The future of anti-suit injunctions in Europe

The long-awaited decision of the European Court of Justice in Allianz SpA v West Tankers Inc, Case C-185/07 was handed down on 10 February 2009. Unsurprisingly, the ECJ affirmed the preliminary ruling of Advocate-General Kokott, delivered on 4 September 2008, and ruled that anti-suit injunctions may no longer be issued by the English courts to restrain proceedings brought in the courts of the member states of the European Union or European Free Trade Association (EFTA) where those proceedings are in contravention of an arbitration clause. The following paragraphs will analyse the decision and its implications, and explore whether other means may be used to prevent blatant disregard of arbitration obligations

West Tankers: the facts

The facts of West Tankers are both short and well known. In August 2000, the Front Comor was chartered by West Tankers to Erg Petroli. The charterparty was governed by English law and provided that any disputes were to be resolved by arbitration in London. The vessel collided with a jetty owned by Erg in Syracuse, causing damage to the jetty. Erg’s insurers, including Allianz, paid to Erg the full sums due under the policy in respect of the damage to the jetty, but the insurance did not cover the entire amount of the loss and Erg accordingly commenced arbitration in London against West Tankers for the uninsured sum. However, the insurers, having paid Erg, sought to exercise subrogation rights against West Tankers and duly commenced proceedings in Italy. The outcome was that West Tankers faced liability claims in arbitration in London and in judicial proceedings in Italy. In both sets of proceedings the issues were identical, the only difference being the amount sought. West Tankers’ defence was immunity for navigation errors under the Hague Rules.