On 4 December 2014, Advocate General Wathelet of the Court of Justice of the European Union delivered an Opinion in the Gazprom case to the effect that the Brussels Regulation does not compel the courts of an EU Member State to refuse to enforce an arbitral award which contains an anti-suit injunction on the basis that it is inconsistent with the Regulation. The Opinion, which is a departure from the controversial ruling in West Tankers, has generated considerable interest, not least because, in reaching his conclusion, the Advocate General relied heavily on the Recast Brussels Regulation (Regulation No. 1215/2012 on jurisdiction and the recognition and enforcement of civil and commercial matters), which does not come into force until 10 January 2015.
Although an Advocate General’s Opinion does not bind the Court of Justice, it is unusual in practice for the court not to follow an Opinion. As we await the Court’s ruling, the Opinion will inevitably re-open the issue of availability of anti-suit injunctions contained within arbitral awards to restrain proceedings in the courts of Member States and invite a closer analysis of the Recast Brussels Regulation as clarifying how the arbitration exception should be properly construed by the courts.
For more details, please see the article here.
Case C‑536/13: “Gazprom” OAO