West Tankers Inc v RAS Riunione Adriatica Di Sicurta SpA and Others
[2007] UKHL4
House of Lords
February 2007


 


In making a reference to the European Court of Justice ("the ECJ") as to whether it is consistent with Council Regulation (EC) No 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters ("the Regulation"), for the Court of a member state to make an Order restraining a person from commencing or continuing proceedings in another member state on the ground that such proceedings were in breach of an arbitration agreement, the House of Lords, by way of assistance to the ECJ, set out its views on the question referred and concluded that it was consistent.

A vessel owned by West Tankers and chartered to Erg Petroli ("Erg") collided with a jetty owned by Erg at Syracuse in Sicily. The charter party was expressed to be governed by English law and contained a clause providing for arbitration in London. Erg claimed upon its insurers, RAS Reunione Adriatica di Sicurta and others ("the insurers"), up to the limit of its insurance cover and commenced arbitration proceedings against West Tankers in London for the uninsured excess. The insurers commenced Court proceedings against West Tankers in Sicily to recover the amounts paid to Erg. West Tankers in turn commenced proceedings in London, claiming an anti-suit injunction on the grounds that as subrogated insurers, the insurers were bound by the London arbitration agreement in the charter party. In giving its views the House of Lords made a number of observations.

In previous decisions of the ECJ it was established that a Court of a member state on which exclusive jurisdiction has been conferred cannot issue an injunction to restrain a party from prosecuting proceedings before a Court of another member state if that Court was first seized of the dispute. Also, a Court of a member state may not issue an injunction to restrain a party from commencing proceedings or prosecuting proceedings in another member state which has jurisdiction under the Regulation, on the ground that those proceedings have been commenced in bad faith. These decisions were based upon the proposition that the Regulation provides a complete set of uniform rules for the allocation of jurisdiction between member states and that the Courts of each member state have to trust the Courts of other member states to apply those rules correctly.

However, arbitration was excluded from the scope of the Regulation. The ECJ had determined that the exclusion applies not only to arbitration proceedings as such but also to court proceedings in which the subject matter is arbitration, and that the subject matter is arbitration if the proceedings served to protect the right to have the dispute determined by arbitration.

The basic principles by which the Regulation allocates jurisdiction, giving priority to the domicile of the defendant, were entirely unsuited to arbitration, in which the jurisdiction and the governing law were generally chosen by the parties on the grounds of neutrality, availability of legal services and the unobtrusive effectiveness of the supervisory jurisdiction. There is no set of uniform community rules which member states can or must trust each other to apply. Although all member states adhere to the 1958 New York Convention, this was not a community instrument and did not create a system for the allocation of jurisdiction comparable with the Regulation.

Lord Hoffman, in giving the leading judgment, with which the other Lordships concurred, stated that the proceedings before the House of Lords were entirely to protect the contractual right to have the dispute determined by arbitration. Accordingly, he concluded that they fell outside the Regulation and could not be inconsistent with its provisions. The arbitration agreement lay outside the system of allocation of Court jurisdictions which the Regulation created. An exclusive jurisdiction clause took effect within the Regulation and its enforcement was therefore to be in accordance with the terms of the Regulation. However, the arbitration clause was in agreement not to invoke the jurisdiction of the Sicilian Court and therefore took effect outside the Regulation and its enforcement was not subject to the terms of the Regulation.

Lord Hoffman went on to say that the Courts of the United Kingdom had for many years exercised the jurisdiction to restrain foreign Court proceedings. This was generally regarded as an important and valuable weapon in the hands of a Court exercising supervisory jurisdiction over arbitration. It promoted legal certainty and reduced the possibility of conflict between the arbitration award and the Judgment of a national Court. Whether the parties should submit themselves to such a jurisdiction by choosing England as the seat of their arbitration was, in his opinion, entirely a matter for them. If the member states of the European community were unable to offer a seat of arbitration capable of making Orders restraining parties from acting in breach of an arbitration agreement there was no shortage of other states which would do so. There seemed to be no doctrine or necessity or practical advantage which required the European community to handicap itself by denying its courts the right to exercise the same jurisdiction.