Accommodating anti-suit injunctions in the Brussels I regulation framework: what role should they play?

• Main Author: Sifakis, Nikiforos
• Published: University of Southampton 2007
• Subjects: 347.42077
• Online Access: http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.586604

The principle of anti-suit injunctions has been deeply rooted in the English legal system since the time of division of the English courts and the era of colonisation. Over the years, anti-suit injunctions proved to be the most successful mechanism in safeguarding the English courts' jurisdiction. However, since the ratification of the Brussels Convention 1968, and its updated version Council Regulation 44/2001, an acute jurisdictional problem has surfaced. Due to the nature and underlying philosophy of the Brussels I Regulation, anti-suit injunctions are perceived by Continental courts not as an order in personam, but rather as a means of intruding on those courts' sovereignty, and as such anti-suit injunctions were disallowed by the European Court of Justice from operating in the Brussels I Regulation framework. The purpose of this contribution is to assess whether and how the principle of anti-suit injunctions can be accomodated in the Brussels I Regulation framework thus transforming the principle to a pan- European weapon available to all Member States. In order to achieve the aim set by this contribution, the Introduction presents the legal problem and discusses what an anti-suit injunction is, its rise to prominence in England and why it is considered such an important weapon in the armoury of international commercial litigation in England. Chapter I focuses on the English common law framework, by providing a discussion of the nature of the English jurisdiction system as well as the requirements and principles applicable for the issuance of an anti-suit injunction under the traditional common law rules. Chapter 11 examines the availability and use of anti- suit injunctions in Continental legal systems. Chapter III provides a detailed analysis of the Brussels I Regulation framework, by providing original discussion regarding the nature of the Brussels I Regulation jurisdiction system and an analysis of the Brussels I Regulation provisions relevant to this contribution. Chapter IV deals with the ways in which English anti-suit injunctions are perceived on the Continent as well as the fundamental European Court of Justice decision in Turner v. Grovit and assess its impact on the law on anti-suit injunctions. Chapter V examines arbitration agreements, providing an original discussion on the issue of whether arbitration is excluded altogether from the Brussels I Regulation framework as well as generating questions on how the Brussels I Regulation can be reformed regarding issues relating to arbitration and anti-suit injunctions. Chapter VI analyses the principle of anti-suit injunctions through the prism of the United States of America and examines whether the American framework should act as a model for Europe. Chapter VII affords a comprehensive and detailed analysis on the ways in which the Brussels I Regulation framework should be reformed, by providing in-text detailed re-drafted Brussels I Regulation provisions incorporating the proposed reform alternatives. Finally, the Conclusion provides a summary of the issues and reform proposals discussed in this contribution.