Combar lecture by Sir Richard Aikens

Last night, Sir Richard Aikens delivered the COMBAR lecture.  Among the topics he covered was Regulation 1215/2012 (Brussels I recast).

In the discussion which followed, it was clear that COMBAR members were divided in opinion as to whether Regulation 1215/2012 could be interpreted (and would be interpreted) to permit the English courts to issue anti-suit injunctions in support of arbitration.  It was suggested that this could be supported on the basis of the Advocate General’s Opinion on Gazprom (see our post on this decision) although many thought the CJEU would not be persuaded to follow this path even bearing in mind the changed recitals in the recast regulation.

More than one participant in the discussion had been involved in a case where the possibility of an injunction post Regulation 1215/2012 had arisen. In those cases, however, the arbitration tribunals had adopted procedures so as to resolve the jurisdiction issue promptly and before any substantial steps had been taken in the foreign litigation.

The issue remains one to watch although any party seeking an anti-suit injunction relying on the AG in Gazprom will almost certainly need to be ready for a trip to the CJEU.

“May” or “must” arbitrate – what’s needed for a stay? Anzen Ltd v Hermes One Ltd [2016] UKPC 1

This advice delivered on 18 January 2016 by the Privy Council (a BVI case) examines the effect of a clause in an agreement providing that in the event of any unresolved dispute “any party may submit the dispute to binding arbitration” (emphasis added).

The Board concluded that in this case, the provision conferred an option on either party to require resolution of the dispute in arbitration.  Further, once such a request had been made, the requesting party could also obtain a stay of judicial proceedings under section 6(2) of the Arbitration Ordinance 1976 (Cap 6).  It was not necessary that the requesting party in fact began an arbitration. Continue reading

Recovering Costs of Foreign Litigation Brought in Breach of an Arbitration Clause: Two Bites of the Cherry?

It is well known that English law allows recovery for damages for breach of contract in case of a breach of jurisdiction or arbitration clause (see our post on Blair J’s 2015 decision: Barclays Bank v ENPAM, for example). Parties commonly claim costs of addressing the foreign proceedings as such damages. However, what recovery should there be for an innocent party if the foreign court has already declined jurisdiction and awarded the innocent party its costs of the jurisdictional proceedings? Is there any loss still to be recovered in damages in the correct forum?

This issue was considered in the recent London Arbitration 1/16 (2016) 942 LMLN 2 (published on 11 January 2016). The dispute concerned a series of lay-up contracts, whereby the Respondent laid up vessels in the Claimant’s facility in the Far East. All contracts provided for London arbitration. Continue reading

Pirouetting between jurisdictions: Blue Tropic Ltd v Chkhartishvili [2015] EWHC 3260 (Ch)

A recently reported case features an unusual application for a stay issued, after the conclusion of the trial, but before judgment. The applicant sought a stay based on a parallel proceedings in Georgia in which his counterparts were requesting that the Georgian courts also suspend proceedings pending the English decision.

The English court refused the application.  It found the existence of parallel proceedings to be of the Defendant’s own making and took a dim view of the Defendant’s “pirouetting between jurisdictions”. Continue reading