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Abbreviations and Glossary »

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

15 Alternative Remedies »

From: The Anti-Suit Injunction Updating Supplement
Thomas Raphael
15.03 FN 3. A declaration of this type was granted by Gloster J in National Navigation Co v Endesa Generacion SA (The Wadi Sudr) [2009] 1 Lloyds Rep 666, §§74, 127. The judge’s decision was overturned on appeal, but on the separate ground that a contrary prior Spanish court decision should be recognized in England: see [2010] 1 Lloyds Rep 193 (CA), §133. 15.04 The argument that a claim for a declaration that an arbitration clause had been validly incorporated into a contract was impermissible, where no arbitration had actually been commenced and none was intended...

15 Alternative Remedies »

Thomas Raphael
From: The Anti-Suit Injunction (2nd Edition)
Thomas Raphael QC
This chapter explores alternative remedies which may be granted by the English courts to shape, pre-empt, or respond to the pursuit of litigation elsewhere. These procedural remedies or strategies include claims for declarations; applications for the appointment of an arbitrator; procedural management; and resistance to enforcement. Where foreign proceedings are in breach of a contractual exclusive jurisdiction or arbitration clause, the courts will, in appropriate cases, grant declarations that a given set of claims is covered by an English contractual forum clause, or that the defendant is obliged to bring those claims before the chosen forum or cannot bring them elsewhere, or that the foreign proceedings are in breach of contract. Meanwhile, the court can appoint an arbitrator under section 18 of the Arbitration Act 1996.

The Anti-Suit Injunction Updating Supplement »

Thomas Raphael

12 Anti-Suit Injunctions and European Jurisdictional Law »

From: The Anti-Suit Injunction Updating Supplement
Thomas Raphael
12.01 FN 1. The New Lugano Convention has been ratified by the EU and Norway, and is now in force as between the EU and Norway with effect from 1 January 2010: see Civil Jurisdiction and Judgments Regulations 2009, SI 2009/3131. Pursuant to a decision of the Swiss Federal Council of 31 March 2010, Switzerland will ratify the Convention with effect from 1 January 2011. It has not yet been ratified by Iceland. 12.04 It appears from C-195/07, Allianz AG v West Tankers Inc (The Front Comor) [2009] ECR I-663, that the principles outlined in Turner v Grovit apply only...

12 Anti-Suit Injunctions and European Jurisdictional Law »

Thomas Raphael
From: The Anti-Suit Injunction (2nd Edition)
Thomas Raphael QC
This chapter studies the relationship between anti-suit injunctions and European law as matters stand pre-Brexit, and on the working assumption that the European jurisdictional instruments will continue to operate in similar form between the UK and the EU states for at least some time after Brexit. 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 UK's accession to the Brussels Convention, and its implementation by the Civil Jurisdiction and Judgments Act 1982. 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.

7 Anti-Suit Injunctions and Exclusive Forum Clauses »

From: The Anti-Suit Injunction Updating Supplement
Thomas Raphael
7.05 The European Court of Justice has now concluded that anti-suit injunctions to enforce an arbitration clause by restraining court proceedings in another member state are within the scope of the Brussels I Regulation and contrary to the principle of mutual trust, and consequently are precluded by the Brussels I Regulation: C-185/07, Allianz Spa v West Tankers Inc (The Front Comor) [2009] ECR I-663. See further the discussion in this Supplement under Ch 12. 7.08 FN 10. In Skype Technologies SA v Joltid [2009] EWHC 2783 (Ch), §§21–27, Lewison J correctly rejected...

7 Anti-Suit Injunctions and Exclusive Forum Clauses »

Thomas Raphael
From: The Anti-Suit Injunction (2nd Edition)
Thomas Raphael QC
This chapter looks at exclusive forum clauses in anti-suit injunctions. The court's approach to anti-suit injunctions is transformed where the injunction defendant is obliged by a contractual exclusive forum clause to resolve his disputes with the injunction claimant in an agreed forum. There are two principal types of exclusive forum clause. An exclusive jurisdiction clause obliges parties to resolve disputes covered by the clause before a chosen court. An arbitration clause obliges them to resolve disputes covered by the clause before an arbitration tribunal. In both cases, the clause imposes negative as well as positive obligations, and so in general prohibits the contracting parties from litigating other than in the chosen forum. In contrast, so far, choice of law clauses have not been interpreted to include any correlative negative obligation.

4 Anti-Suit Injunctions: General Principles »

Thomas Raphael
From: The Anti-Suit Injunction (2nd Edition)
Thomas Raphael QC
This chapter presents the general principles governing the grant of an anti-suit injunction to restrain the pursuit of foreign court proceedings. The principles for the grant or refusal of an anti-suit injunction will be determined by English law. An anti-suit injunction, like any injunction, is a discretionary remedy and will only be granted if the court considers it is appropriate to do so in all the circumstances of the case. Within that general principle, an anti-suit injunction may be granted to protect a substantive legal or equitable right not to be sued abroad. Where no such substantive legal or equitable right exists, an anti-suit injunction will generally only be granted to restrain foreign proceedings that are or will be vexatious or oppressive. In exercising the power to grant an anti-suit injunction, regard must be had to the principle of comity.

Appendix: Precedents »

From: The Anti-Suit Injunction Updating Supplement
Thomas Raphael

14 Claims for Damages »

From: The Anti-Suit Injunction Updating Supplement
Thomas Raphael
14.01 Last sentence: in CMA CGM v Hyundai MIPO Dockyard Co Ltd [2009] 1 Lloyds Rep 213 Burton J held that a foreign res judicata would not preclude the ability to claim damages for breach of the forum clause; but this conclusion is doubtful. See §14.11 of this Supplement below. FN 1. In Starlight Shipping Co v Tai Ping Insurance Co Ltd (The Alexandros T) [2008] 1 Lloyd Rep 230, §12, Cooke J observed: Damages would, for all the reasons given in the authorities, be an inadequate remedy for breach of such a clause since its very nature requires the parties to have...

14 Claims for Damages »

Thomas Raphael
From: The Anti-Suit Injunction (2nd Edition)
Thomas Raphael QC
This chapter focuses on claims for damages. Damages are, in general, an inadequate remedy for breach of an exclusive forum clause. Where proceedings have been brought in breach of an exclusive forum clause, the innocent party is entitled to recover damages for any sufficiently proximate losses caused by the breach, except where this is precluded by public policy. However, there are uncertainties which have not yet been fully clarified in relation to what can amount to a breach, what kinds of losses are sufficiently proximate, and what the relevant rules of public policy should be. Two main categories of loss need to be considered, namely legal costs and legal liabilities. The chapter then considers the three possible routes for awarding damages in respect of losses suffered as a result of supposedly ‘wrongful’ foreign proceedings which are not in breach of contract.

Contents »

From: The Anti-Suit Injunction Updating Supplement
Thomas Raphael

16 The Framework of Jurisdictional Law »

From: The Anti-Suit Injunction Updating Supplement
Thomas Raphael
16.03 FN 3. The New Lugano Convention has been ratified by the EU and Norway, and is now in force as between the EU and Norway with effect from 1 January 2010: see Civil Jurisdiction and Judgments Regulations 2009, SI 2009/3131. Pursuant to a decision of the Swiss Federal Council of 31 March 2010, Switzerland will ratify the Convention with effect from 1 January 2011. It has not yet been ratified by Iceland. FN 4. See now also Council Regulation (EC) 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions, and cooperation in matters...

16 The Framework of Jurisdictional Law »

Thomas Raphael
From: The Anti-Suit Injunction (2nd Edition)
Thomas Raphael QC
This chapter presents the framework of English jurisdictional law, and considers the material scope of the Brussels–Lugano regime and the other European jurisdictional instruments. The rules governing the jurisdiction of the English courts are comprised of two main overlapping systems: the traditional ‘common law’ rules of jurisdiction, based on service; and the European rules of jurisdiction imposed by the Brussels–Lugano regime, and the other European jurisdictional instruments. If the defendant is domiciled in the Brussels–Lugano zone, and the matter falls within the material scope of the Brussels–Lugano regime, the court's jurisdiction over him is determined by the rigid substantive rules of jurisdiction laid down by the regime. Where the defendant is domiciled outside the Brussels–Lugano zone, Article 6 of Regulation 1215/2012, the ‘Brussels I Recast’, provides that jurisdiction is to be exercised according to national law.

2 The History of an Unusual Remedy »

From: The Anti-Suit Injunction Updating Supplement
Thomas Raphael
2.02 For further discussion of the history of the common injunction, and the anti-suit injunction’s development from it, see D Altaras, ‘The anti-suit injunction: historical overview’ (2009) 75 Arbitration 327. 2.19 Lord Goff’s test of vexation and oppression appears to be gaining the upper hand. See Deutsche Bank AG v Highland Crusader Offshore Partners [2010] 1 WLR 1023 (CA), §50; Elektrim SA v Vivendi Holdings 1 Corporation [2009] 1 Lloyds Rep 59 (CA), §82. 2.20 FNs 82 and 83. The European Court has followed Turner v Grovit with its decision in Allianz AG v...

2 The History of an Unusual Remedy »

Thomas Raphael
From: The Anti-Suit Injunction (2nd Edition)
Thomas Raphael QC
This chapter traces the history of the anti-suit injunction, which is marked by confusion and dissent over the central tests to be satisfied in order for an injunction to be granted; and over the underlying basis of the injunction. This history remains important, as the conflicts have not always been neatly resolved and the older decisions can be a treacherous guide to the modern law, unless their historical context is understood. The anti-suit injunction originally evolved from the ‘common injunction’, by which the English Court of Chancery had restrained litigants before the English common law courts from obtaining judgments which were contrary to the principles of equity. Once established, the anti-suit injunction has given English courts a powerful tool to protect their own jurisdiction, and to enforce their own perceptions of justice on transnational litigation.

Index »

From: The Anti-Suit Injunction Updating Supplement
Thomas Raphael

6 Injunctions in Relation to Proceedings in England and Wales »

From: The Anti-Suit Injunction Updating Supplement
Thomas Raphael
6.01 FN 3. A Briggs, Agreements on Jurisdiction and Choice of Law (OUP, 2008), §6.08, states categorically that anti-suit injunctions are not granted to restrain proceedings in England, but this is incorrect, as this chapter shows. 6.02 FNs 5 and 6. In Hospira UK Ltd v Eli Lilly & Company [2008] EWHC 1862 (Pat), Floyd J was prepared in principle to restrain potential proceedings in the High Court that had not yet been commenced, although the possible survival, and potential scope, of the rule prohibiting the restraint of ‘pending’ proceedings in the High Court was...

6 Injunctions in Relation to Proceedings in England and Wales »

Thomas Raphael
From: The Anti-Suit Injunction (2nd Edition)
Thomas Raphael QC
This chapter examines the power of granting injunctions in relation to English proceedings. Injunctions to restrain the pursuit of court proceedings within the jurisdiction were granted with some frequency in the immediate aftermath of the Judicature Acts. However, in modern times, the practice has become rare, with the exception of the special case of injunctions in the context of insolvency. Nevertheless, the power to grant anti-suit injunctions in respect of English proceedings continues to exist and can be exercised in appropriate situations. The power to restrain proceedings before another court or an arbitration tribunal in England by injunction appears to be exercised under section 37(1) of the Supreme Court Act 1981. In certain cases, the injunction has been viewed as granted under the court's ‘inherent jurisdiction’ to prevent an abuse of its process, but it is suggested this is an unnecessary complication.