Applications to Court

What remedies are available where a party commences court proceedings in breach of an arbitration agreement, or initiates arbitration in breach of a valid jurisdiction clause? This note considers the power of the English court to grant an anti-suit injunction to restrain foreign court or arbitration proceedings where these have been commenced in breach of an arbitration agreement. The effect of the ECJ decision in Allianz SpA v West Tankers Inc (Case C-185/07) is analysed, and guidance is given on practice and procedure.

For an example claim form for an anti-suit injunction under section 44 of the Arbitration Act 1996 or section 37 of the Senior Courts Act 1981 (or both), in support of arbitration proceedings, please click here.

For an example witness statement in support of a claim for an anti-suit injunction under section 44 of the Arbitration Act 1996 or section 37 of the Senior Courts Act 1981 (or both), please click here.

An example draft order for an application to remove an arbitrator under section 24 of the English Arbitration Act 1996, with integrated drafting notes.

An example witness statement supporting an application to remove an arbitrator under section 24 of the English Arbitration Act 1996, with integrated drafting notes.

This is an example claim form for a freezing injunction in support of an arbitration. Click here to view it.

This is an example witness statement for a freezing injunction in support of an arbitration. Click here to view it.

Click here to access the Word version of this form. Click here to access the pdf version of this form.

This is a claim form for an application to enforce a New York Convention arbitration award and to enter judgment in terms of the award, pursuant to section 101 of the Arbitration Act 1996. This document is only available in MS Word format. Click here to view it.

This is a witness statement in support of an application to enforce a New York Convention arbitration award and to enter judgment in terms of the award, pursuant to section 101 of the Arbitration Act 1996. This document is only available in MS Word format. Click here to view it.

This case study illustrates the procedure for resisting enforcement of a New York Convention award. The factual scenario is the same as that in Enforcing a New York Convention arbitration award: case study and proceeds from the point where the award creditor has obtained an order, on a without notice basis, granting permission to enforce the award. The award debtor must now apply to the English court to set that order aside.

A witness statement in support of the application to set aside an order giving permission to enforce a New York Convention award. This document is only available in MS Word format. Click here to view it.

A flowchart setting out the stages when making or responding to arbitration claims in the English courts. For more detailed guidance, please see Practice note, Arbitration claims: applications to the English court.

The High Court has refused permission to serve an arbitration claim form out of the jurisdiction, refused to make an order appointing an arbitrator, and stayed English court proceedings pending a ruling by the Indian courts as to the location of the seat of the arbitral proceedings.

An article highlighting the key arbitration-related developments in the EU in 2011/2012. 

An article highlighting the key arbitration-related developments in India in 2011. 

An article highlighting the key arbitration-related developments in the United States in 2011/2012. 

An article evaluating the European Commission's proposals to bring arbitration-related court proceedings within the scope of the Brussels Regulation.

This article addresses the concept of "anti-arbitration" injunctions, made to restrain arbitrations. Consideration is given to the important case of Weissfisch v Julius, against the background of previous caselaw and academic commentary.

We have published a case study which provides an example of an application to the English court for an order removing an arbitrator under section 24 of the English Arbitration Act 1996.

Andrew Robertson (Partner) and Ryan Kuss (Law Clerk), Piper Alderman The Federal Court of Australia has ordered court proceedings to be stayed and the matter to be referred to arbitration in Milan in accordance with an agreement between the third applicant and the first respondent in a dealership agreement. All related proceedings were stayed pending the outcome of the arbitration.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate) and Daniel Hickman (Associate), White & Case LLP The United States District Court for the Eastern District of Virginia has declined to recognise incorporation of the International Chamber of Commerce arbitration rules in an agreement to arbitrate as "clear and unmistakable" intent to let the arbitral panel decide threshold questions of arbitrability.

We have published a case study that illustrates an application to the English court for a freezing injunction in support of an arbitration, according to section 44 of the Arbitration Act 1996. (Free access.)

Eduardo Damião Gonçalves (Partner), Flávio Spaccaquerche Barbosa (Associate) and Diego Nocetti (Associate), Mattos Filho Advogados In a decision published on 2 February 2012, the Brazilian Superior Court of Justice (STJ) acknowledged that an arbitration clause inserted in an umbrella agreement is valid for all connected agreements, even if these do not contain any such provision. Additionally, the STJ has, for the first time, partially recognised a foreign arbitral award, on the grounds of res judicata, as some issues addressed by the arbitrators had already been finally settled in judicial proceedings before Brazilian courts.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The US Supreme Court has vacated a Florida Court of Appeal decision that upheld a trial court’s denial of a motion to compel arbitration because the Court of Appeal found that two of the four claims at issue were non-arbitrable and so failed to address the remaining two claims.

PLC Arbitration has published a case study of an application to the English court for an injunction restraining proceedings brought in breach of an arbitration clause under section 44 of the Arbitration Act 1996 or section 37 of the Senior Courts Act 1981 (or both). (Free access.)

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The United States District Court for the Middle District of Florida has found that an arbitrator, and not the court, must decide whether the actions of the parties prior to filing in court were sufficient to fulfill the conditions precedent to arbitration included in the parties’ arbitration agreement.

PLC Arbitration has published three draft orders, with an accompanying drafting note, on challenging arbitration awards in the English courts under sections 67, 68 and 69 of the Arbitration Act 1996. (Free access.)

Stephan Wilske (Partner) and Claudia Krapfl (Associated Partner), Gleiss Lutz In a decision dated 30 June 2011, but only recently published, the Federal Court of Justice held that an application to the court to determine whether or not arbitration is admissible is timely if the application is received by the court prior to constitution of the arbitral tribunal. It is not necessary for the application to be served on the other side prior to constitution of the arbitral tribunal.

H. Jayesh (Founding Partner) and Priyanka Gandhi (Associate), Juris Corp In a recent decision, the Supreme Court of India held that an arbitration clause in an agreement would not, under certain circumstances, eliminate the power of the high courts or the Supreme Court to decide disputes between the parties.

An update on the Civil Procedure Rule Committee's proposals to amend Practice Direction 62 (Applications for permission to appeal under section 69 of the Arbitration Act 1996).

Ruth Byrne (Solicitor Advocate) and Joanne Greenaway (Professional Support Lawyer), Herbert Smith LLP The English High Court has considered the relationship between section 9(3) of the English Arbitration Act 1996 (which provides that a party to proceedings which have been brought in breach of an arbitration agreement, may apply for a stay) and the English Civil Procedure Rule 11 (CPR Part 11) (which provides the procedure for disputing the court's jurisdiction).

On 4 September 2008, Advocate General Kokott delivered her opinion that anti-suit injunctions against proceedings in another member state brought in breach of an arbitration agreement are incompatible with EC law.

The Court of Appeal has upheld the decision of Cooke J (see Legal update, Interplay of substantive and curial law in international arbitration) and ordered the continuation of a final injunction preventing the defendant insurers from bringing proceedings in New York to challenge an award. In C v D [2007] EWCA Civ 1282, the underlying contract was a "Bermuda Form" insurance policy in the usual terms, referring disputes to arbitration in London, and applying New York law to issues arising under the policy. On appeal, the defendant argued that as the arbitration agreement was silent as to its proper law, it should not follow the seat of the arbitration (namely London) but should follow the proper law of the contract (namely New York law) thus allowing challenges to the award in the New York courts. The Court of Appeal dismissed the appeal and continued the injunction. By chosing London as the seat of arbitration, the parties must be taken as having agreed that proceedings on the award should only be those permitted by English law. To allow the remedies available under New York law would be a recipe for litigation. Even where there is no express law of the arbitration agreement, it will rarely be the case that the law of the (separable) arbitration agreement will be different from the law of the seat of the arbitration. It is more likely that the law with which the arbitration agreement has its most close and real connection will be the law of the seat of arbitration,

The House of Lords has asked the European Court of Justice to consider whether it is consistent with the Brussels Regulation for an EU member state's court to restrain parties from commencing or continuing proceedings in another member state on the ground that such proceedings are in breach of an arbitration agreement.

Drafting notes to accompany the draft order in support of an application for an anti-suit injunction under section 44 of the Arbitration Act 1996 or section 37 of the Senior Courts Act 1981 (or both).

Drafting notes to accompany the claim form on an application for an order to remove an arbitrator under section 24 of the English Arbitration Act 1996.

These are drafting notes to accompany the example claim form for a freezing injunction in support of an arbitration.

These are drafting notes to accompany the example witness statement for a freezing injunction in support of an arbitration.

Drafting note to accompany the draft order for enforcement of a New York Convention arbitration award and entering judgment in terms of the award, pursuant to section 101 of the Arbitration Act 1996.

Drafting notes to accompany the draft order in the case study on resisting enforcement of a New York Convention award.

In Beijing Jianlong Heavy Industry Group v Golden Ocean Group and others [2013] EWHC 1063 (Comm), the Commercial Court considered the validity of the arbitration clauses contained in guarantees that were unenforceable for illegality.

The Nigerian Court of Appeal has considered whether a dispute concerning a winding-up petition is arbitrable, even when legislation grants jurisdiction to the Federal High Court.

In Assaubayev and others v Michael Wilson & Partners Ltd [2012] EWHC 90223 (Costs), the court considered an application to stay proceedings under section 9 of the Arbitration Act 1996 or under the court’s inherent jurisdiction.

In Petrochemical Industries Company (KSC) v The Dow Chemical Company [2012] EWHC 2739 (Comm), the court gave guidance on applications to review arbitral awards on the basis of serious irregularity under section 68 of the Arbitration Act 1996.

In Bitumex (HK) Company Ltd v IRPC Public Company Ltd [2012] EWHC 1065 (Comm), the court considered whether to make a retrospective order for alternative service of an arbitration claim form outside the jurisdiction.

In Enercon GmbH and another v Enercon (India) Ltd [2012] EWHC 689 (Comm), Eder J considered whether to grant permission to serve an arbitration claim form out of the jurisdiction, make an order appointing an arbitrator under section 18 of the Arbitration Act 1996, and continue interim anti-suit and freezing injunctions.

In Nomihold Securities Inc v Mobile Telesystems Finance SA [2012] EWHC 130 (Comm), Andrew Smith J considered whether to grant an anti-arbitration injunction on the basis that the issues raised in the proposed arbitration gave rise to an issue estoppel.

The Commercial Court has granted a stay of proceedings that concerned claims that were, in substance, the same as disputes that had already been referred to arbitration.

In PT Thiess Contractors Indonesia v PT Kaltim Prima Coal and another [2011] EWHC 1842 (Comm), the Commercial Court refused a stay of proceedings under section 9 of the Arbitration Act 1996, holding that the claims fell within the scope of an English non-exclusive jurisdiction clause, not a Singapore arbitration clause. (Free access)

In JSC BTA Bank v Ablyazov and others [2011] EWHC 587 (Comm) Christopher Clarke J considered whether the court should determine issues relating to the validity of an arbitration agreement in the context of a stay application brought pursuant to section 9 of the Arbitration Act 1996.

An update on Chalbury McCouat International Ltd v PG Foils Ltd [2010] EWHC 2050 (TCC), in which the court considered under section 2(4) of the Arbitration Act 1996 whether, by reason of a connection with England and Wales, it was appropriate to exercise its powers under section 18 of the Arbitration Act 1996.

An update on Transfield Shipping Inc v Chiping Xinfa Huayu Alumina Co Ltd [2009] EWHC 3642 (Comm), in which the court considered the appropriate test to be applied in deciding whether to grant an anti-suit injunction based on an alleged arbitration agreement between the parties.

An update on The Mayor and Commonalty & Citizens of the City of London v Ashok Sancheti [2008] EWCA Civ 1283 regarding a claim for a stay of proceedings under section 9 of the Arbitration Act 1996.

In Mobil Cerro Negro Ltd v Petroleos de Venezuela SA [2008] EWHC 532 (Comm), Walker J set aside a freezing injunction which had been granted in support of claims to be determined in a New York arbitration. Walker J held that, in the absence of factors connecting the defendants with the jurisdiction (such as residence or the presence of assets within the jurisdiction), the English court should not intervene. Furthermore, the evidence had failed to establish that it would be just and convenient to grant the injunction, or that the requisite degree of urgency existed. The case is significant in a number of respects. It confirms that the court's power, under section 44 of the Arbitration Act 1996, to intervene to support a foreign arbitration is analogous to the court's power under section 25 of the Civil Jurisdiction and Judgments Act 1982 in respect of foreign litigation, and that similar principles apply in each case. In non-fraud cases, a clear connection with England and Wales is required before the English court will exercise its long-arm jurisdiction under either provision. However, the judgment of Walker J leaves open a number of unanswered questions in connection with the exercise of the court's discretion under section 44.

In West Tankers Inc (Respondents) v RAS Riunione Adriatica di Sicurta SpA and others (Appellants) [2007] UKHL 4, the main question facing the House of Lords was whether a Member State court may grant an injunction against a person bound by an arbitration agreement to restrain him from commencing or prosecuting proceedings in the courts of another Member State which has jurisdiction to entertain the proceedings under the Brussels Regulation. The dispute involves the Respondents, West Tankers, defending two sets of proceedings. The charterers commenced an arbitration against them in London claiming uninsured losses. The insurers, RAS, initiated Italian court proceedings against West Tankers to recover amounts paid to the insured. In 2005, Colman J granted an injunction restraining RAS from pursuing the Italian proceedings on the basis that it was not inconsistent with the Brussels Regulation to do so. The House of Lords' Opinion of 21 February 2007 provides a clear summary of the English court's jurisdiction to grant anti-suit injunctions in the context of arbitration proceedings, and relevant decisions, from both the English Courts and the Court of Justice. The Lords emphasise the importance of party autonomy in arbitration and the legal certainty promoted by the English court's supervisory jurisdiction to restrain foreign proceedings, a tool which has been carefully developed and applied. Although current English authority is that such injunctions are consistent