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• Issue 4, April
• Articles
• Anti-suit injunctions ...
ILM 19 4 (1)
1 April 2007
Anti-suit injunctions
Proceedings in the EEA
Professor R M Merkin
LL.B, LL.M
Lloyd's Law Reports
Professor of Commercial Law
Southampton University

© INFORMA UK LTD 2007
In its controversial decision in Through Transport Mutual Insurance Association (Eurasia) Ltd v New India Assurance Co Ltd [2005] 1 Lloyd's Rep 67, the Court of Appeal established, albeit only for the purposes of English law, that the usual power of the English courts to restrain a party — by way of anti-suit injunction — from pursuing judicial proceedings https://www.51lunwen.org/liuxuelunwendx/in breach of an arbitration clause was available irrespective of the location of the court in which the foreign proceedings were commenced. In so deciding, the Court of Appeal held that the jurisdiction rules operating within the European Union and European Free Trade Association (EFTA), enshrined respectively in Council Regulation (EC) No 44/2001 and the Lugano Convention, did not affect the jurisdiction of the English courts in this regard. In West Tankers Inc v RAS Riunione Adriatica di Sicurta SpA, The Front Comor [2005] 2 Lloyd's Rep 257 Colman J followed the reasoning of the Court of Appeal. That decision has been appealed to the House of Lords under an expedited procedure which allowed the case to leapfrog the Court of Appeal. The House of Lords, in West Tankers Inc v RAS Riunione Adriatica di Sicurta SpA, The Front Comor [2007] UKHL 4, has now decided that it is unclear whether the result of Through Transport is a correct interpretation of the European jurisdiction rules, and the House of Lords took the step of referring the question to the European Court of Justice for a preliminary ruling. Pending that ruling, the English courts will doubtless continue to apply the existing rule and to grant relief in appropriate circumstances, although there must be considerable doubt as to whether this approach will ultimately be upheld by the European Court of Justice. This matter is of crucial importance to insurers and reinsurers alike.
INSURANCE
The issue
Regulation 44/2001 lays down the general principle that, as between the courts of the EU Member States, the court first seised of any proceedings has exclusive jurisdiction over those proceedings. If there is a challenge to the jurisdiction of the court first seised, then only that court can determine whether or not it possesses jurisdiction. The Regulation does not, however, apply to 'arbitration'. In two landmark decisions, Erich Gasser GmbH v MISAT Srl (Case C-1l6/02) [2003] ECR I-4693 and Turner v Grovit (Case C-159/02) [2004] ECR I-3565, the European Court of Justice held that if there is a challenge to the jurisdiction of the court first seised on the ground that the parties have agreed to the jurisdiction of the courts of another Member State, the court first seised alone can determine the validity and meaning of the exclusive jurisdiction clause. The effect of those rulings was that it ceased to be permissible for an EEA court to entertain an application for an anti-suit injunction in support of an exclusion jurisdiction clause where another EEA court had been first seised of the proceedings allegedly commenced in breach of contract. The question left unanswered by Gasser and Turner was whether the same rule applie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。