Flaux J's judgment contains an interesting analysis of the interaction between the principles of European law enshrined in the Brussels Regulation, and arbitration as the forum chosen by the parties. In his judgment, since arbitration falls outside the Brussels Regulation (by virtue of its arbitration exception), the arbitral tribunal was not bound to give effect to the principle of effective judicial protection. According to this principle, member state courts must provide effective means of enforcing community rights: in this context, the right to bring proceedings in the Italian courts. This decision therefore confirms that a tribunal retains the autonomy to come to decisions which are inconsistent with those of member state courts, as its jurisdiction falls outside the Brussels Regulation regime.

This decision also effectively reverses the negative effect on West Tankers of the ECJ's ruling that it would not grant an anti-suit injunction to prevent the Italian proceedings from being pursued (see Legal update, West Tankers ECJ judgment: full report. It means that a party facing parallel proceedings in breach of an arbitration agreement may be able to seek compensation from a counterparty who has sought to negate the arbitration agreement, albeit after the event. This may discourage parties from pursuing so-called "torpedo" actions in future. Parties who find themselves engaged in proceedings in a forum they have not selected will be comforted to know that they will be able to seek this recompense even if an anti-suit injunction is not an option.

However, it is so far uncertain how this decision will play out in practice, particularly as far as enforcement is concerned should the relevant member state hold that it does in fact have jurisdiction to hear the claim, and/or issue an inconsistent judgment on the merits. Depending on where the relevant assets are located, a party may be obliged to approach that same member state court in order to enforce an award, which may prompt that court to deny enforcement altogether (presumably on public policy grounds), as such an award would effectively undermine its own judgment.

It is also doubtful whether a judgment entered in terms of the English award as per the previous Court of Appeal decision (brought under section 66 of the Arbitration Act 1996) (see Legal update, Court of Appeal confirms declaratory awards can be enforced under section 66 Arbitration Act 1996) would assist in obtaining a remedy under the Brussels Regulation regime where it contradicts the decision granted by the Italian courts. The remedies granted in both of these latest decisions may prove to be local solutions and without the teeth required to ensure that they are effective. For this, a comprehensive framework is necessary and we may have to wait until the Brussels Regulation reform is finalised to obtain certainty in that regard.

For more detail on the case, see Legal update, Tribunal not bound by principle of effective judicial protection (Commercial Court). See also West Tankers v Allianz: case tracker which charts the progress of the dispute between these parties. It includes a summary of each decision and links to all legal updates and articles published by PLC on those decisions.