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Arbitration: anti-suit injunctions to restrain foreign court proceedings in breach of an arbitration agreement.
Through Transport Mutual Insurance Association
代写留学生论文(Eurasia) Limited v New India Assurance Association
Company Limited
(2004) EWCA Civ 1598
UK Court of Appeal
2 December 2004
Arbitration seems to have survived another ambush and lives on, possibly stronger than ever. Its latest escape isrecorded in a recent Court of Appeal decision in the UKand in a European context, but the general principles arejust as applicable in Australia and our region.
The case is Through Transport Mutual InsuranceAssociation (Eurasia) Limited v New India AssuranceAssociation Company Limited, sometimes referred to asThe Hari Bhum, the name of the ship carrying the cargo which disappeared and which gave rise to the litigation.
The case is valuable because it gives us some, but not complete, clarity on how the courts will handle the situationwhere there are arbitration and Scott v Avery clauses in acontract, where one party wants the parties held toarbitration, but the other party has started and wants tobring or continue with court proceedings in a foreigncountry.
Will the former be able to get what is called an anti-suitinjunction to restrain the latter from continuing with itscourt proceedings in the foreign court and drag him back toface the music in England or wherever the contractprovided?Equally, would that party be able to compel the other partyto abandon its foreign court proceedings and facearbitration where the contract provided?For a some years, the English courts and Englishpractitioners were faced with a major problem thrown up
by two decisions of the European Court of Justice whenthey, the English courts, were deciding whether to grantinjunctions to restrain parties from continuing with foreigncourt proceedings.
The cases in the European Court of Justice
Those two decisions, Erich Gasser GmbH v. MISSAT Srl 1(Gasser) and Turner v. Grovit2, had decided that anti-suitinjunctions should no longer be issued in one jurisdiction,say England, to restrain a party from continuing withproceedings in another, say Spain, when the two countrieswere covered by the Brussels Convention on Jurisdiction
and the Enforcement of Judgments in Civil andCommercial Matters of 1968,namely the EuropeanCommunity countries.
In Gasser, the European Court of Justice had held that an
Austrian Court should not have issued an anti-suitinjunction to restrain a company from proceeding in anItalian court, even although the injunction had been basedon the ground that there was a clause in the parties’contract conferring exclusive jurisdiction over disputes on
the Austrian courts.
This decision was based was on the ground that ‘mutualtrust and confidence’ had to be given by the courts of onecontracting state to those of another, ie by Austria to Italy.In Turner v. Grovit, the House of Lords had wondered if itshould issue an anti-suit injunction to stop a company fromcontinuing with proceedings in a Spanish court when they
had been brought in that court vexatiously and to avoidproceedings in England.
1 ECR C-116/02
2 (2004) All ER (EC) 485
The European Court of Justice held that the House of Lordsshould not issue the anti-suit injunction and that to do sowould be against the Brussels Convention, even if theinjunction was designed to stop unconscionable behaviourand an abuse of process which would have occurred by本论文由英语论文网提供整理，提供论文代写，英语论文代写，代写论文，代写英语论文，代写留学生论文，代写英文论文，留学生论文代写相关核心关键词搜索。