In Midgulf International Ltd v Groupe Chimique Tunisien [2010] EWCA Civ 66, the Court of Appeal granted an anti-suit injunction restraining Tunisian proceedings brought in breach of an arbitration agreement.

This judgment confirms the decision of the Commercial Court in Roger Shashoua and others v Mukesh Sharma [2009] EWHC 957 (Comm) in May last year (see Legal update, West Tankers has no application in English/Indian proceedings) that anti-suit injunctions in support of arbitration proceedings remain available in so far as they restrain parties from issuing proceedings outside the EU. The West Tankers decision relates to the effect of the Brussels Regulation and has no bearing on the compatibility of anti-suit injunctions with the New York Convention - which compatibility has long been recognised by the English courts.

Toulson LJ's view that Groupe Chimique Tunisien's application to the Tunisian Court for a declaration that the parties had not agreed upon arbitration was repudiatory conduct is also noteworthy. It is arguable that, strictly speaking, such proceedings do not amount to a breach of an agreement to arbitrate. However, in circumstances where such an agreement exists and is valid, such proceedings have the effect of undermining that agreement and party autonomy to choose the means by which a dispute is to be resolved.

Finally, while this decision can thus be considered to be broadly supportive of party autonomy to select arbitration, the Court of Appeal does not seem to have given much consideration to the principle of kompetenz-kompetenz and has effectively decided the question of jurisdiction itself. The decision, as well as the underlying trial of the question at first instance, may be criticised on this basis. However, given that the question of the acceptance of an arbitration clause does not appear to have been readily ascertainable, the approach of the courts might be considered pragmatic.

As a separate point, the judgment of Toulson LJ also includes a strongly worded warning about the length and nature of skeleton arguments in appellate proceedings. For more detailed discussion of the decision, see Legal update, Anti-suit injunctions and the New York Convention.