12.01  The UK remains, as matters stand at the time of writing this section (1 May 2019), committed to Brexit. However, it is still necessary to address the interrelationship between anti-suit injunctions and European jurisdictional law, for numerous reasons. First, it is possible that Brexit will not occur. Second, if Brexit happens, under the current proposed draft withdrawal agreement of November 2018 if agreed, the European jurisdictional regime will continue to operate between the UK and the EU during the transitional period (with transitional provisions in Article 67 extending its effect in certain cases thereafter). Third, the final status arrangements may well include continuation of key elements of the European jurisdictional arrangements, including in particular the Brussels–Lugano regime. Fourth, while the consequences of ‘No deal’ would be the end of the operation of the Brussels–Lugano regime between the UK and the Brussels–Lugano states,¹ it is possible that something similar to the Brussels–Lugano arrangements might subsequently be agreed.²

12.02  Consequently, the remainder of this chapter analyses the relationship between anti-suit injunctions and European law as matters stand pre-Brexit, and on the working assumption (p. 260) that the European jurisdictional instruments will continue to operate in similar form between the UK and the EU and Lugano states.

12.03  But in contrast, if the Brussels–Lugano arrangements cease to apply and are not reinstated, the restrictions imposed by European jurisdictional law on the grant of anti-suit injunctions (and possibly other remedies) will disappear. Subject to any transitional arrangements, there will no longer be any principle of mutual trust (see paras 12.08 and 12.09 below) and this chapter will become of historical interest only in England³ (although it may still be of interest in other Brussels–Lugano states, like Ireland, that grant anti-suit injunctions). It is true that, in that situation, the UK will, subject to some transitional difficulties, become party to the Hague Convention on Choice of Court in its own right (as opposed to through its EU membership as now), and this will replace aspects of the Brussels–Lugano arrangements.⁴ However, although the Hague Convention does create a closed system for jurisdiction and the enforcement of judgments between its contracting states, it seems that it will not create any preclusion of anti-suit injunctions even where the other proceedings are in a contracting state.⁵

12.04  A collision between the common law approach to anti-suit injunctions and the rigid jurisdictional rules of the Brussels–Lugano regime was inevitable from the moment of the United Kingdom’s accession to the Brussels Convention, and its implementation by the Civil Jurisdiction and Judgments Act 1982.

12.05  In a line of cases starting with Continental Bank v Aeakos, the English courts saw no incompatibility between the grant of an anti-suit injunction and the United Kingdom’s obligations under the Brussels–Lugano regime, although there was a lack of reasoning as to why this was so.⁶ This approach was always unlikely to survive a trip to (p. 261) Luxembourg,⁷ which finally occurred in Turner v Grovit.⁸ Since then the European Court’s opposition to anti-suit injunctions within the Brussels–Lugano zone has been extended to apply to preclude anti-suit injunctions to restrain arbitration proceedings, in The Front Comor.⁹

12.06  In Turner v Grovit, an anti-suit injunction was granted by the Court of Appeal in a non-contractual case to restrain proceedings in Spain, which the Court of Appeal found had been brought in bad faith, in an apparent attempt to harass the pursuit of parallel proceedings in England.¹⁰ The question of whether this injunction was compatible with the Brussels–Lugano regime was referred to the European Court by the House of Lords. It seems, from the delay in giving judgment, that there was internal debate as to the wisdom of the reference. Lord Hobhouse gave a speech intended to steer the European Court, contending that an anti-suit injunction was a purely personal remedy, and did not interfere with the jurisdiction of other Convention courts. He suggested that preclusion of anti-suit injunctions would go beyond the proper role of the Brussels Convention, as this was not a jurisdictional issue, but a question of the procedural remedies available to a national court.¹¹

12.07  The European Court of Justice (ECJ) held that the Brussels Convention, and thus the Brussels–Lugano regime,¹² precluded the grant of an injunction whereby a court of a (p. 262) contracting state prohibits a party from commencing or continuing legal proceedings before a court of another contracting state.¹³

12.08  The European Court¹⁴ reasoned that the Brussels–Lugano regime is based on the principle of mutual trust between the courts of the contracting states. Except in limited situations, the regime does not permit the jurisdiction of a court of a contracting state to be reviewed by a court in another contracting state. Any ‘prohibition imposed by a court, backed by a penalty, restraining a party from commencing or continuing proceedings before a foreign court’, like an injunction, interferes with the jurisdiction of the other court and is thus inconsistent with the Brussels–Lugano regime. Even an injunction on the basis of abuse of process requires an assessment of the appropriateness of bringing proceedings before a court of another member state, and such an assessment runs counter to the principle of mutual trust. The argument that an injunction is merely a procedural measure intended to safeguard the integrity of proceedings before it, and thus a matter of national law alone, was no answer, because national procedural laws have only a limited autonomy, and are not allowed to impair the effectiveness of the regime.¹⁵

12.09  Three aspects of the decision were especially significant. First, the European Court’s decision limited the English courts’ exercise of their power to grant anti-suit injunctions, not their jurisdiction to hear cases concerning such injunctions.¹⁶ Second, the English analysis under which anti-suit injunctions have personal effect only, and thus do not directly interfere with the foreign court, was dismissed. From the European Court’s perspective, what was important was the substantive, if indirect, interference with the jurisdiction of the other court.¹⁷ Third, although Turner itself was a non-contractual case, the European Court’s reasoning by extension inevitably precluded injunctions to enforce an exclusive jurisdiction clause that restrained the pursuit of Brussels–Lugano proceedings.

(p. 263) 12.10  However, Turner v Grovit left a wide range of points unsettled, in particular at the frontiers of the Brussels–Lugano regime. The most important debate was whether an anti-suit injunction to enforce an arbitration clause by restraining the pursuit of proceedings in other Brussels–Lugano states would fall within the ‘arbitration’ exception to the material scope of the regime, or whether it would also be precluded by the principle of mutual trust.

12.11  The English Courts had, initially, concluded that such an injunction was outside the Brussels–Lugano regime; and that notwithstanding Turner, it was not precluded by the European jurisdictional rules.¹⁸ But it was apparent this might not be the answer that the European Court would give, and the question was, yet again, loyally referred by the House of Lords in The Front Comor, where an injunction had been granted to restrain the pursuit of proceedings before the Italian courts which were (from an English perspective) in breach of a London arbitration clause. Again, the House of Lords gave their views on the answer in an attempt to persuade the European Court. Lord Hoffmann argued that such injunctions were obviously arbitration matters and within the arbitration exception. In turn, it would be contrary to principle if the Regulation would preclude such injunctions, as that would extend the application of the Regulation to orders made in proceedings to which the Regulation did not apply, and ignored the practical realities of commerce.¹⁹

12.12  The reference gave rise to a problem of perspective: should the analytical focus be on the grant of the injunction and the arbitration proceedings which the injunction was sought to protect, or on the Brussels–Lugano proceedings whose pursuit it sought to restrain?

12.13  The European Court’s judgment²⁰ concluded that the anti-suit injunction was not itself within the scope of the Brussels–Lugano regime because it was sought to protect the right to arbitrate, which meant that its subject matter was arbitration, so that it fell within the arbitration exception.²¹ However, by virtue of the principle of effectiveness of European law, even remedies which are themselves outside the scope of the Brussels–Lugano regime can be precluded by the regime if they undermine its effectiveness.²² The European Court concluded, first, that the Italian courts’ own consideration of whether their own jurisdiction should be precluded by the arbitration clause was a matter within the scope of the Brussels–Lugano regime, because it was an incidental question to the substantive litigation before them, which was civil and commercial litigation and so within the scope of the regime. Second, even though such an injunction was itself outside the Brussels–Lugano regime, it prevented a Brussels–Lugano court from exercising its own Brussels–Lugano jurisdiction and assessing whether that jurisdiction existed; it was therefore inconsistent with the (p. 264) principle that Brussels–Lugano courts should assess their own jurisdiction; and therefore undermined the effectiveness of the Brussels–Lugano regime, and was inconsistent with the principle of mutual trust.²³

12.14  The specific line of reasoning adopted by the European Court was abstract, and artificial. An illustration of its strained nature is the conclusion that the objection raised in the Italian court was an objection to the jurisdiction of the Italian court, when it was not: it was an argument that Brussels–Lugano jurisdiction should not be exercised because of the New York Convention. But it had important consequences. First, it followed logically that if the other proceedings are outside the Brussels–Lugano zone, there is nothing to prevent an injunction being granted, as the principle of mutual trust does not apply. Second, if the other proceedings are outside the material scope of the Brussels–Lugano regime, an injunction to restrain them would not be caught by the principle of effectiveness.

12.15  The decision in The Front Comor has been subject to considerable criticism, and not merely from lawyers from common law systems.²⁴ Even the anti-suit injunction found some friends from within civil law systems. It was recognized that The Front Comor risked creating an asymmetric situation in which arbitration could be undermined by national courts, which were not the courts for the seat of the arbitration, overriding agreements to arbitrate, while the courts of the seat were deprived of a useful remedy.²⁵ The European Commission acknowledged that it could open the door to procedural manoeuvring by which parties could use unjustified court litigation to undermine arbitration proceedings. The European Parliament issued a resolution arguing that The Front Comor should be reversed.²⁶

(p. 265) 12.16  The conclusion that the Italian court’s own ‘incidental’ decision on the applicability of the arbitration was itself a matter within the Brussels–Lugano regime—and therefore, apparently, would itself constitute a Brussels–Lugano judgment which would be enforceable under the Brussels–Lugano rules²⁷—was subject to particular criticism.²⁸ This was unnecessary collateral damage, as the European Court could have concluded that the injunction undermined effectiveness and mutual trust on the broader basis that, by preventing the Italian court from deciding on whether to exercise jurisdiction over the proceedings before them, it interfered with the Italian courts’ overall exercise or assessment of Brussels–Lugano jurisdiction, whether or not their decision on the arbitration clause was itself within the scope of the regime. Indeed, it is arguably possible to read the European Court’s actual reasoning as depending, in part, on such a broader approach and thus remaining valid independent of the narrower issue of the characterization of the Italian court’s decision, although the judgment is not very clear.²⁹

12.17  But this narrower aspect was capable of producing unacceptably asymmetric consequences: on the one hand, the court of the seat’s own positive conclusions that an arbitration clause was binding would not fall within the scope of the Brussels–Lugano regime, and would not be enforceable under the Brussels–Lugano regime, but on the other hand, the incidental determination of another court on the same question would fall within the scope of the regime and therefore have to be recognized even in the court of the seat.³⁰

12.18  It was widely held across Europe that the existing position was unsatisfactory, although there was less agreement as to the remedy. A vigorous debate therefore fed into the ongoing process of reform of the Brussels I Regulation which was already under way.³¹ The result is Recital 12 of the Brussels I Recast, which reinforces the arbitration exception. Although its effect is not entirely explicit, and it bears the hallmark of drafting by committee, it appears at the least to have reversed the unattractive side effect of The Front Comor under which the foreign court’s incidental conclusion that an arbitration clause was not binding would itself be enforceable under the Brussels–Lugano recognition and enforcement rules.³² No specific reference was made to anti-suit injunctions.

(p. 266) 12.19  The interplay of these changes with The Front Comor presented an interesting possibility: has Recital 12 reversed the ECJ’s conclusion that the foreign court’s assessment of the binding force of the arbitration clause was itself a part of the foreign court’s exercise of its Brussels–Lugano jurisdiction? And if so, does that remove the basis on which it was said that the anti-suit injunction was an interference with such Brussels–Lugano jurisdiction, and so precluded by the principle of effectiveness?³³ If the anti-suit injunction has been restored in this way, it would be a remarkable back-door legislative triumph for the UK negotiators.

12.20  In his opinion in Gazprom, Advocate General Wathelet concluded this would, indeed, be the effect of Recital 12. His reasoning is surprising—and in some ways refreshing to English lawyers, who have come to fear a lack of sympathy when English private international law is handled by the European legal institutions.

12.21  He seems to have been influenced by the continental academic criticism of The Front Comor, and concluded that the second paragraph of Recital 12 had shifted the boundaries of the arbitration exception outwards, so that where proceedings were brought before a national court in alleged breach of an arbitration clause, the national court’s consideration of whether the arbitration clause was binding would not be within the Brussels–Lugano regime. Indeed, the proceedings before it would not be within the scope of the regime until the national court had concluded the arbitration clause was invalid. So, an injunction to restrain such consideration was not itself contrary to European jurisdictional law. Further, he reasoned that para 4 of Recital 12,³⁴ making clear ‘ancillary proceedings’ in support of arbitration were outside the Recast, would cover anti-suit injunctions. Consequently, Recital 12 meant the result of The Front Comor would be different under the Brussels I Recast. Anti-suit injunctions to enforce arbitration clauses by restraining Brussels–Lugano proceedings would be permissible.³⁵ He went so far as to suggest, pointing to the inconsistencies between The Front Comor and previous ECJ judgments like Marc Rich, that Recital 12 indicated the correct interpretation of the Brussels I Regulation, so that The Front Comor should no longer be treated as the law even before the Recast.³⁶

12.22  The Advocate General’s sympathy for anti-suit injunctions, especially when granted by arbitrators, is evident. He thought that an anti-suit award is the only effective remedy an arbitration tribunal can give to prevent breach of the arbitration agreement by litigation elsewhere, and concluded that anti-suit injunctions granted by arbitrators would anyway be unaffected by the Brussels–Lugano regime because arbitrators were not bound by mutual trust. He also observed that it would be compatible with the Brussels I Regulation for either a national court or an arbitration tribunal to award damages for breach of the arbitration clause by litigation before national courts.³⁷

(p. 267) 12.23  However, none of the Advocate General’s reasoning on the effect of Recital 12 on anti-suit injunctions granted by courts was necessary to the decision of the case before him. Gazprom concerned the grant of anti-suit injunctions by arbitrators, and whether a national court could refuse to enforce such an anti-suit award. That could be decided without reversing The Front Comor’s prohibition of anti-suit injunctions by courts. Indeed, it would have been possible to decide the case by simply saying that whether or not to enforce an anti-suit award was a matter for national law, and the interpretation of the New York Convention, to which European law had no relevance.³⁸

12.24  The European Court did not adopt AG Wathelet’s wider reasoning nor engage with the relevance of Recital 12. It concluded in brief terms that an injunction to enforce an arbitration clause by restraining proceedings before other Brussels–Lugano courts was inconsistent both with the principle of mutual trust and with the principle that member state courts should themselves decide their own jurisdiction and cannot be in a better position to decide on the jurisdiction of another court.³⁹ Despite their brevity, these conclusions are a clear implicit rejection of the argument that The Front Comor has been reversed, so far as concerns injunctions granted by courts, and they appear to apply as much under the Recast as under the Regulation—at the least, they provide a clear clue as to how the European Court would rule under the Recast. The European Court avoided the problem created by The Front Comor’s specific reasoning by concluding that the anti-suit injunction would in broader terms be an interference with the other court’s consideration of, and exercise of, its own Brussels–Lugano jurisdiction, in the sense sketched above. Its reasoning is thus independent of the narrower point, which is affected by Recital 12, of whether the decision on the validity of the arbitration clause is itself within the Brussels–Lugano regime.⁴⁰

12.25  Indeed, contrary to the Advocate General’s suggestion, the fourth sentence of Recital 12 is more naturally read to cover other kinds of ancillary measures and not anti-suit injunctions. More generally, it seems difficult to read Recital 12, as AG Wathelet did, as intended to reverse the existing position in relation to anti-suit injunctions. The better reading is that Recital 12 was intended rather to reverse the specific problems of enforceability of foreign rulings on the force of arbitration clauses created by The Front Comor.⁴¹

12.26  It is suggested, therefore, that although in Gazprom the European Court did not directly consider the effect of the Recast and Recital 12, it is unlikely, without a change of doctrine, that it will treat Recital 12 as having permitted anti-suit injunctions to enforce arbitration clauses within the Brussels–Lugano zone.⁴² This was the result reached in the Commercial Court by Males J in Nori v Otkritie, where he held that there is nothing in the Recast (p. 268) Regulation to cast doubt on the continuing validity of the decision in The Front Comor on the impermissibility of anti-suit injunctions, and disagreed with AG Wathelet’s reasoning.⁴³

12.27  However, as regards anti-suit awards made by arbitrators, the European Court in Gazprom did follow AG Wathelet, and agreed they were not affected by European jurisdictional law. The European Court held that arbitrators were not bound by the principle of mutual trust, which applied only between courts. Further, the principle that courts should decide on their own jurisdiction was not infringed, because it would always be a question for national courts as to whether or not to enforce the anti-suit award when considering their own jurisdiction. Finally, remedies for breach of the arbitration award would not involve the imposition of ‘penalties’ by a court of another member state.⁴⁴ Consequently, the Brussels–Lugano regime did not prevent the grant of anti-suit awards; and the enforcement of the anti-suit award was itself a matter outside of, and unaffected by, the Brussels–Lugano regime.⁴⁵

12.28  At the end of this story, the practical results of the European Court’s judgments are fairly clear, if no change of heart occurs (and so long as the Brussels–Lugano regime remains the law). But the fragility of their justification is apparent. The implications of Gazprom require abandoning most of the reasoning in The Front Comor, which was unpersuasive to begin with.

12.29  An injunction which is itself outside the scope of the regime can only interact with the regime through its effects; but any interference with the other court’s assessment or exercise of its own jurisdiction caused by the injunction is not functionally different to the effect of an anti-suit award. They differ only in that the latter is awarded by the court and with somewhat different remedies for breach.⁴⁶

12.30  Nor was there ever any true sense in which an anti-suit injunction in support of arbitration interfered with the other court’s assessment of its own Brussels–Lugano jurisdiction. At most it only pre-empted the other court’s assessment of whether or not to stay under the New York Convention, a matter inherently within the arbitration exception and outside the Brussels–Lugano regime, and so indirectly interfered with the exercise of Brussels–Lugano jurisdiction. And it would do so no more than an arbitral anti-suit award, which Gazprom says is legitimate.

12.31  Further, the idea that an anti-suit injunction interfered with the effectiveness of the Brussels–Lugano regime, by this indirect interference with the exercise of Brussels–Lugano jurisdiction, equally lacked credibility. By preventing a party from seeking to exercise a (p. 269) court’s Brussels–Lugano jurisdiction, the injunction no more undermines the effectiveness of the Brussels–Lugano regime than would an uncontested arbitration clause, which produces the same effect—as would, of course, an arbitral anti-suit award.

12.32  We are left with assertions that for a court, but not arbitrators, to operate by injunction, is contrary to mutual trust between courts. The principle of mutual trust was only ever an assertion of the desired result, rather than a justification. But it is particularly difficult to see why any principle of mutual trust created by the relationship of courts within the Brussels–Lugano regime should affect a court which is acting outside the regime, and acting in a way that affects only the decisions of the other court on whether to stay in favour of arbitration, which is again a matter outside the regime. The deeper logic of mutual trust flows from the structure of a harmonized jurisdictional system, but in matters such as arbitration where the member state courts are not bound by the same principles of European law, it is difficult to see why dogma of mutual trust should apply between courts.

12.33  So the remaining contention when boiled down becomes little more than that European courts should not indirectly affect the exercise of each other’s Brussels–Lugano jurisdiction by decisions on questions outside the scope of the Brussels–Lugano regime merely because they are courts who in other contexts are bound by a common jurisdictional regime, and even though, as Gazprom tells us, there is nothing wrong with arbitrators doing the same thing, and where uncontested arbitration agreements produce the same result.

12.34  It becomes clear that the real underlying ‘European’ objection is to the English court rather than the court of the other proceedings deciding on the effect of the arbitration clause. But whatever the force of that objection as a matter of comity and international arbitration law, it is a question of ‘arbitration’ and is not a question on which the Brussels–Lugano regime has any legitimate purchase. The ECJ has sought to cloak an independent objection to the anti-suit injunction in the trappings of European jurisdictional law, and has overreached.⁴⁷

12.35  The extent of the overreaching is starkly apparent, once it is recognized that the effect of The Front Comor is to extend the Brussels–Lugano regime to override substantive contractual law⁴⁸—since the anti-suit injunction is a component of the English law of contractual remedies—in respect to which the regime necessarily does not apply, and in a field where it does not provide its own remedies.⁴⁹

12.36  The current resting place of the European Court’s reasoning on anti-suit injunctions to enforce arbitration clauses is therefore unsatisfactory and unpersuasive. But that does not mean it will change.

12.37  In the rest of this chapter, we therefore proceed on the basis that the essential distinctions drawn so far by the European Court will remain the law, and explore their implications for the various situations in which anti-suit injunctions and related remedies may be sought. (p. 270) We address, in particular, situations where the other proceedings are outside the Brussels–Lugano zone, or outside the material scope of the Brussels–Lugano regime; and whether anti-enforcement injunctions should be treated differently. We will also consider the effect of the principles of effectiveness and mutual trust on alternative remedies such as claims for damages and declarations, and remedies sought from arbitrators.

12.38  The effect of Turner v Grovit and The Front Comor is that if an anti-suit injunction is sought in court proceedings which are themselves within the material scope of the Brussels–Lugano regime, to restrain a party from invoking the Brussels–Lugano jurisdiction of another member state court, the principles of effectiveness and mutual trust will preclude the grant of an injunction as a matter of power, irrespective of the ground on which the injunction is based, irrespective of how the foreign court has assumed or will assume Brussels–Lugano jurisdiction, and irrespective of whether the injunction defendant is domiciled within the Brussels–Lugano zone.⁵⁰ It does not matter, for example, that by precluding contractual injunctions, the European jurisdictional regime has had the effect of removing one of the substantive rights available under the English law of contract, to which willing parties to English law jurisdiction and arbitration clauses can be considered to have agreed.⁵¹ The root of both decisions is that it is inconsistent with the fundamental structure of the Brussels–Lugano regime for the courts of one member state to interfere, even indirectly, with the exercise of the regime jurisdiction of another member state court.

12.39  It seems likely that claims for injunctions which do not entirely or directly restrain Brussels–Lugano proceedings from being commenced or continued, but do nevertheless seek to restrain aspects of the way they are conducted in a manner analogous to an anti-suit injunction, will also be precluded by mutual trust.⁵² There will be difficulties at the margin: for example, if the English court is asked to restrain a breach of confidence, where the mis-use of confidential information is or will be taking place in foreign proceedings, does the principle of mutual trust impose a barrier?⁵³ The answers will need (p. 271) to be worked out, but the problem illustrates the radical and ill-considered nature of the interference with substantive legal rights which the ECJ’s current case law imposes.

12.40  In contrast, the Brussels–Lugano regime does not preclude anti-suit injunctions which restrain the pursuit of proceedings before courts or arbitral tribunals outside the Brussels–Lugano zone. In such a case there can be no interference with the exercise of, or assessment as to whether to exercise a Brussels–Lugano jurisdiction, and the principle of mutual trust is not engaged.

12.41  Following Turner it was argued on occasion that the evident hostility displayed by the European Court towards anti-suit injunctions meant that the Brussels–Lugano regime should be interpreted as inherently antipathetic to anti-suit injunctions, and that the English courts’ powers to grant such injunctions should be restricted generally, or restricted in cases where personal jurisdiction was assumed under the Brussels–Lugano jurisdictional rules.⁵⁴ But this finds no basis either in the principle of mutual trust or in the rationale of The Front Comor and Gazprom. The English courts have taken the approach that the Brussels–Lugano regime has no effect either on the power⁵⁵ or the discretion⁵⁶ (p. 272) to grant anti-suit injunctions outside the ‘closed system’⁵⁷ of the Brussels–Lugano regime.

12.42  The Brussels–Lugano regime itself will have no effect on injunctions to restrain competing proceedings within the United Kingdom⁵⁸ because the situation has no ‘international element’, and thus the regime has no application.⁵⁹ The injunction would merely be one way of organizing the internal jurisdictional relationships of a state. In a hypothetical legal system, the same result could be produced by listing and transfer decisions imposed on an inferior court by a superior judicial authority, which could not be affected by the Brussels–Lugano regime. It follows that Turner v Grovit has no direct application to injunctions sought from the English courts to restrain proceedings brought before other courts in England and Wales.

12.43  The point needs to be looked at afresh in relation to Scotland and Northern Ireland, which have separate legal systems to England and Wales. Jurisdiction between the component parts of the United Kingdom is allocated under the provisions of the ‘Modified Regulation’ set out in section 16 and Schedule 4 of the Civil Jurisdiction and Judgments Act 1982,⁶⁰ whose terms mimic the substantive provisions of the Brussels–Lugano regime. It might be argued that this imposes a principle of mutual trust as between the legal systems of the United Kingdom,⁶¹ and if so it could follow by inference that Turner v Grovit should (p. 273) preclude the grant of injunctions by the English court to restrain the pursuit of proceedings in Scotland or Northern Ireland, if not elsewhere in England and Wales.

12.44  However, it is far more likely that the Modified Regulation will not be interpreted as importing Turner v Grovit within the United Kingdom. The Modified Regulation does not preclude the operation of the doctrine of forum non conveniens within the United Kingdom, in particular because of the preservation of the power to stay in s 49 of the 1982 Act,⁶² and this suggests that the Modified Regulation does not import the European Court’s teleological approach to the Brussels–Lugano regime’s structure into the internal jurisdictional affairs of the United Kingdom.⁶³ Furthermore, the principle of mutual trust as applied by the European Court appears more likely to be viewed by the English courts as an example of European legal imperialism, to be accepted but not extended, than as a persuasive interpretation of the inherent structure of closed systems of jurisdiction such as the Modified Regulation. And transference of the principle of mutual trust into the Modified Regulation will be still more unlikely if and when the UK has left the Brussels–Lugano regime.

12.45  The Brussels–Lugano regime excludes ‘arbitration’ from its material scope.⁶⁴ This poses two questions: whether an anti-suit injunction to enforce an arbitration clause can be regarded as outside the scope of the regime (‘the arbitration exception question’) and whether this means it is unaffected by the principle of mutual trust (‘the incompatibility question’). These (p. 274) issues are of great practical importance,⁶⁵ as injunctions to enforce arbitration clauses in favour of London arbitration are perhaps the most common type of anti-suit injunctions granted by the English courts.

12.46  The English courts had concluded that an anti-suit injunction to enforce an arbitration clause was both outside the Brussels–Lugano regime and not incompatible with it, in a line of cases capped by Through Transport v New India,⁶⁶ where the Court of Appeal avoided having to make a reference because it refused to grant an injunction on the basis of some contorted reasoning as to the exercise of its discretion which is now no longer the law.⁶⁷ (p. 275) But it was inevitable that the point would recur. In The Front Comor,⁶⁸ Colman J concluded that the anti-suit injunction should lie, but granted a certificate for a ‘leapfrog’ appeal to the House of Lords. The House of Lords referred the question to the European Court, with Lord Hoffmann, like Lord Hobhouse before him, attempting to give a desired steer.⁶⁹

12.47  The effect of the European Court’s decisions in The Front Comor and Gazprom,⁷⁰ as discussed above, is that anti-suit injunctions to enforce arbitration clauses by restraining Brussels–Lugano proceedings are in themselves ‘arbitration’ and outside the Brussels–Lugano regime.⁷¹ Nevertheless, such injunctions are incompatible with the effectiveness of the regime, the principle of mutual trust, and the principle that a Brussels–Lugano court should be able to examine its own jurisdiction, if the other proceedings are within the material scope of the Brussels–Lugano regime. This is so even if one of the preliminary issues within those proceedings will be whether the other court should stay its proceedings in favour of arbitration. Under Regulation 1215/2012, Recital 12 will mean that the other court’s decision on the binding force of the arbitration clause will not be enforceable under the Brussels–Lugano regime. However, it is unlikely, without a change of heart by the European Court, that it will have the more radical effect of changing the position with regard to anti-suit injunctions to enforce arbitration clauses by restraining the pursuit of substantive Brussels–Lugano proceedings before the other court. The prohibition of the injunction will continue, with the justification for it shifting to the Brussels–Lugano nature of the wider proceedings, which will be prevented.⁷²

12.48  However, the principle of mutual trust has no effect on injunctions to enforce arbitration clauses by restraining proceedings outside the Brussels–Lugano zone,⁷³ or inside the Brussels–Lugano zone but outside the scope of the European jurisdictional instruments.⁷⁴ It is true that aspects of the brief language used in Gazprom articulate a prohibition on reviewing the jurisdiction of another member state court in language that is not dependent on the other jurisdiction being a Brussels–Lugano jurisdiction.⁷⁵ But the logic of the case, and of The Front Comor, is dependent on the other proceedings being within the Brussels–Lugano regime.

(p. 276) 12.49  Similarly, injunctions to restrain arbitration proceedings with seats in Brussels–Lugano countries—or outside the Brussels–Lugano zone—are unaffected by mutual trust and not prohibited by the Brussels–Lugano regime.⁷⁶

12.50  The European Court’s decision in The Front Comor posed the question on whether arbitrators could grant remedies akin to anti-suit injunctions, sometimes called anti-suit awards, to restrain Brussels–Lugano proceedings. The anti-suit award would obviously itself be within the arbitration exception in Article 1(2)(d) of the Recast since it was granted in proceedings before arbitrators, and so was ‘arbitration’, but the argument was that its effect on Brussels–Lugano proceedings might, as with court anti-suits, lead to the arbitral anti-suit being precluded by the principle of effectiveness of the Brussels–Lugano regime.

12.51  English arbitrators had generally taken the approach that they could continue to grant anti-suit awards, even though the grant of such relief by the English courts were now prohibited. This was also consistent with the decisions of the English courts in relation to damages and declarations, in which the courts had concluded that arbitrators were not affected by the principle of mutual trust or the principle of effective judicial protection within the Brussels–Lugano regime.⁷⁷ The European Court has now confirmed in Gazprom that anti-suit awards sought from arbitrators are not prohibited by the Brussels–Lugano regime, even where the seat of the arbitration is within the Brussels–Lugano zone or the lex arbitri is subject to the Brussels–Lugano regime.⁷⁸

12.52  Since the Brussels–Lugano regime imposes no barriers on arbitrators granting such relief, and since English arbitrators generally have the power to grant anti-suit awards,⁷⁹ it would be strange if English law somehow removed that power when the competing proceedings were in the Brussels–Lugano zone. Yet it has been suggested that this is the effect of section 48(5) of the Arbitration Act 1996, which is often understood to be the basis of arbitrators’ powers to grant injunctions in English arbitration law (absent specific agreement in the arbitration agreement or institutional rules).

12.53  Section 48(5) provides that, absent contrary agreement, ‘the Tribunal has the same powers as the court—to order a party to do or refrain from doing anything’. It has been argued that, if the effect of Turner v Grovit is to preclude the ‘power’ of the court to grant an anti-suit injunction within the Brussels–Lugano zone, arbitrators will have no greater power. It is submitted that this is a non-existent problem. The purpose of section 48(5) is not to require (p. 277) arbitrators in each case to consider whether the court would or could grant a particular injunction, but instead to allow arbitrators to grant the same types of injunctive remedies as the courts. The court continues to have a power to grant an anti-suit injunction, where appropriate, under section 37(1) of the Supreme Court Act 1981, and section 48(5) transfers the full extent of that power to the arbitrators. The effect of European law is that the court’s power cannot be exercised in respect of (for example) proceedings before the courts of another member state, but the existence of the power under English law, and so its transference to the arbitrators, is unaffected; and the Brussels–Lugano regime’s limitation on the exercise of the court’s power is then not a limitation that applies to the exercise of the same power by arbitrators, who are unaffected by the principle of mutual trust.⁸⁰ Another way of putting the same point is that any restriction of the court’s powers under section 37(1) which is not a restriction which would logically apply to arbitrators does not meaningfully affect the powers transferred by section 48(5); if the powers are transferred subject to limitations that only affect courts, then any such limitations disappear once the power is in the hands of arbitrators.

12.54  So far as the author of this work is aware, on each occasion any argument based on section 48(5) has been raised, to the effect that arbitrators have no power to grant arbitral anti-suit awards, it has been rejected by distinguished arbitration tribunals.

12.55  Any such problem, even were it to exist, would be specific to section 48(5) and would not arise where arbitrators have powers to grant injunctions derived from different sources such as the terms of the arbitration agreement or rules. Institutional rules often contain powers of sufficient breadth to support anti-suit awards.

12.56  In addition, it has been argued that the power to grant anti-suit awards or similar protective orders is inherent in the arbitrators’ powers to control their own proceedings,⁸¹ and as such could be viewed as implicitly granted to tribunals by standard form modern arbitration agreements, independent of section 48(5) and without specific provision. However, under English arbitration law, this line of argument faces the difficulty that before the 1996 Act it was uncertain whether arbitrators had power to grant any injunctions at all.⁸²

12.57  In Nori v Otkritie, Males J said Gazprom was ‘crystal clear’ that any court judgment to enforce an arbitral anti-suit award is outside the Brussels–Lugano regime, and is not precluded by mutual trust or effectiveness. He appeared to include the entry of judgment by the English (p. 278) court in terms of an anti-suit award,⁸³ even where the award, and so the court judgment enforcing it, would restrain in another member state.⁸⁴ It is respectfully submitted, however, that this is not what the European Court said. Gazprom was about whether the Brussels–Lugano regime prevented the Lithuanian courts from enforcing an anti-suit award, issued by a foreign arbitration tribunal, which would prevent proceedings continuing before the Lithuanian courts themselves.⁸⁵ It was not concerned with the enforcement by the courts of state X of an anti-suit award to restrain proceedings in another member state Y. When such an award is enforced by entry of judgment in the terms of the award under English law, this in effect creates an injunction from the English court restraining proceedings in the foreign court, backed by contempt. That is a different situation to what the European Court had in mind in Gazprom.

12.58  The literal words of the European Court’s conclusion (at [44]) do not produce the result envisaged by Males J:

Further, the reasoning was focused, in key respects, on why a court enforcing an award to restrain proceedings before itself was unproblematic;⁸⁶ and the European Court observed (at [38]) that the failure to comply with the anti-suit award was ‘not capable of resulting in penalties being imposed upon [the respondent] by a court of another member state’ which would not be the situation where there was entry of judgment in England in the terms of an anti-suit award restraining proceedings in another member state.

12.59  Consequently, contrary to Males J’s suggestion, the legitimacy of entry of judgment in the terms of an anti-suit award is not established by Gazprom, where the award and judgment restrain proceedings in another member state.

12.60  In general, it is clear that the enforcement of arbitration awards is within the arbitration exception and unaffected by the Brussels–Lugano regime.⁸⁷ It could be said that applying the Brussels–Lugano regime to prevent enforcement of such an anti-suit award would be an intimate interference with the arbitral machinery, and directly inconsistent with the New York Convention, which requires enforcement of awards (cf Art III) and which by Article 73 of the Recast should be unaffected by the Recast’s rules. The matter is, in a real sense, deeper within the arbitration exception than a direct court anti-suit injunction. Further, if such an award in itself is unaffected by the Brussels–Lugano regime, it would be odd if there could be no judgment enforcing such an award.

(p. 279) 12.61  But whether considerations such as this are sufficient to immunize the enforcement of an anti-suit award from the principles of mutual trust and effectiveness as interpreted by the European Court remains to be seen. From the perspective of the relationship between courts, it could be said there was little difference between a direct anti-suit injunction and a court judgment in the terms of an anti-suit award, with regard the indirect interference caused.

12.62  Whichever result is reached will produce arbitrary distinctions—between an anti-suit award and a judgment enforcing it, on one side, or between an anti-suit award and a direct anti-suit injunction, on the other—which, again serve to illustrate the unsatisfactory nature of the European Court’s reasoning in The Front Comor.

12.63  The Brussels–Lugano regime only covers ‘civil and commercial matters’, and in addition to ‘arbitration’, it excludes:

English courts have historically granted anti-suit injunctions to protect English proceedings within these categories, and in particular, have granted injunctions to protect the equal and fair distribution of assets in insolvency proceedings from being interfered with by creditors trying unfairly to ‘steal a march’ in other jurisdictions.⁸⁹ The French Cour de Cassation has exercised a similar power to protect French bankruptcy proceedings from interference by the threatened actions of a creditor before the Spanish courts.⁹⁰

12.64  It seems that anti-suit injunctions sought in or in respect of, and in order to protect, such proceedings outside the material scope of the Brussels–Lugano regime are themselves claims outside the Brussels-Lugano regime because they partake of the same characterization as the underlying proceedings they protect.⁹¹ This would mean, inter alia, that they would not need to satisfy Brussels–Lugano heads of territorial jurisdiction.

12.65  Nevertheless, the effect of the Front Comor and Gazprom appears to be that even if such injunctions are themselves outside the scope of the regime, the grant of such injunctions (p. 280) to restrain Brussels–Lugano proceedings in other Brussels–Lugano courts is incompatible with the principles of mutual trust and effectiveness.⁹²

12.66  In contrast, it seems clear that, if the other proceedings are inside the Brussels–Lugano zone but outside the material scope of the Brussels–Lugano regime, for example where they themselves fall within one of the exceptions, or are not civil and commercial matters, then the injunction will be unaffected by principles of mutual trust and effective judicial protection derived from the Brussels–Lugano regime itself. It is true that parts of the literal wording of the ECJ’s decision in Turner v Grovit could be read as applying to preclude any injunction to restrain any proceedings before the courts of another member state,⁹³ and there are also aspects of the wording in Gazprom that could be read in this sense.⁹⁴ But the overall logic of The Front Comor and Gazprom leads clearly to the conclusion that there is no relevant mutual trust, and nothing relevant to protect, where the other proceedings fall outside the Brussels–Lugano regime or European jurisdictional law.⁹⁵ To use the words of Lord Hoffmann in West Tankers v Ras Riunione Adriatica di Sicurta (The Front Comor) [2007] 1 Lloyds Rep 391 (HL) [14], in such a case ‘there is no set of uniform Community rules which the Member states can or must trust each other to apply’. The English case law has proceeded on this basis.⁹⁶

12.67  Further, anti-suit injunctions to restrain arbitration proceedings outside the United Kingdom are unaffected by mutual trust and the Brussels–Lugano regime even if the seat of the foreign arbitration is within the Brussels–Lugano zone.⁹⁷

12.68  However, a number of the subjects that fall within the exceptions to the scope of the Brussels–Lugano regime still fall within the net of European jurisdictional law under other instruments. Thus, jurisdiction over certain family law matters is covered by the Brussels II bis Regulation,⁹⁸ and jurisdiction in relation to insolvency is in many cases regulated by the Insolvency Regulations.⁹⁹ It is plausible that the European Court will view those (p. 281) instruments as also creating closed jurisdiction systems which give rise to comparable principles of mutual trust within their scope as those applying within the Brussels–Lugano regime,¹⁰⁰ although the details of this have yet to be worked out.¹⁰¹

12.69  If a judgment from Brussels–Lugano state A is sought to be enforced under the Brussels–Lugano regime in Brussels–Lugano state B it would seem to be clear that the courts of B are being asked to engage a Brussels–Lugano jurisdiction, over which they have an exclusive jurisdiction under Article 24(5) of the Recast. Consequently, the logic of Turner v Grovit and The Front Comor suggests strongly that an anti-enforcement injunction to restrain enforcement proceedings in B would be contrary to mutual trust and an interference with the Recast jurisdiction of B. The English courts have not yet directly grappled with the point.¹⁰²

12.70  If a judgment from outside the Brussels–Lugano zone is sought to be enforced in another Brussels–Lugano state, the position appears to be different. In Bank St Petersburg v Archangelsky,¹⁰³ it was common ground that the enforcement in another Brussels–Lugano court of a judgment of a court outside the Brussels–Lugano zone was not itself a Brussels–Lugano matter and so was not protected by the Brussels–Lugano regime from anti-enforcement injunctions, and the Court of Appeal therefore granted an injunction to restrain the pursuit of enforcement proceedings in France and Bulgaria.

12.71  However, this logic is only correct if Article 24(5) of the Recast, which creates an exclusive jurisdiction for the enforcement of ‘judgments’ in the state of enforcement, applies only to the enforcement of Brussels–Lugano judgments. On the face of the Recast, that appears to be correct, because ‘judgments’ are defined by Article 2(a) to include only Brussels–Lugano judgments.¹⁰⁴

12.72  Yet this creates a puzzle in turn because if so, it is not clear on what jurisdiction basis a court in state A could assume jurisdiction, in an action for enforcement against assets in A, over a judgment debtor situated in Brussels–Lugano state B. The answer may be that enforcement of a non-Brussels–Lugano judgment is outside the Brussels–Lugano regime altogether and so there is no difficulty in obtaining jurisdiction over judgment debtors domiciled in the EU; but it is notable that enforcement is not an exception to the scope of (p. 282) the Brussels–Lugano regime in Article 1 of the Recast. If, in contrast, ‘judgments’ in Article 24(5) did include non-Brussels judgments, there would be an easy enforcement jurisdiction over Brussels–Lugano judgment debtors. But the consequence would also be that there would be an argument that an anti-enforcement injunction to restrain such enforcement elsewhere within the Brussels–Lugano zone, even of a non-Brussels–Lugano judgment, did infringe the effectiveness of European law.¹⁰⁵

12.73  It has been common for contractual anti-suit injunctions to be granted in negative and general terms, restraining proceedings before any courts other than the contractually agreed court. After Turner v Grovit, this is no longer appropriate, and where it may matter, general injunctions should be drafted to contain an express qualification to make clear that they do not restrain the pursuit of proceedings before the courts of another Brussels–Lugano state.¹⁰⁶ But not everyone is punctilious on the point.

12.74  In Advent Capital v GN Ellinas Imports-Exports Ltd, the court had granted a final anti-suit injunction to enforce an exclusive jurisdiction clause, restraining the pursuit of proceedings in Cyprus, before the accession of Cyprus to the EU. On accession, Cyprus became a member state to which the Brussels I Regulation applied. The injunction defendant applied to set aside the anti-suit injunction, relying on Turner v Grovit. Colman J held that if the effect of Cyprus’s accession was that the right to an anti-suit injunction ceased to exist, this would be a change of circumstances which could warrant setting aside a permanent injunction. However, he held that the consequences of accession did not destroy the continuing right to an anti-suit injunction, the entitlement to which had been established by judgment before accession. There was nothing in the transitional provisions to the Regulation which would justify setting aside a pre-accession judgment.¹⁰⁷

12.75  It seems unlikely that the prohibition on injunctions to restrain Brussels–Lugano proceedings can be circumvented either by mandatory injunctions or orders for specific (p. 283) performance, requiring a party positively to perform an exclusive forum clause by litigating in the chosen forum. First, as a matter of substantive English law, it is doubtful that a contractual forum clause creates a positive obligation to litigate. A party can always choose not to litigate in the chosen forum.¹⁰⁸ What is really being enforced is the negative obligation not to litigate outside the chosen forum. Second, however the order was framed, the same reasons of policy and principle would be likely to apply if in effect it amounted to an order backed by a penalty prohibiting the party in question from litigating abroad.

12.76  However, in two unusual situations, orders for specific performance of collateral contractual obligations arising out of settlement agreements, which had the result of affecting foreign litigation elsewhere in the Brussels–Lugano zone, have been viewed as compatible with mutual trust.

12.77  First, in The Alexandros T, a settlement agreement with insurers prohibited further claims but also provided for indemnification against any further claims. Greek proceedings were brought in breach of the settlement, and insurers sought not only damages but specific performance of the indemnity. Burton J ordered specific performance of the monetary obligation to indemnify¹⁰⁹ and a mandatory injunction to constitute a fund. In itself, this could be viewed as going little further than a monetary award such as damages (discussed below), but it is backed by contempt, which could strengthen arguments that the relief is a ‘penalty’ within the language used in Turner v Grovit.¹¹⁰ However, these remedies were viewed by Burton J and the Court of Appeal as if there was no distinction to a monetary award. Turner v Grovit was distinguished on the straightforward basis that there was no restraint of the Greek proceedings.¹¹¹

12.78  Second, subsequently (at a hearing at which the defendants did not attend), Flaux J further ordered specific performance of the settlement agreement by ordering the defendants to enter into a release-and-recognition agreement effectively acknowledging settlement and satisfaction. This was, it seems, intended to prevent the Greek proceedings having any material basis. It goes further than a monetary claim. Flaux concluded that it posed no problems from the perspective of mutual trust because it did not interfere with the jurisdiction of the Greek court, being no more than a determination of rights under the settlement agreement; the Greek court could elect whether or not to enforce the English judgment.¹¹² The order made, of course, did not actually restrain litigation in Greece. The issue illustrates the problematic nature of the interference with substantive contractual rights which flows from the decisions in Turner v Grovit and The Front Comor.

12.79  English courts have often granted declarations that an exclusive jurisdiction clause is contractually binding, and that a party is contractually bound to litigate before a given forum. The English courts have held without hesitation that such declarations are not precluded by Turner v Grovit, even where they do materially fall within the scope of the Brussels–Lugano regime.¹¹³ There is no direct assessment of the jurisdiction of another member state’s courts. Further, the declaration involves no ‘penalty’, and the threat of a penalty by a court was an important part of the reasoning in both Turner and Gazprom.¹¹⁴ In contrast, declarations which purported to directly address the jurisdiction of the court of another member state, rather than set out the parties’ contractual rights, or declarations about whether the foreign proceedings were in fact in breach of contract, would be in greater danger of being viewed as contrary to the principle of mutual trust.¹¹⁵

12.80  A claim for a declaration by the English court or a declaratory award by an arbitration tribunal, to the effect that an arbitration clause is binding or that specified matters should be arbitrated, is ‘arbitration’, and thus falls outside the scope of the Brussels–Lugano regime.¹¹⁶ The ECJ’s decision in Gazprom necessarily means that such declarations are not incompatible with the Brussels–Lugano regime when granted by arbitrators.¹¹⁷ Further, it seems clear that the grant of such declarations by courts will not be precluded by the principles of mutual trust or effective judicial protection, on the basis that the declaration does not interfere even indirectly with the foreign court’s functions.¹¹⁸ English courts and arbitrators (p. 285) have frequently made declaratory awards to such effect. In addition, where arbitrators have made such declarations, the English court has been willing to enter judgment in the terms of the award, and enforce such awards, where the principal purpose of the declaratory relief was to preclude any potential enforcement of inconsistent Brussels–Lugano judgments in England.¹¹⁹

12.81  A claim for damages for breach of an exclusive jurisdiction clause necessarily involves a finding that the pursuit of the foreign proceedings is or was in breach of contract. It could therefore be contended that, where the foreign proceedings are within the Brussels–Lugano zone and within the material scope of the Brussels–Lugano regime, such a claim involves an illegitimate ‘assessment of the appropriateness of bringing proceedings before the court of another member state’, which imposes a ‘penalty’ for doing so,¹²⁰ and is therefore precluded by the principle of mutual trust.¹²¹

12.82  Whether the European Court would view the matter this way is unclear. The situation is a long way from Turner v Grovit. A damages claim is less obviously offensive than an injunction, as it does not prohibit the pursuit of the foreign proceedings, but merely means that a retrospective price must be paid. It arguably does not equate even to the indirect interference¹²² with the other court’s jurisdiction, created by an anti-suit injunction, which was viewed as unacceptable by the European Court. Further, it could be argued that a (p. 286) contractual damages claim is not a direct ‘assessment’ of the jurisdiction of the other court, but rather the enforcement of a concrete personal legal obligation.¹²³ In the circumstances, it may be that the primary limitations on damages claims for breach of exclusive jurisdiction clauses will come not from the principle of mutual trust, but rather from the rules of res judicata¹²⁴ or lis pendens.¹²⁵

12.83  The English courts have so far shown no hesitation in awarding contractual damages for breach of exclusive jurisdiction and arbitration clauses in respect of the bringing of proceedings in other Brussels–Lugano states and within the Brussels–Lugano regime,¹²⁶ or in enforcing contractual indemnities in settlement agreements as to the costs of subsequent proceedings, even where the subsequent proceedings are within the Brussels–Lugano regime and zone.¹²⁷ The same approach applies to damages in lieu of an injunction in a quasi-contractual situation.¹²⁸ In AMT v Marzillier, the Court of Appeal regarded a claim for damages for inducing a breach of contract, by inducing litigation in a Brussels–Lugano forum in breach of what the English courts regarded as a valid English exclusive jurisdiction clause, as consistent with the Brussels–Lugano regime.¹²⁹

12.84  Even if claims for damages for breach of an exclusive jurisdiction clause are precluded by the principle of mutual trust, it does not follow that the same conclusion must apply in respect of damages for breach of an arbitration clause.

12.85  First, if the claim for damages for breach of an arbitration clause is made to the arbitrators themselves, it will be within the arbitration exception, and will not be incompatible with the Brussels–Lugano regime, as arbitrators are not subject to the principle of mutual trust.¹³⁰

(p. 287) 12.86  Second, if the claim for damages for breach of the arbitration agreement is made to the court, it will still be within the arbitration exception, by parity of reasoning to the conclusion in The Front Comor that a court injunction to enforce an arbitration clause was ‘arbitration’. It could be argued that it would nevertheless be incompatible with the Brussels–Lugano regime by reason of its effects on the other Brussels–Lugano proceedings. But, compared to the case of damages to enforce an exclusive jurisdiction clause, this would be at a yet further remove to the situation in Turner v Grovit. It engages an obligation with which the Brussels–Lugano regime is not directly concerned, an assessment of which does not inherently involve an assessment of the Brussels–Lugano jurisdiction of the other court, since the other court’s decision whether or not to stay the proceedings on grounds of arbitration is itself a matter governed by the New York Convention and outside the Brussels–Lugano regime.¹³¹

12.87  The case law of the English courts suggests strongly that the award of damages by the court for breach of the arbitration clause by litigating elsewhere in the Brussels–Lugano zone would not be precluded by the Brussels–Lugano regime.¹³² However, it is arguable that, under English arbitration law, damages for breach of the arbitration clause are at least principally a matter for the arbitrators rather than the court.¹³³

12.88  A claim for non-contractual damages for the allegedly wrongful or abusive commencement of proceedings elsewhere in the Brussels–Lugano zone is more likely to be precluded by the principle of mutual trust.¹³⁴ From a European perspective, such a claim could well be viewed as nothing more than a direct assessment of the foreign court’s assumption of jurisdiction, even if, as a matter of English law, such a claim would involve the enforcement of an underlying substantive equitable right.¹³⁵ However, in AMT v Marzillier, the Court of Appeal regarded a claim for damages for inducing a breach of contract, by inducing litigation in a (p. 288) Brussels–Lugano forum in breach of what the English courts regarded as a valid English exclusive jurisdiction clause, as consistent with the Brussels–Lugano regime. The Court of Appeal concluded that all that was engaged was a consideration of the claimant’s rights in contract and tort and there was no assessment of the assumption of jurisdiction by the other Brussels–Lugano court.¹³⁶