Anti-suit injunctions are issued by national courts or arbitral tribunals, used especially in common law jurisdictions, in order to protect the jurisdiction of arbitral tribunals, or to prevent the tribunal from assuming jurisdiction. The general explanations on anti-suit injunctions are analyzed in our Newsletter article published in February1.
With regard to anti-suit injunctions, the Court of Justice of the European Union ("CJEU") rendered a decision on May 13th, 2015, in case numbered C-536/13. The case concerned the questions addressed to the CJEU by the Lithuanian Supreme Court that arose in a lawsuit between Gazprom OAO ("Gazprom") and the Republic of Lithuania, with respect to the enforcement of anti-suit injunctions issued by arbitral tribunals. The Gazprom decision of the CJEU is analyzed in this article.
The recognition and enforcement of anti-suit injunctions has always been an issue of debate. Anti-suit injunctions may be considered as an infringement of the mutual trust principle within the European Union, when filed by the court of a member state, concerning the proceedings to be initiated in another member state.
In 2009, the CJEU, in its West Tankers decision, ruled that anti-suit injunctions issued by courts of member states, which deprive the courts of another member state of the ability to rule in their own jurisdiction, would be inconsistent with Council Regulation No. 44/2001 ("Brussels I Regulation").
The Brussels I Regulation sets forth that the Regulation does not apply to arbitration; however, it does not clarify the scope of this exception. On the other hand, the Recast Brussels Regulation that entered into force on January 10th, 2015, clarified that proceedings ancillary to arbitration agreements are not within the scope of the Brussels I Regulation. The Gazprom decision of the CJEU should be considered within this framework.
Summary of the Facts
The facts giving rise to the Gazprom decision are related to a dispute between Gazprom and the Ministry of Energy of Lithuania2 ("Ministry"). The dispute arose out of a shareholders' agreement entered into by and between Gazprom and the Ministry. Pursuant to the arbitration clause in the shareholders' agreement, any claim, disputes or contravention with the agreement or its breach, validity, effect, or termination shall be finally determined through arbitration.
In spite of the arbitration clause in the agreement, the Ministry filed a lawsuit before the Vilnius Regional Court in Lithuania, seeking initiation of an investigation in respect of the activities of a legal person. The lawsuit related to some members of the board of directors of Gazprom. The Ministry also claimed that coercive measures provided under the Lithuanian Civil Code should be imposed, if the actions of the company or the board of directors were found to be improper.
In reaction to the lawsuits filed by the Ministry, Gazprom took the view that the application was in breach of the arbitration clause, and initiated arbitration proceedings before the Arbitration Institute of the Stockholm Chamber of Commerce. Gazprom also requested that the arbitral tribunal should order the ministry to discontinue the proceedings initiated before the Lithuanian courts.
The arbitral tribunal, in its award dated 31.07.2012, declared that the Ministry partially breached the arbitration clause, and ordered the Ministry to withdraw or limit some of the claims that it had brought before the Lithuanian court. Gazprom initiated recognition and enforcement proceedings in Lithuania, in order to enforce the award. The request of enforcement was denied by the Lithuanian court, based on the grounds that the award limited the Ministry's capacity to bring proceedings before a Lithuanian court, and also denied the national court the power to determine its own jurisdiction. Therefore, it was decided that the arbitral tribunal infringed upon the national sovereignty of Lithuania, in contradiction with Lithuanian and international public policy.
Upon the appeal of the decision, the Supreme Court of Lithuania declared that it was uncertain, based on the case law of the CJEU and under the Brussels I Regulation, whether recognition and enforcement of the anti-suit injunction may be refused by the Lithuanian courts, and addressed to the CJEU three questions on the relevant issue.
Decision of the CJEU
In its decision, the CJEU stated that anti-suit injunctions ordered by a member state court requiring a party not to continue proceedings before a court of another member state is contrary to the principle that every court seized of itself determines, under its applicable laws, whether it has jurisdiction. The Brussels I Regulation does not, except in a few limited exceptions, authorize the jurisdiction of a member state court to be reviewed by another member state court.
Considering the above issue, the CJEU clarified that arbitration does not fall within the scope of the Brussels I Regulation, since the latter governs conflicts of jurisdiction between the courts of member states. Concerning the principle of mutual trust, the CJEU pointed out that as the order has been made by an arbitral tribunal, and not by a state court, the principle of mutual trust has not been infringed in the case at hand.
In its decision, the CJEU stated that the Brussels I Regulation does not preclude the courts of European Union member states from giving effect to anti-suit injunctions given by arbitral tribunals. As a result of this determination, whether anti-suit injunctions would be enforced or not should be determined by the national arbitration legislation of the state of enforcement, and by the Convention on Recognition and Enforcement of Foreign Arbitral Awards of 1958 ("New York Convention"), if applicable.
It should also be emphasized that the CJEU pronounced the Gazprom decision under the Brussels I Regulation, and not the Recast Brussels Regulation. Even though the Gazprom decision is given under the Brussels I Regulation, it would also be applicable under the Recast Brussels Regulation, since the latter has established a clearer separation between court proceedings and arbitration proceedings.
The decision of the CJEU should be welcomed with regard to arbitrations with the seat of arbitration within the European Union. In light of this decision, anti-suit injunctions ordered by arbitrators will not be impeded by the Brussels I Regulation, and there will be no mutual trust concerns between European Union member states concerning arbitrator-granted anti-suit injunctions. Pursuant to the Gazprom decision, each member state court will lean on its own arbitration laws, in respect of the effect to be given to anti-suit injunctions. Accordingly, if the relevant jurisdiction is party to the New York Convention, the latter should be applied.
 Please see Anti-Suit Injunctions in International Arbitrations, in our February 2015 Newsletter. Link: http://www.erdem-erdem.com/en/articles/anti-suit-injunctions-in-international-arbitration/
 The Judgment of the court may be accessed at the following link: http://curia.europa.eu/juris/document/document.jsf?text=&docid=164260&pageIndex=0&doclang=EN&mode=req&dir=&occ=first∂=1&cid=461949.
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