The English court's power to grant anti-suit injunctions in support of arbitration

19 July 2013. Published by Chris Ross, Partner

The Supreme Court judgment in Ust-Kamenogorsk Hydropower Plant JSC v AES Ust-Kamenogorsk Hydropower Plant LLP [2013] ...

… clarifies the powers of the English court to grant anti-suit injunctions against proceedings commenced overseas in breach of an arbitration agreement, as well as the legal basis of such powers.

Under section 44 Arbitration Act 1996, the court may grant interim injunctive relief in certain circumstances.  Under section 37 Senior Courts Act 1981 the court also has jurisdiction to grant injunctions where foreign proceedings have been brought in breach of an arbitration agreement. Following the decision of the ECJ in Allianz SpA v West Tankers Inc (Case C-185/07), the English courts are unable to grant an anti-suit injunction against foreign proceedings if they were commenced in a jurisdiction within the regime of the Brussels Regulation (EC) No 44/2001 or the Lugano Convention.

The issue the court had to consider in this appeal was the power of the English court to prevent the commencement or continuation of foreign proceedings brought in a jurisdiction outside the European regime when a valid arbitration agreement exists.

The court held that section 37 Senior Courts Act 1981 was the basis for this power, rather than section 44 Arbitration Act 1996. Significantly, the court also found that an anti-suit injunction is available in support of arbitration even where no arbitration is on foot, or even in contemplation.

For the full article on this case, please click here.

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