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Oxford Law Citator

11 Injunctions to Restrain Arbitration Proceedings

Thomas Raphael

From: The Anti-Suit Injunction (2nd Edition)

Thomas Raphael QC

Previous Edition (1 ed.)

Content type:: Book content

Product:: Private International Law [PRIL]

Series:: Oxford Private International Law Series

Published in print:: 12 September 2019

ISBN:: 9780198778936

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Subject(s):: Injunctions to arbitration restrain proceedings — Injunctions to restrain proceedings in England and Wales

(p. 239) 11 Injunctions to Restrain Arbitration Proceedings

A. Introduction

11.01 It is legitimate, from an international perspective, for the courts of the seat of the arbitration to intervene to stop or suspend the arbitration in certain circumstances. Nevertheless, the modern tendency is for national arbitration laws to move towards a presumption of non-intervention. The acceptance of the principle of ‘Competence-Competence’¹ means that the national court’s control should in most cases be exercised after any award has been granted, by way of appeal or challenge before the court of the seat, or at the moment of enforcement. This tendency is reflected by the English Arbitration Act 1996, which to a considerable extent respects ‘Competence-Competence’, although it also confers a defined but limited power under section 72 of the 1996 Act by which the courts may intervene to restrain the pursuit of arbitrations with a domestic seat.

11.02 Three questions arise: first, whether section 72 of the 1996 Act exhausts the courts’ powers to grant anti-suit injunctions to restrain domestic arbitration proceedings; second, if the court has wider powers to grant domestic anti-arbitration injunctions, in what conditions they may be granted; and third, whether anti-arbitration injunctions can be granted in respect of arbitrations with a foreign seat.

11.03 It appears that the modern law can be summarized as follows:

(1) The court has a general power under section 37(1) of the Senior Courts Act 1981 to grant an anti-arbitration injunction to restrain the commencement or pursuit of arbitration proceedings if (a) the arbitral proceedings are an infringement of a legal or equitable right of the injunction claimant; or (b) if the arbitration proceedings are vexatious or oppressive or unconscionable.

(p. 240) It is probably also the case that the scope of this power is co-extensive with the power to grant anti-suit injunctions in general, and so the anti-arbitration injunction can also be granted if it is in the ‘interests of justice to do so’; although the primary situations where this will be satisfied is where (a) or (b) apply.
(2) The old pre-1986 case law, which imposed arbitrary distinctions between arbitration proceedings within the scope of an arbitration clause said to be void or invalid, and arbitration proceedings that are outwith the scope of an arbitration clause together, appears no longer to be the law. The court’s powers to restrain arbitration proceedings exist in either case.
(3) Injunctions to restrain the pursuit of arbitrations whose seat is in England are also possible in defined circumstances under section 72 of the Arbitration Act 1996.
(4) The court’s general power to grant anti-arbitration injunctions under section 37(1) of the Senior Courts Act 1981 is not removed by the Arbitration Act 1996, nor exhausted by section 72, in respect of domestic arbitrations, nor is the exercise of the court’s power precluded by the existence of the arbitration agreement.
(5) The general power to grant anti-arbitration injunctions applies also to arbitrations with a foreign seat.
(6) However, the context of the Arbitration Act 1996, and the principle of Competence-Competence together exercise a significant constraint limiting when it will be appropriate to grant an injunction to restrain a domestic arbitration (outside the defined powers in the 1996 Act), and such power will therefore be exercised only ‘very sparingly’, or to use other language, in ‘unusual circumstances’.
(7) Similarly, the effect of Competence-Competence and international comity is that anti-arbitration injunctions to restrain foreign arbitration proceedings may face a higher threshold before an injunction can be justified. Although the case law is not uniform, the burden of the authorities is that an injunction will in general be appropriate only in exceptional circumstances, provided the foreign court has appropriate supervisory jurisdiction, and unless it has been held, or can be shown to a high standard,² that the arbitrators have no jurisdiction or the pursuit of the arbitration proceedings would be in breach of contract.

B. Injunctions to Restrain Arbitrations in England

1. The Law before Compagnie Européene v Tradax

11.04 Until the decision of Hobhouse J in Compagnie Européene v Tradax,³ the rules of the common law and equity on the restraint by injunction of arbitrations in England had developed in an unsatisfactory and unclear manner.

11.05 The bulk of authority, deriving from the controversial decision in North London Railway, suggested that where a claim made in arbitration fell outside an existing arbitration agreement, and was therefore futile and vexatious, it nevertheless infringed no legal or equitable right of the unwilling respondent’s, and was merely a nullity, with the result that the court (p. 241) had no power to restrain it.⁴ If, on the other hand, the unwilling respondent could impeach the arbitration agreement by contending that it did not exist, was void or voidable, or had been discharged by frustration or by breach, then a legal right to restrain the arbitration proceedings by injunction existed;⁵ and the courts also had power to grant an injunction where it was alleged that the terms of the arbitration agreement were being infringed, for example where there was said to be misconduct by the arbitrator.⁶ There was also authority, of uncertain effect, to suggest that an injunction could be granted where the arbitration proceedings were dealing with a claim that was res judicata.⁷

11.06 These distinctions are unappealing. There is no good reason to distinguish between an arbitration claim that falls outside the terms of an existing arbitration agreement and an arbitration claim that is made under an alleged arbitration agreement that does not in fact exist. In (p. 242) both cases, no arbitration agreement covers the claim made.⁸ The analysis in North London Railway was also dubious in principle. If an arbitration claim exceeds the boundaries of the terms of an arbitration agreement, there is little logical difficulty in viewing its pursuit as a breach of the agreement to arbitrate.

11.07 Accordingly, in Compagnie Européene v Tradax, Hobhouse J concluded, without express reference to North London Railway,⁹ that the contract created by an arbitration reference was a tripartite contract between the parties and the arbitrators, and that for the claimant to pursue, and the arbitrators to hear, a claim over which the arbitrators did not have jurisdiction, was a breach of contract which the court could restrain.¹⁰ Hobhouse J also held that the court also had power in equity to restrain the arbitration claimant from pursuing ‘unconscionable’, or in other words, ‘vexatious or oppressive’, arbitration proceedings.¹¹

11.08 Hobhouse J’s contractual route to justify injunctions to restrain arbitrations where the arbitrators had no jurisdiction was, at the time, adventurous as a matter of precedent,¹² although sound in principle. Similarly, Hobhouse J’s conclusion that he had a power to intervene as a matter of equity to restrain vexatious arbitration proceedings was also in (p. 243) tension with much of the older case law, which was inconsistent on the point.¹³ But again, it was sound in principle.

11.09 Both of Hobhouse J’s conclusions can now be seen as justified in precedent as well as principle. Even in 1986, the development of the anti-suit injunction had reached the point where it was clear that there was a power,¹⁴ derived from equity and exercisable by injunction, to restrain court litigation if it was contrary to the interests of justice, and in particular if it was vexatious or oppressive or unconscionable. Since then it has become still clearer that the juridical underpinnings of the older restrictions were unsound. North London Railway was driven by the doctrine that a legal or equitable right is a condition of the grant of an injunction in general. That doctrine, which was later given renewed life by Lord Diplock in The Siskina,¹⁵ is now much qualified and may well no longer exist, in the light of decisions like Fourie v Le Roux.¹⁶ Further, even if the North London Railway/Siskina doctrine still exists at all, it has been clear at least since 1987 that anti-suit injunctions are an exception to it. In a line of case law starting with the House of Lords’ decision in South Carolina and recently reaffirmed by the Supreme Court in Ust-Kamenogorsk it has been held that anti-suit injunctions can be granted not only where the targeted proceedings infringe a separate legal or equitable right, but also where they are vexatious or oppressive (or unconscionable).¹⁷

11.10 Indeed, there may be no requirement of an underlying substantive legal basis at all.¹⁸ There is no reason of principle why such a power should not also cover the restraint of unconscionable or vexatious arbitration proceedings, including where the reason why the arbitration was vexatious was that it simply fell outside the arbitration clause. Finally, the Arbitration Act 1996 entitles the courts to look at such matters afresh.¹⁹

(p. 244) 11.11 In the subsequent case law on anti-arbitration injunctions, the approach adopted in Compagnie Européene has been either followed, or adopted without challenge, and the courts have accepted that they have a general power to restrain arbitrations if they infringe a legal or equitable right, or if the pursuit of the arbitration is vexatious and oppressive or unconscionable.²⁰ The old distinctions have not been persisted with, and it has not been considered to be a barrier to the grant of an injunction that the arbitration proceedings would fall outside the scope of the arbitration clause.²¹ It is submitted, therefore, that the older restrictive case law has been overtaken by time and events, and the modern development of the anti-suit injunction and with it the anti-arbitration injunction.

11.12 Although the power to grant anti-suit and anti-arbitration injunctions grew out of common law and equity, in modern conditions anti-arbitration injunctions should be treated as being granted under section 37(1) of the Senior Courts Act 1981.²² This is consistent with anti-suit injunctions to restrain court litigation,²³ and has the benefit of simplicity. There is no need to have recourse to independent powers under the common law or equity, as section 37(1) has sufficient breadth.

2. Injunctions under Section 37(1) in Respect of English Arbitrations

11.13 Section 1 of the Arbitration Act 1996 provides that the court ‘should not intervene’ in arbitrations with an English seat, governed by Part I of the Act, save as provided by Part I. The aim and effect of this section, and the scheme of the 1996 Act as a whole, is generally, but not absolutely,²⁴ to preclude the court from intervening in arbitrations, save through one of the (p. 245) restricted routes for intervention which the Act itself lays down. However, if the grant of a particular remedy is not an intervention in the arbitration, then section 1 does not apply.²⁵

11.14 Part I of the 1996 Act applies (with exception of certain ancillary powers) only to arbitrations with an English seat, but it does not apply to all arbitrations in England. Arbitrations under an oral arbitration agreement fall outside it,²⁶ and it does not cover other kinds of alternative dispute resolution processes, such as adjudication²⁷ and mediation.

11.15 The grant of an injunction under section 37(1) of the Senior Courts Act 1981 by the English court to restrain arbitration proceedings in England clearly is an intervention in the arbitral process.

11.16 However, the modern case law has accepted that section 1(c) does not mean that grant of injunctions to restrain arbitration proceedings in England is precluded outside section 72 of the 1996 Act. Such injunctions can be granted under section 37(1) of the Senior Courts Act 1981 if the pursuit of the arbitration would infringe a legal or equitable right, or would be vexatious or oppressive or unconscionable, and probably also (to bring anti-arbitration injunctions in line with anti-suit injunctions generally²⁸), if, more broadly, it would be in the interests of justice to do so.²⁹ There is no clear, binding precedent ratifying this interpretation of section 1(c), which has been adopted on the basis of accumulating concessions,³⁰ but it seems unlikely that the courts will reverse their course. Further, the fact that the arbitrators themselves might have the ability to decide on whether the arbitration proceedings (p. 246) should, for example, be stayed as an abuse of process, on grounds that overlap with the basis for the injunction sought from the court does not mean that the claim for an injunction is a matter submitted to arbitration which the court has no jurisdiction to hear. The court’s supervisory jurisdiction, which includes section 37(1), is part of what parties have agreed to when agreeing to arbitrate in England and is therefore not inconsistent with the arbitration clause.³¹

11.17 Nevertheless, the discretion to grant such anti-arbitration injunctions will be exercised ‘very sparingly’ or only in ‘unusual circumstances’³² and with due regard for the starting point of non-intervention, save where the 1996 Act provides for intervention.³³ Any broader power would permit an excessive degree of intervention inconsistent with the policy underlying the 1996 Act.³⁴

11.18 In particular, section 72(1) of the 1996 Act provides a restricted route (as discussed in paras 11.25–11.29 under which an injunction to prevent an arbitration reference from proceeding can be claimed on the grounds that the tribunal has no jurisdiction.³⁵ Consequently, it should be difficult to justify an injunction to restrain an arbitration under section 37(1) of the 1981 Act on jurisdictional grounds if the conditions of section 72(1) of the 1996 Act are not satisfied.³⁶ The threshold condition of section 72(1) is that the injunction claimant (p. 247) must ‘take no part’ in the arbitration; so it will follow that taking part in a reference will, in the normal case, preclude any claim for an injunction to restrain arbitration proceedings in England on jurisdictional grounds. Further, since the principle of Competence-Competence indicates that it will in general be appropriate for arbitrators to determine their own jurisdiction in the first instance, the grant of an injunction to pre-empt this by imposing the court’s own view of jurisdiction will in general not be appropriate.³⁷

11.19 Similarly, a broad approach to intervention in cases where the arbitrators do have jurisdiction would also be in tension with the parties’ agreement to arbitrate. Such agreement brings with it a prima facie acceptance that the powers available to the arbitrators to regulate the proceedings before them are, in general, the most appropriate tools to control vexatious proceedings.³⁸ The court has no general supervisory power over arbitration proceedings³⁹ and in general should only intervene in them in the defined ways permitted by the 1996 Act. Consequently, although there is no absolute barrier to the grant of an anti-arbitration injunction where the jurisdiction of the arbitrators is not disputed,⁴⁰ in most cases the appropriate course will be to refuse the injunction and to permit the arbitrators to stay or adjourn or dismiss the proceedings before them if they think it appropriate.⁴¹

11.20 Cases where anti-arbitration injunctions may be appropriate under section 37(1) to restrain arbitrations with an English seat may include where the party commencing arbitration has agreed separately not to arbitrate;⁴² or where the vexation or oppression arises from duplication between the arbitration and other proceedings,⁴³ in a way which cannot satisfactorily be controlled by the arbitrators’ use of their own powers to control proceedings;⁴⁴ and one case that has been suggested is where there is ‘no room for argument’ that the relevant disputes are instead covered by an exclusive jurisdiction clause.⁴⁵

11.21 Subject to these constraints, all the other principles which govern the grant of anti-suit injunctions in general should apply, so far as applicable, and modified by the arbitration context as necessary. Thus, for example, since the injunction will only be granted if the interests (p. 248) of justice so require, it will not be granted if to do so would be unjust to the other party to the arbitration.⁴⁶ Similarly, anti-arbitration injunctions may be refused if there has been excessive delay.⁴⁷

3. The New York Convention

11.22 There remains a question of whether the English courts’ current approach is consistent with the New York Convention 1958, Article II(3) of which requires the courts of contracting states ‘when seised of an action in a matter in respect of which the parties have made an agreement within the meaning of this article’ to ‘refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative, or incapable of being performed’. There is no difficulty if the basis of the injunction is that the arbitrators have no jurisdiction. But it has been argued that in cases where it is accepted that the arbitrators do have jurisdiction, the New York Convention obliges the UK to ensure that its courts ‘refer’ the matter to arbitration, as none of the Article II(3) exceptions of nullity, voidness, inoperability, or incapability of performance apply; and that by restraining the pursuit of the arbitration the court is doing the opposite of ‘referring’ the matter to arbitration.⁴⁸ This argument, if correct, would impose an absolute bar on the grant of injunctions to restrain the pursuit of arbitrations over which the arbitrators have jurisdiction. It is, therefore, inconsistent with the approach taken in the English case law so far.

11.23 The point has been directly addressed on three occasions. It was argued before Aikens J, who did not need to decide it, and reached no conclusion on it, in Elektrim v Vivendi.⁴⁹ Subsequently, in Claxton Engineering Services,⁵⁰ Hamblen J held, in brief terms, that the approach of the English courts was consistent with the New York Convention and Competence-Competence. Hamblen J did not explain his conclusion, but there are reasonable arguments to suggest that the grant of injunctions to restrain arbitrations over which the arbitrators have jurisdiction is consistent with the New York Convention, at least in cases concerning arbitrations with an English seat. First, in respect of injunctions to restrain arbitrations subject to English curial law, it has been held that arbitration agreement grants the court an implied supervisory jurisdiction, including the power to grant anti-arbitration injunctions.⁵¹ The Arbitration Act 1996 undoubtedly does permit the English court as the court of the seat to intervene in ongoing arbitrations over which the arbitrators have jurisdiction, in certain cases, such as the courts’ power to remove arbitrators and to overturn initial partial awards on grounds of serious irregularity. Second, it is arguable that the question of whether or not an arbitration is vexatious and oppressive, so that it can be restrained by the court, may not always be itself a matter submitted to arbitration by the agreement, (p. 249) which means that the court is not ‘seised of an action in a matter in respect of which the parties have made an agreement’. Third, it might even be arguable that if the pursuit of an arbitration would be vexatious, then the arbitration agreement would be ‘inoperative’ or ‘incapable of being performed’, within the terms of the New York Convention. Fourth, it is well arguable that by restraining a party from arbitrating in a vexatious or oppressive manner, or in breach of a separate agreement not to arbitrate, the court is not refusing to refer a matter to arbitration, but simply enforcing an independent, and legitimate, restraint on the inequitable or non-contractual conduct of the party in question. The first basis, however, only applies to arbitration with an English seat.

11.24 The best view may well be that the New York Convention does not impose a direct bar to the grant of such injunctions, but that the principles and policies underlying the New York Convention regime support a restrictive approach to the grant of injunctions to restrain arbitrations over which the arbitrators have jurisdiction, in particular if the arbitration has a foreign seat. Thus, Judge Stephen Schwebel, who in general contends that such injunctions are inconsistent with the New York Convention, allows for the possibility that there might be ‘exceptional’ circumstances in which there might be a basis for such an injunction, for example where a party has already arbitrated or litigated and lost—although even there, he considers that it might well be preferable for the questions of double litigation to be addressed by the arbitrators in the duplicative proceedings.⁵² On this approach, the New York Convention is consistent with, and indeed can be seen as underlying, the current approach of the English courts permitting such injunctions in limited circumstances. Nevertheless, the question of whether it imposes an absolute bar deserves further consideration, at least in respect of foreign arbitration proceedings.

4. Injunctions under Section 72

11.25 The court has the power to grant both final and interim injunctions under section 72 of the Arbitration Act 1996.⁵³ The section applies only to arbitrations with a seat in England.⁵⁴

11.26 In order for the court to have power to grant relief under section 72, the claimant must not ‘take part in’ the reference. If the claimant has not ‘taken part’, then section 72(1) allows him to ‘question’ by proceedings in the court for a declaration or an injunction whether there is a valid arbitration agreement, whether the tribunal is properly constituted, or what matters have been submitted to arbitration in accordance with the arbitration agreement.⁵⁵ This provision clearly establishes the court’s power to grant an injunction, even where the (p. 250) unwilling respondent’s objection is only that the arbitration claim falls outside the scope of the arbitration agreement. The North London Railway line of case law has therefore been reversed by statute.

11.27 The wording of section 72 does not clarify when the court should grant the remedies of declaration or injunction.⁵⁶ However, in Fiona Trust v Privalov, the Court of Appeal held that the 1996 Act contemplated, in general that, arbitrators should determine their own jurisdiction; and that the principle of non-interference expressed in section 1(c) 1996 meant the court should be ‘very cautious’ before deploying section 72 to grant either an injunction or a declaration.⁵⁷ In addition, even if there was an appropriate case to grant a declaration that the arbitration agreement was not binding under section 72, an injunction would normally only be necessary if there was some indication that the other party was intending not to comply with any declaration that the court might make.⁵⁸

11.28 The case for caution will be even greater if what is sought is merely an interim injunction, as it will interfere with the arbitration without finally determining the question of jurisdiction.⁵⁹ In any event, an interim injunction will be refused if the balance of convenience weighs against granting it, for example if the application is brought under section 72 at a very late stage before the hearing of the jurisdiction challenge by the arbitrators.⁶⁰ Further, interim relief is unlikely to be necessary, as if a section 72 claim is brought, it will usually be sensible for arbitrators to wait for the section 72 claim to be concluded, rather than pressing on with the arbitration.⁶¹

11.29 If the court finds that the tribunal does have jurisdiction, it will not grant a declaration to that effect, but will simply dismiss the section 72 claim.⁶²

C. Injunctions to Restrain Arbitrations with a Foreign Seat

11.30 The English courts have held that they have power to grant anti-arbitration injunctions to restrain the pursuit of arbitrations whose seat is abroad, under section 37(1) of the Senior Courts Act 1981, if the foreign arbitration proceedings are in breach of a legal or equitable right or are vexatious or oppressive or unconscionable (and probably also more generally if the grant of the injunction is ‘in the interests of justice’). However, the English courts (p. 251) have, in most of the recent case law, suggested that it will only be appropriate to exercise such a power in ‘exceptional’ circumstances and ‘with caution’,⁶³ provided at least that the foreign court does not have an appropriate supervisory jurisdiction.⁶⁴ But there are differences of approach within the judiciary, and some judges have not required ‘exceptional circumstances’ or have essentially treated them as satisfied if there is a good case for an injunction.⁶⁵ There is, in particular, a logical tension in those cases where the foreign arbitration would be in breach of an English arbitration clause, or English exclusive forum clause, at least to English eyes, or this could be shown to the same standard as would normally be required to satisfy The Angelic Grace. In such a case, it might be said that there is no need for additional caution. It can be asked why, if there is a breach of contract, a foreign arbitration should benefit from any greater deference than foreign court proceedings.⁶⁶ Nevertheless, the majority of the more closely reasoned modern decisions do, for now, adopt the ‘exceptional circumstances’ threshold.

11.31 However, even if ‘exceptional circumstances’ are required, there are strong strands in the case law which suggest that this higher threshold will not apply: (a) where it is already res judicata that the arbitrators have no jurisdiction or where there is no real argument to the contrary;⁶⁷ (b) where the pursuit of the arbitration can be shown to be (to a sufficient standard (p. 252) of proof) in breach of an exclusive forum clause (or, possibly, only where this is clearly the case or it has already been held to be the case).⁶⁸ But the boundaries of any such exceptions are not yet settled. Further, it may be that such situations can be viewed simply as examples of exceptional circumstances.⁶⁹

11.32 This restrained approach flows, first, from the English court’s acceptance that, consistently with the concept of Competence-Competence, the arbitrators should in general be permitted to determine their own jurisdiction in the first instance;⁷⁰ and second, from the principle that, as a matter of international comity, and possibly also the implied terms of the arbitration agreement, the natural supervisory court for an arbitration is generally the court of the seat of the arbitration.⁷¹

11.33 Thus, in Claxton Engineering Services, Hamblen J concluded that the test of exceptional circumstances was satisfied where the English court had already concluded that there was no binding arbitration agreement while instead an English exclusive jurisdiction agreement was binding. He also held, citing the first edition of this work, that even if such circumstances were not viewed as ‘exceptional’, nevertheless they were sufficient to justify an anti-arbitration injunction as an exception to any such requirement.⁷²

(p. 253) 11.34 Similarly, in AmTrust v Trust Risk, Andrew Smith was prepared to envisage that where ‘there is no room for argument’ that an exclusive jurisdiction clause covered the relevant claims, and so there was a contractual agreement not to arbitrate, an anti-arbitration injunction could be appropriate. He regarded the question of whether this was an exception to the test of ‘exceptional circumstances’, or rather an example of ‘exceptional circumstances’, as an arid debate. But in the case before him, there was a real dispute, which the arbitrators were going to decide (with the Italian courts having supervisory jurisdiction over their award) as to whether the Italian arbitration clause or the English jurisdiction cause applied to the dispute. He did not mechanistically apply the Angelic Grace approach—of granting injunctions to enforce English jurisdiction clauses unless there is a strong reason not to do so—and declined to grant the injunction. The right approach was for the injunction claimant to challenge jurisdiction before the arbitrators and, if necessary, before the Italian courts.⁷³

11.35 Conversely, the English courts have accepted that, where the parties have ‘unquestionably agreed’ to the foreign arbitration agreement, this is another significant factor against the grant of an injunction. Nevertheless, they have said that the power to intervene by injunction still exists in such situations, even though the jurisdiction of the arbitrators will not be challenged.⁷⁴ However, this conclusion was obiter in the two cases where it has been pronounced.

11.36 The only reported case where an injunction has actually been granted to restrain a foreign arbitration where the jurisdiction of the arbitrators was not challenged is Injazat.⁷⁵ In that case, the basis for the anti-arbitration injunction was that the matter being arbitrated had already been decided. But the injunction was granted at an undefended hearing at which some of the key cases were not cited; and the approach adopted was out of line with the general approach in the case law discussed here: no showing of exceptional circumstances, nor particular caution, was required. In principle, while relitigation or duplication may be capable of amounting to sufficient vexation to justify an anti-arbitration injunction,⁷⁶ it will always be necessary to consider whether such arguments should not instead be raised before the arbitration tribunal, provided at least it has sufficient powers to deal with the problem⁷⁷ (which is not necessarily the case⁷⁸).

11.37 There is room to doubt whether even the current restrictive approach of the English courts gives full weight to the considerations which militate against the grant of an injunction (p. 254) to restrain foreign arbitration proceedings.⁷⁹ There are real arguments that if the jurisdiction of the arbitrators is not challenged, such injunctions would be inconsistent with the New York Convention, save perhaps in exceptional circumstances.⁸⁰ In addition, the English courts themselves have insisted on the importance of the principle that the supervisory jurisdiction of the courts of the seat should be exclusive, and have relied on this to justify anti-suit injunctions to restrain foreign litigation that interferes with English arbitration awards.⁸¹ In the circumstances, it is submitted that sufficient exceptional circumstances should include some strong reason why the English court, as opposed to the courts of the seat, should intervene in the arbitration, and that cases where this is appropriate, as a matter of international comity, will be rare.⁸² Taking the situation of relitigation or duplicate litigation, the English court may be given ‘sufficient interest’ to intervene⁸³ if the matter being relitigated, or litigated duplicatively, in a vexatious and oppressive manner, was initially litigated in England, and if it would be unjust or inappropriate on the facts to force the injunction claimant to raise his objections to double litigation abroad before the arbitrators or the supervisory court.⁸⁴

D. Injunctions against Arbitrators Personally

11.38 At common law, in most cases where injunctions to restrain arbitration proceedings have been granted, they were sought, and made, against the arbitration claimant alone.⁸⁵ However, there have been instances where injunctions were sought, and even made, against the arbitrator as well as the claimant.⁸⁶ The foundation for relief was the ‘tripartite analysis’ of the arbitration agreement, under which it is viewed as a three-way agreement between (p. 255) the parties and the arbitrator.⁸⁷ As a result, it has been held that it would be a breach of the arbitration agreement by the arbitrator to hear a claim outside his jurisdiction, so that he could be personally restrained by injunction.⁸⁸

11.39 However, absent some situation of personal misconduct by the arbitrator, it seems unlikely that injunctions will be granted personally against arbitrators today, even in arbitrations with an English seat. The Arbitration Act 1996 does not provide for any route by which injunctions may be granted against arbitrators. The removal of arbitrators is dealt with by the specific power in section 24. Section 72 is drafted in broad terms, which could potentially cover injunctions against arbitrators acting outside their jurisdiction, but an applicant would find it difficult to persuade the court that there were special circumstances sufficient to justify restraining an arbitrator personally.⁸⁹ Indeed, the 1996 Act and the CPR specify the cases where arbitrators need to be defendants to arbitration claims,⁹⁰ and where they must be given notice,⁹¹ and these do not include section 72.

11.40 Further, injunctions to restrain the pursuit of arbitrations under section 37(1) will often be based on grounds which are inapplicable to support injunctions against arbitrators personally. For example, in a case where it is appropriate to restrain an arbitration which is vexatious or oppressive, it will not usually be the arbitrator that will be acting in a vexatious or oppressive manner. Similarly, there will rarely be good discretionary reasons to restrain an arbitrator personally, especially where the real dispute is between the parties, and not between a party and the arbitrator.

11.41 Where the seat of the arbitration is outside England, the principle of comity will weigh heavily against the grant of injunctive relief against an arbitrator personally, as the arbitrator owes no allegiance to England. International arbitrators have often ignored anti-suit (p. 256) injunctions which have sought to restrain them personally.⁹² In addition, in most such cases, the real dispute will not be about the arbitrator’s conduct, but will instead concern the nature of the arbitration or the conduct of the other party. If so, the position of the foreign arbitrator in such a case is analogous to the position of the foreign court, and it is a fundamental principle of the law of anti-suit injunctions that they do not lie against the foreign court itself, but only against the litigating party.⁹³

11.42 Even if the claim for the injunction is based on circumstances that relate directly to the arbitrator himself, it is still unlikely that any injunction will be granted where the seat of the arbitration is abroad. In Weissfisch v Julius, the agreed seat of the arbitration was in Zurich, and the substantive claims included contentions that the arbitrator had acted in breach of fiduciary duty in acting as arbitrator. An interim injunction was sought to restrain pursuit of the arbitration. The Court of Appeal rejected the application. The parties had unquestionably agreed to arbitrate in Zurich, and as a result, the issues raised by the claim were naturally to be resolved in Switzerland according to Swiss law. It followed that, save in exceptional circumstances, the English court would not grant a final injunction to restrain the arbitrator from hearing proceedings under the foreign arbitration agreement. Further, special circumstances would be required to justify the grant of interim relief, and none existed.⁹⁴

11.43 The question remains whether, even if an injunction is not made against the arbitrator personally, he is bound by the law of contempt, as with third parties in general, not to interfere with the effect of the injunction, and so would himself be in contempt if he were to proceed with the arbitration. In BHPB v Cosco,⁹⁵ Finkelstein J in the Federal Court of Australia was of the view that the third-party effect of an anti-suit injunction should affect an arbitrator like any other third party and observed that the fact that a foreign arbitrator was not within the territorial jurisdiction of the Australian court would not necessarily relieve him of contempt liability, stating, with some menace: ‘If Mr Oakley in fact took any step to further the arbitration after he became aware of the injunction, he may be in for a rude shock were he to find himself subject to the personal jurisdiction of the Federal Court.’ With respect, this is an extraordinary result to reach, and may be explained by the fact that there was no one there to argue for Mr Oakley. No common law court has ever dreamed of mechanistically applying its rules of contempt to the judges or staff of foreign courts so as to enforce compliance with anti-suit injunctions and any attempt to use contempt to attack foreign lawyers acting for the injunction defendant would also be unsound.⁹⁶ It would be strange if the foreign arbitrator were any more exposed. Indeed, he will be subject to the arbitration law of the seat of the arbitration and bound by the arbitration clause and the terms of the reference, and therefore in general (p. 257) will be contractually obliged to hear the arbitration before him. In contrast, a judgment of a non-curial court that is foreign to him will usually not be binding on the arbitrator and would give him no defence to his obligation to hear the arbitration. Seeking to put the arbitrator in a personally difficult position, by application of extraterritorial contempt powers, is hard to reconcile with comity.(p. 258)

Footnotes:

¹ The principle of ‘Competence–Competence’ is the internationally accepted principle, reflected in the UNCITRAL Model Law, that the arbitrators have competence to determine their own jurisdiction (or ‘competence’). See Dallah Real Estate and Tourism Holding v Ministry of Religious Affairs of the Government of Pakistan [2011] 1 AC 763 [79]–[98]. See also Departmental Advisory Committee on Arbitration Law Report on the Arbitration Bill, February 1996, paras 137–139 (hereafter the ‘DAC Report’).

² The inconsistent case law on how high the standard should be is addressed in section C, ‘Injunctions to Restrain Arbitrations with a Foreign Seat’.

³ Compagnie Européene de Céréals v Tradax Export [1986] 2 Lloyds Rep 301.

⁴ North London Railway v Great Northern Railway (1883) 11 QBD 30 (CA) (distinguishing Malmesbury Railway v Budd (1876) 2 Ch D 113 and Beddow v Beddow (1878) 9 Ch D 89); Wood v Lillies (1892) 61 LJ Ch 158; Steamship Den of Airlie v Mitsui (1912) 17 Com Cas 116 (CA) 127, 130–31; Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp [1981] AC 909 (HL) 979–81 (per Lord Diplock, whose speech was supported by the majority); Workplace Technologies v E Squared (Judge David Wilcox, 16 February 2000) (a decision which appears to have been made under the common law, and not the Arbitration Act 1996, as it concerned an adjudication, not an arbitration). In contrast, a declaration could be made as to the scope of the matters covered by an arbitration agreement: Government of Gibraltar v Kenney [1956] 2 QB 410, 421.

There was, however, contrary authority. London and Blackwall Railway v Cross (1885) 31 Ch D 354 (CA) per Chitty J (at 361) and Lindley LJ (at 368), but see contra Lopes LJ (at 373); Fry LJ reasoned in terms of discretion only (at 372). See also Sissons v Oates (1894) 10 TLR 392 (unclearly reported but difficult to reconcile with North London Railway); Glasgow and South-Western Railway v Boyd & Forrest (No 3) [1918] SC (HL) 14.

It would be possible, although contestable, to describe Lord Diplock’s speech in Bremer-Vulkan as obiter on this point, since Lord Diplock was only concerned directly with the question of whether the arbitration clause could be repudiated by delay. He did not need to conclude whether North London Railway was correct that injunctions could not be granted to restrain arbitrations which exceeded the scope of the arbitration clause. His reasoning did give a firm endorsement of North London Railway as authority; but as we shall see, things have moved on (see paras 11.07–11.09).

⁵ See Kitts v Moore [1895] 1 QB 253 (CA); Mylne v Dickinson (1815) G Coop 195, 35 ER 528 (although the basis for the injunction is rather unclear); Maunsell v Midland Great Western (Ireland) Railway (1863) 1 H&M 130, 71 ER 58; perhaps Edward Grey v Tolme and Runge (1915) 31 TLR 137 (CA) (a decision that seems difficult to reconcile with the modern principle of the separability of arbitration clauses); Compagnie Nouvelle France Navigation v Compagnie Navale Afrique du Nord (The Oranie and the Tunisie) [1966] 1 Lloyds Rep 477 (CA) 486–87, 488–89; Industrie Chimiche Italia Centrale v Alexander G Tsavliris and Sons Maritime (The Choko Star) [1987] 1 Lloyds Rep 508 (CA); Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping [1981] AC 909, 924–25, 932–33 (Donaldson J), 938–40, 954–56, 959–60 (CA) (later overturned on the question of whether a repudiatory breach had in fact occurred due to delay, but upheld on this point: 979–81 (HL)); André v Marine Transocean (The Splendid Sun) [1980] 1 Lloyds Rep 333 [1981] QB 694 (CA). If the validity of the arbitration clause was upheld, the injunction would be refused: see eg Smith, Coney & Barrett v Becker, Gray [1916] 2 Ch 86 (CA).

There were contradictory decisions on whether there was jurisdiction to restrain an arbitration where the arbitration agreement was challenged on the grounds of alleged lack of authority of the agent concluding it. In London and Blackwall Railway v Cross (1885) 31 Ch D 354 (CA), such an injunction was refused (although only Lopes LJ clearly held the court had no jurisdiction), but in Ben & v Pakistan Edible Oils, The Times, 13 July 1998 (CA), such an injunction was granted, since a want of authority was viewed as a form of ‘impeachment’ of the arbitration clause.

⁶ Malmesbury Railway v Budd (1876) 2 Ch D 113 (‘corruption’ of the arbitrator); Beddow v Beddow (1878) 9 Ch D 89 (personal unfitness or misconduct of the arbitrator); Jackson v Barry Railway [1893] 1 Ch 238.

⁷ Glasgow and South-Western Railway v Boyd & Forrest (No 3) [1918] SC (HL) 14, a Scottish case of interdict; see also later Compagnie Européene de Céréals v Tradax Export [1986] 2 Lloyds Rep 301, 305–06. But the principle underlying these cases—that a claim which is res judicata is outside the arbitrators’ jurisdiction and therefore can be restrained—is difficult to reconcile with North London Railway. The Boyd & Forrest case is arguably authority for Scottish law only; the English cases were not discussed.

In the past, injunctions were also apparently granted on the ground that there was no actual dispute for the arbitrator to decide: Sissons v Oates (1894) 10 TLR 392 (although cf contra Farrar v Cooper (1890) 44 Ch D 323; and see the doubts of Mustill J in Allied Marine Transport v Vale Do Rio Doce Navegaçao (The Leonidas D) [1984] 1 WLR 1, 6H–7B, overturned on other points, [1985] 1 WLR 925 (CA)); but it is now clearly the law that arbitrators have jurisdiction to determine that there is no arguable dispute: Halki Shipping Corp v Sopex Oils [1998] 1 Lloyds Rep 465 (CA).

⁸ See the criticisms of Chitty J and Lindley LJ (not followed in this respect by Fry LJ and Lopes LJ) in London and Blackwall Railway v Cross (1885) 31 Ch D 354 (CA). In Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping [1981] AC 909 (HL) 922–24, Donaldson J described the law as ‘very strange’. In the Court of Appeal, Roskill and Cumming Bruce LJJ suggested that North London Railway decided no more than that the court would not intervene unless to protect some legal or equitable right, and they held that a legal or equitable right did exist ‘to be protected against wasted costs in an arbitration in which such costs would be irrecoverable if the arbitrator had no power to determine the dispute’: 959, 961; Lord Denning MR also thought that North London Railway was of little guidance today: 939. But in the House of Lords, Lord Diplock, who gave the lead decision for the majority, apparently viewed North London Railway, and the cases following it, as representing the law: at 979–88, although North London Railway was cogently criticized by Lords Fraser and Scarman, in the minority, at 992B–G, 993, 995. Nevertheless, as already mentioned, Lord Diplock’s speech can be viewed as obiter on this point, as discussed in n 4.

⁹ It appears that the omission was deliberate, and that North London Railway had been cited: see [1986] 2 Lloyds Rep 301, 307, where the reference to ‘1883’, the year of North London Railway, was a way for Hobhouse J to signal, without saying so expressly, that he thought that North London Railway had become outdated.

¹⁰ Compagnie Européene de Céréals v Tradax Export [1986] 2 Lloyds Rep 301, 305–06; Siporex Trade v Comdel Commodities [1986] 2 Lloyds Rep 428, 435. In Compagnie Européene, Hobhouse J concluded specifically that it would be outside the arbitrators’ jurisdiction to rehear a claim that was res judicata. This can be doubted: the correct analysis is probably that it would be a matter for the arbitrators, and within their jurisdiction to decide whether to dismiss the claim on grounds of res judicata; Nomihold Securities v Mobile Telesystems Finance [2012] 1 Lloyds Rep 442 [42]–[44], [63]; AmTrust Europe v Trust Risk Group [2015] 2 Lloyds Rep 231 [20]. But in support of Hobhouse J’s approach, see Glasgow and South-Western Railway v Boyd & Forrest (No 3) [1918] SC (HL) 14 (where, however, the conclusion that a claim that was precluded by a res judicata was outside the arbitrators’ jurisdiction was apparently assumed without discussion, and perhaps without argument to the contrary).

¹¹ Compagnie Européene de Céréals v Tradax Export [1986] 2 Lloyds Rep 301, 304–05, followed in China Petroleum Technology and Development v LG Caltex Gas (Andrew Smith J, 5 December 2000); and Nomihold Securities v Mobile Telesystems Finance [2012] 1 Lloyds Rep 442 [27] (where the point was unchallenged); Sabbagh v Khoury [2018] EWHC 1330 [19]–[20]. In Compagnie Européene, the relevant ‘unconscionable’ conduct was seeking to relitigate before the arbitrators a matter that was res judicata.

The Scottish courts had also held, following old authority, that they have power to intervene to restrain any reference to arbitration over which the arbitrator has no jurisdiction including references outside the arbitration clause, and had not followed the older English authorities: see Naylor v Greenacres Curling [2001] SLT 1092 [9]–[10].

¹² See the authorities at nn 4–5. For Hobhouse J’s ‘contractual’ conclusion to be accepted, it was necessary to reject both North London Railway and Steamship Den of Airlie, and to distinguish or depart from Lord Diplock’s speech, with which the majority agreed, in Bremer Vulkan. This amounts to accepting the arguments of the minority in Bremer Vulkan, although it is possible to regard Bremer Vulkan as obiter on the point.

¹³ North London Railway v Great Northern Railway (1883) 11 QBD 30 (CA) 33–34 (per Cotton LJ intervening); Farrar v Cooper (1890) 44 Ch D 323, 328–29; and the cases cited at n 4. See also the doubts of Mustill J in Allied Marine Transport v Vale Do Rio Doce Navegaçao (The Leonidas D) [1984] 1 WLR 1, 6H–7B (overturned on other points, [1985] 1 WLR 925 (CA)).

However, the existence of an equitable power to intervene to restrain inequitable arbitration proceedings, had been accepted before North London Railway in Pickering v Cape Town Railway (1865) 1 LR Eq 84. The existence of a power to restrain vexatious or oppressive arbitration proceedings was assumed in The Ithaka (1939) 64 Ll L Rep 259 (CA) 262–63. In Compagnie Nouvelle France Navigation v Compagnie Navale Afrique du Nord (The Oranie and the Tunisie) [1966] 1 Lloyds Rep 477 (CA) 486–87, 488–89, Sellers LJ accepted the existence of such a power (at 486–87); but Salmon LJ appeared to require that there should be prima facie evidence that the arbitration agreements be ‘impeachable’ (at 488–89). Lord Denning MR in Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping [1981] AC 909 (HL) 939 also argued for existence of a power in similar terms; and although such a power was not supported by the other members of the Court of Appeal in Bremer Vulkan, nor any of the members of the House of Lords, it was not expressly rejected either. The Scottish case of Glasgow and South-Western Railway v Boyd & Forrest (No 3) [1918] SC (HL) 14 could also be viewed as an example of the exercise of such a power.

The Court of Appeal in North London Railway may have rejected the existence of such an equity because of the authority of Pennell v Roy (1853) 3 De GM & G 126, where it had been held that the courts would have no power to restrain a claim before foreign courts merely because it was vexatious. However, the modern scope of the equitable power now clearly includes the power to restrain vexatious or oppressive or unconscionable litigation abroad, as discussed in Ch 3, para 3.06 and Ch 4, paras 4.02 and 4.05.

¹⁴ As to whether the equitable power comports a correlative equitable right, see Ch 3, section B, ‘A Legal or Equitable Right?’.

¹⁵ Siskina v Distos Compania Naviera (The Siskina) [1979] AC 210 (HL) 256F–H, 257A. See the discussion in Ch 3, para 3.03.

¹⁶ Fourie v Le Roux [2007] 1 WLR 320 (HL) [25], [30], [32] (see Ch 3, section A, ‘The Power to Grant Injunctions’).

¹⁷ South Carolina Insurance v Assurantie Maatschappij ‘De Zeven Provincien’ [1987] AC 24 (HL) 40; Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC); AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] 1 WLR 1889 (SC) [19]–[20] (see Ch 3, section B, ‘A Legal or Equitable Right?’).

¹⁸ See Ch 3, section B, ‘A Legal or Equitable Right?’.

¹⁹ Elektrim v Vivendi Universal [2007] 2 Lloyds Rep 8 [83].

²⁰ University of Reading v Miller Construction (1994) 75 BLR 91, 111 (power accepted to exist on the basis of a concession); Weissfisch v Julius [2006] 1 Lloyds Rep 716 [33(v)] (brief statement permitting the restraint of foreign arbitrations in exceptional circumstances); Intermet FZCO v Ansol [2007] EWHC 226 [20]–[21] (common ground that power existed); Elektrim v Vivendi Universal [2007] 2 Lloyds Rep 8 [47]–[48], [51]–[52], [55] (power assumed to exist but not challenged); J Jarvis & Sons v Blue Circle Dartford Estates [2007] BLR 439 [39]–[40] (power held to exist, albeit in slightly different language; it is unclear whether the point of principle was challenged); Albon v Naza Motor Trading [2008] 1 Lloyds Rep 1 (CA) [6]–[7] (standard principles for anti-suit injunctions assumed to apply to anti-arbitration injunctions without any suggestion that effectively the same powers should not apply), Republic of Kazakhstan v Istil Group (No 2) [2008] 1 Lloyds Rep 382 [48] (power to restrain vexatious and unconscionable arbitration proceedings held to exist); Claxton Engineering Services v TXM Olaj-és Gázjutató Kft [2011] 1 Lloyds Rep 252 [27]–[34] (it is unclear whether the point was disputed as a matter of English law); Nomihold Securities v Mobile Telesystems Finance (No 2) [2012] 1 Lloyds Rep 442 [25]–[27], [32] (power not disputed); Injazat Technology Capital v Najafi [2012] EWHC 4171 [16]–[17] (power exercised but defendant not represented); AmTrust Europe v Trust Risk Group [2015] 2 Lloyds Rep 231 [25]; Sabbagh v Khoury [2018] EWHC 1330 [17]–[20]. Reference can also be made generally to the authorities on injunctions to restrain foreign arbitrations, which are based on the same power, and are equally unconfined by the old restrictions: see section C, ‘Injunctions to Restrain Arbitrations with a Foreign Seat’. The same approach applies to adjudications: Dorchester Hotel v Vivid Interiors [2009] Bus LR 1026 [15], [17].

²¹ See Republic of Kazakhstan v Istil Group (No 2) [2008] 1 Lloyds Rep 382 [48]; Nomihold Securities v Mobile Telesystems Finance [2012] 1 Lloyds Rep 442 [59]; Sabbagh v Khoury [2018] EWHC 1330 [17]–[20], [29], [42].

²² See Elektrim v Vivendi Universal [2007] 2 Lloyds Rep 8, paras 47–48, 51–57 (on the basis of a concession); Claxton Engineering Services v TXM Olaj-és Gázjutató Kft [2011] 1 Lloyds Rep 252 [26]; Excalibur Ventures v Texas Keystone [2011] 2 Lloyds Rep 289 [54]; AmTrust Europe v Trust Risk Group [2015] 2 Lloyds Rep 231 [23], [25]; Sabbagh v Khoury [2018] EWHC 1330 [17]–[20].

²³ See Ch 3, section A, ‘The Power to Grant Injunctions’.

²⁴ Section 1 of the 1996 Act provides only that the court ‘should’ not intervene, not that it ‘shall’ or ‘must’ not intervene: Vale do Rio Doce Navegaçao v Shanghai Bao Steel Ocean Shipping [2000] 2 Lloyds Rep 1, 11 [52]; China Petroleum Technology and Development Corp v LG Caltex Gas (Andrew Smith J, 5 December 2000); AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2012] 1 WLR 920 (CA) [47], [85], [100]–[105], [2013] 1 WLR 1889 (SC) [39]–[40]. Further, of course, certain arbitrations fall outside the scope of Part I of the 1996 Act.

²⁵ Thus, a final or interim anti-suit injunction to restrain court proceedings in order to enforce an arbitration clause is unaffected by s 1, as it does not ‘intervene’ in the arbitration: see AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] 1 WLR 1889 (SC) [39]–[40] and Ch 7, para 7.55.

²⁶ Arbitration Act 1996, ss 2, 5.

²⁷ Workplace Technologies v E Squared (Judge David Wilcox, 16 February 2000).

²⁸ See Ch 4, paras 4.02 and 4.05.

²⁹ Most of the case law confines itself to reciting that for an anti-arbitration injunction to be granted it is necessary that there is to be an infringement of a legal or equitable right or for the arbitration to be vexatious or oppressive, or (in some cases) an abuse of process (see eg Compagnie Nouvelle France Navigation v Compagnie Navale Afrique du Nord (The Oranie and the Tunisie) [1966] 1 Lloyds Rep 477 (CA) 487); Siporex Trade v Comdel Commodities [1986] 2 Lloyds Rep 428; J Jarvis & Sons v Blue Circle Dartford Estates [2007] BLR 439 [39]–[40]; Claxton Engineering Services v TXM Olaj-és Gázjutató Kft [2011] 1 Lloyds Rep 252 [34]. However, anti-suit injunctions in general can be granted if it is in the interests of justice to do so, of which infringement of a legal or equitable right, or vexation or oppression or unconscionability, are merely the primary examples: see Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC). In Intermet FZCO v Ansol [2007] EWHC 226 [20]–[21] it was common ground that such injunctions could be granted to serve ‘the ends of justice’ applying Aerospatiale; and in Sabbagh v Khoury [2018] EWHC 1330 [18], [20], the power was stated on the basis that an injunction could be granted if just and convenient, with vexation or oppression being an example. There is no particular reason why anti-arbitration injunctions should be more confined, in this regard, than anti-suit injunctions generally.

Consequently, it is suggested that the references to infringement of a legal or equitable right, or vexation or oppression or unconscionability should be read as condensations of the basic tests for anti-suit injunctions in general; and anti-arbitration injunctions should be regarded as granted on the same bases as other anti-suit injunctions, subject to the constraints dictated by the arbitration context, which as discussed in para 11.17, require such injunctions only to be granted ‘very sparingly’. The broader approach is consistent with the language used in the recent case of AmTrust Europe v Trust Risk Group [2015] 2 Lloyds Rep 231 [23]–[25].

³⁰ See eg Elektrim v Vivendi Universal [2007] 2 Lloyds Rep 8 [47]–[48], [51]–[52], [55] (power assumed to exist but not challenged); J Jarvis & Sons v Blue Dartford Estates [2007] EWHC 1262 (TCC) [32]–[47]; Republic of Kazakhstan v Istil Group (No 2) [2008] 1 Lloyds Rep 382, [1]–[2]; and see also the other authorities granting injunctions to restrain domestic arbitrations, collected at nn 20, 22.

In Fiona Trust & Holding Corp v Privalov [2007] 2 Lloyds Rep 267 (CA) [34], Longmore LJ observed that if there was a valid arbitration agreement, an injunction could not be sought under s 72 of the Arbitration Act 1996 at all, and did not appear to contemplate the possibility of attack under s 37(1) of the Supreme Court Act 1981. But he was not asked to decide the latter point. (This issue appears not to have been argued in the House of Lords [2008] 1 Lloyds Rep 254 (HL)).

³¹ Nomihold Securities v Mobile Telesystems Finance [2012] 1 Lloyds Rep 442, [33]–[52]. It can be noted that this natural supervisory jurisdiction does not exist in relation to arbitrations with a foreign seat (see paras 11.32 and 11.37).

³² China Petroleum Technology and Development v LG Caltex Gas (Andrew Smith J, 5 December 2000); Elektrim v Vivendi Universal (No 2) [2007] 2 Lloyds Rep 8 [67]–[79]; J Jarvis & Sons v Blue Dartford Estates [2007] EWHC 1262 (TCC) [32]–[47] (from where ‘very sparingly’ is taken); Claxton Engineering Services v TXM Olaj-és Gázjutató Kft [2011] 1 Lloyds Rep 252 [27]–[34] (‘exceptional’ circumstances); Nomihold Securities v Mobile Telesystems Finance [2012] 1 Lloyds Rep 442 [55]–[66] (‘unusual circumstances’); Injazat Technology Capital v Najafi [2012] EWHC 4171 [16]–[23] (‘sparingly’); Golden Ocean Group v Humpuss Intermoda Transportasi [2013] 2 Lloyds Rep 421 [71]–[72]. The more relaxed earlier approach in University of Reading v Miller Construction (1994) 75 BLR 91 and Intermet FZCO v Ansol [2007] EWHC 226 does not represent the law.

An attempt was made to challenge this approach, in a case concerning a foreign arbitration, AmTrust Europe v Trust Risk Group [2015] 2 Lloyds Rep 231 [21]–[26]. Andrew Smith was prepared to consider that a different approach might apply where ‘there was no room for argument’ that a jurisdiction clause, and so not the arbitration clause, covers the relevant claims. But he viewed the question of whether this was an exception to the test, or merely an application of ‘exceptional circumstances’, as an ‘arid debate’. Further, in substance his decision displays the same caution and hesitancy.

The same test should probably apply to injunctions to restrain the pursuit of adjudications: Dorchester Hotel v Vivid Interiors [2009] Bus LR 1026 [15], [17] (‘very sparingly’). In Mentmore Towers v Packman Lucas [2010] BLR 393, standard principles of vexation and oppression were applied, but it was apparently not argued that any higher standard should be applied.

³³ J Jarvis & Sons v Blue Dartford Estates [2007] EWHC 1262 (TCC) [37]–[47].

³⁴ Elektrim v Vivendi Universal (No 2) [2007] 2 Lloyds Rep 8 [67]–[79]; J Jarvis & Sons v Blue Dartford Estates [2007] EWHC 1262 (TCC) [37]–[47]; Nomihold Securities v Mobile Telesystems Finance [2012] 1 Lloyds Rep 442 [55]–[59].

³⁵ Section 72(1) is the only provision of the 1996 Act under which an injunction to restrain English arbitration proceedings can be justified. No injunction can be granted under s 32 or 45 of the Act in aid of decisions under those sections: Welex v Rosa Maritime (The Epsilon Rosa) [2003] 2 Lloyds Rep 509 (CA) [39]. A possible example of the relevant abnormal circumstances which might justify an injunction outside s 72 is Republic of Kazakhstan v Istil Group (No 2) [2008] 1 Lloyds Rep 382 [1]–[2], [48], where an arbitration claimant tried to continue arbitration proceedings under an arbitration clause which the English court had already held to be a nullity, on an appeal under Arbitration Act 1996, s 67. It was not contended in that case that s 72 could have applied, perhaps because the arbitration respondent had previously participated in the arbitration proceedings before the determination of the s 67 appeal.

³⁶ China Petroleum Technology and Development Corp v LG Caltex Gas (Andrew Smith J, 5 December 2000). In JT Mackley & v Gosport Marina [2002] EWHC 1315 (TCC) (Judge Seymour QC), an unwilling arbitration respondent obtained a declaration that an arbitration reference was invalid, apparently outside of the terms of s 72: see [30]–[31]. Yet it appears that the judgment may have proceeded on a confused basis, and s 72 is not referred to at all. It is submitted that it is wrong, as illustrated by the convincing judgment of HHJ Waksman in HC Trading Malta v Tradeland Commodities [2016] 1 WLR 3120.

³⁷ Elektrim v Vivendi Universal [2007] 2 Lloyds Rep 8 [67]–[78]; see also Fiona Trust & Holding Corp v Privalov [2007] 2 Lloyds Rep 267 (CA) [34] (in relation to s 72; but the same policy should apply to s 37(1)).

³⁸ Elektrim v Vivendi Universal [2007] 2 Lloyds Rep 8 [67]–[78].

³⁹ Elektrim v Vivendi Universal [2007] 2 Lloyds Rep 8 [63] and Bremer Vulkan v South India Shipping [1981] AC 909 (HL) 979.

⁴⁰ Nomihold Securities v Mobile Telesystems Finance [2012] 1 Lloyds Rep 442 [55]–[66]; Injazat Technology Capital v Najafi [2012] EWHC 4171 [16]–[19] (defendant not represented).

⁴¹ Nomihold Securities v Mobile Telesystems Finance [2012] 1 Lloyds Rep 442 [55]–[66]; and see by analogy HC Trading Malta v Tradeland Commodities [2016] 1 WLR 3120 [41].

⁴² Huyton v Peter Cremer [1999] 1 Lloyds Rep 620 (in relation to a pre-1996 Act arbitration); AmTrust Europe v Trust Risk Group [2015] 2 Lloyds Rep 231 [23]–[26].

⁴³ See Republic of Kazakhstan v Istil Group (No 2) [2008] 1 Lloyds Rep 382 [48]; Injazat Technology Capital v Najafi [2012] EWHC 4171 [16]–[23] (foreign arbitration, defendant not represented).

For older cases see: Doleman v Ossett [1912] 3 KB 257 (CA) 273; Northern Regional Health Authority v Derek Crouch Construction [1984] QB 644 (CA) 673G–H; University of Reading v Miller Construction (1994) 75 BLR 91, 108–11, 119. However, all these are pre-1996 Act cases and so of uncertain guidance.

⁴⁴ In Elektrim v Vivendi Universal [2007] 2 Lloyds Rep 8 [75], Aikens J refused the injunction as he thought that applications to the arbitrators for stays or an adjournment were the appropriate course. See also Nomihold Securities v Mobile Telesystems Finance [2012] 1 Lloyds Rep 442 [63].

⁴⁵ AmTrust Europe v Trust Risk Group [2015] 2 Lloyds Rep 231 [23]–[25] (in relation to a foreign arbitration).

⁴⁶ University of Reading v Miller Construction (1994) 75 BLR 91, 111, adopting Compagnie Nouvelle France Navigation v Compagnie Navale Afrique du Nord (The Oranie and the Tunisie) [1966] 1 Lloyds Rep 477 (CA) 487.

⁴⁷ Intermet FZCO v Ansol [2007] EWHC 226 [25]–[26] (in respect of an arbitration with a foreign seat).

⁴⁸ See S Schwebel, ‘Anti-Suit Injunctions in International Arbitration: An Overview’ in E Gaillard (ed), Anti-Suit Injunctions in International Arbitration (Juris 2005) 1, 10–11 (hereafter ‘Gaillard (2005)’); J Lew, ‘Anti-Suit Injunctions Issued by National Courts to Prevent Arbitration Proceedings’, in Gaillard (2005) 25, 31; and ICCA, ‘Control of Jurisdiction by Injunctions Issued by National Courts’, International Arbitration (2006), ICCA series no 13, 185, 215–18.

⁴⁹ Elektrim v Vivendi Universal [2007] 2 Lloyds Rep 8 [67]–[78].

⁵⁰ Claxton Engineering Services v TXM Olaj-és Gázjutató Kft [2011] 1 Lloyds Rep 252 [30].

⁵¹ Nomihold Securities v Mobile Telesystems Finance [2012] 1 Lloyds Rep 442 [33]–[54].

⁵² See S Schwebel, ‘Anti-Suit Injunctions in International Arbitration: An Overview’, in Gaillard (2005) 1, 10–11; relied on in Republic of Kazakhstan v Istil Group (No 2) [2008] 1 Lloyds Rep 382 [2], [48].

⁵³ In Zaporozhye Production Aluminium Plan, Open Shareholders Society v Ashly Limited (Tomlinson J, 25 June 2002), the argument proceeded on the assumption that the power to grant interim relief existed, but should only be exercised in limited circumstances.

⁵⁴ As is apparent from s 2(1) of the 1996 Act. See Arab National Bank v El-Abdali [2005] 1 Lloyds Rep 541 [14].

⁵⁵ Section 72 is, however, compatible with the New York Convention, as the conditions for its exercise fall within the cases where Article II(3) of the Convention does not apply.

Injunctions can apparently be granted under s 72 even after an ‘award’ has been given. Thus, an injunction was granted under s 72 to restrain enforcement, and even publication, of an award made without jurisdiction and obtained by fraud: Arab National Bank v El Abdali [2005] 1 Lloyds Rep 541; London Steamship Owners Mutual Insurance Association v Kingdom of Spain (The Prestige) [2014] 1 Lloyds Rep 137 [83]; but cf contra Bernuth Lines v High Seas Shipping (The Eastern Navigator) [2006] 1 Lloyds Rep 537 [58].

⁵⁶ There is no help to be found in the DAC Report: see para 295.

⁵⁷ Fiona Trust & Holding v Privalov [2007] 2 Lloyds Rep 267 (CA) [34] (these points were not considered on appeal: [2008] 2 Lloyds Rep 254 (HL)); British Telecommunications v SAE Group [2009] EWHC 252 (TCC) [53], [71]; see also Caparo Group v Fagor Arrasate Sociedad Cooperative (Clarke J, 7 August 1998). This is a different approach to that apparently adopted in Law Debenture Trust Corporation v Elektrim Finance [2005] 2 Lloyds Rep 755 [48].

⁵⁸ Fiona Trust & Holding v Privalov [2007] 2 Lloyds Rep 267 (CA) [36].

⁵⁹ Sir MJ Mustill and SC Boyd, Commercial Arbitration (2nd edn, LexisNexis 2001 Companion Volume) 362 (hereafter ‘Mustill and Boyd, Companion’.

⁶⁰ Zaporozhye Production Aluminium Plan, Open Shareholders Society v Ashly [2002] EWHC 1410. For an illustration of the considerations of convenience that can arise where security has been given in the arbitration, see the pre-1996 Act case of Industrie Chimiche Italia Centrale v Alexander G Tsavliris and Sons Maritime (The Choko Star) [1987] 1 Lloyds Rep 508 (CA).

⁶¹ In Azov Shipping v Baltic Shipping [1999] 1 Lloyds Rep 68, 69, Rix J thought it would be ‘unlikely’ that an arbitrator would continue with the reference, but made it clear that he could do so. It can be noted that in contrast to s 32(4) of the 1996 Act, s 72 does not expressly provide that the arbitrator has the right to continue the reference in the meanwhile, but the right presumably exists nevertheless.

⁶² Axa Re v Ace Global Markets [2006] Lloyds Rep IR 683.

⁶³ Black Clawson International v Papierwerke Waldhof-Aschaffenberg [1981] 2 Lloyds Rep 446, 457–58; Weissfisch v Julius [2006] 1 Lloyds Rep 716 (CA) [25], [33]; A v B [2007] 1 Lloyds Rep 237 [112]–[113], [124]–[125]; Excalibur Ventures v Texas Keystone [2011] 2 Lloyds Rep 289 [54]–[56]; Claxton Engineering Services v TXM Olaj-és Gázjutató Kft [2011] 1 Lloyds Rep 252 [29]; Nomihold Securities v Mobile Telesystems Finance [2012] 1 Lloyds Rep 442 [55]–[66] (‘unusual circumstances’); T v T (Hemain Injunction) [2014] 1 FLR 96 [21]–[22]; Golden Ocean Group v Humpuss Intermoda Transportasi [2013] 2 Lloyds Rep 421 [71]–[72] (conceded); AmTrust Europe v Trust Risk Group [2015] 2 Lloyd Rep 231 [23]–[26]; Sabbagh v Khoury [2018] EWHC 1330 [19]–[20]. Any wider scope for intervention would require reconciliation with the cautious approach of the House of Lords in Channel Tunnel Group v Balfour Beatty Construction [1993] AC 334 (HL) 358F, 368B–H and would also create tensions with the New York Convention (see paras 11.22–11.24 and 11.37).

⁶⁴ Sabbagh v Khoury [2018] EWHC 1330 [20].

⁶⁵ In Intermet FZCO v Ansol [2007] EWHC 226, it was assumed without challenge that standard principles for anti-suit injunctions should apply; but this is not how most of the latter case law has developed. In Injazat Technology Capital v Najafi [2012] EWHC 4171 [16]–[17], an anti-arbitration injunction was granted with no higher criterion of exceptional circumstances’ being used but the relevant case law does not seem to have all been before the court, and the injunction defendant was not represented.

A more important contrary case is Albon v Naza Motor Trading (No 4) [2007] 2 Lloyds Rep 420, [2008] 1 Lloyds Rep 1 (CA) [16]–[18], where Lightman J and the Court of Appeal proceeded on the basis that it was sufficient for standard principles of vexation or unconscionability to be satisfied but that ‘the caution exercised by the court relating to ant-suit injunctions should be increased or even redoubled in the case of an anti-arbitration injunction’, at least in an ‘ordinary case’. The injunction was then granted on the basis that this was not an ordinary case. However, the facts were specific: they included findings that it was properly arguable that the arbitration clause had been forged to defeat the English proceedings, that it had been agreed the English court would determine that very question; and that the injunction was made only on an interim basis pending determination of the question of forgery by the English courts. Further, it seems that key decisions in the previous case law on anti-arbitration injunctions (such as Weissfisch and A v B) were not cited. In any event, the formulation used is not greatly different to that of ‘exceptional’ circumstances.

Recently, see Sabbagh v Khoury, where the test of exceptional circumstances was referred to but not actually adopted and the court seemed to think that a finding of vexation might be sufficient: Sabbagh v Khoury [2018] EWHC 1330 [19]–[20].

⁶⁶ Whitworths v Synergy Food and Processing [2014] EWHC 2439 (QB) [63]–[66].

⁶⁷ Sheffield United v West Ham United [2009] 1 Lloyds Rep 167; Claxton Engineering Services v TXM Olaj-és Gázjutató Kft [2011] 1 Lloyds Rep 252 [33]–[44]; AmTrust Europe v Trust Risk Group [2015] 2 Lloyd Rep 231 [23]–[28]; and see Albon v Naza Motor Trading (No 4) [2007] 2 Lloyds Rep 420, [2008] 1 Lloyds Rep 1 (CA) [16]–[18]; Sabbagh v Khoury [2018] EWHC 1330 [19].

However, the approach in Sabbagh v Khoury was perhaps more liberal, allowing for any requirement of exceptional circumstances to be displaced if arbitration was not agreed (without any requirement of ‘no argument to the contrary’): [19], [48]. But the case was one where the inapplicability of the arbitration clause had already been established.

⁶⁸ Claxton Engineering Services v TXM Olaj-és Gázjutató Kft [2011] 1 Lloyds Rep 252 [33]–[44]; Whitworths v Synergy Food and Processing [2014] EWHC 2439 (QB) [63]–[66] (a more liberal approach; but a judgment given at an undefended hearing); AmTrust Europe v Trust Risk Group [2015] 2 Lloyd Rep 231 [23]–[28]. The case law on this point betrays a tension between (a) the argument that, if it can be shown to the relevant standard that the foreign arbitration is in breach of contract, the Angelic Grace principles should apply in the same way as they normally do, and there is no more reason to defer to arbitrators than there would be to defer to a foreign court in this context (cf Whitworths at [64]); and (b) the argument that in general the English court should allow the arbitrators themselves to decide whether the proceedings before them are in breach of contract, unless perhaps it is clear, or has already been held by the court, that the foreign arbitration is in breach of contract (cf AmTrust at [25]; Claxton is less clear).

See also Huyton v Peter Cremer [1999] 1 Lloyds Rep 620, 623, 642, where the court enforced a separate agreement not to arbitrate by an injunction (in respect of an attempted arbitration in England).

⁶⁹ Claxton Engineering Services v TXM Olaj-és Gázjutató Kft [2011] 1 Lloyds Rep 252 [33]–[44] and see also AmTrust Europe v Trust Risk Group [2015] 2 Lloyd Rep 231 [25].

⁷⁰ Although English law does not adopt a wide and absolute view of Competence-Competence in its supervision of English arbitrations, as demonstrated by the existence of s 72 of the 1996 Act, the principle is receiving growing deference: Fiona Trust & Holding Corp v Privalov [2007] 2 Lloyds Rep 267 (CA) [34]; Dallah Real Estate and Tourism Holding v Ministry of Religious Affairs of the Government of Pakistan [2011] 1 AC 763; HC Trading Malta v Tradeland Commodities [2016] 1 WLR 3120. See P Fouchard, ‘Anti-Suit Injunctions in International Arbitration: What Remedies’ in Gaillard (2005) 153, 155.

Nevertheless, the breadth of the principle of Competence–Competence should not be exaggerated. In Pace S Schwebel ‘Anti-Suit Injunctions in International Arbitration: An Overview’ in Gaillard (2005) 5, 15, there is little basis to assume that a broad interpretation of the principle of Competence-Competence reflects customary international law (as opposed to being a polemical position held by many writers on international arbitration), since many jurisdictions, notably the UK, do not fully accept the principle of Competence-Competence. See J Rozas, ‘Anti-Suit Injunctions Issued by National Courts: Measures Addressed to the Parties or to the Arbitrators’ in Gaillard (2005) 73, 81–82.

⁷¹ See Black Clawson International v Papierwerke Waldhof-Aschaffenberg [1981] 2 Lloyds Rep 446, 458; Weissfisch v Julius [2006] 1 Lloyds Rep 716 (CA) [25], [33]; A v B [2007] 1 Lloyds Rep 237 [112]–[113]; Excalibur Ventures v Texas Keystone [2011] 2 Lloyds Rep 289, [55]; AmTrust Europe v Trust Risk Group [2015] 2 Lloyds Rep 231 [23]–[26]. See also, in the different context of injunctions to support arbitration proceedings, Channel Tunnel Group v Balfour Beatty Construction [1993] AC 334 (HL) 358F, 368B–H; Bank Mellat v Helliniki Techniki [1984] 1 QB 291 (CA) 302E–F; Naviera Amazonica Peruana v Compania Internacional de Seguros del Peru [1988] 1 Lloyds Rep 116 (CA) 120. The Arbitration Act 1996 grants the English court only very limited powers in respect of arbitrations with a foreign seat: s 2(4). The only powers expressly conferred on the English court in relation to foreign arbitrations are the powers to secure the attendance of witnesses and to exercise court powers in support of arbitral proceedings in s 43 and 44 of the Act. Section 72 of the Act does not apply to foreign arbitrations.

⁷² Claxton Engineering Services v TXM Olaj-és Gázjutató Kft [2011] 1 Lloyds Rep 252 [33]–[44].

⁷³ AmTrust Europe v Trust Risk Group [2015] 2 Lloyd Rep 231 [23]–[28].

⁷⁴ Excalibur Ventures v Texas Keystone [2011] 2 Lloyds Rep 289, [55]–[58]; and Weissfisch v Julius [2006] 1 Lloyds Rep 716 (CA) 722. In both Excalibur and Weissfisch the jurisdiction of the arbitrators was challenged.

⁷⁵ Injazat Technology Capital v Najafi [2012] EWHC 4171 [16]–[17].

⁷⁶ Excalibur Ventures v Texas Keystone [2011] 2 Lloyds Rep 289 [67]–[71].

⁷⁷ Nomihold Securities v Mobile Telesystems Finance [2012] 1 Lloyds Rep 442 [63].

⁷⁸ English arbitration tribunals applying English law have, it seems, powers to reject claims before them on grounds of res judicata: Associated Electric & Gas Services v European Reinsurance of Zurich [2003] 1 WLR 1041 (PC) [14], and may well have powers to reject claims before them on grounds of Henderson v Henderson abuse of process: Nomihold Securities v Mobile Telesystems Finance [2012] 1 Lloyds Rep 442 [40]–[44], [63], citing HE Daniels v Carmel Exporters [1953] QB 242, 256 (see also n 11). But the latter point in relation to Henderson v Henderson is debatable (see Associated Electric, at [16]). It is yet more doubtful whether they have powers to strike out claims on grounds of abuse of process more generally (see Nomihold, at [43]). However, the law on this is as yet undeveloped. Further, there are questions as to whether English law on res judicata, as developed in English court proceedings, is necessarily the applicable law to be applied by arbitrators to such questions, even where the arbitration has an English seat: see S Schaffstein, The Doctrine of Res Judicata in International Commercial Arbitration (OUP 2016), at Chs 5 and 6. And the position may be different before tribunals whose curial law is not English law.

⁷⁹ For arguments in favour of an even more restrictive approach to anti-arbitration injunctions, see J Lew, ‘Does National Court Involvement Undermine the International Arbitration Process’ (2009) 24(3) AUILR 489. For arguments in favour of anti-arbitration injunctions in appropriate cases, see N Poon, ‘The Use and Abuse of Anti Arbitration Injunctions’ [2013] 25 SAcLJ 244.

⁸⁰ See paras 11.22–11.24, 11.37.

⁸¹ C v D [2007] 2 Lloyds Rep 367, [2008] 1 Lloyds Rep 239 (CA) [29]–[34]; A v B [2007] 1 Lloyds Rep 237 [112]–[113], [124]–[125]; Nomihold Securities v Mobile Telesystems Finance [2012] 1 Lloyds Rep 442 [29]–[31]; Terna Bahrain Holding Company v Al Shamsi [131]–[132]. The analytical basis and extent of the C v D principle is addressed at Ch 7, paras 7.68–7.70.

⁸² See A v B [2007] 1 Lloyds Rep 237 [112]–[113], [124]–[125] and tacitly Excalibur Ventures LLC v Texas Keystone [2011] 2 Lloyds Rep 289 [55], [68]–[70]. This proposition is consistent with the approach taken in Black Clawson International v Papierwerke Waldhof-Aschaffenberg [1981] 2 Lloyds Rep 446, 457–58 and Weissfisch v Julius [2006] 1 Lloyds Rep 716 (CA) 722 [35(v)], and can be derived from ordinary principles of comity. However, a weaker approach was taken in Excalibur Ventures v Texas Keystone [2011] 2 Lloyds Rep 289, [55], although cf [68].

⁸³ Using the language in Airbus Industrie v Patel [1998] 1 AC 119 (HL) 138G–H.

⁸⁴ See Excalibur Ventures v Texas Keystone [2011] 2 Lloyds Rep 289 [69]–[70]; and see also the result in Sabbagh v Khoury [2018] EWHC 1330 [47]; although cf contra Nomihold Securities v Mobile Telesystems Finance [2012] 1 Lloyds Rep 442 [63].

⁸⁵ See eg Bremer Vulkan v South India Shipping [1981] AC 909 (HL) 915; Black Clawson International v Papierwerke Waldhof-Aschaffenberg [1981] 2 Lloyds Rep 446, 448; Siporex Trade v Comdel Commodities [1986] 2 Lloyd Rep 428, 430.

⁸⁶ Such an injunction was granted in Compagnie Européene de Céréals v Tradax Export [1986] 2 Lloyds Rep 301, 305–06. In Workplace Technologies v E Squared (Judge David Wilcox, 16 February 2000), which concerned an adjudication under Housing Grants, Construction and Regeneration Act 1996, s 108, the adjudicator as well as the claimant had been made a defendant to a claim for an injunction, and no objection was raised to the fact that the adjudicator was a party (although the injunction was refused). In Government of Gibraltar v Kenney [1956] 2 QB 410, 419, the arbitrator was initially sued as an additional defendant but the proceedings against him were not pursued when he undertook to abide by the court’s judgment.

⁸⁷ Compagnie Européene de Céréals v Tradax Export [1986] 2 Lloyds Rep 301, 306 (Hobhouse J); Montedipe v JTP-Ro Jugotanker (The Jordan Nikolov) [1990] 2 Lloyds Rep 11, 16 (Hobhouse J); K/S Norjarl v Hyundai Heavy Industries [1991] 1 Lloyds Rep 524 (CA) 536–37 (where the point appears not to have been disputed: see [1991] 1 Lloyds Rep 260, 266); Jivraj v Hashwani [2010] ICR 1435 [14], [21]–[23].

⁸⁸ Compagnie Européene de Céréals v Tradax Export [1986] 2 Lloyds Rep 301, 306. But it could be argued that an arbitrator’s only actual duty is to undertake ‘quasi-judicial functions’ (see K/S Norjarl A/S v Hyundai Heavy Industries [1991] 1 Lloyds Rep 524 (CA) 536–37), and thus to fairly and impartially consider any jurisdiction challenge made to him. If so, there would be no basis for restraining the arbitrator personally.

⁸⁹ In Caparo Group v Fagor Arrasate Sociedad Cooperative (Clarke J, 7 August 1998), it appeared that Clarke J would have been disinclined to grant an injunction if it had been sought against the arbitrator or the ICC, which it was not.

The international arbitration community (unsurprisingly) regards any injunctive interference with arbitrations, even by the courts of the seat, with hostility. International tribunals have even ignored injunctive relief granted against the tribunal itself by the courts of the seat of the arbitration (albeit in cases of manifestly abusive action by the state in question): J Werner, ‘When Arbitration Becomes War—Some Reflections on the Frailty of the Arbitral Process in Cases Involving Authoritarian States’ (2000) 17 J Intl Arb 97; ICC, ‘ICC Arbitration 10623’ (2003) 1 ASA Bulletin 59;M de Boisséson, ‘Anti-Suit Injunctions Issued by National Courts’ in Gaillard (2005) 65; J Werner, ‘When Arbitration Becomes War—Some Reflections on the Frailty of the Arbitral Process in Cases Involving Authoritarian States’ (2000) 17 J Intl Arb 97; J Lew, ‘Control of Jurisdiction by Injunctions Issued by National Courts’ (2006) International Arbitration, ICCA series no 13, 185, 208–10, 216, 218; A Redfern, M Hunter, and N Blackaby, Law and Practice of International Commercial Arbitration (6th edn, OUP 2015) paras 7.51–7.61. Leaving aside the merits of this resistance in other situations, we can note that under English law, a Tribunal with an English seat is bound by the English court’s decisions: see Naviera Amazonica Peruana v Compania Internacional de Seguros del Peru [1988] 1 Lloyds Rep 116 (CA) 119.

⁹⁰ Civil Procedure Rule 62.6(1) requires that arbitrators are defendants to arbitration claims under ss 24, 28, or 56 of the 1996 Act.

⁹¹ Arbitrators must be given notice of arbitration claims under ss 24, 48, 56, and 67–69 of the 1996 Act.

⁹² See n 89.

⁹³ See Ch 3, paras 3.42–3.43.

⁹⁴ Weissfisch v Julius [2006] 1 Lloyds Rep 716 (CA) 722. See also Channel Tunnel Group v Balfour Beatty [1993] AC 334 (HL) 368. It can also be noted that any such claim will face considerable difficulties of personal territorial jurisdiction, even if the arbitrator is domiciled in England: see the jurisdictional application made (but not considered by the Court of Appeal) in Weissfisch at 719. The substantive claims against the arbitrator were subsequently stayed by Colman J, who awarded indemnity costs against the claimants: A v B [2007] 1 Lloyds Rep 237; A v B (No 2) [2007] 1 Lloyds Rep 358.

⁹⁵ BHPB Freight v Cosco Oceania Chartering [2008] FCA 551 [6].

⁹⁶ See Ch 3, paras 3.43, 3.45–3.47.

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