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Anti-Suit Injunctions: Arbitration AgreementsWest Tankers Inc. -v- Ras – Riunione Adriatica di Sicurta SpA and Generali Assicurazioni SpAThe "Front Comor"March 2005

In August 2000 the vessel Front Comor, chartered by the Italian oil company Erg Petroli SpA ("the charterers"), collided with a jetty at a refinery at Syracuse in Sicily owned by the charterers. As a result of the accident the charterers suffered substantial losses, not only in respect of repair costs but also in consequence of their inability to use the jetty until repairs were completed. Some of these losses were insured: others were not.The charterers’ uninsured losses became the subject matter of an immediate claim against West Tankers Inc, the owners of Front Comor ("the Owners"). This was referred to arbitration in London in accordance with an agreement to arbitrate contained in the charterparty, which applied to: "any and all differences and disputes of whatsoever nature arising out of this charter". In due course the charterers recovered their insured losses (totalling more than €15 million) from their Italian insurers ("the underwriters"). The underwriters acted to recover those losses from the Owners by commencing proceedings against them in the court at Syracuse in October 2003.In an effort to avoid having to defend two such similar claims in different jurisdictions, the Owners obtained a temporary injunction from the Commercial Court in London which restrained the underwriters from continuing with the Italian proceedings. Although the court at Syracuse was informed of the grant of the injunction in October 2004, this did not result in the Italian action being stayed. In those circumstances, the underwriters applied to the Commercial Court for the discharge of the injunction.In their submissions to Mr Justice Colman the underwriters emphasised that their subrogated claim in the Italian proceedings was not connected to the charterparty; it was based on a tort committed by the Owners in Italy. They submitted, therefore, that their right to pursue such a claim should be determined by reference to Italian law, rather than English law. The Owners did not dispute that under Italian law the underwriters had by subrogation become entitled to enforce the charterers’ right to sue the Owners in tort. However, they submitted that the question whether such a claim was subject to the agreement to arbitrate was properly a matter for English law, which expressly governed the charterparty. The judge agreed with the Owners and, applying the Court of Appeal’s decision in The "Jay Bola" (1997), held that an obligation to refer the tort claim to arbitration formed an inseparable part of the package of rights that had been transferred to the underwriters by subrogation.Having found that the underwriters were bound by the London arbitration clause in the charterparty, the judge turned to consider whether the underwriters should be restrained from proceeding with the action they had commenced against the Owners in Syracuse. The underwriters submitted that the grant of an anti-suit injunction against them was incompatible with EU Regulation 44/2001 concerning jurisdiction and that the decision of the European Court of Justice in Turner -v- Grovit (2004) precluded such an order as an unjustifiable interference in the business of the courts of a member state. The judge concluded, however, that the reasoning in that decision was inapplicable to anti-suit injunctions in cases that involved breach of arbitration agreements, which fell outside the scope of the Regulation.#p#分页标题#e#The underwriters nevertheless submitted that, in the exercise of its discretion, court should still refuse to grant the injunction. They relied on evidence to the effect that the Italian courts would ignore an anti-suit injunction and make their own decision on whether the Italian proceedings should be stayed because of the arbitration clause. The judge observed, however, that the Court of Appeal had decided in The Angelic Grace (1995) that such an attitude of a foreign court could be treated as irrelevant, at least where the injunction is sought in support of an arbitration agreement. Moreover, the judge considered that the Court of Appeal’s recent endorsement of the application of that approach in Through Transport Mutual -v- New India Assurance (2005) made it unnecessary to consider what weight should be attached to the likely reaction of the Italian courts.The underwriters further submitted that the decision whether to stay court proceedings in order to give effect to an agreement to arbitrate should be taken by the court at Syracuse, rather than in London, in accordance with Article II.3 of the New York Convention. However the judge held that, whilst that Convention identified a duty which rests on the court seised of the court proceedings to decide whether or not to stay those proceedings, it did not vest that court with exclusive jurisdiction to enforce the arbitration agreement. He concluded, therefore, that Article II.3 did not provide a ground for refusal of an anti-suit injunction.Finally, the underwriters urged the court to take into account the fact that this was not a case in which they had committed any breach of an agreement to arbitrate. The judge acknowledged that the court’s refusal to grant an anti-suit injunction in the Through Transport case had rested heavily on the finding that neither the subrogated insurers nor their assured had committed any actionable breach of contract. However, he considered that The "Jay Bola" showed that, in the case of a claim by a subrogated insurer, the availability of a claim for breach of an agreement to arbitrate was not a pre-requisite for the grant of an anti-suit injunction. In his judgment the underwriters were bound to pursue subrogated claims against the Owners by arbitration; their insistence on proceeding in Italy was inconsistent with the Owners’ equitable right to have the claim against them referred to arbitration. Such conduct might not amount to an actionable breach of the agreement to arbitrate, nevertheless the judge was satisfied that it gave rise to a right to be protected by injunctive relief under English law, which governed the agreement to arbitrate.The underwriters’ application for the discharge of the injunction was, therefore, dismissed. The judge further directed that the temporary injunction restraining the underwriters from maintaining the Italian proceedings should be made permanent.#p#分页标题#e#Return to Decisions


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