|
West Tankers Inc and Anr v Ras Riunione Adriatica Di Sicurta SpA and Anr (The “Front Comor”) – House of Lords (Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffmann, Lord Rodger of Earlsferry and Lord Mance) –
The vessel Front Comor was chartered by Erg Petroli Spa under an Asbatankvoy charter dated 24 July 2000 containing a London arbitration clause. In August 2000 the Front Comor collided with ERG’s oil jetty at Syracuse. Erg’s insurers paid Erg a sum in excess of €15.5 million.
The insurers brought court proceedings against the shipowners in the Tribunale di Syracuse in Sicily claiming the amount they had paid to Erg. They relied on their rights of subrogation under the Italian Civil Code.
The shipowners commenced proceedings in the English Court claiming declarations that the dispute which was the subject of the proceedings in Syracuse arose out of the charterparty and that the insurers were bound by the agreement to refer the dispute to London arbitration. The shipowners also claimed an anit-suit injunction.
At first instance Colman J made the declarations claimed by the shipowners. On the question of whether it would be consistent with EC Regulation 44/2001 (“the Regulation”) to grant an anti-suit injunction, he said that he was bound by the decision of the Court of Appeal in Through Transport Mutual Insurance Association (Eurasia) Ltd v New India Assurance Co Ltd [2005] 1 Lloyd’s Rep 67 to hold that it was. He therefore granted the injunction. However, as the question of whether an injunction could be granted had been previously decided by the Court of Appeal, he certified that the case was suitable for a “leapfrog” appeal directly to the House of Lords under section 12 of the Administration of Justice Act 1969.
Held , that the answer to the question whether the grant of an injunction washttp://www.ukassignment.org/daixieEssay/falvessaydaixie/ consistent with the Regulation was not obvious, and would be referred to the Court of Justice under article 234.
English courts regularly granted injunctions to restrain parties to an arbitration agreement from instituting or continuing proceedings in the courts of other countries (The Angelic Grace [1995] 1 Lloyd’s Rep 87). Gasser GmbH v MISAT Srl [2004] 1 Lloyd’s Rep 222 (which decided that a court of a member state on which exclusive jurisdiction had been conferred pursuant to article 23 could not issue an injunction to restrain a party from prosecuting proceedings before a court of another member state if that court was first seised of the dispute) and Turner v Grovit [2004] 2 Lloyd’s Rep 169 (which decided that a court of a member state might not issue an injunction to restrain a party from commencing or prosecuting proceedings in another member state which had jurisdiction under the Regulation, on the ground that those proceedings had been commenced in bad faith) were both based upon the proposition that the Regulation provided a complete set of uniform rules for the allocation of jurisdiction between member states and that the courts of each member state had to trust the courts of other member states to apply those rules #p#分页标题#e#
correctly.Arbitration, however, was altogether excluded from the scope of the Regulation by article 1(2)(d). The basic principles by which the Regulation allocated jurisdiction, giving priority (subject to exceptions) to the domicile of the defendant, were entirely unsuited to arbitration, in which the situs and governing law were generally chosen by the parties on grounds of neutrality, availability of legal services and the unobtrusive effectiveness of the supervisory jurisdiction. There was no set of uniform Community rules which member states could or had to trust each other to apply. While it was true that all member states adhered to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (which article 71 of the Regulation declared to be unaffected) the Convention was not a Community instrument and did not create a system for the allocation of jurisdiction comparable with the Regulation.
Marc Rich & Co AG v Società Italiana Impianti PA (The Atlantic Emperor) [1992] 1 Lloyd’s Rep 342 decided that the exclusion applied not only to arbitration proceedings as such but also to court proceedings in which the subject-matter was arbitration. In Van Uden Maritime BV v Deco-Line [1998] ECR I-7091 the court decided that the subject-matter was arbitration if the proceedings served to protect the right to have the dispute determined by arbitration.
The present proceedings were entirely to protect the contractual right to have the dispute determined by arbitration. Accordingly, they fell outside the Regulation and could not be inconsistent with its provisions. The arbitration agreement lay outside the system of allocation of court jurisdictions which the Regulation created.
There was no dispute that, under the Regulation, the Tribunale di Siracusa had jurisdiction to try the delictual claim. But the arbitration clause was an agreement not to invoke that jurisdiction and it was that agreement which the order of Colman J required to be performed. As Professor Schlosser had pointed out in Anti-suit injunctions zur Unterstützung von internationalen Schiedsverfahren (2006) RIW 486-492, an exclusive jurisdiction clause was in that respect quite different. It took effect within the Regulation under article 23 and its enforcement therefore had to be in accordance with the terms of the Regulation; in particular, article 21. But an arbitration clause took effect outside the Regulation and its enforcement was not subject to its terms.
The most important consideration was the practical reality of arbitration as a method of resolving commercial disputes. People engaged in commerce chose arbitration in order to be outside the procedures of any national court. They frequently preferred the privacy, informality and absence of any prolongation of the dispute by appeal which arbitration offered. The principle of autonomy of the
parties should allow them those choices.
The courts of the United Kingdom had for many years exercised the jurisdiction to restrain foreign court proceedings. Whether the parties should submit themselves to such a jurisdiction by choosing the United Kingdom as the seat of their arbitration was entirely a matter for them. The courts were there to serve the business community rather than the other way round. No one was obliged to choose London. The existence of the jurisdiction to restrain proceedings in breach of an arbitration agreement clearly did not deter parties to commercial agreements. On the contrary, it might be regarded as one of the advantages which the chosen seat of arbitration had to offer.#p#分页标题#e#
Finally, the European Community was engaged not only with regulating commerce between member states but also in competing with the rest of the world. If the member states of the European Community were unable to offer a seat of arbitration capable of making orders restraining parties from acting in breach of the arbitration agreement, there was no shortage of other states which would. New York, Bermuda and Singapore were also leading centres of arbitration and each of them exercised the jurisdiction which was challenged in the present appeal. There seemed to be no doctrinal necessity or practical advantage which required the European Community to handicap itself by denying its courts the right to exercise the same jurisdiction.
Accordingly, the matter would be referred to the European Court of Justice because the question was one of very considerable practical importance on which different views had been expressed by national judges and writers.
The question to be referred was: Is it consistent with EC Regulation 44/2001 for a court of a member state to make an order to restrain a person from commencing or continuing proceedings in another member state on the ground that such proceedings are in breach of an arbitration agreement?
Stephen Males QC and Sara Masters (MFB) for the insurers; Timothy Brenton QC and David Bailey (Ince & Co) for the shipowners. 来源:LIOYD’S MARITIME LAW NEWSLETTER March
|
