INTRODUCTION

This is a tough topic, because the law has become convoluted and there is also the prospect of changes to European law to remove the inconvenient West Tankers case (10.49 ff).

The following propositions will be developed in this chapter:

(i) A stay of judicial proceedings is the primary mechanism for ‘giving effect’ to an arbitration agreement (10.03 ff). Mustill & Boyd (2001) explain a stay's operation in this context:

(ii) The New York Convention (1958) requires contracting states to give effect to arbitration agreements (10.22).

(iii) But English courts are more robust: they will issue an injunction to stop a party pursuing litigation or arbitration outside England if that conduct is a violation of an arbitration agreement in respect of which the English court has jurisdiction to ‘police’ compliance (10.23 ff).

(iv) However, the English courts have been at logger-heads with the European Court of Justice. In the (in)famous West Tankers case (10.49 ff), the ECJ held that an anti-suit injunction cannot be granted to stop the (English) respondent from commencing or continuing to pursue court litigation in another Member State within the EU.

(v) Outside the geographical zone of this restriction, however, the English courts retain the power to issue anti-injunctive relief, for example if the off ending proceedings are brought in New York or Singapore, these being jurisdictions outside the European judicial area (10.39 ff).

(vi) Member States’ courts must adhere to a decision of an EU Member State court which involves an incidental decision that an arbitration agreement is not valid or operative (10.56 ff).