The Alexandros T. Richard de la Tour AG’s emphatically confirms possibility nay obligation to refuse to recognise ‘quasi anti-suit’ orders.

Richard de la Tour AG’s Opinion in C-590/21 Charles Taylor Adjusting Limited v Starlight Shipping Company and Overseas Marine Enterprises Inc., is to some degree an echo of CJEU C-159/02 Turner v Grovit. I reported the facts of the case in earlier posts concerning the skirmishes between the parties in the English and Greek courts and readers best refer to those posts for the extensive background (de la Tour AG summarises it also (7) ff).

In Greek proceedings, recognition and enforcement (relevant Articles are Article 34 ff Brussels I, now Article 45 ff Brussels Ia) is sought of an E&W cost  and indemnities order [Starlight Shipping Company v Allianz Marine And Aviation Versicherungs AG & Ors [2014] EWHC 3068 (Comm)], based on the infringement of a settlement agreement terminating a previous action brought between the parties. The E&W judgment has the effect if perhaps not the intention of an anti-suit injunction: it deters parties which had brought proceedings before another court of the former Member State from continuing the proceedings pending before it.

(38) the AG concurs with the referring court’s classification of the English judgment as a ‘quasi anti-suit injunction’, in view of the following characteristics of the judgment:

“Although those decisions are not directly addressed to the Greek court and do not formally prohibit the continuation of the proceedings before it, they contain grounds relating to the Greek court’s jurisdiction in the light of the settlement agreements concluded between the parties and pecuniary awards, including the award of an interim payment on account of damages which acts as a deterrent in that it is not a final amount and depends on the continuation of those proceedings. Moreover, they are accompanied by indissociable penalties and injunctions with a view to ensuring that they are enforced. They are addressed in personam to Starlight and ΟΜΕ in order to prevent them from infringing the settlement agreements containing the choice of jurisdiction clause.” (footnotes omitted)

(40) ff the AG then summarises the CJEU case-law on anti-suit (including West Tankers of course): the Brussels regime precludes the grant of an injunction by a court prohibiting a party from commencing or continuing legal proceedings before a court of another Member State; abuse of process arguments or the fact of being a party to arbitration proceedings, does not alter that equation.

Every court seised is itself to determine, under the rules applicable to it, whether it has jurisdiction to resolve the dispute before it,  and a party cannot be deprived, on pain of a penalty, of the possibility of bringing proceedings before a court of a Member State which will verify whether it has jurisdiction.

The limited exceptions to what he calls the ‘principle of non-review of (another court’s) jurisdiction, concern only the stage of recognition or enforcement of judgments and are intended to ensure the application of certain rules on special or exclusive jurisdiction laid down only in that regulation (43): see now A45 BIa. Of note is that even Brussels Ia’s attempt at protecting exclusive choice of court in Article 31(2), has not led to an amendment to (now) Article 45 to include protection for exclusive choice of court (something IMHO the review of Brussels Ia may want to address).

The AG then proposes that the ‘principle of non-review’ is of such fundamental nature, that it must classify as an EU rule of procedural public policy: (53) a

“fundamental principle, in the European judicial area based on mutual trust,  that every court is to rule on its own jurisdiction. (footnote omitted)”

and (54)

“by virtue of the systemic foundation of that prohibition, no exception to it can be admitted, unless it gives effect to a decision which would have been prohibited in direct proceedings.”

I do not know what the AG means by ‘unless it gives effect to a decision which would have been prohibited in direct proceedings’, and I am not sure the CJEU will follow its AG on his quite so absolute formulation of the principle (ordre public exceptions always requiring ad hoc assessment, see eg CJEU Trade Agency).

Of note is that the possibility of refusing recognition was something the Court of Appeal was aware of when it distinguished Turner v Grovit: Starlight Shipping Company v Allianz Marine & Aviation Versicherungs AG & Ors [2014] EWCA Civ 1010, [16]:

“The Greek court is free to consider the Greek claims; it will, of course, have to decide whether to recognise any judgment of the English court that the Greek claims fall within the terms of the Settlement Agreement and have therefore been released. It will also have to decide whether to recognise any judgment awarding damages for breach of the Settlement Agreements and the jurisdiction clauses in both the settlement agreements and the insurance policies. But that is not an interference with the jurisdiction of the Greek court but rather an acknowledgment of the Greek court’s jurisdiction.” (emphasis added)

Geert.

(EU Private International Law, 3rd ed. 2021, ia 2.95 ff.