West Tankers ripples again and again – Tribunal corrected for rejection of its jurisdiction on damages for breach of obligation to arbitrate

The West Tankers v Allianz litigation continues to ripple. The continuing process must also I fear excuse the rather long title of this post. I reported earlier on the confirmation by the Court of Appeal of the High Court’s recognition of the West Tankers award. This opened up the prospect of this judgment travelling through the EU as a ‘judgment’ under the Brussels I Regulation (which might thwart the ongoing Italian proceedings).

At the request of West Tankers, the High Court has now ruled that the panel was wrong in assuming that the Court of Justice’s finding in West Tankers, circumscribed its jurisdiction to award damages for breach of an obligation to arbitrate, by virtue of the right of the Respondents to bring proceedings under Article 5(3) before the Italian courts. The tribunal essentially held (as summarised in the current judgment) that like the English court, it was bound by the principle of effective judicial protection not to interfere with or deprive the Respondents of that right in European law. Flaux J, seeking support in Kokott AG’s very opinion in West Tankers (and the  Court of Justice’s absence of disagreement on that point), held that the jurisdiction Regulation, as is evident from the Judgment in West Tankers, curtails the English courts in their power to issue anti-suit injunctions. However it does not curtail the jurisdiction of the arbitral panel.

Leave to appeal was granted. The judgment therefore is unlikely to be the last instalment.



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