CJEU reaches decision on enforcement of arbitral awards containing anti-suit injunctions in the EU: A sensible decision, but limited in scope

The CJEU has issued its much awaited decision in the reference to the Court of Justice of the European Union (CJEU) by the Lithuanian Supreme Court in the case of Gazprom (C-536/13). The Lithuanian Court referred to the CJEU three questions regarding the effect of the Brussels I Regulation (EC) No 44/2001 (the Regulation). As discussed in our earlier blog piece here, the reference related to a request to enforce an arbitral award which has a similar effect to an anti-suit injunction and has therefore been of considerable interest to the arbitration community. This is particularly the case following the opinion of Advocate General Wathelet which considered not only the text of the original Brussels Regulation, but also the Recast Regulation (see our blog post here for more information).

The CJEU's decision is very clear and will be welcomed by the arbitral community. The CJEU confirmed that arbitration was excluded from the original text of the Regulation. Moving to the question of anti-suit injunctions, the CJEU reiterated that the West Tankers decision precluded member state courts from issuing anti-suit injunctions prohibiting proceedings in another member state court based on the principle of mutual trust. However, since arbitral tribunals were not courts of a member state, this principle did not apply for arbitration. The CJEU therefore found that proceedings for the recognition and enforcement of an arbitral award, even one containing an anti-suit injunction, are covered by national and international law (i.e. the New York Convention) and not by the Brussels Regulation. In short, Lithuania would need to turn to its own national legislation and the New York Convention when considering whether to recognise and enforce the arbitral award.

The CJEU's decision in the Gazprom case is also interesting for what it doesn't cover. The CJEU has focused only on the text of the original Regulation and has shied away from the approach taken by the Advocate General in expanding his analysis to take in the text of the recast Brussels Regulation. The Advocate General adopted a very broad reading of Paragraph 4 of the Recital 12 of the Recast Regulation reaching the view that the Recast Regulation offered scope for anti-suit injunctions between member state courts. This aspect of his analysis has not been considered at all by the CJEU. As such, the Opinion remains in the public domain as the only EU-level consideration of the interpretation of the Recast Regulation. This makes it very likely that anti-suit injunctions and the relevance of West Tankers to the Recast Regulation will be the focus of a referral a member state court in future.

For further information, please contact Matthew Weiniger, Partner, Vanessa Naish, Professional Support Consultant or your usual Herbert Smith Freehills contact.