Boomerang torpedo or futile resistance? English courts continue digging West Tankers

Aficionados of arbitration law will be aware of the long-running West Tankers saga. It pitches the English courts’ urge to uphold commercial arbitration, against the European Court of Justice’s zeal in upholding a pure (and in the case of the arbitration exception, far-fetched) lis alibi pendens rule. The battlefield at issue is the Brussels I Regulation on jurisdiction in civil and commercial matters. The Court of Justice ruled in February 2009 [Case C-185/07] that the English courts were out of their league in issuing an anti-suit injunction, prohibiting Allianz and Generali from pursuing the case in the Italian courts (on the basis of Article 5(3)’s special jurisdictional rule for tort) and obliging them to take the case to arbitration in London. Thus two cases continued: one, an arbitration proceeding, in London, with West Tankers and Erg (the initial counterparty) participating, but not Allianz and Generali (the insurers, subrograted into Erg’s rights). The other, for the Italian courts in ordinary, the current fate of which is less clear.

It would seem that West Tankers is now attempting to turn the Italian torpedo (launching proceedings in an Italian court to delay them) into a boomerang, by having the English courts enforce the arbitral award rendered in the meantime.

While this intention is not as such formulated, one assumes that this manoeuvre in part at least is meant to ensure that any judgment eventually rendered in Italy, will not be enforceable in England (or indeed elsewhere in the EU) as the High Court’s enforcement might qualify as a ‘prior’ judgment between the same parties, per Article 34 of the Regulation. One gets the feeling that West Tankers will once again end up in Luxembourg… I have an article on all the above forthcoming and will put it on SSRN once finalised.

Geert.

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