Abandon Ship? West Tankers, Gazprom, and Anti-Suit Injunctions under “Brussels Ia”

Abstract

Anti-suit injunctions have long been a contentious issue under EU law. With its West Tankers decision, the European Court of Justice (ECJ) had held that anti-suit injunctions must not be issued by courts of EU member states if the injunctions would curtail the jurisdiction of the courts of other member states. This decision was problematic because it gave free rein to parties who sought to delay arbitration proceedings through “torpedo actions” at state courts. The goal of the present article is to assess whether the ECJ’s conclusion from West Tankers still stands. Two developments give reason to doubt this: first, the ECJ’s decision in the matter Gazprom OAO v. Republic of Lithuania; second, the recast EU regulation on jurisdiction (“Brussels Ia”). The author assesses each in turn and concludes that EU law no longer prohibits anti-suit injunctions that aim at protecting arbitration agreements. Neither does EU law prohibit the recognition and enforcement of anti-suit awards issued by arbitral tribunals.