Research Of The Anti-suit Injunction In International Commercial Arbitration Under The "Brussels ? Regulation"

The development of anti-suit injunction has never been easy,and since it came into being,it has been controversial,especially in the field of foreign affairs.Its issuance has been strongly resisted by various countries(including community),for example,the European Union,which is dominated by civil law countries.Since its establishment,the EU has continuously improved the “Brussels ? Regulation” system to unify jurisdiction conflicts among member states and promote the free flow of judgments,while anti-suit injunctions have broken this harmonious scene.In fact,in Gasser and Turner,the European Court of Justice denied anti-suit injunctions,because when the “Brussels Convention” is applied to the case,the issuance of an anti-suit injunction would undermine the effectiveness of the Convention.However,in matters that do not fall within the scope of the “Brussels ? Regulation”,such as international commercial arbitration,is the above conclusion applicable? This is the main problem to be studied in this article.From the perspective of the arbitration exclusion clause in “Brussels ? Regulation”,and based on two major EU cases,this article aims to explore the EU's position on the issuance of anti-suit injunctions by member courts or arbitral tribunals in support of arbitration.First of all,in West Tankers,the European Court of Justice explicitly prohibited the courts of member states from issuing anti-suit injunctions in support of arbitration within the EU.Although the House of Lords argued that the procedure fell within the scope of the arbitration exclusion clause and would not violate the Regulation,the European Court of Justice held that,even if a procedure did not fall within the scope of the Regulation,it could still affect the effectiveness of the Regulation.In addition,with regard to issues related to the validity of arbitration agreements,the European Court of Justice held that,if the substantive matters fall within the scope of Regulation,a preliminary issue concerning the applicability of an arbitration agreement,including in particular its validity,also falls within its scope of application.Secondly,in Gazprom,the European Court of Justice pointed out that Brussels ? Regulation must be interpreted as not precluding a court of a Member State from recognizing and enforcing,or from refusing to recognize and enforce,an arbitral award prohibiting a party from bringing certain claims before a court of that Member State,since that Regulation does not govern the recognition and enforcement,in a Member State,of an arbitral award issued by an arbitral tribunal in another Member State.The European Court of Justice seems to have given more leniency to the anti-suit injunctions issued by the arbitral tribunals than the courts of member states.Finally,in “Brussels ? Regulation”(Recast),the recital 12 explains the arbitration exclusion clause.Advocate General Wathelet believes,that the clause is intended to exclude all matters related to arbitration,including the anti-suit injunctions.This means that the conclusion of West Tankers is no longer applicable and the anti-suit injunctions have been reborn in the EU.Based on the analysis of EU case law and legislators' intention,this article holds that,this clause cannot be interpreted in this way.In fact,the EU has not yet explicitly allowed the anti-suit injunctions in support of arbitration.The fundamental reasons lie in the differences of anti-suit injunctions between Anglo-American Law System and Continental Law System,as well as the contradiction between the anti-suit injunctions and the basic principles of EU law,which is difficult to reconcile.To sum up,even if there is an arbitration exclusion clause in “Brussels ? Regulation”,the European Court of Justice has not justified the anti-suit injunctions in support of arbitration.The relevant jurisprudence of the European Court of Justice shows that in the European Union: first,the courts of member states are not allowed to issue anti-suit injunctions in support of arbitration;second,the recognition and enforcement of an arbitral award containing an anti-suit injunction made by the arbitral tribunal of a member State shall not be bound by the “Brussels Regulations I”,provided that the application proceeding for enforcement of the award and the parallel proceeding for violation of the arbitration agreement take place in the same member;third,the new interpretation of the arbitration exclusion clause in recital 12 of “Brussels ? Regulation”(Recast)still does not explicitly allow for an anti-suit injunction in support of arbitration.