and Arbitration Agreements and their Enforcement (Sweet and Maxwell 2005) 371; Moloo (n 3) 681. 26 Examples of such cases are cited by M Scherer and W Jahnel, ‘Anti-suit and Anti-Arbitration Injunctions in International Arbitration: A Swiss perspective’ (2009) 12(4) Int Arbitration L R 70. 27 Report of UNCITRAL Working Group on Arbitration on the Work of its 39th Session, 2006, UN Doc A/61/17, paras 92–95, <http://unctad.org/en/Docs/a61d17_en.pdf> accessed 22 February 2018. 28 Art 28(1) ICC Rules; Art 30.1 SIAC Rules; Art 26(1) Swiss Rules, Art 37(1) SCC Rules. 29 Mosimann (n 21) 101. 30 E Gaillard, ‘Reflections on the Use of Anti-Suit Injunctions in International Arbitration’ in JDM Lew and LA Mistelis (eds), Pervasive Problems in International Arbitration (Kluwer Law International 2006) 211; Landau (6) 291; Joseph (n 25) 373. 31 E Gaillard, ‘Anti-suit Injunctions Issued by Arbitrators’ in (n 6) 237. 32 ibid. 33 T Ereciński and K Weitz, Sąd arbitrażowy (Lexis Nexis 2008) 228. 34 G Carducci, ‘Notes on the EUCJ’s Ruling in Gazprom: West Tankers Is Unaffected and Anti-suit Injunctions Issued by Arbitral Tribunals Are Not Governed by EU Regulation 44/2001’ (2016) 32 Arbitration Int 123. 35 See Ortolani (n 23) 9. 36 See E Gaillard, ‘L’effet négatif de la compétence-compétence’ in J Haldy and others (eds), Etudes de procédure et d’arbitrage en l’honneur de J-F.Poudret (J. Haldy et al. eds, Faculté de droit de l'Université de Lausanne 1999) 387. 37 Art 1448 of the French Civil Procedure Code. 38 Art 1506 of the French Civil Procedure Code, if the parties do not agree to exclude application of Art 1448. 39 See Section 2 of the Swedish Arbitration Act of 4 March 1999 (SFS 1999:116); § 592 of the Austrian ZPO; §1140 of the German ZPO; Art 1180 of the Polish Civil Procedure Code. 40 Vishnevskaya (n 4) 210. 41 See Art 37(5) of the ICC Arbitration Rules; Art 28.4 of the LCIA Arbitration Rules. 42 E Nadja-Kubat, Parallel Proceedings in International Arbitration: A Comparative European Perspective (Wolters Kluwer International 2014) 223. 43 The consequences of being held in contempt of the court include i.a. sequestration of assets. See D Eady and ATH Smith (eds), Arlidge, Eady & Smith on Contempt (Sweet and Maxwell 2011) 1001; N Andrews, Andrews on Civil Processes (Intersentia 2013) 506. 44 Vishnevskaya (n 4) 211; see also Nadja-Kubat (n 40) 224. 45 R Fentiman, International Commercial Litigation (OUP 2010) 563. 46 According to Pietro Ortolani, it is possible to award compensation of damages arising out of the violation of the anti-suit injunction. See Ortolani (n 23) 14. 47 Art 40 of SCC Rules; Art 35(6) of ICC Rules; Art 26(8) of LCIA Rules. 48 S Kröll, ‘Part II: Commentary on the German Arbitration Law (10th Book of the German Code of Civil Procedure), Chapter VIII: Recognition and Enforcement of Awards, § 1060 – Domestic Awards’ in KH Böckstiegel and others (eds), Arbitration in Germany: The Model Law in Practice (Second Edition) (Kluwer Law International 2015) 440; Figli di Antonio Cassuli vTradax England Ltd, Corte di Appello of Bari (1974) 10 Rivista di Diritto Internazionale Privato e Processuale 285. 49 Kröll (n 48) 440. 50 J van den Berg, ‘Etude comparative du droit de l’arbitrage commercial dans les pays de Common Law’ (1979) 19 Rassegna dell’Arbitrato 11. 51 See generally Bremer Oeltransport GmbH v. Drewry  1 KB 753; C Tevendale and A Cannon, ‘Enforcement of Awards’ in JDM Lew and others (eds), Arbitration in England, with chapters on Scotland and Ireland (J.D.M. Lew, H. Bor et al. edsKluwer Law International 2013) 564. 52 Xiamen Xinjingdi Group Co. Ltdv Eton Properties Ltd & 10 Ors, CACV 158/2012; HCCL 13/2011. 53 For example, under Polish law, the debtor commits a tort if it violates universally binding legal norms, excluding norms governing performance of obligations. See M Kaliński, ‘Szkoda na mieniu i jej naprawienie’ (C.H. Beck 2008) 39. Of course, it may be concluded that in the case of conclusion of an arbitration agreement, we are bound by universally binding norms referring specifically to the situation of a person bound by such an agreement. But this approach essentially constitutes an attempt to ascribe to the arbitration agreement the character of an obligation which is not the case under Polish law. Similar problems may arise in other civilian legal systems. 54 See M Łaszczuk and J Szpara, ‘Postępowanie postarbitrażowe’ in A Szumański (ed), System Prawa Handlowego. Arbitraż Handlowy, vol 8 (C.H. Beck 2015) 804. 55 See eg D Otto, ‘Article IV’ in H Kronke and others (eds), Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention (H. Kronke et al. edsKluwer Law International 2010) 156; ICCA’s Guide to the Interpretation of the 1958 New York Convention: A Handbook for Judges (International Council for Commercial Arbitration 2011); Ortolani (n 23) 13. 56 Ali Yesilirmak indicates i.a. Denmark, France, Ireland and Malta. See A Yesilirmak, Provisional Measures in International Commercial Arbitration (Kluwer Law International 2005) 252. 57 A Kur, ‘Case C-235/09, DHL Express vChronopost, Judgment of the Court of Justice (Grand Chamber) of 12 April 2011’ (2012) 49 Common Mark L Rev 764. 58 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L012, 16.01.2001, p 1–23. 59 Court of Appeal of Lithuania, 17 December 2012, OAO Gazprom vThe Republic of Lithuania, represented by the Ministry of Energy of the Republic of Lithuania, 3K-7-326/2013 in AJ van den Berg (ed), Yearbook Commercial Arbitration 2013 - Volume XXXVI (Kluwer Law International 2013) 423. 60 Final Award of 31 July 2012, SCC Case No V (125/2011), OAO Gazprom vThe Ministry of Energy of the Republic of Lithuania ¶292, <http://cisarbitration.com/wp-content/uploads/2013/02/Gazprom-v-Republic-of-Lithuania-SCC-Arbitration-No.-V-1252011-Award-dated-31-July-2012.pdf> accessed 22 February 2018. 61 ibid ¶199. 62 Advocate General Opinion in CJEU Case C-536/13 Gazprom OAO, ECLI:EU:C:2014:2414. 63 See Ch P Ojiegbe, ‘From West Tankers to Gazprom: Anti-suit Injunctions, Arbitral Anti-suit Orders and the Brussels I Recast’ (2015) 11(2) J Private Int L 278; Carducci (n 34) 967. 64 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ L351, 20.12.2012, p 1–32. 65 Advocate General Opinion (n 62) ¶91. 66 CJEU Case C-145/86, Horst Ludwig Martin Hoffmann v Adelheid Krieg , EU:C:1988:61; CJEU Case C-190/89, MarcRich& CoAG v SocietàItalianaImpianti PA , EU:C:1991:319; CJEU Case C-391/95, Van Uden Maritime BV, trading as Van Uden Africa Line v Kommanditgesellschaft in Firma Deco-Line and Another , EU:C:1998:543. 67 Advocate General Opinion (n 62) ¶154. 68 ibid ¶181. 69 ibid ¶186. 70 Gazprom (n 9) ¶33. 71 ibid ¶38. 72 See Carducci (n 34) 120; Ojiegbe (n 63) 289; E Kajkowska, ‘Anti-Suit Injunctions in Arbitral Awards: Enforcement in Europe’ (2015) 74(3) Cambridge L J 412. 73 T Hartley, ‘Antisuit Injunctions in Support of Arbitration: West Tankers Still Afloat’ (2015) 64(4) Comp L Quart 973. 74 ibid 971. 75 Supreme Court of Lithuania, 23 October 2015, OAO ‘Gazprom’ vThe Republic of Lithuania, Ministry of Energy of the Republic of Lithuania, No 3K-7-458-701/2015 in AJ van den Berg (ed), Yearbook Commercial Arbitration 2016 - Volume XLI (Kluwer Law International 2016) 510; available in Lithuanian at <http://liteko.teismai.lt/viesasprendimupaieska/tekstas.aspx?id=7a7f68b7-3495-4505-9f63-a866c9e82fbb>. 76 A Leandro, ‘Towards a New Interface between Brussels I and Arbitration?’ 2015 (6) J Int Dispute Settl 197; Ojiegbe (n 63) 278. 77 The CJEU in West Tankers states: ‘Further, in obstructing the court of another Member State in the exercise of the powers conferred on it by Regulation No 44/2001, namely to decide, on the basis of the rules defining the material scope of that regulation, including Article 1(2)(d) thereof, whether that regulation is applicable, such an antisuit injunction also runs counter to the trust which the Member States accord to one another’s legal systems and judicial institutions and on which the system of jurisdiction under Regulation No 44/2001 is based (see, to that effect, Turner, paragraph 24).’ (emphasis added). See West Tankers (n 1) ¶30. 78 West Tankers (n 1) ¶29. 79 See doubts raised by Advocate General concerning application of Regulation 44/2001 to the case brought by the Ministry of Energy before the Lithuanian courts—Advocate General Opinion (n 62) ¶53–57. 80 Gazprom (n 9) ¶40. 81 T Hartley, ‘The Brussels I Regulation and Arbitration’ (2014) 63(4) Comp L Quart 856. 82 CJEU Case C-159/02, Gregory Paul Turner v Felix Fareed Ismail Grovit, Harada Ltd and Changepoint SA  ECLI:EU:C:2004:228. 83 Leandro (n 76) 198. 84 West Tankers (n 1) ¶23–24: ‘23. Proceedings, such as those in the main proceedings, which lead to the making of an antisuit injunction, cannot, therefore, come within the scope of Regulation No 44/2001. 24. However, even though proceedings do not come within the scope of Regulation No 44/2001, they may nevertheless have consequences which undermine its effectiveness, namely preventing the attainment of the objectives of unification of the rules of conflict of jurisdiction in civil and commercial matters and the free movement of decisions in those matters. This is so, inter alia, where such proceedings prevent a court of another Member State from exercising the jurisdiction conferred on it by Regulation No 44/2001.’ 85 Gazprom (n 9) ¶34. 86 Gazprom (n 9) ¶38. 87 CJEU Case C-7/98, Dieter Krombach v André Bamberski  ECLI:EU:C:2000:164. 88 CJEU Case C-112/13, A v B  ECLI:EU:C:2014:2195. 89 Case C-327/10, Hypoteční banka a.s. v Udo Mike Lindner ECLI:EU:C:2011:745. 90 A vB (n 88) ¶51. 91 Hypoteční banka (n 89) ¶49. 92 A vB (n 88) ¶58. 93 Hypoteční banka (n 89) ¶49; A vB (n 88) ¶51. 94 Advocate General Opinion (n 62) ¶181. 95 West Tankers (n 1) ¶24. 96 In our view, pursuant to the case law of the CJEU, arbitral tribunals whose competence to hear a dispute arises under an arbitration agreement are not tribunals ‘established by law’. See CJEU Case C-555/1, Merck Canada Incv Accord Healthcare Ltd  ECLI:EU:C:2014:92. 97 See Gazprom (n 9) ¶38. 98 The Supreme Court of Lithuania seem to ignore this aspect. See Supreme Court of Lithuania (n 75) ¶83. 99 West Tankers (n 1) ¶31. 100 Trevor Hartley takes the view that the Court of Justice has no jurisdiction to interpret the New York Convention. Hartley (n 81) 858. It should be pointed out, however, that the Court of Justice does not conduct an interpretation of the convention itself but only indicates what legal norms are fundamental for the European Union. This same conception was applied by the Court of Justice in C-126/97, Eco Swiss China Time Ltd v Benetton International NV  ECLI:EU:C:1999:269. 101 Also eg J Waincymer, Procedure and Evidence in International Arbitration (Kluwer Law International 2012) 655; Vishnevskaya (n 4) 195. 102 See Waincymer (n 101) 655. As an example of an arbitral anti-suit injunction see: Kraków Regional Court, 29 June 2016, IX GC 605/16, <http://arbitration-poland.com/others/Krakow_Regional_Court_order_dated_29_June_2016_Case_No_IX_GC_605_16_176792_20160830.pdf> accessed 22 February 2018. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For Permissions, please e-mail: firstname.lastname@example.org This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
Journal of International Dispute Settlement – Oxford University Press
Published: Mar 26, 2018
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