Edited by Peter Stone and Youseph Farah
Chapter 3: Fairy is back – have you got your wand ready?
In relation to international commercial arbitration, the exclusion of arbitration from the scope of application of the new Regulation (EU) No. 1215/2012, of the European Parliament and the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (hereinafter the Regulation), in Article 1(2)(d) re-defines the litigation tactics for this popular method of dispute resolution dealing with cross-border disputes, especially in terms of anti-suit injunctions. This provision is in consonance with the European Court’s West Tankers decision, which not only forces English courts to stop their over-zealous willingness to grant an anti-suit injunction across borders but also has sent the issue of anti-suit injunction back to the battle-field. An anti-suit injunction is an application to the court in favour of a valid arbitration agreement between the parties to issue an injunction restraining a party from proceeding with foreign court proceedings. This is frequently used as litigation tactics in commercial litigations worldwide. Such practice has seen the Indian court’s refusal to issue an injunction to stop ICC (International Chamber of Commerce) arbitration proceedings in Renusagar v General Electric and the French court’s non-interference attitude in terms of arbitration proceedings in Guuinee Equatoriale v Fitzpatrick, as well as the infamous West Tankers, which was followed by the recast of the Brussels I Regulation.
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