Anti-suit injunctions in support of arbitration under the recast Brussels I Regulation

by Pietro Ortolani

MPILux Working Paper 1 (2015)

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ABSTRACT: The article investigates whether, under the Recast Brussels I Regulation, anti-suit injunctions should still be regarded as incompatible with EU law. The paper proceeds in three parts: firstly, it analyses the problem of the compatibility of anti-suit injunction with the Recast Regulation in general. It is argued that anti-suit injunction should still be regarded as incompatible with EU law since they hinder the unification of the rules of conflict of jurisdiction, thus undermining the effectiveness of the Brussels I system. Secondly, the article addresses the specific case where the anti-suit injunction has been issued by arbitrators in the form of an arbitral award. The article contends that the same problems of compatibility with Brussels I arise, irrespective of whether the injunction has been issued by a State court or by an arbitral tribunal. Thirdly, the relevance of the principle of mutual trust is scrutinized: in this context, it is argued that Member State courts can deny recognition and enforcement of an anti-suit injunction issued in the form of an arbitral award on grounds of public policy.

KEYWORDS: Brussels I Regulation (recast); Anti-suit Injunctions; Arbitration; West Tankers; Gazprom