In a highly anticipated decision (Gazprom C-536/13) the European Court of Justice (the “ECJ”) has clarified that anti-suit injunctions issued by arbitral tribunals are not contrary to the provisions of the Brussels I Regulation.
Gazprom and the Lithuanian Ministry of Energy (the “Ministry”) were both shareholders in a Lithuanian natural gas company, Lietuvos Dujos. The Shareholders’ Agreement provided for the resolution of disputes to be referred to arbitration under the Rules of the Stockholm Chamber of Commerce (the “SCC”). A dispute arose and Gazprom referred the dispute to the SCC, whereas the Ministry referred it to the Lithuanian courts. By way of an award, the arbitral tribunal declared that the court proceedings breached the arbitration agreement and ordered the Ministry to withdraw its claims from the Lithuanian court. Thereafter, the Lithuanian Supreme Court requested clarification from the ECJ as to whether they were allowed to recognise the tribunal’s anti-suit injunction.
The ECJ held that the Brussels I Regulation’s prohibition of anti-suit injunctions only applied to injunctions issued by a court of a Member State; not an arbitral tribunal. The ECJ held that there was nothing within the Brussels I Regulation that prejudiced a Member State court from giving effect to an arbitral tribunal’s anti-suit injunction. As such, the Lithuanian court was able to recognise the anti-suit injunction award of the tribunal, subject to the domestic legal process of recognising arbitral awards.
In light of the opinion of Advocate-General Melchior Wathelet in December 2014, many expected that the ECJ would grasp the opportunity to revisit the position set out in the West Tankers case (C-185/07), but it did not. By way of reminder, West Tankers held that under Brussels I Regulation there was a prohibition on anti-suit injunctions as between Member States’ courts in support of arbitration. Advocate-General Melchior Wathelet’s opinion held that the decision in the West Tankers case was not compatible with the new EU Regulation 1215/2012 (the “Recast Regulation”) due to the wording of Recital 12, which outlines that a Member State court could grant an anti-suit injunction against court proceedings elsewhere in the EU in support of arbitration. However, West Tankers was distinguished from Gazprom on the grounds that there was no competing Member State court and therefore no scope for the principle of mutual trust to be damaged. Importantly, in Gazprom, the ECJ only considered the Brussels I Regulation and did not consider the revised Recast Regulation. Gazprom’s silence with respect to the Recast Regulation raises the prospect of a referral to the ECJ in the near future regarding the interpretation of the Recast Regulation in this context.
The judgment in Gazprom has been broadly welcomed by the European arbitration community. It is now clear that courts of Member States are not prevented by the Brussels I Regulation in respect of giving effect to an anti-suit injunction issued by a tribunal seated elsewhere in the EU. However, given that the Recast Regulation applies to proceedings issued after 10 January 2015, this guidance and clarity may be of limited benefit.
