1. Turkish Insurance Law Association – Presidential Council Meeting 2012 May 2012, Istanbul, Turkey REINSURANCE Working Party Session Dr Kyriaki NOUSSIA, LL.M, Ph.D., Attorney at Law TOPIC: Anti-Suit Injunctions: The ECJ Approach

2. 1. Introduction  Anti-suit injunction  order issued by court or arbitration tribunal enjoining a party from initiating or continuing proceedings in another jurisdiction.  order issued by court or arbitration tribunal enjoining a party from initiating or continuing proceedings in another jurisdiction.  England  power to grant anti-suit injunctions in practice used only with regard to foreign courts. in practice used only with regard to foreign courts. Arbitration  excluded from scope of Regulation 44/2001 Arbitration  excluded from scope of Regulation 44/2001 Result of exclusion Result of exclusion  uncertainty surrounding anti-suit injunctions.  uncertainty surrounding anti-suit injunctions. My presentation: My presentation:  focus mainly on ECJ approach on anti-suit injunctions.  focus mainly on ECJ approach on anti-suit injunctions.

3. 1. Introduction (cont.)  Anti-suit injunctions widely used in the common law world. widely used in the common law world.  Examination of position in the EU  shows potential conflict between obligations of M-S  shows potential conflict between obligations of M-S under the New York Convention 1958 under the New York Convention 1958 and and the jurisdictional provisions of Regulation 44/2001 the jurisdictional provisions of Regulation 44/2001

4. 2. The ECJ Approach  ECJ rarely tested arbitration exception rarely tested arbitration exception (Art.1(2),(4) Brussels Conv.) (Art.1(2),(4) Brussels Conv.) as applied to state court proceedings as applied to state court proceedings conducted in connection with arbitration proceedings. conducted in connection with arbitration proceedings.  Marc Rich & CoAG v Società Italiana Impianti PA ECJ Question: ECJ Question: Are English proceedings for arbitrator appointment Are English proceedings for arbitrator appointment within arbitration exception (Art.1(2),(4) Brussels Conv.) or not? within arbitration exception (Art.1(2),(4) Brussels Conv.) or not?

5. 2. The ECJ Approach (cont.)  Marc Rich & CoAG v Società Italiana Impianti PA  Held: - arbitration exception has broad meaning - arbitration exception has broad meaning - covers arbitration in its entirety - covers arbitration in its entirety - covers nat. court proceedings re arbitration - covers nat. court proceedings re arbitration => Arbitrator appointment by national Court measure > adopted by state to facilitate arbitration measure > adopted by state to facilitate arbitration > within sphere of arbitration > within sphere of arbitration => covered by Art. 1(2)(4) Bruss. Conv. exclusion => covered by Art. 1(2)(4) Bruss. Conv. exclusion

6. 2. The ECJ Approach (cont.)  Van Uden Maritime v Kommanditgesellschaft in Firma Deco-Line  ECJ Question: Substantive dispute arbitrated in Netherlands Substantive dispute arbitrated in Netherlands Dutch Court Dutch Court  has or not jurisdiction (Art. 31 of Bruss.  has or not jurisdiction (Art. 31 of Bruss. Regulation) for interlocutory order Regulation) for interlocutory order (provisional payment) v. German debtor (provisional payment) v. German debtor

7. 2. The ECJ Approach (cont.) Van Uden Maritime v. Kommanditgesellschaft in Firma Deco - Line  Held: Interim measures Interim measures = Parallel – NOT – ancillary = Parallel – NOT – ancillary to the arbitration proceedings to the arbitration proceedings ONLY intended as measures of support ONLY intended as measures of support  Injunction sought = not a measure ancillary to arbitration BUT BUT an interim measure, parallel to arbitration an interim measure, parallel to arbitration => not covered by the arbitration exception => not covered by the arbitration exception

8. 2. The ECJ Approach (cont.) Distinction of measures which are ancillary and those which are parallel to arbitration = fundamental ONLY parallel measures (e.g. anti-suit injunctions) serving a protective – albeit satellite – role = excluded from scope of Council Regulation 44/2001.

9. 2. The ECJ Approach (cont.)  Erich Gasser GmbH v Misat Srl ECJ QUESTION: ECJ QUESTION: Can a competent 2nd seized court determine a case Can a competent 2nd seized court determine a case without waiting for decision of court first seized without waiting for decision of court first seized on jurisdiction? on jurisdiction?Held: Court second seized need stay proceedings, Court second seized need stay proceedings, until the court first seized until the court first seized has determined if it has jurisdiction itself has determined if it has jurisdiction itself

10. 2. The ECJ Approach (cont.)  Turner v Grovit and Others ECJ QUESTION: ECJ QUESTION: Can a court in a country party to the Brussels Convention Can a court in a country party to the Brussels Convention restrain proceedings in another country restrain proceedings in another country also party to the Brussels Convention? also party to the Brussels Convention? Held: Held: Prohibition by court Prohibition by court of continuation of legal proceedings in another country of continuation of legal proceedings in another country = against principle of Brussels Convention on mutual trust = against principle of Brussels Convention on mutual trust between legal systems of contracting states. between legal systems of contracting states.

11. 2. The ECJ Approach (cont.) ECJ Case Law trend shows: Refusal of anti-suit injunctions = ECJ willingness to promote the Brussels Regulation 44/2001 principles to promote the Brussels Regulation 44/2001 principles = underlines intention to apply mutual trust concept in various legal systems of contracting states in various legal systems of contracting states

12. 3. Conclusion   In the common law systems, anti-suit injunctions are positively perceived   In Europe, ECJ trend  enabled pro-litigation type of forum shopping bypassed well established common law concepts took away remedy of non abusive behaviour   Anti-suit injunctions = NOT a cure-all mechanism   BUT no other clear alternative exists

13. 3. Conclusion (cont.)   What should be the future position? Continental law point of view  institutional value of harmony between courts prevails. Common law point of view  individual justice dominates. ECJ negative ruling in West Tankers re anti-suit injunctions = end of an era where previously tested strong mechanism used to restrain parallel court proceedings and to support valid arbitration agreements

14. Turkish Insurance Law Association – Presidential Council Meeting 2012 May 2012, Istanbul, Turkey REINSURANCE Working Party Session Thank you for your attention! Dr. Kyriaki Noussia k.noussia@lexarb.com www.lexarb.com