Arbitral Anti-Suit Measures: Implications of Mutual Trust

Abstract

Abstract Arbitration is a legal promise between the contracting parties, and they should hold their promises. If there is any breach of that promise or any attempt to breach, the violating party should bear the outcomes. Upon a breach of an arbitration agreement, remedies become more crucial than ever to refrain the other party from commencing parallel court proceedings. Together with a stay and damages, a party seeking an effective remedy may benefit from an anti-suit injunction issued by either the court or tribunal. This paper examines the application perspectives of the mutual trust principle to arbitral proceedings while speculating upon anti-suit measures granted by an arbitral tribunal. The discussions particularly highlight the rebirth of the issue in the EU following the Gazprom case and the relevance/irrelevance of the latter to the West Tankers scenario. Considering the reasonings in the respective cases, the paper emphasizes uncertainty about the effectiveness of arbitral anti-suit injunctions and their enforcement. Upon identifying major normative gaps and shortcomings created by the essence of the existing legal rules, the paper reveals possible practical complexities and likely ineffectiveness of such measures. The findings suggest that uncertainties might be ultimately resolved by the revisions of the law which are on the horizon and reassessment of West Tankers by the cjeu or possible revision of the existing Brussels Recast Regulation taking scrutiny of the Gazprom judgment. At this juncture, the paper will briefly delve into the impact of Brexit on anti-suit injunctions in support of arbitration and its implications for arbitration rules and practice in the changing landscape.