As recently reported (see Legal update, West Tankers - AG's Opinion: arbitration anti-suit injunction incompatible with Brussels Regulation), Advocate-General Kokott has, in her long awaited Opinion in West Tankers, rejected the UK's arguments and decided instead that the grant of anti-suit injunctions in support of arbitration agreements was inconsistent with the Brussels Regulation regime. In deciding whether the so-called "arbitration exception" applied, the court should focus not upon the application for an injunction but, rather, upon the foreign substantive proceedings against which the injunction was directed. If the subject matter of those proceedings (here, tort claims brought in the Italian courts) fell within the scope of the Brussels Regulation, then the arbitration exception was not engaged. In such a case it was for the foreign court (and not the arbitral tribunal or the courts at the seat of the arbitration) to rule upon the argument that the claims were subject to an arbitration clause.

The Opinion has been greeted with some dismay by arbitration lawyers, particularly those from a common law tradition. However, it remains to be seen whether the ECJ will adopt the views of Adv-Gen. Kokott and, if so, whether this will have any effect upon London as a seat for international arbitration.