The Great Comeback – Anti-suit Injunctions
March 15, 2021
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The English anti-suit injunction had once been a powerful tool in English litigation for claimants. It was an order issued by a court or arbitral tribunal that prevents an opposing party from commencing or continuing a proceeding in another jurisdiction or forum.
There are many reasons a party may wish to obtain an anti-suit injunction from ensuring they secure the contractually agreed forum, perhaps avoiding any perceived injustice in a foreign jurisdiction and/or even to save time and/or expense by ensuring they are in a jurisdiction in which they know their matter will be dealt with efficiently and cost effectively.
Whatever the motivation of a party to seek an anti-suit injunction, a crucial component of obtaining an English court anti-suit injunction is establishing the court has a personal jurisdiction over the respondent. This could be in the form of proceedings already commenced in the UK or, where this is not the case, they would usually fall within an EU regulation.
While the United Kingdom (“UK”) was a member of the European Union (“EU”), EU law considerably constrained the powers of the English court to grant anti-suit injunctions. The question now arises: now that the UK has left the EU and is no longer bound by the Brussels Recast Regulation, are anti-suit injunctions available to claimants?
Prior to the UK leaving the EU
Before Brexit, the position on the limitations of the power of the English courts to grant anti-suit injunctions were understood and clear. Various cases had considered the application of the anti-suit injunction in the context of EU Member States, namely, West Tankers, Gazprom and Nori Holdings.
In West Tankers, the CJEU decided that the English court anti-suit injunctions were incompatible with the Brussels I Regulation.
The Gazprom case, a few years later, provided a little more flexibility in the context of arbitration concluding that a Member State court was not precluded from recognising and enforcing an arbitral tribunal’s award granting an anti-suit injunction.
This was followed 3 years later by the Nori Holdings case where the English Court was asked to consider whether the CJEU’s judgment in West Tankers remained good law given the repeal of the Brussels I Regulation and the introduction of the Recast Brussels Regulation. The High Court held that it was good law and that the position as regards the granting of anti-suit injunctions was not different under the Recast Brussels Regulation.
Now that the UK has “Got Brexit Done”, what does this mean for the anti-suit injunction?
Since the UK left the EU on 31 December 2020, things have gotten less clear when it comes to the future of the anti-suit injunction. The European Union (Withdrawal) Act 2018 (“EUWA 2018”) has sought to inconsistently retain EU law which has resulted in some uncertainty with the position of the anti-suit injunction.
For example, the West Tankers case has gained the status of ‘retained EU case law’, a new concept which is defined by Section 6(7) of the EUWA 2018. However, the Recast Brussels Regulation has been revoked by Regulation 89 of the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 No 479 (as amended).
This, therefore, leaves the position of Brussels Recast regulation firmly with the High Court decision of Nori Holdings. Given that, as a matter of English law, a High Court decision is not binding on non-lower courts, the Nori Holding casemay be cited (whether in the High Court, the Court of Appeal, or the Supreme Court) as a persuasive authority but not a binding authority.
If we also look at Section 6(4)(a) and 6(4)(ba) alongside Regulation 3(b) of the European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020 (“the 2020 Regulations”), this illustrates that neither the Supreme Court nor the Court of Appeal are bound by any retained EU case law.
This therefore leaves it open for the Supreme Court or the Court of Appeal potentially to depart from the West Tankersjudgment and revive the anti-suit injunction.
So, what does this mean for the future of the anti-suit injunction?
At present, the position remains generally as it was. The Nori Holdings case is persuasive and, although not binding on other High Court judges, there would need to be good reasons to depart from this decision (particularly in light Regulation 5 of the 2020 regulations – where the courts are expected to “apply the same test as the Supreme Court” when “deciding whether to depart from any retained EU case law”).
On balance we expect to see a number of successful anti-suit injunction applications granted by the High Court and this remedy is again very much part of the claimants’ armoury.
1. Allianz SpA and Others v West Tankers Inc.  EUECJ C-185/07
2. Gazprom OAO v Republic of Lithuania  WLR (D) 212
3. Nori Holdings Limited and others v Public Joint-stock Company  EWHC 1343 (Comm)
4. Full title: Council Regulation (EC) 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters
5. Full title: Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Recast)