In AES UST-Kamenogorsk Hydropower Plant LLP v UST-Kamenogorsk Hydropower Plant [2010] EWHC 772 (Comm), the Commercial Court held that the court had jurisdiction to grant declaratory and injunctive relief even though there was no actual, proposed or intended arbitration. This was in circumstances where the claimant had a contractual right not to be sued in the foreign country because of an arbitration clause and therefore had, by reason of the contract, a legitimate interest in enforcing that right against the other party to the contract.

Although there was no jurisdiction to grant injunctive relief under section 44 of the Arbitration Act 1996 unless there was an actual or intended arbitration, there was jurisdiction under section 37 of the Senior Courts Act 1981. Nevertheless, the court limited the declaration and the terms of the anti-suit injunction granted so as not to usurp the arbitral process, should an arbitration be commenced. For more detailed discussion of the factual background, see Legal update, Court has jurisdiction to grant declaratory and injunctive relief even where there is no proposed or intended arbitration.

This decision is of practical significance for parties who, while not wishing to commence arbitration, wish to rely on an arbitration clause so as to restrain their counterparty from suing them other than by means of arbitration. In accordance with this decision, such a party would be entitled to seek final declaratory relief from the courts to the effect that the counterparty may not bring any claim under the relevant agreement other than by arbitration, and a final injunction restraining the counterparty from pursuing any existing proceedings in apparent breach of the arbitration clause. The anti-suit injunction in such a case would be granted under section 37 of the Senior Courts Act since no relief would be available under section 44 of the Arbitration Act to a party who had not commenced or did not propose to commence arbitral proceedings.

In SAB Miller v Tanzania Breweries Ltd and Another [2010] EWCA Civ 1564 (see Legal update, SAB Miller Africa v Tanzania Breweries Ltd and Another: Herbert Smith comment), Laws LJ found that the broader powers for interim relief under section 37 of the Senior Courts Act, absent the requirements of section 44(3) to (7) of the Arbitration Act (which include the requirement that an arbitration be intended or commenced), should not be available unless there is very clear provision in the parties' arbitration agreement to that effect. Moreover, the relevant provision in the present case, Article 23(2) of the ICC Rules, provides as follows:

This provision clearly seems to assume that an arbitration is at the very least intended if not commenced.

The SAB Miller decision can be reconciled with the present decision on the basis that the injunction granted in these proceedings was final (it has been held that the restrictions imposed by section 44 of the Arbitration Act do not apply where a final injunction is sought - see Welex AG v Rosa Maritime Ltd [2003] EWCA Civ 938 and Steamship Mutual Underwriting Association (Bermuda) Ltd v Sulpicio Lines Inc [2008] EWHC 914 (Comm)). Equally, the authority of the SAB Miller decision might be questioned given that the other member of the Court of Appeal, Sir David Keene, did not concur with Laws LJ in relation to the above portion of his decision and disposed of the case on separate grounds. However, in circumstances where no mention was apparently made of the SAB Miller decision in the present case, nor of the above-mentioned ICC provision, it is difficult to say how these decisions relate to one another. It remains the case that the relationship between section 44 of the Arbitration Act and section 37 of the Supreme Court Act is the subject of an unresolved tension and that cases involving the interaction of these provisions may yield unpredictable results.