The Advocate General (AG) of the European Court of Justice has delivered her Opinion indicating that anti-suit injunctions to give effect to arbitration agreements are not compatible with the Brussels Regulation (the Regulation).

As previously reported by PLC Dispute Resolution (see Legal update, Lords seek ruling on whether arbitration anti-suit injunction consistent with Brussels Regulation) the House of Lords, in February 2007, referred a question to the Court of Justice for a preliminary ruling on this issue. In her Opinion (Allianz SpA (Formerly Riunione Adriatica Di Scurta Spa) and others v West Tankers Inc, Case C-185/07) Kokott AG concluded that the question of whether or not proceedings fall within the scope of the Regulation must be determined from the "substantive subject-matter of the dispute". In West Tankers the subject matter of the foreign court proceedings (alleged to be in breach of an arbitration agreement) was a claim for damages. Such a claim fell within the scope of the Regulation. The existence and applicability of an arbitration clause "merely constitute a preliminary issue" which the court seised must address when examining whether it has jurisdiction. Kokott AG recognised that this interpretation may give rise to conflicting decisions by arbitral bodies and national courts. However, the party asserting a valid arbitration clause is free to argue its case before the foreign court. The use of unilateral anti-suit injunctions is not the answer; instead a legal solution is required, namely the inclusion of arbitration in the Regulation.

The judgment is expected to be released in two to three months' time and it will be interesting to see if it follows the line of the AG's reasoning. PLC Dispute Resolution will produce a full report on this Opinion in due course.