A ship had foundered, and the owners disputed their insurance claim. The policy provided for arbitration in London, and one party sought an order to prevent the other commencing proceedings in another EU state in breach of the arbitration agreement.
Held: English authority and European thought differed, and the matter should be referred to the European Court of Justice. The rule preventing such orders as regards full court proceedings did not apply, since the seat of arbitration was a matter of choice by the parties. These proceedings were to protect the contractual right to have the dispute determined by arbitration, and fell outside the Regulation and cannot be inconsistent with its provisions. An arbitration agreement lies outside the system of allocation of court jurisdictions which the Regulation creates: ‘the most important consideration is the practical reality of arbitration as a method of resolving commercial disputes. People engaged in commerce choose arbitration in order to be outside the procedures of any national court. They frequently prefer the privacy, informality and absence of any prolongation of the dispute by appeal which arbitration offers. Nor is it only a matter of procedure. The choice of arbitration may affect the substantive rights of the parties, giving the arbitrators the right to act as amiables compositeurs, apply broad equitable considerations, even a lex mercatoria which does not wholly reflect any national system of law. The principle of autonomy of the parties should allow them these choices. ‘ The ability to make such an order was itself an advantage of arbitration.
Judges:
Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffmann, Lord Rodger of Earlsferry, Lord Mance
Citations:
[2007] UKHL 4, [2007] ILPr 20, [2007] 1 Lloyd’s Rep 391, [2007] 1 All ER (Comm) 794, (2007) 23 Const LJ 458, [2007] ArbLR 61
Links:
Statutes:
EC Regulation 44/2001, Lugano Convention
Jurisdiction:
England and Wales
Citing:
Appeal from – West Tankers Inc v Ras Riunione Adriatica Di Sicurta Spa and Another (‘The Front Comor’) ComC 21-Mar-2005
Appeal against anti-suit order. The court ordered that since the question of whether an anti-suit injunction could be made to restrain proceedings abroad had been decided in Through Transport, that issue could go straight to the House of Lords. . .
Cited – Through Transport Mutual Insurance Association (Eurasia) Ltd v New India Assurance Association Company Ltd CA 2-Dec-2004
. .
Cited – Aggeliki Charis Compania Maritima SA v Pagnan SpA The Angelic Grace QBD 1994
The court considered whether a claim for a collision between two ships was governed by an arbitration clause which read ‘all disputes from time to time arising out of this contract shall . . be referred to the arbitrament of two arbitrators carrying . .
Cited – Turner v Grovit ECJ 27-Apr-2004
The claimant had been employed as a solicitor by the respondent at locations across Europe, and came to claim in England that they had wrongly implicated him in unlawful activity. The company sought to issue proceedings in Spain.
Held: The . .
Cited – Van Uden Maritime v Kommanditgesellschaft in Firma Deco-Line and others (Judgment) ECJ 17-Nov-1998
Applications under the Brussels Convention for Interim Measures were capable of being heard by courts notwithstanding a clause referring disputes under the contract in issue exclusively to arbitration. Even in the case of Article 24 of the Brussels . .
Cited – Pena Copper Mines Ltd v Rio Tinto Co Ltd 1911
The court exercised its jurisdiction to make an order restraining the commencement of proceedings abroad. . .
Cited – Erich Gasser GmbH v MISAT Srl ECJ 9-Dec-2003
The claimant Austrian company had for many years sold goods to the defendant an Italian company. Eventually it presented a claim before the court in Italy. Having obtained judgement, it later sought to enforce the order through the Austrian court . .
Cited by:
Cited – Sheffield United Football Club Ltd v West Ham United Football Club Plc ComC 26-Nov-2008
The claimant sought an order to prevent the defendant company from pursuing further an appeal against a decision made by an independent arbitator in their favour as regards the conduct of the defendant in the Premier League in 2006/2007.
Held: . .
See Also – West Tankers Inc v Ras Riunione Adriatica Sicurta Spa and Another ComC 2-Oct-2007
. .
At House of Lords – Allianz Spa (Anciennement Riunione Adriatica Di Sicurta) v West Tankers Inc (‘the Front Comor’) ECJ 10-Feb-2009
ECJ (Judgment) A West Tankers ship damaged a jetty in Syracuse. An agreement provided for an arbitration in London. The insurers having paid out brought a subrogated action in Italy. West Tankers sought an order . .
At House of Lords – Allianz Spa (Anciennement Riunione Adriatica Di Sicurta) v West Tankers Inc (Judgments Convention/Enforcement of Judgments) (‘the Front Comor’) ECJ 4-Sep-2008
Europa (Opinion) Regulation (EC) No 44/2001 Scope Arbitration Order restraining a person from commencing or continuing proceedings before the national courts of another Member State instead of before an arbitral . .
Cited – UST-Kamenogorsk Hydropower Plant Jsc v AES UST-Kamenogorsk Hydropower Plant Llp SC 12-Jun-2013
Arrangements between the parties owners and operators of a power plant in Kazakhstan required disputes to be arbitrated in London under ICC Rules. That clause was governed by English law, and the remainder by Kazakh law. A ruling by the Supreme . .
Cited – Starlight Shipping Co v Allianz Marine and Aviation Versicherungs Ag and Others CA 20-Dec-2012
The Alexander T, owned by the appellant and insured by the respondents was a total loss. The insurers resisted payment, the appellant came to allege improperly, and the parties had settled the claim on full payment under a Tomlin Order. The owners . .
Lists of cited by and citing cases may be incomplete.
Arbitration, European, Litigation Practice
Updated: 09 July 2022; Ref: scu.248962